V.P. Tyagi, Actg. C.J.
1. In both these petitions for reference, common questions of law arise and, therefore, we propose to dispose them of by one common order.
2. The aseessee in these two cases is a private limited company carrying on its business at Alwar. The years of assessmeat for which the questions have been raised are 1981-62 and 1982-63. D.B. Income-tax Case No. 142 of 1671 relates to the assessment year 1961-62 while D.B. Income-tax Case No. 150 of 1971 relates to the assessment year 1962-63. The assessee-company had its commercial dealings with M/s Makhan Lal and Company Ltd., Penang, which was carrying on its business in the State of Singapore, The asseasee company exported at the order received from the Non-Resident Company of M/s Makhan Lal and Company Ltd., gunnies, jute twine, shellac, mustard oil and other similar commodities. At the end of the financial year i.e. the year ending Deewali 8-11-61, the assessee-company credited to the account of the Non Resident Company certain amounts under the heading 'Foreign Agents Commission' and later on those amounts were remitted to the said company. While doing so, the assessee-company did not deduct the amount of tax chargeable on the amount remitted by the assessee-company under Section 18(3)(b) of the Income-tax Act, 1922 for the first time and under Section 195(1) of the Income tax Act, 1961 for the second year. The Income-tax Officer issued show cause notice to the assessee-company stating that the Non-Resident Company was neither registered in India, nor did it make any prescribed arrangements for declaration of dividends in India and, therefore, the assessee-company was bound to deduct the tax out of the payments made, to the Non-Resident Company. Later on, the assessee-company was taxed on the amount so remitted by it. On appeal before the Assistant Appellate Commissioner, it was held that the assessee-company was bound under the provisions of the Income-tax Act to deduct the tax chargeable on the amount; remitted to the Non-Resident Company and since it was not done by the assessee-company, it was liable to pay tax of that amount. The second appeal was preferred before the Appellate Tribunal, Delhi. But because the Head Office of the assessee-company was mean while transferred to Calcutta, the assessee-company prayed to the President of the Tribunal to transfer its cases from the tile of Delhi Bench to that of Calcutta Bench. The President, however, accepted the request of the assessee-company and transferred the appeals from the file of the Delhi Bench of the Tribunal to that of the Calcutta Bench of the Tribunal. The appeals of the assessee-company were rejected by the Calcutta Bench. Reference Applications were made by the assesses company under Section 256(1) of the Income Tax Act, 1961, but they were rejected by the Tribunal on the ground that no question of law was involved in this matter. It is against this order of rejection of the Tribunal that the assessee-company has preferred these two applications under Section 256(2) of the 1961 Act, for the reference on the questions mentioned in the petitions.
3. A preliminary objection was raised by learned Counsel appearing on behalf of the Revenue that this Court has no jurisdiction to entertain an, application under Section 256(2) of the Income-tax Act, 1961 to call for a reference from the older passed by a Tribunal situated at Calcutta. He also urged that the assessee-company has, in these petitions, impleaded the Commissioner of Income-tax, Calcutta, who does not reside within the jurisdiction of this Court and, therefore, no order for making a reference can be passed against the Commissioner of Income-tax, Calcutta.
4. The Appellate Tribunal is constituted under the provisions of Section 252 I.T. Act and it shows that only one Appellate Tribunal for the discharge of the functions of a Tribunal shall be made for India and that the President has been empowered to appoint one Judicial Member and one Accountant Member for each of the Benches created at different places in the the country. The jurisdiction of the Benches has been defined by the President. But it is within the jurisdiction of the President to transfer an appeal from one Bench of the Tribunal to another Beech of the Tribunal. After the case has been decided by the Tribunal, a reference can be made to the High Court under Section 256(1) or 256(2) of the Act. It is not disputed that if the case bad not been transferred from Delhi Bench to Calcutta Bench, this Court was: competent to cell for the reference under Section 256(2) of the Act. The question that arises for cur determination is whether the transfer of a case from one Bench to another Bench of the Tribunal takes away the jurisdiction of this Court under Section 266(2) of the Act? Mr. Lodba, in this connection, bas drawn our attention to the Standing Order No. 1 of 1867 and urged that the explanation attached to this Standing Order cliches the issue and enables the Revenue to support the objection raised by him. The explanation says, 'by this order the ordinary jurisdiction of a Bench shall be determined not by the place of business or residence of the assessee but by the location of the office of the assessing officer.' In our opinion, this explanation bas hardly any relevance to the question raised before us. The point in issue before us is whether this Court which has the jurisdiction to call for a reference under Section 256(2) of the Act, is deprived of that jurisdiction because the case was transferred from one bench to another bench. There is no specific provision either in the Act or Rules or in any of the Standing Orders affecting the jurisdiction of the High Court, in case the matter has beer, transferred from one Bench to another. The jurisdiction of the High Court is determined from the fact as to whether the case has arisen and whether the assessing officer was located within the jurisdiction of this Court or not. It is true that the Appellate Tribunal did issue directions while disposing of the second appeal of the assessee company to the Commissioner of Income-tax. Calcutta, but that fact, in our opinion, does not affect the point of jurisdiction, because it was the Commissioner of Income-tax, Calcutta who had put in his appearance before the Appellate Tribunal, though he was not a party to the appeal. It may be mentioned here that the Commissioner of Income-tax, Delhi was impleaded as a respondent in the appeal filed by the assessee-company before the Appellate Tribunal, yet for the sake of convenience, the reply was filed on behalf of the Revenue by the Commissioner of Income-tax at Calcutta and he was permitted to do so because it suited the Department to employ the service of the Commissioner of Income-tax, Calcutta to represent the case of the Revenue before the Appellate Tribunal.
5. In order to obviate any complications, the assessee-company, while presenting a petition under Section 256(2) of the Act impleaded the Commissioner of Income-tax at Calcutta also as a party along with the Commissioner of Income-tax, Rajasthan, Jaipur as respondent. This is by way of abundant precaution that the Commissioner of Income-tax, Calcutta was impleaded as one of the respondents. This in our opinion would not affect the question of jurisdiction of this Court. The assessee-company is prepared to leave out the Commissioner of Income-tax, Calcutta it he is not considered to be a proper party in the case, in our opinion, the objection raised by Mr. Lodba has hardly any legs to stand, because the jurisdiction once given to this Court under the provisions of the law is not taken away simply because a matter has been transferred from one Bench to another for the sake of convenience either to the assessee or to the Department. We, therefore, rule out this objection.
6. The Tribunal, while considering the application of the assessee company under Section 256(1), held that from the letter exhanged between the assessee-company and the Non Resident Company it was char that the amount remitted by the assessee-company to the Non-Resident Company was by way of commission add not by way of rebate or trade discount. Mr. Gupta appearing on behalf of the Assessee-company, however, urged that the word 'commission' has been erroneously used by the assessee-company and, therefore, the facts must be gone into by this Court to find out whether it was really a com mission or a trade discount. This fact is not denied that at the time of the sale of the commodities to the Non-Resident Company, the assessee-company used to charge the full price from the Non-Resident Company and it is only at the end of each fiscal year that an am on at calculated at the rate of 3% on the total sale-price of the commodities was remitted as a commission. The letter dated 20th October, 1959 written by the assessee-company to M/s Makhanla & Co. Ltd. Penang unequivocally states that the assessee-company shall pay a percentage of commission to the Non Resident Company, provided the commodities were purchased from the assessee-company. The amount of commission which was adjusted in the account books of the assessee-company was under the head 'Foreign Agents Commission' If the amount was paid to the Non-Resident Company as rebate or under the heading trade discount, (sic) in each invoice, the rebate or the trade discount should have been shown be the seller (the assessee-company). The question whether the amount way remitted by the assessee-company to the Non-Resident Company as a commission was purely a question of fact and this question has been decided against the assessee company, first by the Assistant Appellate Commissioner and then by the Tribunal. We think that we cannot, while exercising our jurisdiction under Section 256(2) of the Act, go into this question, of fact.
7. Both these petitions for reference are, therefore, rejected. No order as to costs.