D. K. Jain,j (oral ). ( 1 ) IN these references, at the instance of the revenue, relevant to the assessment years 1975-76 and 1976-77, the Income-tax Appellate Tribunal has referred to this Court the following common question of law under Section 256 (1) of the Income-tax Act, 1961 (briefly the Act ). "whether, on the facts and in the circumstances of the case the assessee was entitled to weighted deduction u/s 35b of the I. T. Act on payment of commission of Rs. 89,540. 00 for Assistant year 1975-76 and Rs. l,25,879/ - for Assistant year 1976-77 incurred in respect of export sales?" ( 2 ) THE material facts stated in the statement of the case drawn by the Tribunal are that the respondent/assessee, a domestic company, is engaged in the business of manufacture and sale of bicycle components, cycle machines etc. and during the relevant accountingyearsendedon31may1974and31 May 1975 respectively it carried on export business also. The assessee claimed weighted deduction under Section 35b of the Act in respect of commission paid on export sales, amounting to Rs. 89,540. 00 in the assessment year 1975-76 and Rs. l,25,879. 00 in the assessment year 1976-77. The commission was paid outside India to the foreign agents who, the assessee claimed, introduced foreign buyers to it. The claim of the assessee was rejected by the Income-tax Officer holding that the payment of such commission to foreign agents was in the nature of traditional expenditure and not expenditure for development of export market, falling under any of the activities enumerated in the various sub-clauses of clause (b) of Section 35b (1) of the Act. The claim of the assessee was, however, accepted by the Commissioner of Income-tax (Appeals) who held that the expenditure had been incurred for obtaining information regarding export markets. The Commissioner held that the commission so paid clearly fell under sub-clause (ii) and was, therefore, eligible for weighted deduction under Section 35b of the Act. While holding so, the Commissionerelied upon the Special Bench decision of the Tribunal in the case of J. Hemchand and Co. , ITA Nos. 3255 and 3330 of 1976-77. Being aggrieved, the revenue took the matter further in appeal before the Tribunal. While holding so, the Commissionerelied upon the Special Bench decision of the Tribunal in the case of J. Hemchand and Co. , ITA Nos. 3255 and 3330 of 1976-77. Being aggrieved, the revenue took the matter further in appeal before the Tribunal. The Tribunal, on aconcession by the revenue s representative to the effect that the issue stood covered by the aforesaid decision of the Tribunal, by a short order, upheld the order of the Commissioner of lncome-tax (Appeals ). Onanapplicationmoved by the revenue under Section 256 (1) of the Act, the Tribunal has referred the aforementioned question for our opinion. ( 3 ) WE have heard Mr. R. C. Pandey, Senior Standing Counsel for the revenue and Mr. Harihar Lal, for the assessee. Mr. Pandey has submitted that the expenditure in question is in the nature of an ordinary trade discount and is not in the nature of commission as was the case in J. Hemchand s case (supra) and, therefore, the Tribunal was not justified in following that decision. Mr. Hariharlal, on the other hand, has urged that the facts of the instant case are. similar to those in J. Hemchand s case and the revenue having accepted that decision, no fault could be found with the view expressed by the Tribunal. In support of his stand that the decision of the Special Bench in J. Hemchand s case has been accepted by the revenue, he has placed reliance on certain observations of this Court in the case of C. I. T. v. Jay Engineering Works, (1984) 149 ITR 297, though delivered in a different context. ( 4 ) SECTION 35b of the Act was inserted by the Finance Act 1968w. e,f. 1 April 1968. The relevant portion of the Section, as it stood for the assessment years with which we are concerned, after the insertion of the proviso to sub-section (1) (a) by the Finance Act 1973, w. e. f. 1 April 1973, is as follows: "35b. e,f. 1 April 1968. The relevant portion of the Section, as it stood for the assessment years with which we are concerned, after the insertion of the proviso to sub-section (1) (a) by the Finance Act 1973, w. e. f. 1 April 1973, is as follows: "35b. Export markets development allowance - (1) (a)h Where an assessee, being a domestic company or a person (other than a company) who is resident in India, has incurred after the 29th day of February, 1968, whether directly or in association with any other person, any expenditure (not being in the nature of capital expenditure or personal expenses of the assessee) referred to in clause (b), he shall, subject to the provisions of this section, be allowed a deduction of a sum equal to one and one-third times the previous year: Provided that in respect of the expenditure incurred afterthe28th day of February, 1973, by a domestic company in which the public are substantially interested, the provisions of this clause shall have effect as if for the words one and one-third times the words one and onehalf times has been substited. (b) The expenditure referred to inclause (a) is that incurred wholly and exclusively on- (i ). . . . . . . . . (ii) obtaining information regarding markets outside India for such goods, services or facilities; (iii ). . . . . . . . . (iv ). . . . . . . . . (v ). . . . . . . . . (vi ). . . . . . . . . (vii ). . . . . . . . . (viii ). . . . . . . . . (ix ). . . . . . . . . ( 5 ) THE Section thus provides that if an assessee, being a domestic company or a person (other than acompany) who is resident in India, has incurred after29 February 1968, whether directly or in association with any other person, an expenditure, which is not in the nature of capital expenditure or its personal expenses, wholly and exclusively on any of the activities referred to in clause (b) of sub-section (1 ). of Section 35b of the Act, it shall be entitled to the benefit of an extra deduction provided therein. of Section 35b of the Act, it shall be entitled to the benefit of an extra deduction provided therein. In other words the section provides for weighted deduction for certain classes of specified revenue expenditure in the place of normal deduction of such expenditure otherwise allowable, if incurred after29 February 1968 for development of export market. Under sub-clause (ii) of Section 35b (1) (b) of the Act, with which we are presently concerned, an expenditure incurred wholly and exclusively on obtaining information regarding markets outside India for such goods, services or facilities is also admissible for the weighted deduction. The question which falls for consideration is whether the expenditure incurred by the assessee on payment of commission to its foreign agents would fall within the ambit of sub-clause (ii) ( 6 ) IT is evident from the order of the Tribunal that it has decided the issue in favour of the assessee on the basis of decision of the Special Bench of the Tribunal in J. Hemchand s case (supra ). It will, therefore, be useful to notice the said decision. Mr. Harihar Lal has placed before us a copy of the said decision. The decision of the Special Bench on the issue is contained in para 28 of the order, which is as under: "28. 4 The commission payment in this case was to parties who brought about the export salcs. It was those parties who furnished information to the assessee about the foreign buyers and publicised the assessee s goods to those buyers. It was they who brought together the buyer and the seller for concluding the sales. It was through them the goods were supplied outside India. That being so, this expenditure is allowable under sub-clauses (i) and (ii) of clause (b) of sub-section (1) of section 35b. " ( 7 ) THUS the Special bench of the Tribunal held that the expenditure incurred on commission payments to partics, who brought about the export sales by an assessee, would be an expenditure of the nature specified in sub-clauses (i) and (ii) of clause (b) of sub-section (1) of Section 35b of the Act and, therefore, entitled to weighted deduction under the said section. It is not disputed by learned counsel for the revenue that the said decision has been accepted by the Department but the untenable argument advanced by him is that the payment to the foreign agents in the present case is not in the nature of commission, as was the case in J. Hemchand s case (supra) but it was a trade discount on the sales effected by the foreign agents, which does not qualify for weighted deduction. We do not find any merit in this contention. No doubt the terms " Commission" and "trade discount" may have different connotations but having regard to the formrat of the question referred to us, we do not propose to go further into the contention now sought to be raised. Even otherwise, in these proceedings we cannot permit the revenue to set up a new case on facts which are not borne out either from the statement of the case or the annexures forming part thereof. The asscssee had rested its claim for weighted deduction on a specific pica that the expenditure in question had been incurred by it by way of commission to its foreign agents for promotion of its business there. The Income-tax Officer had rejected the claim on the ground that it was in the nature of traditional expenditure and not an expenditure for development of export market because trade commission would in any case be paid for carrying on the business. Thus the objection of the Income-tax Officer to the allowance of such an expenditure for the purpose of weighted deduction was that an expenditure in the nature of commission did not fall in any of the specified categories of expenditure. ( 8 ) WE arc of the opinion that in view of a categorical finding of fact recorded by the Commissioner of Income-tax (Appeals) and affirmed by the Tribunal, to the effect that the commission was paid to the agents abroad, who introduced buyers to the assessee and thereby provided information in regard to export market and the said finding not being in contest, the expenditure incurred by the assessee on payment of commission to its foreign agents will qualify for weighted deduction under Section 35b (1) (b) (ii) of the Act. We do not see any reason or justification to interfere with the view taken by the Tribunal that the ratio of the decision of the Special Bench of the Tribuanl in J. Hemchand s case (supra) is applicable to the facts of the present case. ( 9 ) THE result, therefore, is that we answer the question referred to us in the affirmative, that is in favour of the assessee and against the revenue. ( 10 ) NO costs.