1997 (4) TMI 23 - HC - Income Tax

Issues Involved:
1. Applicability of Section 10(6)(viia) for disallowance under Section 40(c) read with Section 40A(5) for a director-cum-employee who is a foreign technician.
2. Admissibility of surtax liability as a deduction under the Income-tax Act.
3. Classification of the assessee as a company in which the public are substantially interested under Section 2(18) of the Income-tax Act.
4. Entitlement to weighted deduction under Section 35B of the Income-tax Act.
5. Applicability of Section 40A(5)(b)(ii) to Section 40(c) regarding remuneration paid to a director-cum-foreign technician.

Detailed Analysis:

1. Applicability of Section 10(6)(viia) for Disallowance under Section 40(c) read with Section 40A(5):
The court examined whether the remuneration exempt under Section 10(6)(viia) should be excluded for the purpose of determining the ceiling limit under Section 40(c). The Tribunal had directed that the exempt portion should not be considered in fixing the ceiling limit. The court upheld this, noting that both Sections 40(c) and 40A(5) aim to prevent excessive remuneration but must be read harmoniously. Remuneration exempt under Section 10(6)(viia) should not be considered for the ceiling under Section 40(c), as it is already excluded under Section 40A(5). Thus, the first question was answered in the affirmative and against the assessee.

2. Admissibility of Surtax Liability as a Deduction:
The court followed the Supreme Court's decision in Smith Kline and French (India) Ltd. v. CIT, which held that surtax paid under the Companies (Profits) Surtax Act, 1964, is not deductible while computing business income under the Income-tax Act. Consequently, the second question was answered in the affirmative and against the assessee.

3. Classification of the Assessee as a Company in which the Public are Substantially Interested:
The court referred to its earlier decision in CIT v. Lucas T.V.S. Ltd., which held that the assessee cannot be regarded as a company in which the public are substantially interested. This precedent was applied to the current case, and the third question was answered in the negative and in favor of the Revenue.

4. Entitlement to Weighted Deduction under Section 35B:
The court noted that since the assessee is not a company in which the public are substantially interested, it is entitled to weighted deduction at one and one-third times the expenditure, not one and one-half times. This was consistent with the Income-tax Officer's allowance. Thus, the fourth question was answered in the negative and in favor of the Revenue.

5. Applicability of Section 40A(5)(b)(ii) to Section 40(c):
The court considered whether the remuneration exempt under Section 10(6)(viia) should be excluded in determining the ceiling under Section 40(c). It was held that the remuneration exempt under Section 10(6)(viia) should not be taken into account for the ceiling under Section 40(c), aligning with the Tribunal's view. This ensures that the same income is not considered excessive or unreasonable under different provisions. Therefore, the fifth question was answered in the affirmative and against the Revenue.

Conclusion:
- First Question: Affirmative and against the assessee.
- Second Question: Affirmative and against the assessee.
- Third Question: Negative and in favor of the Revenue.
- Fourth Question: Negative and in favor of the Revenue.
- Fifth Question: Affirmative and against the Revenue.

Each party is entitled to costs of Rs. 1,500 for the references.

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