1998 P T D 1612

[1228 I T R 463]

[Supreme Court (India)]

Present: Suthas C. Sen and S. Saghir Ahmad, JJ

COMMISSIONER OF INCOME-TAX

versus

HERO CYCLES (PVT.) LTD. and others

Civil Appeal No.7665 of 1996 with C.As. Nos. 7666, 7667, 7965 of 1996, 1494-96 of 1988, 5567 of 1990, 5755 of 1995, 4043 of 1984, 7763 of 1995, 7045 of 1995, 12419 of 1996, 5620-21 of 1995, 6942 of 1995, 387 of 1985, 786-88, 7847, 2230-31 and 3120 of 1995 with C.As. Nos.6085, 6087 M of 1997, 6086, 6089-91 of 1997, 6092. 6093, 6094, 6095 of 1997, decided on 28/08/1997.

(Civil Appeal No.7665 of 1996 was by special leave from the judgment and order, dated June 2, 1988, of the Punjab and Haryana High Court in I. T. C.No.16 of 1988).

(Civil Appeals Nos. 1494-96 of 1988 were by special leave from the judgment and order, dated March 15, 1982, of the Madras High Court in T.Cs. Nos. 447-449 of 1997).

(a) Income-tax---

--Export markets development allowance---Weighted deduction---Burden of proof ---Condition

precedent---Expenditure should be laid out wholly and exclusively for a purpose mentioned in any one of sub-clauses of S.35-B(1)(b)---Onus is on assessee to prove it---Indian Income Tax Act, 1961, S.35-B.

(b) Income-tax---

----Export markets development allowance---Weighted deduction---Insurance business---Scope of S.44---Profits and gains of insurance have to be computed in accordance with rules contained in First Sched. to Income Tax Act---Sections 28 to 43-B are not applicable---Section 35-B is therefore not applicable---Insurance company whether doing life insurance or general insurance business not entitled to weighted deduction---Indian Income Tax Act, 1961, Ss.35-13 & 44.

(c) Income-tax---

----Export markets development allowance---Weighted deduction---Weighted deduction is not allowable to contribution to a general body for promotion of export, expenditure on establishment, bonus, leave with wages, salary to directors, postage, telephone and telegram and printing and stationery and rent---Remand ordered in respect of payments of commission to STC, HHEC, ECGC, foreign sales commission, expenditure on articles of presentation, expenditure on maintenance of a car and motorcycle, generator expenses---Indian Income Tax Act, 1961. S.35-B.

(d) Income-tax---

----Export markets development allowance---Weighted deduction-- Rectification of mistake---Claim for weighted deduction not allowed by ITO ---CIT (Appeals) directing such allowance---Order passed under S.154 by ITO allowing weighted deduction---There was no mistake apparent from record---Question regarding weighted deduction was debatable---Point was not examined on facts or in law---Order of rectification was not valid-- Tribunal's order held to be erroneous in upholding the assessee's claim for weighted deduction---Indian Income Tax Act, 1961, Ss.35-B & 154.

(e) Income-tax --

----Rectification of mistakes---Condition precedent---Mistake must be glaring and obvious---Question should not be debatable---Point should have been examined on facts and in law---Indian Income Tax Act, 1961, S.154.

(f) Income-tax---

----Appeal to Supreme Court---Amount involved only Rs.10,000---Case twenty-three years old---Appeal dismissed.

(g) Income-tax---

----C.B.R. Circulars---Effect---Circulars not binding on Appellate Authorities, Tribunal or assessee.

Expenses can be allowed under section 35-B of the Income Tax Act, 1961, only if they are wholly and exclusively incurred for any of the purposes mentioned in the sub-clauses of section 35-B(1)(b). The section is quite clear and categorical. There is no way that any other expenditure can be given weighted deduction, under section 35-B. It is the assessee's duty to prove the facts which will bring the case within any of these sub-clauses. Unless that is done, the assessee will not be entitled to get this deduction. The Tribunal has also to give a finding as to the entitlement of the assessee with reference to the particular sub-clause of section 35-B(1)(b). The facts have to be found out and the law has to be applied to those facts.

Circulars can bind the Income Tax Officer but will not bind the Appellate Authority or the Tribunal or the Court or even the assessee. A plain reading of section 44 will go to show that notwithstanding the other provisions of the Income Tax Act, in particular, the provisions of sections 28 to 43-B, the profits and gains of any business of insurance shall be computed in accordance with the rules contained in the First Schedule. This is a non obstante clause and rules have been specifically made for computation of profits and gains of insurance business. The rules are contained in the First Schedule to the Act. There is a rule for computation of profits of life insurance business (rule 2). Another rule has been framed (rule-5) for computation of profits and gains of other insurance business. This means that profits and gains of insurance business (whether 'life 'insurance or general insurance) can only be assessed in the manner laid down in the rules contained in the First Schedule and not in any other manner It is true that section 44 speaks If "section 28 to section 43-B". It does not specifically mention section 35-B. When the original Act was passed section 35-B was not in the Statute Book. However, when the Act speaks of sections 28 to 43-B, each one of the sections from sections 28 to 43-B will be included. The newly-inserted section 35-B was not specifically mentioned, because it was not necessary to do so, just as it was not necessary to specifically mention section 35-B in section 29, which lays down that computation of profits and gains of business or profession shall be computed in accordance with the provisions contained in sections 30 to 43-C. Moreover, when the Act specifically says that profits and gains of insurance business shall be computed in accordance with the rules contained in the First Schedule, such computation has to be made according to that rule and not any other rule. Hence, the benefit of section 35-B cannot be given in respect of profits and gains derived from insurance business.

United India Fire and General Insurance Co. Ltd. v. CIT (1983) 144 ITR 638 affirmed.

The assessee's claim for weighted deduction in respect of "export sales commission" "E.C.G.C. charges" and "foreign dealers visiting expenses" was not originally allowed at all. Thereafter, on the assessee's application an order was passed by the Commissioner of Income Tax; Appeals), in which he directed certain allowances to be given on proportionate basis after verification of the assessee's claim under section 35-B. The Income Tax Officer thereafter entertained the assessee's prayer for rectification of the order and allowed the assessee's claim in respect of matters like coloured albums, export staff travelling expenses, export sales commission, E.C.G.C., foreign dealers visiting expenses. The assessee's claim was upheld by the Tribunal. The High Court declined to call for a reference under section 256(2). On appeal to the Supreme Court:

Held, allowing the appeal, that there was no point in sending the matter to the High Court to' deal with the question raised at this stage. The question would be treated as referred; to the Supreme Court. The dispute raised a mixed question of fact and law. The Tribunal was in error in upholding the assessee's claim for weighted deductions. Rectification under section 154 can only be made when a glaring mistake of fact or law committed by the Officer passing the order becomes apparent from the record. Rectification is not possible if the question is debatable. Moreover a point which was not examined on facts or in law cannot be dealt with as a mistake apparent from the record:

Held also, (i) that in C.A.No.7965 of 1996 the amount involved was Rs.10,000 only and the case being 23 years old the Court would not consider the question raised, The Supreme Court dismissed the appeal, without expressing any opinion on the correctness of the decision rendered by the Tribunal;

(ii) that the contribution to the Indian Cotton Mills Federation did not fall within any of the sub-clauses of section 35-8(1)(b). The contribution might be for the promotion of export generally, but this sort of contribution to a general body or Chamber of Commerce could not qualify for weighted deduction;

(iii) that the payment to the Hosiery Exporters Association, the contribution to Hosiery Exporters Association and expenditure on establishment, bonus, leave with wages, salary to directors, postage, telephone and telegram and printing and stationery were not entitled to weighted deduction under section 35-B. Expenditure to regard to salary, director's remuneration, rent, printing and stationery, postage and telegrams etc., which had not been proved to the wholly or exclusively incurred for the purposes of any of the sub-clauses mentioned in clause (b) of section 35-B(1) was not entitled to weighted deduction under section 35-B;

(iv) that there was nothing in the circular which supported the contention of the assessee. The circular merely says that each case has to be examined and the issue would be basically a finding of fact. The assessee had not made its claim before the Income Tax Officer by relying on this circular The Tribunal must examine the question of section 35-B with reference to the various sub-clauses of clause (b) of that section. [Matter in SLP (C) No. 10982 of 1987 and C. A.No.12419 of 1996 remanded];

(v) that the Tribunal had to consider whether payment to the HHEC, ECGC and STC and in respect of foreign sales commission and expenditure on articles of presentation, qualified for weighted deduction. [Matters in C.As. Nos.6942, 7847, 3120 of 1995 and C.As. Nos.7666-7667 of 1996 and SLP(C) Nos.7485/86 and 4588-89/89 remanded to Tribunal];

(v) that with regard to expenditure on maintenance of car and motor-cycle and generator expenses, the Tribunal had to decide the case afresh after examining the nature of the expenditure and the purposes for which it was spent having regard to the various sub-clauses of section 35-B(l)(b). [Matter in C.A. No.7763 of 1995 remanded].

Remand to Tribunal was also ordered in SLP (C) Nos.4663-65 of 1989; 8620, 10949 and 5620-21 of 1995.

CIT v. National Palayacot Co. (1997) 228 ITR 476 (SC) (Appex.) (infra.) ref.

T. L. V. Iyer, Senior Advocate (Ms. Renu George, S. Rajappa, C. Radha Krishna, Mrs. Janaki Ramachandran, Ms. Meenakshi Arora and A.T.M. Sampath, Advocates, with him), for the appellant in C.As. Nos.4671 of 1988, 4043 of 1984, 5755 of 1995, 5620-21 of 1995 and 2230-31 of 1995.

Uma Datta and B. Kanta Rao, Advocates for Respondents.

JUDGMENT

Civil Appeal No.7665 of 1996:

The following question of law was referred by the Tribunal to the High Court: '

"Whether, on the facts and in the circumstances of the case on a proper interpretation of section 35-B of the Income Tax Act, 1961, the Appellate Tribunal was right in law in allowing the assessee's claim for weighted deduction in respect of export sales commission E.C.G.C. charges and 'foreign dealers visiting expenses'?"

The High Court declined to call for a reference under section 256(2) of the Income Tax Act, 1961. It appears that the claim for deduction under section 35-B was not originally allowed at all. Thereafter, on the assessee's application an order was passed by the Commissioner of. Income Tax (Appeals), Jalandhar, in which he directed certain allowances to be given on proportionate basis after verification of the assessee's claim under section 35-B.

The Income Tax Officer thereafter entertained the assessee's prayer for rectification of the order and allowed the assessee's claim in respect of matters like coloured albums, export staff travelling expenses, export sales commission, E.C.G.C., foreign dealers visiting expenses. Rectification under section 154 can only be made when a glaring mistake of fact or law committed by the officer passing the order becomes apparent from the record. Rectification is not possible if the question is debatable. Moreover, the point which was not examined on fact or in law cannot be dealt with a$ a mistake apparent on the record. The dispute raised a mixed question of fact and law.

The Tribunal was in error in upholding the assessee's claim for weighted deductions.

There is no point in sending the matter to the High Court to deal with the question raised at this stage. We treat the question as referred to this Court and answer the question in the negative and in favour of the Revenue. There will be no order as to costs. The appeal is allowed.

C.As. Nos. 7666-7667 of 1996 S.L.P.(C) No. 7485 of 1986, 4588-89 of 1989:

Leave granted in special leave petitions.

The following questions of law were sought to be raised by the .Revenue from the order of the Tribunal for reference to the High Court:

"(i) Whether, on a proper interpretation of the agreements between the S.T.C. and its subsidiary HHEC, the Appellate Tribunal is right in law in holding that one per cent. margin money earned by the HHEC under its agreement of Export Business Association with the assessee is in the nature of expenditure as contemplated by section 35-B and not the income of the HHEC on its own entitlement on the aforesaid agreements as held by the Income Tax Officer?

(ii) Whether, on the facts and in the circumstances of the case, the . Appellate Tribunal is right in allowing weighted deduction under section 35-B of the Act to the total payment of Rs.1,87,476 to the HHEC without any bifurcation?

(iii) Whether, on a true interpretation on section 35-B of the Act, the services rendered by the HHEC were to be related itemwise to the various sub-clauses of clause (b) of subsection (1) so as to entitle the assessee to weighted deduction in respect of them?"

The Commissioner of Income Tax (Appeals) as well as the Tribunal allowed this claim of the assessee without examining the facts of this case. The deduction is permissible if the expenditure is laid out wholly and exclusively for the purposes mentioned in clause (b) of section 35-B(1). It is for the assessee to prove that the entire expenditure involved was exclusively for the purposes mentioned in clause (b) of section 35-B(1). The Tribunal has also to give a finding as to the entitlement of the assessee with reference to the particulars of clause (b) of section 35-B(1). The facts have to be found out and the law has to be applied to those facts. It appears that generally a certain percentage of the claim has been allowed under section 35-B without adverting to any of the sub-clauses of clause (b) of section 35-B(1). Under those circumstances, we think it fit to set aside the order of the Tribunal and send the matter back to the Tribunal to dispose of it after examining the facts afresh. The appeals are allowed. The order of the High Court as well as the appellate order of the Tribunal is set aside. There will be no order as to costs.

Civil Anneal No 7965 of 1996:

The amount involved is Rs.10,000 only and the case being 23 years old we do not feel inclined to go into the question raised. However, we make it clear that we are not expressing any opinion on the correctness of the decision referred by the Tribunal. The appeal is dismissed. There will be no order as to costs.

S.L.P. (C) No.9027 of 1987:

The special leave petition is dismissed.

S.L.P. (C) No. 10982 of 1997:

Leave granted. .

In this case a large number of questions were sought to be raised. We shall deal with only the question relating to section 35-B. It appears that the Tribunal was totally unmindful of the various sub-clauses of section 35-B(1)(b). Expenses can only be allowed if they are wholly and exclusively incurred, for any of the purposes mentioned in these sub-clauses. The section is quite clear and categorical. There is no way that any other expenditure can be given weighted deduction. Under section 35-B, it is the assessee's duty to prove facts which will bring the case within any of these sub-clauses. Unless that is done the assessee will not be entitled to get this deduction. The Tribunal has allowed the deduction without verifying or examining the sub-clauses under which this could be allowed.

We have passed similar orders in a large number of cases but in this case on behalf of the assessee it has been contended that there is a circular issued by the Central Board of Direct Taxes, New Delhi, which should conclude the matter. A cope of the so-called circular dated April 9, 1981/ April 13, 1981, has been handed over in Court. It does not appear that the document handed over in Court is a copy of the circular at all. It is a letter written to one Shri D'Souza with a reference to a letter written by his predecessor.

Moreover, it is well-settled that circulars can bind the Income Tax Officer but will not bind the Appellate Authority or the Tribunal or the Court or even the assessee. There is nothing in the alleged circular which supports the contention of the assessee. It merely says that each case has to be examined and the issue would be basically a finding of fact. The assessee had not made his claim before the Income Tax Officer by relying on this circular.

We set aside the order of the High Court. We also set aside the appellate order of the Tribunal. The Tribunal must examine the question of section 35-B(1) with reference to the various sub-clauses of clause (b) of that section. The Tribunal will examine the facts of each claim made by the assessee and find out whether the claim can be allowed having regard to the facts and also the sub-clauses of section 35-B(1)(b). The case is sent back to the 'Tribunal for fresh disposal in the light of the above direction. The assessee must pay the cost of this appeal assessed at Rs.5,000.

S.L.P. (C) Nos.4663---65 of 1989:

Leave granted.

The claim of the assessee is in respect of relief under section 35-B in respect of certain expenditure incurred by the assessee. The order under challenge passed by the High Court is set aside. The appellate order of the Tribunal is also set aside. Tile matter should go back to the Tribunal. The Tribunal will examine the case. The assessee must prove before the Tribunal the facts in respect of his claim. The Tribunal will examine the facts and consider the various sub-clauses of clause (b) of section 35-B(1) and will decide whether the assessee is entitled to exemption under any of these sub -clauses in respect of expenses incurred. The appeals are disposed of. There will be no order as to costs.

S.L.P. (C) No.8620 of 1995.

Leave granted.

In this case two questions are involved. So far as section 40(c) is concerned, the appeal will have to be dismissed, So far as section 35-B is concerned, the weighted deduction must be examined by the Tribunal on the basis of the facts proved by the assessee and having reference to the various sub-clauses of clause (b) of section 35-B(1). If the assessee's case comes specifically within any of these sub-clauses it has to be allowed, otherwise not. The order of the High Court is set aside. The case is sent back to the Tribunal for re-examination of the case in the light of the above direction. No order as to costs.

S. L. P. (C) No.1094.9 of 1995

Leave granted.

This case is only concerned with section 35-B. The weighted deduction must be examined by the Tribunal on the basis of the facts proved by the assessee and having reference to the various sub-clauses of clause (b) of section 35-B(I ). If the assessee's case come specifically within any of these sub--clauses it has to be allowed, otherwise not. The order of the High Court is set aside. The appellate order of the Tribunal is also set aside. The case is sent back to the Tribunal for re-examination of the casein the light of the above direction. No order as to costs.

S L f (C) No 9065 of 1994 and C.As. Nos. 1494-- 96 of 1988 and 5567 of 1990:

Leave granted in special leave petition.

The question in this case relates to the scope of section 44 of the Income Tax Act, 1961. The section states:

"Section 44.---Notwithstanding anything to the contrary contained in the provisions of this Act relating to the computation of income chargeable under the head 'Interest on securities', 'Income from house property', Capital gains' or Income from other sources or in section 199 or in sections 28 to 43-B, the profits and gains of an business of insurance, including any such business carried on by a mutual insurance company or by a co-operative society, shall be computed in accordance with the rules contained in the First Schedule. "

A plain reading of the section will go to show that notwithstanding the other provisions of the Income Tax Act, in particular, the provisions of sections 28 to 43-B, the profits and gains of any business of insurance shall be computed in accordance with the rules contained in the First Schedule: This is a non obstante clause and rules have been specially made for computation of profits and gains of insurance business. The rules are contained in the First Schedule to the Act. There is -a rule for computation of profits of life insurance business (rule 2). Another rule has been framed (rule 5) for computation of profits and gains of other insurance business. This means that profits and gains of insurance business (whether life insurance or general insurance) can only be assessed in the manner laid down in the rules contained in the First Schedule and not in any other manner

Mrs. Ramachandran, learned counsel appearing for the assessee, has contended that section 44 speaks of "section 28 to section 43-B". It does not specifically mention section 35-B. Therefore, the assessee was entitled to the benefit of section 35-B. Section 35-B was inserted in the Act by way of amendment. When the original Act was passed section 35-B was not in the Statute Book. The contention of Mrs. Ramachandran is that when section 35-B was inserted, it was not specifically mentioned that section 35-B will not apply to insurance companies. Therefore, the benefit of section 35-B will have to be given to the insurance company.

We are unable to accept this contention for two reasons. First, when the Act speaks of section 28 to section 43-B, then each one of the sections from section 28 to section 43-B will be included. The newly inserted section 35-B was not specifically mentioned because it was not necessary to do so just as it was not necessary to specifically mention section 35-B in section 29, which lays down that computation of profits and gains of business or profession shall be computed in accordance with the provisions contained in sections 30 to 43-C.

Moreover, when. the Act specifically says that profits and gains of insurance business shall be computed in accordance with the rules contained in the First Schedule then such computation has to be made according to that rule and not any other rule. We are unable to accept the contention of Mrs. Ramachandran that the benefit. of section 35-B should also be given to any insurance company.

There are certain other questions, apart from section 35-B, involved in this case arising out of the decision of the High Court. Those points are not before its. We do not express any opinion on them. The argument was confined oily to section 35-8.

In that view of the matter, we uphold the order of the High Court and dismiss these appeals. There will be no order as to costs.

S. L. P. No.4671 of 1988 and C.As.. Nos. 5755 of 1995 and 4043 of 1984:

Leave granted in S.L.P.

In view of the decision of this Court in CIT v. National Palayacot Co. (1997) 228 ITR 478 (Apex.) (infra) (Civil Appeals Nos. 16-17 of 1985), these appeals are dismissed. There will be no order as to costs.

LA.No.7763 of 1995:

The following two questions of law have been sought to be raised in this Court:

"l. Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is right in law in allowing weighted deduction under section 35-B of the Income Tax Act, on car maintenance at Rs.49,939, motorcycle at Rs.3,697 and generator expenses at Rs.4,639 without linking the expenditure to one or more of the activities referred to in various sub-clauses -of section 35-B(1)(b) and also ignoring the prohibition contained in sub-clause (iii) ibid regarding expenditure on distribution, supply or provision outside India of goods, etc., incurred after March 31, 1978?

2. Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is right in law in holding that the assessee was entitled to weighted deduction under section 35-B on entire expenditure of Rs.4,24,773 and 50 per cent. of the expenditure on various items, aggregating to Rs.4,24,773 and 50 per cent. of the expenditure on various items, aggregating to Rs.9,89,950 without linking the expenditure to one or more of the activities referred to in various sub-clauses of section 35-B(1)(b) and also ignoring the prohibition contained in sub-clause (iii) ibid regarding expenditure on distribution, supply or provision outside . India of goods, etc., incurred after March 31, 1978 ?"

The High Court dismissed the reference application under section 256(2).

We are of the opinion that the Tribunal cannot allow any weighted deduction without linking the expenditure to one or more of the activities referred to in various sub-clauses of section 35-B(1)(b). Therefore, in our opinion, the question must be answered in the negative and in favour. of the Revenue. The Tribunal will now decide the case afresh after examining the nature of the expenditure and the purposes for which it. was spent having regard to the various sub-clauses of section 35-B(I)(b). The order of the High Court is set aside. The appellate order of the Tribunal is also set aside. The appeal is allowed. There will be no order as to costs.

C.A.No. 7045 of 1995:

The dispute in this case relates to an amount of Rs.1,52,694 (spindle fee) paid to the Indian Cotton Mills Federation for export promotion funds. The contribution to the Indian Cotton Mills Federation does not fall within any of the sub-caluses of section 35-B(1)(b). The contribution may be for the promotion of export generally but this sort of contribution to a general bode or Chamber of Commerce cannot qualify for weighted deduction. The appeal is allowed. The order of the High Court as well as the appellate order of the Tribunal are set aside. There will be no order as to costs.

C. A. No. 12419 of 1996:

In view of the observations made in S.L.P. No. 10982 of 1987, the anneal is allowed. There will be no order as to costs.

C.As. Nos.5620-21 of 1995:

In view of the observations made earlier these cases are remanded back to the Tribunal. The Tribunal will examine the cases in the light of the various sub-caluses of section 35-B(1)(b) and will also examine the facts to find out whether the expenditure comes within any of the categories mentioned in clause (b) of section 35-B(1). The order of the High Court is set aside. The appellate order of the Tribunal is also set aside. The Tribunal will decide the cases in view of the directions given hereinabove. There will be no order as to costs.

C.A.No.6942 of 1995:

The dispute in this case is about the allowances under section 35-B The allowances in this case relate to (a) payment to Hosiery Exporters Association, (b) payment to HHEC, (c) contribution to Hosiery Exporters Association, and (d) charges paid to ECGC; are also expenditure on (e) establishment, (f) bonus, (g) leave with wages, (h) salary to directors, (i) postage, telephone and telegram, and (j) printing and stationery.

The only question is whether payment of HHEC and ECGC qualify for special allowance under section 35-B. The other expenditure is not allowable. The order of the High Court is set aside. The appellate order of the Tribunal is also set aside. The matter is remanded back to the Tribunal only to consider whether the payment of HHEC will qualify for the special exemption given under section 35-B. The Tribunal will examine the facts and find out whether the payment was for any of the activities mentioned in clause (b) of section 35-B(1). If the expenditure was wholly and exclusively incurred for any of these purposes, the expenditure will qualify for deduction under section 35-B. The Tribunal will examine the case afresh with regard to payments to HHEC and also to ECGC. The other items mentioned in the appellate order of the Tribunal will stand disallowed. The case is remanded back to the Tribunal for fresh disposal. The appeal is allowed. There will be no order as to costs.

C.A. No. 387 of 1985:

The appeal is dismissed. There will be no order as to costs.

C.As. Nos. 786---88 of 1995:

The appeals are dismissed.

C.A. No.7847 of 1995:

The following question of law was referred to the High Court:

"Whether, on the facts and in the circumstances of the case, on a proper interpretation of section 35-B, the Appellate Tribunal was right in law in allowing in respect of foreign claim for weighted deduction in respect of foreign sales commission, E.C.G.C. charges and expenditure on articles of presentation ?" (sic)

The question relates to expenditure for which relief was claimed under section 35-B. The Tribunal allowed the expenditure without specifically deciding under which clause (b) of section 35-B(1), the expenditure falls. The case is remanded back to the Tribunal. The Tribunal will re-examine the case having regard to the nature of theexpenditure and will try to find out whether such an expenditure qualifies for weighted deduction under section 35-B. The order of the High Court is set aside. The appellate order of the Tribunal is also set aside. The Tribunal will now examine the facts of the case and find out whether the expenditure is allowable under any of the sub-clauses of section 35-B(1)(b) The appeal is allowed. No order as to costs.

C.A. No.2230-31 of 1995:

The appeals are dismissed. There will be no order as to costs.

C.A. No.3120 of 1995:

The dispute in this case is about the allowability of weighted deduction under section 35-B of the Income Tax Act. The dispute relates to various expenditures including commissions paid to STC, HHEC and ECGC. There is other expenditure in regard to salary, director's remuneration, rent, printing and stationery, postage and telegrams, etc., which have not been proved to be wholly or exclusively incurred for the purposes of any of the sub-clauses mentioned in clause (b) of section 35-B(1). These will have to be disallowed. The order of the Tribunal to this extent is erroneous. So far as commission payable to STC. HHEC and ECGC is concerned this will have to be examined by the Tribunal afresh. The onus is on the assessee to prove the facts which will enable him to claim weighted deduction. The Tribunal will examine the claim of the assessee and will find out whether the claim is allowable having regard to any of the sub-clauses of section 35-B(1)(b). The judgment of the High Court under appeal is set aside. The appellate order of the Tribunal is also set aside. The Tribunal will now rehear the case on the points relating to commission paid to STC, HHEC, ECGC only. The appeal is allowed. There will be no order as to costs.

M.B.A./1684/FC Appeal allowed.