Commissioner of Income Tax vs Habib and Co.

R. Jayasimha Babu, J.

The question before us, which has been brought at the instance of the Revenue is as to whether, on the facts and in the circumstances of the

case, the Appellate Tribunal was right in holding that the assessee is entitled to weighted deduction in respect of payment of commission made to

local agent of foreign buyers.

The assessee is a dealer in leather more particularly in sheep skins both tanned and finished leather. For the assessment year 1978-79, the

assessee claimed weighted deduction u/s 35B of the Act in respect of the commission paid to the local agent of foreign buyers of the assessee''s

goods. That claim was disallowed by the Assessing Officer, but was allowed in an appeal by the Commissioner (Appeals). The Tribunal has

affirmed the order of the Commissioner.

The details of the transaction are not available on record. In the order of assessment, it is stated that for the reasons discussed in detail in the

assessment relating to the earlier assessment years, the claim for weighted deduction was rejected except to the extent of Rs. 1,868 for expenses

incurred abroad. The appellate authority, however even in the absence of any materials before him and without referring to the reasons, on which

the Assessing Officer had relied, which reasons were set out in the earlier assessment orders, proceeded to observe that in another order, relating

to an another assessee, the Tribunal had agreed with the view of the Commissioner that the commission paid to a local agent of foreign buyers

would be eligible for weighted deduction. The Commissioner has set out the observations made by the Tribunal on the appeal against his order in

relation to another assessee, that the commission was paid to the local agents who brought about the export sales by furnishing information to the

assessee about the foreign buyers and publicising the assessee''s goods to those buyers, thus bringing together the buyer and the assessee for

concluding the sales.

Counsel for the assessee vehemently contended that the findings of the Commissioner so recorded are findings of fact. It is not possible for us to

agree with that submission. The Commissioner did not find any fact at all. All that he did was to merely import the observations made by the

Tribunal in one of its orders, as if they were applicable to the facts before him, though the Tribunal''s order did not relate to the assessee, and even

though there were no facts which could be connected with the observations that had been made and relied upon. The same error has been

committed by the Tribunal.

Counsel for the Revenue relied on the decision of the Supreme Court in Commissioner of Income Tax, Delhi Vs. Stepwell Industries Ltd. and

etc. etc., , where the Supreme Court considered a similar claim for weighted deduction on the commission paid to a local agent of foreign buyers.

The discussion in that judgment regarding this question is found at page 176 and the same may be usefully set out :

The next question is whether the assessee is entitled to relief under Sub-clause (ii) of Section 35B(1)(b). Sub-clause (ii), speaks of ''obtaining

information regarding markets outside India for such goods, services or facilities''. From the facts stated by the Tribunal, it appears that a

middleman approached the assessee for purchase of its goods for and on behalf of the foreign buyer. The assessee agreed to sell his goods. The

middleman obtained the commission. This does not amount to obtaining information regarding ''markets outside India of such goods, services or

facilities''. This is nothing but payment of sales commission to a middleman for the purpose of effecting sales. The foreign buyer located the

assessee through the middleman. We are of the view that these appeals have no merit and have to be dismissed. The appeals are dismissed. There

will be no order as to costs.

The role of the middleman, as described by the Supreme Court is that the middleman approached the assessee, who agreed to sell his goods

and paid commission to the middleman for having secured an order for his goods. The court held that did not amount to obtaining information

regarding ""markets outside India of such goods, services or facilities."" A commission agent is merely an intermediary, whose object is to earn

commission by bringing together sellers and buyers either or both of whom are willing to pay him the commission for his efforts. His primary

concern is not the furnishing of information about the conditions of the market, but is one of earning commission by bringing about a sale. The

information, if any available with such a commission agent is the information concerning the buyers and sellers with whom he has some contact and

whom he wants to bring together. The information regarding a single transaction with a single buyer cannot be regarded as a market information

about the general level of price, extent of the market, the supply available for the time being, the extent of the demand, the factors which may affect

the general price levels, the factors which may affect the shipment of goods within the time frame and like information which would enable a seller

or buyer to obtain the best advantage of the market.

Counsel for the assessee, however, contended that the commission paid does qualify for weighted deduction by placing reliance on the decision

of the Kerala High Court in Commissioner of Income Tax Vs. Kerala Nut Food Co., P. Gopinatha Pillai, M. Shamsuddin and Co., Indian Nut

Products, Asiatic Export Enterprises and General Industrial Corporation, , wherein the court had noticed the findings of the Tribunal that the agents

concerned in the transaction had obtained information regarding markets outside India and they gave advertisement and publicity to the assessee''s

goods outside India. It was in that background that the Division Bench of the Kerala High Court held that the services rendered by the agents were

such as to enable the assessee to have the benefit of weighted deduction as contemplated u/s 35B of the Act. No such evidence is available on the

facts of this case. The agent''s commission paid was merely a commission paid to a middleman for the services rendered by him to effect the sale of

the assessee''s goods to a foreign buyer, who was willing to purchase the same and on whose behalf the local agent acted. The observations of the

Supreme Court in Commissioner of Income Tax, Delhi Vs. Stepwell Industries Ltd. and etc. etc., , apply to the facts of this case.

The question referred to us is therefore required to be answered in favour of the Revenue and against the assessee. No costs.