BHAGABATI PRASAD BENERJEE, J. - (1.) THE following question of law have been referred to this Court by the Tribunal under s. 256(1) of the IT Act, 1961: "(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in rejecting the assessee's claim for weighted deduction in respect of the following items- (i) Packing credit interest under s. 35B1) (b) (viii) 24,48,257 (ii) Part due/overdue interest on export under s. 35(1)(b) (viii) 2,83,483 (iii) Bank charges including cost of remittance 4,12,427 (iv) Exchange losses on export under s. 35B(1)(b)(vii) 2,00,000 (v) Freight and insurance under s. 35B(1) (v) and (viii) 1,48,16,312 (vi) Packing and handling under s. 35B(1) (v) and(viii) 1,84,58,697 (2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in not admitting the additional ground concerning a claim for allowance of weighted deduction under s. 35B of the IT Act of Rs. 2,18,54,489 as salary (instead of Rs. 1,44,296 in the ground already taken). (3) Whether, the Tribunal was right in rejecting the aforesaid additional ground even on merits. (4) Whether, the Tribunal was right in rejecting the assessee's claim for deducting of the surtax liability in computing its total income ?"
(2.) THE assessment year involved is the asst. yr. 1977-78 for which the relevant period of account is the year ending on 3rd July, 1976. The first question is now concluded by the decision of this Court in the assessee's own case in respect of earlier year in the case Brook Bond India Ltd. vs. CIT (IT Ref. No. 13 of 1983 judgement delivered on 3rd Aug., 1989). Following the aforesaid decision the question has to be answered in the affirmative and in favour of the Revenue. Question No. 4 is also concluded by the decision of this court in the case of Mollins of India Ltd. vs. CIT (1983) 35 CTR (Cal) 254 : (1983) 144 ITR 317 (Cal). Following the aforesaid decision, the question No. 4 has to be also answered in the affirmative and in favour of the Revenue.
(3.) WITH regard to 2nd and 3rd questions, the Tribunal has held as follows : "Therefore, before allowing any part of the claim over and above the salary of the export department, the entire expenditure incurred by the assessee would have to thoroughly scrutinised and those expenses which could be considered to be eligible for weighted deduction would have to be sorted out. Such course would involve a fresh investigation and enquiry over the entire facts and circumstances of the case. This is prohibited by the decision of the Supreme Court reported in Addl. CIT vs. Gurjargravuers P. Ltd. 1978 CTR (SC) 1 : (1978) 111 ITR 1 (SC) and is not contemplated to be permissible even by the Andhra Pradesh High Court in CIT vs. Gangaappa Cables Ltd. 1978 CTR (AP) 332 : (1979) 116 ITR 778 (AP) which merely sought to draw a distinction from the decision in Gurjargravures' case (supra). The claim having never been made before the authorities below and not being prima facie allowable unless a fresh and thorough investigation is made into the facts of the case, the same, therefore, cannot be entertained at this stage. We, therefore, refuse to allow the assessee to raise this additional ground." The question is whether the Tribunal will allow taking additional grounds or not is a discretionary matter. The Tribunal has given reasons for not exercising the discretion and from the reasons it appear that the Tribunal has judicially exercised its discretion. We find no reason to interfere with the discretion exercised by the Tribunal with regard to question Nos. 2 and 3. Accordingly these two questions must also be answered in the affirmative in the favour of the Revenue.;