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TMI Blog1985 (9) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim holding that the payment was to the buyer, not to an agent; and that it partook of the character of trade discount, not of corn mission. The Appellate Assistant Commissioner granted relief holding that the Income-tax Officer's approach was not correct inasmuch as the payment was by way of commission to an agent, not trade discount to the buyer. The Appellate Assistant Commissioner also stated that earlier in similar matters the same view had been taken. A second appeal filed by the Revenue having been dismissed by the Appellate Tribunal, this court had at the instance of the Revenue in O.P. No. 3510 of 1977A directed the Appellate Tribunal to draw up a case and refer the questions of law arising out of the Tribunal's order to thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the assessee is entitled to weighted deduction under section 35B of the Act with respect to the payment alleged to have been made. There is no case for the Revenue that the payment of Rs. 35,495 had not been made by the assessee. The Income-tax Officer declined to accept the claim of the assessee for weighted deduction on two grounds, as is clear from annexure A-assessment order; (1) the payment was to the buyer, not to an agent; and (2) it was in the nature of trade discount, not commission. On appeal, the Appellate Assistant Commissioner on being satisfied, on the facts disclosed, that the payment was to an agent outside India, and it was in the nature of commission, reversed the finding of the Income-tax Officer and granted reliefs so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agent in a foreign country for promotion of the business, and the Revenue raised no other contention except that the payment was in the nature of a trade discount and was to the buyer, which contention, though found favour with the Income-tax Officer, was rejected by the Appellate Assistant Commissioner and the Tribunal, no further question could arise, and the Tribunal had no duty to probe further into the matter to discover any other grounds on which the Revenue could have contested the matter. Strong reliance was placed by the counsel for the Revenue on the decision of this court in CIT v. Cochin Co. P. Ltd. [1979] 119 ITR 157. It is true that in that case, this court had declined to answer the questions referred and had sent back the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur view, the expenditure incurred on commission paid to an agent in a foreign country for promotion of export trade would attract any one of the sub-clauses (ii), (iii), (iv) and (viii) of clause (b) of section 35B(1) of the Act, particularly so, when the Revenue never before had chosen to raise the point that such expenditure would not fall within the ambit of any of the clauses in section 35B of the Act for entitlement to weighted deduction. We are also not persuaded to accept the contention that the Tribunal was under legal obligation to make a further enquiry in the matter or remand the matter to the Income-tax Officer for the purpose. The result, therefore, is that we answer the questions referred to us in the affirmative, that is in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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