Income-tax---

---Reference---Tribunal having already referred a similar question of law for earlier year---Directed to make a reference for year in question---Business expenditure---Disallowance---Whether commission paid to agents to be considered for disallowance---To be referred---Indian Income Tax Act, 1961, Ss.37(3-A) & 256(2).

Where the Tribunal declined to refer the question of law by mistake not taking note of its having granted a similar question of law relating to the assessee for an earlier year, the Court directed the Tribunal to refer the question of law for the year in question as to whether the Tribunal was right in holding that commission paid to agents was not to be taken into account for the purposes of disallowance under section 37(3-A) of the Income Tax Act, 1961.

R.P. Sawhney, Senior Advocate with Sanjay Goyal for the Commissioner.

JUDGMENT

In spite of notice given to the respondent, no one has appeared. The Commissioner of Income-tax Jalandhar (hereinafter referred to as "the Revenue"), has filed this petition under section 256(2) of the Income Tax Act, 1961, for directing the Income-tax Appellate Tribunal, Amritsar Bench, Amritsar (hereinafter referred to as "the Tribunal"), to refer to this Court the following question of law along with the statement of case:

"Whether, on the facts and in the circumstances of the case, the learned Income-tax Appellate Tribunal was right in law in holding that the expenses on account of commission paid to agents/marketing organisers amounting to Rs.5,31,954 and Rs.5,21,386 being turnover discount paid to the distributors are not to be taken into account for the purpose of disallowance under section 37(3-A) of the Income-tax Act, 1961?"

The Revenue, in its application under section 256(1) of Income Tax Act, 1961, had stated in paragraph 4 thereof that for the assessment year 1980-81 relating to the assessee itself, the Tribunal had granted a similar question of law. It seems that by mistake the Tribunal did not take note of it and relying on a decision of the Delhi High Court in Om Parkash Fateh Chand Ltd, in Income-tax Case No.116(90), dated December 17, 1992, and an order of the Tribunal of Delhi Bench in CIT v. A.P.E. India (P.) Ltd. (1991) 37 ITD 351, declined to refer the question of law pertaining to this assessment year.

Since the Tribunal has already referred a similar question of law in Income-tax Case No.48 of 1986 for the assessment year 1980-81, we direct the Tribunal to refer the following question of law alongwith the statement of case for the opinion of this Court:

"Whether, on the facts and in the circumstances of the case, the learned Income-tax Appellate Tribunal is right in law in holding that the expenses on account of commission paid to the agents/marketing organisers amounting to Rs.5,13,578 and Rs.10,33,787 being the turnover discount paid to the distributors are not to be taken into account for the purpose of disallowance under section 37(3-A) of the Income-tax Act, 1961?"

M.B.A./1219/FCOrder accordingly.