Calcutta H.C : Whether, on the facts and in the circumstances of the case and on a proper construction of the agreement between the Indian company and the Export company, the Tribunal was right in holding that the non-resident companies had no business connection with the Indian company (assessee-company) and, therefore, the Indian company could not be treated as the agent of the nrc company under s. 163 of the IT Act, 1961 ?

Counsel Appeared

Sunil Mukhejee, for the Revenue : Miss M. Seal, for the Assessee

DIPAK KUMAR SEN, J. :

On an application of the Revenue under s. 256(2) of the IT Act, 1961, this Court has directed the Tribunal to refer the following questions as questions of law arising out of the order of the Tribunal for the opinion of this Court :

” (1) Whether, on the facts and in the circumstances of the case and on a proper construction of the agreement between the Indian company and the Export company, the Tribunal was right in holding that the non-resident companies had no business connection with the Indian company (assessee-company) and, therefore, the Indian company could not be treated as the agent of the nrc company under s. 163 of the IT Act, 1961 ? ”

(2) Whether, on the facts and in the circumstances of the case, the Tribunal relied on irrelevant evidence and ignored relevant materials and came to the finding that there was no business connection between the assessee and the non-resident company under s. 43 of the Indian IT Act, 1922, s. 9 of the IT Act, 1961, and as such the assessee could not be treated as an agent of the non-resident company under s. 163 of the IT Act, 1961, and in that view cancelling the assessment for the asst. yr. 1964-65 ?”

The controversies raised in the said questions are covered by the decision of this Court in T.I. and M. Sales Ltd. vs. CIT (1981) 21 CTR (Cal) 258 : (1985) 151 ITR 286 (Cal), being the case of the same assessee.

Following the said decision, we answer question No. (1) in the affirmative and question No. (2) in the negative, both in favour of the assessee. There will be no order as to costs. Let the description of the assessee be amended as follows: “Talbot Stead Tube Co. Ltd., Agent T. & M. Sales Ltd., Calcutta.” Leave is given to the advocate on record of the assessee to file her vakalatnama within 4 weeks from date.

SHYAMAL KUMAR SEN, J.

I agree.

[Citation : 175 ITR 437]