1. Y. R. MEENA, J.--In this reference application, the following questions are referred for our opinion: "(1) Whether, on the facts and in the circumstances of the case, when the Assessing Officer in the assessm ent allowed relief under section 35B(1)(b)(iv) of the Income Tax Act, 1961, only on the ground that there have been changes in the said section from the assessment year 1982-83 without applying his mind to the conditionalities embedded in the section 35B(1)(b)(iv) of the said Act, the Tribunal was justified in law in holding that the order of the Assessing Officer was not erroneous and prejudicial to the interests of the Revenue and thereby cancelling the order under section 263 of the said Act passed by the Commissioner?
(2) Whether, on the facts and in the circumstances of the case, when the Assessing Officers while making the disallowance under section 40A(5) of the Income Tax Act, 1961, in the assessment did not examine whether payments of gratuity excluded in the above computation were, in fact, such gratuities which are exempt under section 10(10) of the said Act in the hands of the individual employees, the Tribunal was justified in law in holding that the order of the Commissioner of Income-tax on this issue cannot be supported and thereby cancelling the order of the Commissioner under section 263 of the said Act?"
2. The assessee-company filed its return on July 26, 1982, declaring a total income of Rs.29,08,030.
3. Subsequently, the return was revised and the assessee-company declared its income at Rs.30,62,500. During the course of hearing, again, income was revised further and the assessee- company declared its income at Rs.31,23,300. On a perusal of the assessment order, the Commissioner of Income-tax found that the assessment order of the Assessing Officer was erroneous and prejudicial to the interests of the Revenue so far it relates to allowance of weighted deduction, on payment of commission, under section 35B of the Act and also not including the gratuity payment for disallowance under section 40A(5) of the Act.
4. On an examination of the assessm ent records, the Commissioner of Income-tax found that the assessee has claimed the weighted deduction on the payment of Commission of Rs.12,94,776, paid to a foreign agent and allowed the weighted deduction on that amount to the extent of Rs.4,31,592.
5. Similarly, the Commissioner of Income-tax further found while considering the provisions of section 40A(5), the Inspecting Assistant Commissioner (Assessment), the gratuity payment amount which has been paid to a retired employee had not been included for the purpose of disallowance under section 40A(5) (sic). The assessm ent order dated March 10, 1986, was set aside with a direction to make fresh assessm ent for disallowance under section 40A(5) including the gratuity amount paid to the retired employee. Similarly, direction was given to re-compute the income as per the provisions of section 35B after disallowance of weighted deduction on payment of commission.
6. Heard learned counsel for the parties. Learned counsel for the. Assessee, Dr. P.I placed reliance on the decisions of this Court in CIT v. Chloride India Ltd. (1992) 193 ITR 355 and CIT v. Usha Telehoist Ltd. (1995) 212 ITR 177 and submits that even after amendment in section 35B, on the commission paid to a foreign agent outside India weighted deduction should be allowed. He also submits that the Commissioner of Income-tax has not set aside the order of the Inspecting Assistant Commissioner (Assessm ent), on the ground that he has allowed weighted deduction on payment for warehousing charges.
7. The facts are not in dispute that Rs.11,42,611 has been paid by the assessee as commission to the foreign agent outside India. Sub-clause (iv) of clause (b) of subsection (1) of section 35B provides that if the expenditure referred to in clause (a) is incurred wholly and exclusively on maintenance outside India of a branch officers or agency for the promotion of the sale outside India of such goods, services and facilities, the assessee is entitled to weighted deduction.
8. The commission has been paid to a foreign agent, who sold the goods of the assessee, outside India. Any payment against such commission to that agent is entitled or eligible for weighted deduction. Under section 35B, there is no intention of the Legislature that weighted deduction should be allowed only to an assessee who maintains the agency or office outside India. Any payment made to any agent who sells the goods of the assessee outside India, is eligible for weighted deduction. Thus, the order of the Inspecting Assistant Commissioner (Assessment) is neither erroneous nor prejudicial to the interests of the Revenue.
9. The next reason for setting aside the assessment order given by the Commissioner of Income-tax is that the Assessing Officer has not included the gratuity amount for the purpose of disallowance under section 40A(5) of the Act. The issue has been considered elaborately by the Bombay High Court in CIT v. Colgate Palmolive (I.) (Pvt.) Ltd. (1994) 210 ITR 770. At page 782, the High Court observed as under: "Since the payment of a sum of Rs.90,000 to the Chairman-cum---fulltime Director as retirement gratuity cannot be looked upon as periodic payment, it is not covered by the provisions of either section 40(c) or section 40A(5) of the Income Tax Act, 1961. The ceiling, therefore, which is prescribed under these two sections on allowable expenditure will not apply to this payment. The Tribunal has allowed this payment as a deduction from the income arising to the assessee on account of profits and gains of business. We do not see any reason to take a different view."
10. No contrary decision has been brought to our notice by learned counsel for the Revenue.
11. Considering the reasoning given by the Bombay High Court on the issue that under section 40A(5) of the Act, the payment of gratuity which is payable once on retirement of the employee and not a periodical amount like salary should not be included for disallowance under section 40A(5) of the Act. Thus, on this issue also we do not find any error in the order of the Assessing Officer.
12. The application is, thus, disposed of.