Suhas Chandra Sen, J. - (1.) The Tribunal has referred the following two questions of law under Section 256(1) of the Act : "(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the deferred rebate of Rs. 10,30,731 allowed to the shippers was not admissible as a deduction from the gross amount of freight earnings before computation of the applicant's income from shipping business under Section 44B of the Income-tax Act ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the special rebate of Rs. 2,36,024 allowed to Government and semi-Government shippers was not deductible from the amount of freight earnings for the purpose of determining the applicant's income from shipping business under Section 44B of the Income-tax Act, 1961 ?"
(2.) The relevant year of assessment is 1978-79 for which the accounting year ended on December 31, 1977. In the statement of case, the Tribunal has recorded the following facts : "The Income-tax Officer noted that the business of the assessee was in operation of ships at various Indian ports. It claimed the deferred rebate of Rs. 10,30,731 on amounts payable in and outside India. The Income-tax Officer disallowed the claim, as, according to him, the provisions of Section 44B did not provide for deduction on account of such deferred rebate. The assessee took up the matter before the Commissioner of Income-tax (Appeals), who noted that this point was covered by his earlier decision dated December 30, 1980, which was against the assessee. The Commissioner of Income-tax (Appeals) also noted that the Income-tax Officer was justified in excluding another sum of Rs. 2,36,024 by way of special rebate allowed to Government and semi-Government shippers because this was an application of the actual freight already accrued. In respect of the claim for deduction relating to deferred rebate, it was pointed out before the Appellate Tribunal at the time of the hearing of the appeal that the points were decided by the Appellate Tribunal in the case of the assessee for the assessment year 1976-77, which was against the assessee. The assessee's learned counsel, however, pointed out that a reference is still pending and the assessee wanted to keep the matter alive. Accordingly, the Appellate Tribunal, considering the facts of the case, declined to allow the appeal by the assessee for the year under appeal after considering the order of the Appellate Tribunal for the earlier year."
(3.) The claim for deduction of deferred rebate and special rebate was considered in the assessee's own case for the assessment year 1976-77. In that case, it was held by the Tribunal that the assessee's claim for any rebate after the freight was actually earned could not be allowed. The Tribunal, following its decision for the assessment year 1976-77, decided the case against the assessee. From the order of the Tribunal, a reference came up before this court but no answer was given to the question because no paper book had been filed at all.;