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TMI Blog1996 (8) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... as made effective from August 1, 1981, and which was held to be substantive law by the Tribunal itself, would be applicable in respect of pending assessment as on August 1, 1981 ? (2) Whether the Tribunal did not err in facts as well as in law in holding that rule 6AA which was stated to be substantive law and which was brought into the statute with effect from August 1, 1981, would apply in respect of expenses incurred on or before June 30, 1980 ? (3) Whether under the facts and in the circumstances of the case, the Tribunal was justified in holding that the assessee is entitled to weighted deduction under section 35B(1)(b)(ix) ? " The assessee is a limited liability company owning tea estates in the State of Assam. The company carri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention of Mr. Joshi is that the Tribunal committed a manifest error of law in allowing the deduction under section 35B(1)(b)(ix). According to Mr. Joshi, deduction under section 35B(1)(b)(ix) is applicable only in respect of any other activities for the promotion of the sale outside India of such goods, services or facilities that may be prescribed. At the relevant time, the activities referred to in clause (ix) were not prescribed. It was prescribed later under rule 6AA of the Income-tax Rules, 1962 (for short, "the Rules"), which provision was inserted in the rules by the Income-tax (Eighth Amendment) Rules, 1981, and the said rule came into force on August 1, 1981. The relevant assessment year in this case was 1981 82. It is stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... answered in the affirmative and in favour of the Revenue. Mr. Gogoi does not dispute the submission made by Mr. Joshi. He also submits that as per the decision of this court in Income-tax Reference No. 29 of 1993 (CIT v. Assam Frontier Tea Ltd. [1997] 224 ITR 398), clause (ix) of section 35B(1)(b) of the Act is not attracted in the facts and circumstances of the case. But Mr. Gogoi argues in a different way. According to him, in the facts and circumstances appearing in the case, the question was not properly framed. He also submits that it should be reframed to answer the real controversy between the parties. In this connection, Mr. Gogoi draws our attention to the decision in the case of CWT v. Mahadeo Jalan [1972] 86 ITR 621 (SC). Relying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o decide a different question of law not arising out of such order. It is possible that the same question of law may involve different approaches for its solution, and the High Court may amplify the question to take in all the approaches. But the question must still be one which was before the Tribunal and was decided by it. It must not be an entirely different question which the Tribunal never considered. " Mr. Joshi further submits that the conclusion arrived at on the basis of facts by the Tribunal shall be regarded as final unless it is challenged as a perverse finding. In this connection, Mr. Joshi relies on a decision of the Supreme Court in Dr. K. George Thomas v. CIT [1985] 156 ITR 412. Mr. Joshi submits that as per the said decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion ought to have been whether the assessee would be entitled to get deduction as per the provisions contained in section 35B(1)(b)(iv). Clause (iv) of the above section refers to allowance for the expenses made towards maintenance outside India of a branch, office or agency for the promotion of the sale outside India of such goods, services or facilities. In the instant case, the assessee engaged an agent who maintained a warehouse outside India. The expenses made by the agency were reimbursed by the assessee. Before the Assessing Officer the assessee claimed deduction towards expenses made for maintenance of the agency and this matter was taken up suo motu by the Commissioner of Income-tax who reversed it. The matter came up before the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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