K.S. Paripoornan, J.
1. At the instance of the Revenue, the Income-tax Appellate Tribunal has referred the following question of law for the decision of this court:
'Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the commission paid by the assessee was expenditure incurred for obtaining information regarding markets outside India for the products of the assessee and that, consequently, the assessee is entitled to weighted deduction of the amount under Section 35B of the Income-tax Act, 1961 ?'
2. The respondent is an assessee to income-tax. It is an exporter of cashew. We are concerned with the assessment year 1977-78. The assessee claimed deduction of commission payment of Rs. 64,774 under Section 35B of the Income-tax Act. It was stated to be commission paid to Messrs. Eastern Export Traders, Bombay. The Income-tax Officer held that this payment was made in India and does not come under any of the clauses of Section 35B(1)(b) of the Act. The assessee took the matter in appeal. The Commissioner of Income-tax (Appeals) noticed the plea of the assessee that the commission was paid for obtaining information regarding markets in Russia for the assessee's products. The claim was allowed holding that the expenses incurred for obtaining information regarding markets outside India for the assessee's products is a permissible deduction under Section 35B of the Income-tax Act. The Appellate Tribunal concurred with the said view. It is thereafter at the instance of the Revenue that the question of law formulated hereinabove has been referred for the decision of this court.
3. We heard counsel. Counsel for the Revenue complains that the Commissioner of Income-tax (Appeals) has not found whether the commission was paid for obtaining information regarding markets in Russia for the assessee's products. What has been done by the Commissioner of Income-tax (Appeals) is to advert to the said plea and then hold that the assessee is entitled to the deduction. There has been no evaluation or definite finding as to whether the assessee paid the commission, as stated by him, and if so whether it is a permissible deduction under Section 35B of the Act. TheAppellate Tribunal has not adverted to this omission in the order passed by the Commissioner of Income-tax (Appeals). Therefore, we are of the view that neither the Commissioner of Income-tax (Appeals) nor the Appellate Tribunal adjudicated the question at all as to whether the claim of the asses-see that it has paid commission for obtaining information regarding markets outside India for its products is true and if so, whether the assessee is entitled to weighted deduction under Section 35B of the Income-tax Act. Initially, the question as to whether the payment was actually made should be evaluated and a definite finding should be entered. On entering such a finding, the further question as to whether it is legally permissible for the assessee to claim the deduction under Section 35B of the Act will arise. In so far as it has not been done in the instant case, we are of the view that the Appellate Tribunal erred in law in holding that the assessee is entitled to weighted deduction, on the amount claimed by it, under Section 35B of the Act.
3. In the absence of a positive finding in the order of the Commissioner of Income-tax (Appeals) as also in the order of the Appellate Tribunal, we are of the view that we should decline to answer the question referred to us by the Appellate Tribunal. We do so. At the same time, we direct the Income-tax Appellate Tribunal to restore I. T. A. No. 394 (Coch.) of 1982 to its file and adjudicate as to whether the plea of the assessee is factually true and correct and if so, whether the assessee is entitled to deduction under Section 35B of the Income-tax Act.
4. We decline to answer the question in the above circumstances.
5. A copy of this judgment under the seal of this court and the signature of the Registrar shall be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.