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M/S E.M. Co. Ltd. v. C.I.T. - INCOME TAX REFERENCE No. 121 of 1989  RD-AH 1705 (14 December 2004)
I.T.R. No.121 of 1989
M/s. The Elgin Mills Co. ltd., Kanpur Versus
The Commissioner of Income Tax,
Hon'ble R.K.Agarwal, J.
Hon'ble Prakash Krishna, J.
The Income Tax Appellate Tribunal, Allahabad, has referred following two questions of law under section 256 (1) of the Income Tax Act, 1961 ( here in after referred to as the Act) for opinion to this Court:-
1. "Whether on the facts and in the circumstances of the case the Income-tax Appellate Tribunal was justified in law in upholding the finding that the cash incentive amounting to Rs.7,46,262/- received by the assessee-company during the assessment year 1976-77 from the Government under the Export Promotion Scheme was chargeable as the assessee's income or as profits and gains of the business under the Income-tax Act, 1961?"
2. Whether on the facts and in the circumstances of the case the Income-tax Appellate Tribunal was justified in law in holding that the claim of the assessee for weighted deduction in respect of the expenditure of Rs.4,48,652/- incurred on the carriage of goods for export to their destination outside India and insurance of such goods while in transit was not admissible u/s 35B (1) (b) (iii) of the Income-tax Act, 1961?"
Briefly stated the facts involved in the present case are as under:-
The present reference relates to the assessment year 1976-77.
We have heard Shri Pankaj Mithal, the learned counsel for the applicant and Shri A.N.Mahajan, learned Standing Counsel for the Revenue. So far as the first question is concerned, in view of the retrospective amendment made in Section 28 by Finance Act 1990 w.e.f. 1.4.1967 clause (iii) (b) has been inserted which provides that cash assistance (by whatever name called) received or receivable by any person against exports under any scheme of the Government of India shall be chargeable to the Income Tax under the head "Profits and gains of business or profession". Thus, the amount of cash incentive is chargeable to the Income Tax under the head "Profits and gains of business or profession" and therefore the Tribunal had rightly upheld the finding of the Assessing Officer including the aforementioned amount towards the "Profits and gains of business or profession." So far as second question is concerned, we find that this Court in ITR No.111 of 1985 Kanpur Textiles Ltd. Vs. Commissioner of Income Tax, Kanpur decided on 12th October, 2004 had considered similar question being question No.2 and after following the decision of the Apex Court in the case of Commissioner of Income Tax vs. Stepwell Industries Ltd. And others (1997) 228 ITR 171, and of this Court in the case of Commissioner of Income Tax, Kanpur vs. M/s. New Light Tannery, Kanpur (1999) UPTC 812 and one of the Madras High Court in the case of Hamosons Export (P) Ltd. Vs. Commissioner of Income Tax (1999) 157 CTR 473 has held that the expenses incurred for transportation of goods to their destination outside India and insurance of such goods while in transit was not admissible for weighted deduction under section 35B (1)(b) (iii) of the Act.
Respectfully following the aforesaid decision we are of the considered opinion that the Tribunal was justified in disallowing claim of weighted deduction on such expenditure.
In view of the foregoing discussion, we answer the questions referred to us in affirmative i.e. in favour of Revenue and against the assessee. However, there shall be no order as to costs.
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