1987 (3) TMI 91

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.... was delivered by T. KOCHU THOMMEN J.-In ITR No. 82 of 1982, the following question has been, at the instance of the Revenue, referred to us by the Income-tax Appellate Tribunal, Cochin Bench : " Whether, on the facts and in the circumstances of the case, and on consideration of the agency agreement, documentary and other evidence, the Tribunal was right in law and fact in holding that the p....

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.... ITR No. 82 of 1982 relates to the assessment year 1974-75 and ITR No. 100 of 1980 relates to the assessment year 1973-74. The finding of the Appellate Tribunal in both these cases is that the assessee is entitled to weighted deduction in terms of section 35B(1)(b)(iv) of the Income-tax Act, 1961 (the "Act"). The case of the assessee is that it paid a percentage of the export price of the goods....

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.... India. For the claims for deduction to succeed, it must be proved that the assessee had at the relevant time an agent outside India, and that the agent promoted the assessee's sale of goods, services or facilities outside India. In the present case, it is in evidence that the assessee had entered into agreements with certain persons abroad. These agreements show that the assessee is liable to pay....

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....he question, therefore, is whether the amount paid by deduction of the sale price was meant to be paid to the person who acted solely as an agent of the assessee, and not in his own right as principal, or as an agent of foreign buyers. If the answer is that he was himself a principal or an agent of foreign buyers, the amount paid to him in the manner in which it is stated to have been paid would n....