AJIT K. SENGUPTA, J.

( 1 ) IN this reference under Section 256 (1) of the Income-tax Act, 1961, for the assessment year 1984-85, the following question has been raised before this court :"whether, on the facts and in the circumstances of the case, when according to the finding of the Commissioner in his order, the commission of Rs. 2,50,587 was sales commission simpliciter, the Tribunal was justified in law in holding that relief under Section 35b (1) (b) (iv) of the Income-tax Act, 1961, is allowable on the same and thereby vacating that portion of the order of the Commissioner ?"

( 2 ) SHORTLY stated the facts are that originally the Assessing Officer allowed deduction under Section 35b (1) (b) (iv) of the Act on the commission of Rs. 2,50,587 paid to the foreign agents.

( 3 ) SUBSEQUENTLY, the said assessment was set aside by the Commissioner of Income-tax, West Bengal-1, Calcutta, vide his order under Section 263 of the Act, since it was viewed by him that the commission paid to foreign agents did not qualify for the deduction under Section 35b as no branch office had been maintained by the assessee-company outside India.

( 4 ) ON appeal by the assessee-company against the o

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