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Issues Involved:
1. Disallowance of Rs. 4,03,938 u/s 40(c) of the Income-tax Act, 1961. 2. Validity of the Tribunal's finding regarding the disallowance. 3. Applicability of section 254(2) for rectification of the Tribunal's order. Summary: Issue 1: Disallowance of Rs. 4,03,938 u/s 40(c) of the Income-tax Act, 1961 The Tribunal held that the amount of Rs. 4,03,938 was disallowable u/s 40(c) of the Income-tax Act, 1961, even though the Income-tax Officer did not specifically refer to these provisions. The Tribunal considered the arrangement between the Patiala Biscuit Company and the Rajpura Company as a device to divert income to relatives of Mr. Ram Krishna Dalmia, thereby avoiding proper incidence of tax. The Tribunal's opinion was that the payment of commission had an element of excessiveness, which needed to be quantified. Issue 2: Validity of the Tribunal's finding regarding the disallowance The Tribunal's finding was challenged on the grounds that the agreement between the assessee and the Rajpura Company was a genuine sale agreement from principal to principal. The High Court held that the Tribunal did not take relevant material into consideration and that the rebate given to the Rajpura Company could not be considered as an expenditure u/s 40(c). The Court emphasized that the assessee is the sole judge of how to run its business and can sell goods at cheaper rates if it chooses to do so. Consequently, the finding of the Tribunal regarding the disallowance of Rs. 4,03,938 was not sustainable in law. Issue 3: Applicability of section 254(2) for rectification of the Tribunal's order The assessee contended that the Tribunal had not interpreted section 40(c) correctly and that the mistake was apparent on the record, warranting rectification u/s 254(2). The High Court referred to the Supreme Court's interpretation in T. S. Balaram, Income-tax Officer, Company Circle IV Bombay v. Volkart Brothers, which stated that a mistake apparent from the record must be an obvious and patent mistake. The High Court concluded that the mistake in this case was not apparent on the face of the record and involved consideration of facts and interpretation of law. Therefore, the Tribunal was justified in holding that no application was maintainable u/s 254(2). Replies to Questions: Income-tax Reference No. 23 of 1973: 1. The Tribunal was not right in holding that the amount of Rs. 4,03,938 was disallowable u/s 40(c) of the Income-tax Act, 1961. However, the Tribunal could consider section 40(c) even though it was not referred to by the Income-tax Officer and the Appellate Assistant Commissioner. 2. The finding of the Appellate Tribunal regarding the disallowance of Rs. 4,03,938 out of the remuneration paid to the sole selling agents is not based on relevant material and is not sustainable in law. Income-tax Reference No. 24 of 1973: The Tribunal was justified in law in holding that there was no mistake apparent in its order, dated January 12, 1972, which could be rectified u/s 254(2) of the Income-tax Act, 1961. In the circumstances of these cases, no order as to costs.
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