Per Shri A. V. Balasubramanyam, JM - This appeal by the assessee relates to assessment for the year 1980-81. The appeal has a history. - (1.)
(2.)The assessee had export trade in garments during the previous year and in respect of certain items of expenditure weighted deduction under section 35B had been claimed. Among others, there were the following two the particulars of which are as hereunder : judgement_7235_tlit0_19890.htm In respect of commission, the Income-tax officer had allowed the claim. Relief in respect of legal charges had been refused. There were also other claims under section 35B in respect of which the assessee had failed before the income tax office.
The assessee had appealed from the assessment and the Appellate Asst. Commissioner allowed the claim vide his order dated 30-9-1983. For the sake of convenience we will call this order as the First order by the Appellate Asst. Commissioner. Objecting to the same the revenue had appealed to the Tribunal and the proceeding was ITA No. 1092/Bang/1983. This appeal was of along with appeal for 1979-80. The Tribunal restored the matter to the appellate Asst. Commissioner and the short order reads as hereunder : "The appeals are by the revenue against the direction of the Appellate Asst. Commissioner to allow weighted deduction under section 35B of the Income-tax Act. The matter has been dealt with by us in detail in the assessees own case in ITA Nos. 162 & 163/Bang/1982 dated 21st. November, 1983. The order of the Appellate Asst. Commissioner is set aside and the appeals are restored to him for deciding the issue in accordance with law in the light of our earlier order." ITA Nos. 162 & 163/Bang/82 referred to in the order certain to appeals for the years 1977-78 and 1978-79.

(3.)WHEN the matter went back to the Appellate Asst. Commissioner he considered the eligibility in respect of the items involved. With regard to legal charges, the assessees claim failed once again. The Appellate Asst. Commissioner took up the claim in respect of commission presumable exercising powers under section 251[1] [a] being of the view that the Income tax officer had misdirected himself in allowing after giving an opportunity stipulated in sub section [2] of section 251. He held that weighted deduction in respect of commission was not allowable in view of the decision of the Madras High court in the case of CIT v. Southern Sea foods [P.] Ltd. [1983] 140 ITR 855 since, admittedly, the payment had been made in India.