1986 (5) TMI 64 - AT - Income Tax

Issues Involved:
1. Disallowance of foreign claims amounting to Rs. 19,89,200.
2. Disallowance of Rs. 20,000 out of car expenses.
3. Disallowance of a portion of the claim under section 35B of the Income-tax Act, 1961.
4. Weighted deduction under section 35B on the commission of Rs. 2,44,760 paid to Kasturi Nagesh Pai.

Detailed Analysis:

1. Disallowance of Foreign Claims Amounting to Rs. 19,89,200:

The primary issue in the assessee's appeal was the disallowance of foreign claims totaling Rs. 19,89,200. These claims were related to arbitration awards for unfulfilled contracts with foreign parties. The ITO disallowed the claims on the grounds that the arbitration awards had not been converted into decrees and no payment steps had been taken. The Commissioner (Appeals) requested a remand report, which was submitted by the ITO, suggesting that the claims were not genuine and potentially collusive, as no subsequent trading adjustments were made with the foreign buyers.

The Commissioner (Appeals) found that while the genuineness of the awards could not be doubted, the liability was contingent until the awards were made a rule of the Court, relying on the Allahabad High Court's decision in A.P.S. Cold Storage & Ice Factory v. CIT. The Commissioner (Appeals) concluded that the lack of evidence of acceptance of the awards by the assessee and the contesting of one award in court indicated that the liability was not yet ascertained.

However, the Tribunal disagreed, stating that under the Foreign Awards (Recognition and Enforcement) Act, an award is enforceable in India and binding on the parties once passed. The Tribunal emphasized that the statutory liability created by the award is binding and not contingent upon further legal formalities. Therefore, the Tribunal allowed the deduction of the foreign claims.

2. Disallowance of Rs. 20,000 Out of Car Expenses:

The second issue was the disallowance of Rs. 20,000 out of car expenses. The Commissioner (Appeals) upheld the ITO's disallowance on the grounds that the use of the car for personal purposes was not denied by the assessee. The assessee did not press this ground in the appeal before the Tribunal, leading to the dismissal of this part of the appeal.

3. Disallowance of a Portion of the Claim Under Section 35B:

The third issue involved the disallowance of a portion of the claim under section 35B related to salary and stationery expenses. The assessee claimed deductions for salary paid (Rs. 26,100) and stationery expenses (Rs. 10,708), which were disallowed by the ITO and confirmed by the Commissioner (Appeals). The Tribunal, following the Special Bench decision in J.H. & Co. v. Second ITO, allowed 75% of the salary and 50% of the stationery expenses as deductions.

4. Weighted Deduction Under Section 35B on Commission Paid to Kasturi Nagesh Pai:

The final issue was the weighted deduction under section 35B on the commission of Rs. 2,44,760 paid to Kasturi Nagesh Pai. The Commissioner (Appeals) allowed this deduction, but the revenue appealed, arguing that it was a trade discount, not a commission payment. The Tribunal noted that the ITO had disallowed the payment on the grounds that it was paid in India, not because it was a trade discount. Consistent with previous Tribunal decisions, the Tribunal upheld the deduction, recognizing the payment as an expenditure for collecting information for export business.

Conclusion:

The Tribunal allowed the appeal filed by the assessee in part, specifically regarding the foreign claims and the section 35B deductions for salary and stationery expenses. The Tribunal dismissed the appeal filed by the revenue, upholding the weighted deduction under section 35B for the commission paid to Kasturi Nagesh Pai. The disallowance of Rs. 20,000 out of car expenses was not contested further by the assessee.

← Previous Next →