9911796707
TMI Blog1996 (8) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... w by the Tribunal itself, would be applicable in respect of pending assessments 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, on 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 35(1)(b)(iv) as well as under section 35(1)(b)(ix) ?" The assessee is a company incorporated under the Companies Act, having tea estates in various places with its registered office at Talap in the Dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that view of the matter, he reversed the order of the Assessing Officer and allowed the deduction. Against the said order passed by the Commissioner of Income-tax (Appeals), the Revenue preferred an appeal before the Income-tax Appellate Tribunal (for short "the Tribunal"). The Tribunal by order dated August 20, 1991, sustained the order of the Commissioner of Income-tax (Appeals) holding that the appellant was entitled to the benefit of deduction under section 35B(1)(b)(iv) of the Act. That apart, the Tribunal also considered the benefit of rule 6AA of the Rules which came into effect from August 1, 1981, specifically making provision to allow weighted deduction in connection with the expenditure on maintenance of warehouses outside Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the rule-making authority that it will have retrospective effect. In this connection, reference can be made to Maxwell on the Interpretation of Statutes, Eleventh edition, page 204, wherein it has been observed as under : "Upon the presumption that the Legislature does not intend what is unjust rests the leaning against giving certain, statutes a retrospective operation. Nova constitutio futuris formam imponere debet, non praeteritis. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect be clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not necessary that the assessee should maintain an office or branch. For claiming the benefit of section 35B(1)(b)(iv) of the Act, even if the expenditure is incurred by an agent, the assessee can claim deduction of the same. In this connection, Dr. Saraf has placed reliance on a decision of the Calcutta High Court in CIT v. Usha Telehoist Ltd. [1995] 212 ITR 177, wherein the Calcutta High Court held as under : "The word 'agency' used in the section has acquired a clear and definite meaning both under law and in trade. The same meaning shall be attributed to the word in the section and not the meaning suggested by counsel for the Revenue. It is all the more so because the Legislature has deliberately used the disjunctive expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e requires that an agency shall have to be maintained abroad, the requirement is sufficiently satisfied if there is an agent outside who promotes the sales of the assessee's exports." Reliance has also been placed by learned counsel of the assessee on a decision reported in CIT v. Asiatic Sea Foods [1986] 160 ITR 869, wherein the Kerala High Court held as under : "The expenditure incurred wholly and exclusively for distribution and supply outside India of the goods would qualify for weighted deduction so long as such expenditure does not form part of that incurred on the carriage of goods to a destination outside India. When the goods are stored in the foreign agent's cold storage, the expenditure incurred as storage and handling charge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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