Commissioner of Income Tax, Bombay City-II vs Tata Engineering and Locomotive Co. Ltd.

Kania, J.—This is an application under s. 256(2) of the I.T. Act, 1961 (hereinafter referred to as "the said Act"), for directing the Income Tax Appellate Tribunal to state a case and refer to this court the following question :

"Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the assessee-company was entitled to a weighted deduction in respect of the commission paid by it to Tata Exports Ltd. in terms of sub-clauses (i), (ii), (iv), (v), (vii) and (viii) of section 35B(1)(b) of the Income Tax Act, 1961 ?"

In respect of the assessment year 1970-71, the ITO concerned allowed a weighted deduction of Rs. 1,08,000, being one-third of the amount of Rs. 3,24,000 representing the commission paid by the respondent-assessee to Tata Exports Ltd. This commission was paid in India in connection with the export of the assessee''s products outside India. After issuing a show-cause notice the Commissioner exercised his powers under s. 263 of the said Act and held that the assessee was not entitled to the weighted deduction of Rs. 1,08,000 as the amount was paid by the assessee to Tata Exports Ltd. The Commissioner held that under the agreement between the assessee and Tata Exports Ltd. Tata Exports Ltd., was expected to perform a variety of functions, many of which did not fit in with any of the clauses of s. 35B(1)(b) of the said Act. He further held that the commissioner paid by the assessee to Tata Exports Ltd. was a single payment towards everything done by the said Tata Exports Ltd. for the assessee during the relevant year and the payment could not be split up. He further held that clause 7 of the said agreement amounted to a provision relating to carriage of the assessee''s products to their destination outside India and expenditure for this was not entitled to weighted deduction as per clause (iii) of s. 35B(1)(b) of the said Act, irrespective of whether it was incurred in or outside India. The assessee preferred an appeal to the Tribunal against this decision. The Tribunal found that the commission paid by the assessee to Tata Exports Ltd. was for services falling under sub-cls. (i), (ii), (iv), (v), (vii) and (vii) of s. 35B(1)(b) of the said Act. In the application for reference made by the petitioner before the Tribunal the petitioner applied for the same question as set out aforesaid being referred to this court for determination. That application was rejected by the Tribunal on the ground that the findings of the Tribunal were findings of fact based on appreciation of evidence on record, and hence no question of law arose from the same.

What Mr. Joshi, the learned counsel for the petitioner, had sought to argue before us is that there was no evidence before the Tribunal to come to the conclusion that the commission paid by the assessee to Tata Exports Ltd. fell under the aforesaid sub-cls. (i), (ii), (iv), (v), (vii) and (viii) of s. 35B(1)(b) of the said Act and that the said expenses in fact fell under sub-clause (iii) of the said provision.

In our view, these submissions of Mr. Joshi are not reflected at all in the question which the petitioner had sought to raise, not does the order of the Tribunal show that submissions to that effect were made before the Tribunal.

In these circumstances, the application is rejected and the rule is discharged with costs.