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TMI Blog1982 (8) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... hted deduction under section 35B." "2. He further erred in accepting the alternative claim of the assessee that the foreign tour income should be treated as business income and not income from profession and hence entitled to deduction under section 35B." 2. The assessee is an eminent playback singer in the Film Industry. During the year under consideration, she had been to the USA to give public performances at nine places, in accordance with an agreement dated 11-3-1975 with Image of India, who acted as the agent of the assessee in organising the foreign tour. The tour was conducted on commercial lines, inasmuch as the assessee took the group of artists and other technicians with her and tickets were sold for all the performances. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessee appealed to the Commissioner (Appeals), and contended that the action of the ITO was not justified. Reliance was placed on the decision of the Tribunal in Dr. R. H. Dastur v. Third ITO [1982] 8 Taxman 165 (Bom.), wherein it has been held that a doctor going abroad to render professional services, actually carries on business and the income so earned by him from abroad is assessable under the head 'Profits and gains of business or profession', and further that the expenses incurred by him qualifies for relief under section 35B. Reliance was also placed on the decision of the Tribunal in another case, IT Appeal No. 3117 [Bom.] 1979 dated 29-11-1980, wherein it has been held that section 35B applied even to a chartered accountan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 295. He stated that the Supreme Court has held that all professions are included in the term 'business' and so it is not possible to deny the relief under section 35B to the assessee, on the ground that she was engaged in a profession, but. not in a business. However, he argued that the Commissioner (Appeals) went wrong in saying that the provisions of section 35B applied to the facts of the case, even assuming that the assessee's income was assessable under the head 'Profits and gains of business or profession', according to Shri D.R. Chawla, the assessee did not export anything at all, because in order to constitute export, there should be some goods or services which can be parted with by the assessee and received by somebody else. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the foreign income could be assessed under the head 'Profits and gains of profession or business'. Further he pointed out that there was regular agency agreement between the assessee and the foreign agent, namely, Image of India, under which the assessee was obliged to reimburse all the expenses incurred by the agent, and also to remunerate the agent @ 40 per cent of the net surplus. His point was that unless the assessee proceeded abroad and performed her part of the contract, she would have been exposed to claim for damage for breach of contract. Consequently, the expenses under consideration were actually incurred by the assessee in the process of the execution of a contract outside India. Then he pointed out that the learned Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have considered the contentions of both the parties as well as the facts on record. In our opinion, this appeal cannot succeed. We are not impressed by the argument raised for the revenue that the assessee before us did not export any services merely because intangible services could not be physically transferred. If the arguments of the department were accepted as correct, then the reference to services and facilities in section 35B would become redundant. 'Export' means to carry or sent goods beyond the national boundary, i.e., to a foreign country---Chambers Twentieth Century Dictionary. In the case before us, the assessee has definitely sold her professional services which were bought by customers abroad. Otherwise, the assessee wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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