Fenner (India) Ltd. vs Commissioner of Income Tax (No. 1)

N. V. Balasubramanian, J.—The following four questions of law relating to the assessee''s assessment year 1980-81 have been referred to

us for our opinion at the instance of the assessee :

Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the bank charges incurred in connection with

export is not eligible for relief u/s 35B ?

Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the expenditure on travelling in India by the

company''s export department in connection with exports, is not eligible for weighted deduction u/s 35B ?

Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the gratuity paid to the employees in excess of

the amount exempt u/s 10(10)(iii) is to be included in remuneration for the purpose of applying the ceiling limit u/s 40A(5) ?

Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the proportionate amount of cash assistance on

exports attributable to the new industrial undertaking did not qualify for the relief granted u/s 80HH ?

The assessee is a public limited industrial company which manufactures oilseals, conveyor belts, rubber moulded products, etc. The assessment

year'' involved is 1980-81 for which the accounting year ended on March 31, 1980. The assessee claimed, inter alia, deduction u/s 35B of the

Income Tax Act, 1961 (hereinafter referred to as ""the Act""), in respect of the bank charges incurred in connection with export promotion of Rs.

5,178 and travelling expenses of Rs. 30,829 incurred in India by the staff of the export office in connection with export of goods. The Income Tax

Officer denied relief in respect of these two items on the ground that the claims were not admissible in terms of Section 35B of the Act. On appeal

the disallowances were confirmed by the Commissioner (Appeals). On further appeal by the assessee, the Tribunal sustained the disallowance of

bank interest following the earlier order of the Tribunal in the assessee''s own case. Similarly, the claim relating to travelling expenses was also

rejected by the Tribunal in view of the clear provisions of Section 35B(l)(b)(vii) of the Act. The assessee also claimed deduction of Rs. 70,000

being the gratuity paid in excess of the amount exempt u/s 10(10(iii) of the Act while computing disallowance of remuneration u/s 40A(5) of the

Act. The Income Tax Officer disallowed a sum of Rs. 1,48,484 u/s 40A(5) of the Act in respect of the employees other than the directors. The

Income Tax Officer was of the view that the exemption provided u/s 40A(5) of the Act did not provide for exclusion of the gratuity payment and,

therefore, included the amount of Rs. 1 lakh in the case of S. P. Bhatacharaya as the amount paid exceeded the limit prescribed u/s 40A(5) of the

Act. The Commissioner of Income Tax (Appeals), on appeal by the assessee, held that to the extent gratuity is exempt u/s 10(10)(iii) in the hands

of employees, it should be excluded from the purview of Section 40A(5) of the Act and only the balance of the gratuity should be included in the

salary for the purpose of disallowance u/s 40A(5) of the Act. The Appellate Tribunal confirmed the finding of the Commissioner of Income Tax

(Appeals) and the third question of law referred to us challenges that finding.

The assessee also claimed relief u/s 80HH of the Act on Rs. 1,69,025 being the proportionate amount of cash assistance on exports attributable

to the new industrial undertaking. According to the assessee, the cash assistance was granted as compensation for loss incurred on export of

goods and hence it formed part of profits earned by the undertaking. The Income Tax Officer, as well as the Commissioner of Income Tax

(Appeals) held that the assessee was not entitled to deduction u/s 80HH of the Act as the amount of cash assistance was not derived from an

industrial undertaking. The Appellate Tribunal confirmed the finding of the Commissioner of Income Tax (Appeals) and held that the source of cash

receipts is the scheme framed by the Government, and not the industrial undertaking, and, therefore, the assessee was not entitled to deduction u/s

80HH of the Act in respect of the amount of cash assistance received by the assessee. Challenging the above findings, four questions of law set out

earlier have been referred to us.

In so far as the first question of law is concerned, the assessee has not established that the bank charges would qualify for weighted deduction

under any of the Sub-clauses of Clause (b) of Section 35B(1) of the Act. It is an established proposition of law that unless the assessee establishes

that the expenditure incurred falls under any of the sub-clauses of Section 35B(l)(b) of the Act, the assessee is not entitled to weighted deduction.

The finding of the Appellate Tribunal is that the bank charges incurred by the assessee did not fall within any of the sub-clauses of Section 35B(l)

(b) of the Act, and, therefore, the Tribunal was right in holding that the assessee is not eligible to claim weighted deduction in respect of the bank

charges. The assessee has also not furnished any details of materials to show that its claim would fall under any of the sub-clauses of Section

35B(l)(b) of the Act and in the absence of any material, the claim of the assessee for weighted deduction must fail. Therefore, we answer the first

question of law referred to us in the affirmative and against the assessee.

In so far as the second question of law referred to us is concerned, admittedly, the expenditure was incurred on travel in India by the employees

of the company''s export department. The case put forward by the assessee before the Commissioner of Income Tax (Appeals) as well as before

the Appellate Tribunal was that the expenditure was incurred in connection with the export of the goods, to secure information regarding import

and for preparing and submitting tenders and also in connection with the distribution and supply of provision outside India. The Tribunal proceeded

on the basis that the expenditure incurred by the assessee was towards the travelling expenditure in India and not outside India, and as such the

assessee is not eligible for weighted deduction u/s 35B(l)(b)(vii) of the Act. We are of the opinion that the Tribunal has not examined the claim of

the assessee whether the expenditure claimed would fall u/s 35B(l)(b)(ii) of the Act as that Sub-section provides that if the expenditure had been

incurred wholly and exclusively for obtaining information regarding markets outside India for such goods, services or facilities, the assessee would

be eligible to claim weighted deduction. It is no doubt true that travelling expenses were incurred in India, but the purpose and object of the

expenditure, according to the assessee was to secure information regarding the import and for preparation and submission of tenders.

Unfortunately, the Tribunal has not examined the case of the assessee whether the expenditure claimed by the assessee would fall u/s 35B(l)(b)(ii)

of the Act and since there cannot be any blank disallowance and the case put forward by the assessee was not examined by the Appellate

Tribunal, we are of the opinion that the Tribunal should consider the question afresh and determine whether the assessee is eligible for weighted

deduction u/s 35B(l)(b)(ii) of the Act. The Tribunal is perfectly justified in holding that the case of the assessee does not fall u/s 35B(l)(b)(vii) of the

Act as the said sub-clause deals with the expenses incurred on travelling outside India, but the Tribunal overlooked the fact that the claim of the

assessee was not u/s 35B(l)(b)(vii) of the Act, but u/s 35B(l)(b)(ii) of the Act. Since the Tribunal has not considered the question which was raised

before it, we are of the view it should consider the question afresh and determine on the basis of material whether the assessee can succeed in its

claim u/s 35B(l)(b) of the Act. Accordingly, though we answer the question of law referred to us in the negative and in favour of the assessee, the

Tribunal should consider the question in the light of our above observation.

In so far as the third question of law referred to us is concerned, the Tribunal has taken the view that the gratuity paid to the employees in excess

of the amount exempt u/s 10(10)(iii) is liable to be treated as remuneration for the purpose of determining the ceiling limit u/s 40A(5) of the Act.

The same view has been taken by the Bombay High Court in Commissioner of Income Tax Vs. Century Spg. And Mfg. Co. Ltd., . We are in

respectful agreement with the said view of the Bombay High Court and hold that only to the extent of the amount that is in excess of the exemption

provided u/s 10(10)(iii) of the Act, the gratuity has to be taken into account as remuneration for the purpose of determining the ceiling limit u/s

40A(5) of the Act.

In so far as the eligibility of the assessee for deduction u/s 80HH of the Act is concerned, it is fairly conceded by learned counsel for the

assessee that this court in T. C. Nos. 953 to 956 of 1985 by order dated March 3, 1998, an unreported decision ( Commissioner of Income Tax

Vs. Pondicherry Distilleries Ltd., (Appex.) (infra)) has held that the cash assistance received on exports would not qualify for any deduction u/s

80HH of the Act. Following the said judgment, we hold that the Tribunal was right in holding that the proportionate amounts of cash assistance on

exports do not qualify for deduction u/s 80HH of the Act. Accordingly, we answer the fourth question of law referred to us in the affirmative and

against the assessee.

Our answer to the questions of law referred to us are under : The first question of law is answered in the affirmative and against the assessee.

The second question of law is answered in the negative and in favour of the assessee subject to the direction that the Tribunal should consider the

claim of the assessee afresh. The third question of law is answered in the affirmative and against the assessee. The fourth question of law is

answered in the affirmative and against the assessee. However, in the circumstances of the case, there will be no order as to costs.