2005 (8) TMI 107 - HC - Income Tax

Court denies deduction for foreign agent commission under Income-tax Act

The court ruled in favor of the Revenue, denying the deduction for commission paid to a foreign agent for promotion of exports under section 35B(1)(b)(iv) ... Export Market Development Allowance Issues:Interpretation of section 35B(1)(b)(iv) of the Income-tax Act, 1961 regarding deduction for expenditure on commission to foreign agent for promotion of exports.Analysis:The case involved a partnership firm engaged in the manufacture and export of hand-knitted woollen carpets, seeking a weighted deduction under section 35B(1)(b)(iv) of the Income-tax Act, 1961 for commission paid to a foreign agent in Belgium. The Assessing Officer initially allowed the deduction, but the Commissioner of Income-tax set aside the assessment for further examination. The subsequent fresh assessment disallowed the deduction, leading to appeals. The Tribunal ultimately allowed the deduction, citing a similar case precedent and interpreting section 35B(1)(b)(iv) broadly to include expenditure incurred through a foreign agent for maintenance outside India.The main contention revolved around whether the commission paid to the foreign agent qualified for deduction under section 35B(1)(b)(iv) of the Act. The Revenue argued that since the assessee did not maintain any branch or agency outside India, the commission payment did not fall within the purview of the provision. The Revenue relied on the decision in Aravinda Paramila Works v. CIT [1999] to support their stance. Conversely, the assessee contended that the commission payment was for maintaining an agency and thus covered under the provision, citing the decision in CIT v. Assam Frontier Tea Ltd. [2002].The court analyzed the relevant portion of section 35B(1)(b)(iv) and referred to the decision in Aravinda Paramila Works v. CIT [1999]. The apex court in that case emphasized that the assessee must maintain the branch, office, or agency outside India for the promotion of sales of its goods, services, or facilities to qualify for the deduction. The court highlighted that expenditure on commission for specific sales did not constitute expenditure on the general promotion of sales. The court also distinguished the case of CIT v. Assam Frontier Tea Ltd. [2002], where the assessee was found to be maintaining a warehouse for sales promotion outside India.In the present case, the court noted that the assessee had not claimed to maintain a branch or agency outside the country. Relying on the decision in Aravinda Paramila Works v. CIT [1999], the court held that the commission paid to the agent did not qualify for deduction under section 35B of the Act. Consequently, the court ruled in favor of the Revenue, denying the deduction for the commission paid to the foreign agent. The judgment emphasized the requirement for the assessee to maintain the branch, office, or agency for sales promotion outside India to avail of the deduction under the specified provision.