COMMISSIONER OF INCOME-TAX Vs. FAIZAN

JUDGEMENT

(1.) THE Income -tax Appellate Tribunal, Delhi, has referred the following two questions of law under Section 256(1) of the Income -tax Act, 1961 (hereinafter referred to as 'the Act'), for the opinion to this court: 1. Whether, on the facts and in the circumstances of the case, the learned Tribunal was legally justified in holding that the assessee was a recognized export house and a small scale exporter who was manufacturing and producing articles and hence was entitled to weighted deduction under Section 35B of the Income -tax Act, 1961?

(2.) WHETHER , on the facts and in the circumstances of the case, the case of the assessee fell under the definition of small scale industrial unit? 2. Briefly stated the facts giving rise to the present reference are as follows: The reference relates to the assessment year 1978 -79 with the previous year having ended on March 31,1978. The assessee is a resident registered firm and claimed weighted deduction under Section 35B of the Act on the ground that it is engaged in the process of manufacturing, i.e., purchasing of kora mal and getting it polished and engraved, etc. After getting the goods finished it is exported. The assessee -firm is exclusively engaged in export business of brassware. The Income -tax Officer did not allow the weighted deduction under Section 35B on the ground that the assessee is not a holder of export house certificate nor a small scale industry. The said question of the order was confirmed in appeal by the Commissioner of Income -tax (Appeals). He also found that admittedly the assessee was not having export house certificate. However, its plea that it should be considered as a small scale exporter was rejected, in view of the definition of the term given in Explanation (a) to Sub -section (1A) of Section 35B. For a small scale exporter it is necessary that the industrial undertaking or the undertakings should be owned by him. On further appeal, the Tribunal granted weighted deduction under Section 35B of the Act.

(3.) WE have examined the above questions in detail in I.T.R. No. 34 of 1986 -Orient Arts and Crafts v. CIT : [2005]279ITR581(All) . It has been held that it is necessary for the assessee to own the industrial undertaking or undertakings to qualify as a small scale exporter within the meaning of Section 35B(1A), Explanation (a), of the Act. In this case indisputably the assessee is not a holder of an export house certificate. There is no finding by any of the authorities including the Tribunal that the assessee owns any undertaking or undertakings. The Tribunal has proceeded on the footing that it is not the requirement of the Act to qualify as a small scale exporter for a person to own undertaking or undertakings. Therefore, the order of the Tribunal cannot be sustained.