Judgment

HEGDE, J. :- This is an assessee s appeal by certificate under S. 66A (2) of the Indian Income-tax Act, 1922 (to be hereinafter referred to as the Act). The Income-tax Appellate Tribunal, Calcutta B Bench as per the directions given by the High Court in an application under S. 66 (2) submitted the following question for ascertaining the opinion of the High Court.

"Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the sum of Rs. 1,56,806/- was wholly and exclusively laid out for the purpose of business and as such allowable as a business expenditure."

2. The High Court has answered that question in the negative and in favour of the Revenue. The correctness of the decision of the High Court is challenged before us by the assessee.

3. The question referred to the High Court for its opinion proceeds on the basis that the facts and circumstances of the case as found by the Tribunal are not in dispute but what is disputed is the legal effect of the facts and circumstances found by the Tribunal. As held by this Court in the earlier decisions that when a question refers to the facts and circumstances in the case, it means the facts and circumstances as found by the Tribunal. If any party wants to challenge the correctness of the findings given by the Tribunal either on the ground that the same is not supported by any evidence on record or is based on irrelevant or inadmissible evidence or is unreasonable or perverse a question raising any one of those grounds must be sought for and obtained. It is needless to say that the jurisdiction of the High Court in a reference under S. 66 is only an advisory jurisdiction. That being so it can only pronounce its opinion on the questions referred to it. It is tritle to say that it cannot sit as an appellate Court over the decision of the Tribunal. Bearing these facts in mind, let us now proceed to set out the facts as found by the Tribunal.

4. The controversy in this case relates to the assessment of the assessee for the assessment year 1955-56, the corresponding previous year being the financial year ending on March 31, 1955.

5. By an agreement dates December 30, 1949, the assessee Company appointed M/s. J. K. Alloys Ltd. as the selling agents for selling its aluminium products. The agreement was effective for a period of 5 years from April 1, 1950. The relevant clauses of the agreement are 1, 2, 6, 8, 9, 14 and 15. They read thus :

"1. That the Agents shall act as the Selling Agents of all Aluminium Ingots, Sheets, Circles, Expended Metal, Shots. Utensils and Anodised and alloy goods manufactured by the Principal.

2. That this Agreement shall commence from the 1st day of April, 1950 and shall continue, unless otherwise determined by mutual consent of the parties, till the 31st day of March, 1955.

6. That the Principal will allow the Agents discount in the manner indicated hereunder on sale of all products of the Principal effected by the Agents either by themselves or through Sub-Agents appointed by them or directly by the Principle themselves :

Aluminium Ingots 1 1/2%

Aluminium Sheets & Cycles 2 1/2%

Aluminium Expanded Metal 12 1/2%

Aluminium Utensils & andoised and alloy goods 17 1/2%

Aluminium Shots 5%

Provided always that the rates of discount abovementioned or any of them may be varied by mutual consent of the parties.

8. That the Agents shall be responsible for payment of the price and all other moneys to the Principal immediately after the goods leave the Principal s works or godown. Such payment will be made on presentation of necessary papers or documents by the Principal to the Agents and not later than a fortnight after the date the goods shall have been despatched. In default of payment as aforesaid the Principal will be entitled to charge interest until, realisation at the rate of six per cent per annum on the balance for the time being outstanding.

9. That the Agents will be responsibile for the due fulfilment of all contracts made by