2003 (9) TMI 37 - HC - Income Tax

Whether, Tribunal was right in concluding that the counter sales within India, against foreign currency, should be treated as export sales? - The expenditure referred to in sub-clause (iii) of section 35B(1)(b) refers to sales outside India and not within India. Hence in our opinion section 35B is not attracted at all to the sales in question since they are sales made within India. - The question referred to us therefore is answered in the negative, i.e., in favour of the Department and against the assessee.

Summary

Issues:
1. Interpretation of section 35B of the Income-tax Act, 1961 regarding weighted deduction for expenditure.
2. Determination of whether counter sales within India, against foreign currency, should be treated as export sales for the purpose of section 35B.

Analysis:
The High Court of Allahabad, in this income-tax reference case, addressed the interpretation of section 35B of the Income-tax Act, 1961. The court focused on the specific question of whether counter sales within India, against foreign currency, should be considered as export sales for the purpose of claiming weighted deduction under section 35B. The assessee in this case was a firm dealing in jewellery and antiques, selling to foreigners against foreign currency at a showroom in Agra.

Section 35B(1)(b) of the Income-tax Act provides for weighted deduction for expenditure incurred wholly and exclusively on certain activities related to business operations outside India. These activities include advertisement or publicity outside India, obtaining market information outside India, and distribution of goods/services outside India. The court noted that the expenditure mentioned in sub-clause (iii) of section 35B(1)(b) specifically refers to sales outside India and not within India.

The court emphasized that section 35B is not applicable to sales made within India, even if they involve transactions in foreign currency. Therefore, the sales conducted by the assessee within India, against foreign currency, did not qualify for weighted deduction under section 35B. Consequently, the court answered the question referred to them in the negative, ruling in favor of the Department and against the assessee. The judgment clarified that for the purpose of claiming weighted deduction under section 35B, sales must be conducted outside India, and sales within India, even if involving foreign currency, do not fall under the purview of this provision.