Syed Shah Mohammed Qua-Dri, J. - (1.) In these five appeals the parties are common; the Revenue is the appellant and the assessee is the respondent. C.A. Nos. 2600-03 of 1994, which relate to the assessment years 1967-68 to 1970-71, arise from the judgment and order of the Division Bench of the High Court of Judicature at Bombay in Income-tax Reference No. 242 of 1976 dated December 12, 1988. Following that judgment the Division Bench disposed of Income Tax Reference No. 10 of 1987 which pertains to the assessment year 1974-75 on July 30, 1998 which is under challenge in Civil Appeal No. 3788 of 1999. The common substantial question of law, which arises in these appeals is question No. 2 noted below.
(2.) Briefly stated, the facts giving rise to these appeals are as follows: The respondent-assessee is an Indian resident company. It is carrying on the business of exporting tea. In the aforementioned assessment years it claimed weighted deduction under Section 35-B of the Income-tax Act (for short 'the Act') in respect of the expenditure of Rs. 1,95,935/- incurred on export of tea from East Africa to the United Kingdom. The claim was disallowed by the Income-tax Officer on the ground that Section 35-B would apply only if the exports were made from India. That view was upheld by the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal. Among others, the following two questions in Income Tax Reference No. 242 of 1976 and question No. 2. in Income Tax Reference No. 10 of 1987 were referred to the High Court of Judicature at Bombay by the Income-tax Appellate Tribunal under Section 256(1) of the Act: "(1) Whether on the facts and in the circumstances of the case, the provisions of Section 40(c)(iii)/40(a)(v) applied in the case of the employees of the Assessee in its overseas branches (2) Whether on the facts and in the circumstances of the case, the assessee is entitled to weighted deduction under Section 35-B in respect of the expenditure of Rs. 1,95,935/- incurred on export of tea from East Africa to the United Kingdom -
(3.) The first question was answered in the negative i.e. in favour of the assessee and against the Revenue following the judgment in the case of the respondent-assessee for the earlier assessment years in Bombay Burmah Trading Corporation Ltd. v. Commissioner of Income Tax, Bombay City-IV, (1984) 145 ITR 793. It is conceded by the learned counsel for the parties that this question is covered against the Revenue by the judgment of this Court in Commissioner of Income-tax v. Continental Construction Ltd., (1998) 230 ITR 485 affirming the judgment in Continental Construction Ltd. v. Commissioner of Income Tax, (1990) 185 ITR 178.;