- (1.) THE Tribunal has referred the following questions set out at p. 2 of the paper book, for our opinion : "1. Whether, on the facts and in the circumstances of the case, the finding of the Tribunal that the expenditure of Rs. 3,63,977 incurred as commission on the UK selling agent was for the purpose of maintenance of an agency for the promotion of sales outside India only is based on any relevant evidence or perverse ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in allowing weighted deduction under S. 35B(1)(b)(iv) on the commission of Rs. 3,63,977 paid to UK Export Agency ?"
(2.) THE assessee is M/s Goodricke Group Ltd. The assessment year is 1980-81. The assessee is a resident company, derived income from sale of tea manufactured out of leaves grown in its own garden. During the assessment year the assessee has claimed weighted deduction under S. 35B of the Act, on export market development allowance which includes the commission paid to UK selling agent for the purpose of maintenance of any agency for the promotion of sales outside India. The claim of the assessee was rejected by the ITO. In appeal before the CIT(A), the CIT(A) has confirmed the view taken by the ITO. In the second appeal before the Tribunal, the Tribunal has allowed the claim of the assessee under S. 35B(1)(iv) of the Act, 1961. At the outset the learned counsel for the assessee, Mr. Bajoria submits that the issue regarding allowance of weighted deduction on commission payment is concluded by the decision of the Supreme Court in Arvind Parmila Works Ltd. vs. CIT (1999) 153 CTR (SC) 205 : (1999) 237 ITR 284 (SC) and issues decided against the assessee. However, he submits that as the assessee has claimed weighted deduction on payment of commission not only under S. 35B(1)(b)(iv), but also on the other sub-clauses, i.e., 35B(1)(b)(ii) and (viii). If it is not allowable under sub-cl. (iv), the Tribunal should consider whether weighted deduction can be allowed in other clauses such as sub- cls. (ii) and sub-cl. (viii) of cl. (b) of sub-s. (1) of S. 35B. He drew our attention to p. 32 of the paper book showing part of the judgment of the CIT(A) which reveals that the assessee has claimed weighted deduction on commission under sub-cl. (ii) and sub-cl. (iv) and (viii) of cl. (b) of sub-s. (1) of S. 35B of the Act. Therefore, if the weighted deduction is not allowable under sub-cl. (iv) of cl. (b) of sub-s. (1) of S. 35B, then the matter may be remanded back to the Tribunal to consider the claim of the assessee under other sub-cls. (ii) and (viii) of cl. (b) of sub-s. (1) of s. 35B of the Act.
(3.) THE learned counsel for the Revenue supported the decision of the Tribunal.;