This is Department appeal. assessee is non-resident (sterling) company. proceedings relate to its assessment for asst. yr. 1977-78. appeal was originally allowed by Calcutta Bench of ITAT comprising of S/Shri Anand Prakash and S. S. Mehra as Members vide order dt. 18th Sep., 1981. assessee filed miscellaneous application receipt of aforesaid appellate order. Tribunal was requested to recall appellate order and dispose appeal afresh according to law. In alternative request was made to pass supplementary order on point which were stated to have been argued but not dealt with in appellate order. Bench comprising of same members heard parties on miscellaneous application. Being satisfied that certain important contentions raised by and on behalf of assessee were not considered by it in appellate order and that appellate order suffered from certain patent mistakes, said Bench vide its order dt. 29th March, 1982 recalled appellate order and directed office to refix appeal next came up for hearing, Bench felt that issues raised in appeal are interesting and important and that it would be in fitness of things, if appeal was heard by Special Bench. Reference was made to President for constituting Special Bench to dispose appeal proposal having been accepted, appeal has come up for hearing before this Special Bench. Sri Bagchi ld. standing counsel, has appeared for Department. He raised preliminary objection to hearing of appeal by Special Bench. He contended that Tribunal does not have power to review its order. appeal was finally disposed by Calcutta Bench of Tribunal vide appellate order dt. 18th Sep., 1981. appellate order was not challenged by assessee either by filing reference application or by way or writ in High Court. It only filed miscellaneous application and that too on ground that some of its arguments were not considered or dealt with by Tribunal. Patent or basic error was not even pointed out. subsequent order passed by Tribunal on 29th March, 1982, according to Sri Bagchi, amounts to review of order which power Tribunal does not have. In this context, he relied upon number of decision such as: (1) Mahboob Bi vs. TRO & Anr. (1974) 93 ITR 127 (Mad). (2) CIT vs. Tribunal, "D" Bench & Another (1979) 11 CTR (Mad) 157: (1977) 109 ITR 267 (Cal). (3) CIT vs. Chelladurai, R. (1979) 11 CTR (Mad) 157: (1979) 118 ITR 108 (Mad). (4) CIT vs. Kelvin Jute Co. Ltd. (1980) 17 CTR (Cal) 138: (1980) 126 ITR 679 (Cal). (5) CIT vs. Jagabandhu Roul (1985) 44 CTR (Ori) 311: (1984) 145 ITR 153 (Ori). order dt. 29th March, 1982 recalling appellate order dt. 18thg Sept., 1981 itself, it was contended, is bad and illegal, i.e., non-est and therefore, subsequent order of Bench referring case to President for constituting Special Bench and constitution of Special Bench by President are all invalid. Dr. Pal, ld. counsel for assessee, admitted that Tribunal does not have power to review its order. However, according to him, Tribunal has not reviewed its order. It has exercised its power of rectification under s. 254(2) judicially. It is pointed out that it is Sri Bagchi who is asking Special Bench to review rectifying order dt. 29th March, 1982 of Bench and holds that said order is not rectifying but review order, which Tribunal cannot do. It is stated that Department, if it found anything wrong with aforesaid rectifying order, should have challenged that order in appropriate forums which it has, admittedly, not done. We see no merit in preliminary objection raised by ld. standing counsel. No body has even suggested that Tribunal has power to review its order. Tribunal is certainly empowered by sub-s. (2) of s. 254 to amend its order within period of four years from date of order with view to rectify any mistake apparent from record. That amendment of order within meaning of s. 254 (2) includes even recalling of order in appropriate cases cannot, perhaps be disputed. dispute can possibly bee about, cases cannot, perhaps be disputed. dispute can possibly bee about, whether particular case is or is not appropriate for passing such order. This is matter which will have to be decided by Bench in its appreciation of facts and understanding of legal provisions. aggrieved party can challenge such order by filing reference application or by invoking writ jurisdiction of High Court or may be even by filing another miscellaneous application before Tribunal itself for withdrawing recalling order passed under s. 254(2). To challenge validity of such order by raising preliminary objection before Special Bench in subsequent proceedings arising out of that order, is certainly not permissible because consideration of preliminary amount to reviewing order. preliminary objection is, therefore, rejected. only ground in this appeal is: "That in facts and in circumstances of case ld. CIT(A) erred in his finding that provisions of s. 44C were not applicable in instant case and in that view in directing assessing officer to recompute total income by excluding disallowance made under s. 44C of IT Act, 1961." assessee is non-resident (sterling) company. its registered office is in London (UK). Its activities are cultivation and manufacture of tea in India. sales are both in India and outside, mostly in London. business is, thus, located only in India and Head office expenses are incurred for purpose of business carried on by assessee. It is pertinent to mention that Company has appointed Walter Duncan & Goodricke Ltd. (hereinafter known as WDG) as its Secretaries and Managing Agents not only for purpose of carrying out functions required of assessee-company on account of its registered office being in London but also for supervising sales of tea produced in India by assessee-company for which WDG was paid sum calculated at 3 per cent of assessee s all salaries in London or elsewhere. assessee contended that provision of s. 44C introduced in IT Act w.e.f. 1st June, 1976 are not applicable in its case and, therefore, no amount claimed under ss. 28 to 43A can be disallowed under that section in computing its total income. figures of expenditure that could be said to have be incurred by Head office for purpose of s. 44C of Act as desired by IAC (Assessment) were, of course, furnished. According to said statement, copy of which is made available at pp. 1 and 2 paperbook, maximum amount that could possibly be considered, for purpose of s. 44C amounts to 57,827.38 which is equivalent to Rs. 8,87,488. provisions of s. 44C being applicable from 1st June, 1976 whereas assessee s previous year is Calendar year 1976, and being tea company its income is liable to be taxed under IT Act to extent of 40 per cent only, assessee claimed that for purpose of computing disallowance, assuming s. 44C is applicable, expenditure requiring consideration would work out to Rs. 2,09,396. As desired by assessee IAC (Assessment) assessee also furnished figures of average UK expenditure and adjusted total income. IAC (Assessment) has considered assessee s submissions in paragraph 1 of his order and finding that 5 per cent of adjusted total income i.e., Rs. 1,07,559 is least of computations, has computed disallowance under s. 44C of Act at Rs. 79,515. It was reiterated before CIT(A) that provisions s. 44C are not applicable in assessee s case, as its entire business, i.e., cultivation, manufacture and sale of tea was in India and that its affairs in UK where assessee had its registered office only were looked after by WDG, its Secretaries and Managing Agents. It was submitted that provisions of s. 44C are applicable only in cases where assessee has business in number of countries. Reference was made to notes on clauses relating to provisions in Finance Bill, 1976, through which s. 44C was introduced in Act. CIT(A) has accepted assessee s submissions and has directed IAC (Assessment) to recompute total income by excluding disallowance made by him under s. 44C of Act. Sri Bagchi, ld. standing counsel for Department and Dr. Pal ld. counsel for assessee advanced learned and detailed arguments. For sake of brevity it is proposed to deal with them in course of order. In order to appreciate rival contentions, it is desirable to refer to s. 44C to extent it is relevant for purpose of this appeal: "44C. Notwithstanding anything to contrary contained in ss. 28 to 43A, in case of assessee, being non-resident, no allowance shall be made, in computing income chargeable under head "Profits and gains of business o r profession", in respect of so much of expenditure in nature of head office expenditure as is in excess of amount computed as hereunder namely: (a) amount equal to five per cent of adjusted total income; or (b) amount equal to average head office expenditure; or (c) amount of so much of expenditure in nature of head office expenditure incurred by assessee as in attributable to business or profession of assessee in India, whichever is least: Provided.......... Explanation: for purposes of this section (i) "adjusted total income" means........ (ii) "average adjusted total income" means,........ (iii) "average head expenditure" means,....... (iv) "head office expenditure" means executive and general administration expenditure incurred by assessee outside India, including expenditure incurred in respect of (a) rent, rates, taxes, repairs or insurance of any, premises outside India used for purposes of business or profession, (b) salary, wages, annuity, pension, fees, bonus, commission, gratuity, perquisites or profits in lieu of or in addition to salary, whether paid or allowed to any employee or other person employed in, or managing affairs of, any office outside India, (c) travelling by any employee or other person employed in, or managing affairs of, any office outside India, and (d) such other mattress connected with executive and general administration as may be prescribed." Superficially looked at, section applies to all non-resident assessee. Its effective provision which is non obstante, viz., "no allowance shall be made, as is in excess of......." however, visualises three computations. expenditure to be disallowed in nature of "head office expenditure" and least of those three computations. Dr. Pal s contention is that unless all three computations are possible in case, non obstante provision for disallowance will have no application. We have considered Dr. Pal s above contention in light of observations of Supreme Court in case of CIT vs. B. C. Srinivasa Setty (1981) 21 CTR (SC) 138: (1981) ITR 294 (SC). It was held that goodwill generated in new business cannot be regarded as "asset" within meaning of s. 45 as no cost of if can at all conceived and s. 48 which provides for computation of income under head capital gains , inter alia, contemplates deduction of cost of acquisition of capital asset. ratio of decision is that charging section and computation provisions together constitute integrated code. When there is case to which computation provisions cannot apply at all, it is evident that such case was not intended to fall within charging section. In view of above observations of Supreme Court, we are inclined to hold that if any one or more of computations under cls. (a), (b) or (c) is not conceivable in particular case, it will have to be held that non obstante provision contemplating disallowance of "head office expenditure" under s. 44C does not apply. With this end in view we now concentrate on cl. (c) which, it is stated, does not apply it he case before us. clause admittedly uses expenditure...........as is attributable to business..............in India." question is what does this expression mean i.e., whether in order to fall under cl. (c) expenditure should be incurred not only in connection with business outside India. In other words, whether because of expression "so much of expenditure.........as is attributable..........." means that part of expenditure atleast must not be attributable to business in India. It is seen that almost similar situation had come up for consideration before Supreme Court in case of Anglo French Textile Co. vs. CIT (1953) 23 ITR 82 (SC). subject matter of consideration was s. 24(2) of old Act. expression, inter alia, used in that sub-section was "and loss cannot be wholly set off under sub-s. (1), so much of loss as is not set off." It was held that expressions "not wholly set off" "so much of loss as is not set off" means, that atleast loss must have been set off partially from which it follows that if there is loss under head "business" and no income under any head at all, loss will not fail in categories of not wholly set off" and "so much of loss as is not so set off" and cannot, therefore, be carried forward at all. Taking clue from above decision, we are inclined to hold that expression "so much of expenditure...........as is attributable to business.........in India contemplates that at least part (however, small it might be) of expenditure is referable to business outside India. Since in case before us entire expenditure whether allowable or not in wholly and necessarily incurred for business in India as non-resident assessee has no business outside India at all, we are inclined to hold that cl. (c) is not applicable. Once we come to conclusion that cl. (c) is not applicable, following ratio of B. C. Srinivas Setty s (supra) case we have to hold that non-obstante clause providing for disallowance out of "head office expenditure" in excess of least of expenditure under three clauses cannot apply. To say least, above discussion creates doubt as to whether s. 44C will or will not apply in cases where exclusive business activity of non- resident assessee is in India only, this will justify our taking external aid for purpose of understanding purport and scope of section. In this context, it is desirable to refer to following observations of Supreme Court in case of K. P. Verghese vs. ITO (1981) 24 CTR (SC) 358: (1981) 131 ITR 597 (SC): "It is true that speeches made by Members of legislature on floor of House when Bill for enacting statutory provision is being debated are inadmissible of purpose of interpreting statutory provision but speech made by mover of Bill explaining reasons for introduction of Bill can certainly be referred to for purpose of ascertaining mischief sought to be remedied by legislation and object and purpose for sought to be remedied by legislation and object and purpose for which legislation was enacted. This is in accord with recent trend in juristic thought not only in western countries but also in India that interpretation of state to being exercise i ascertainment of meaning, everything which is logically relevant should be admissible.......... xx xx xx xx rule of construction by reference to contemporanea expositio is will established rule for interpreting statute by reference to exposition it has received from contemporary authority, though it must give way where language of statue is plain and unambiguous.... xx xx xx xx But construction which is commending itself to us does not rest merely on principle of contemporanea expositio........" In view of above observations, we have considered it necessary to go through notes on clauses of Bill through which s. 44C was introduced, memorandum explaining provision in Bill, Board s Circular No. 202 dt. 5th July, 1976 explaining provisions introduced by Finance Act, 1976, relating to Direct Taxes and extract from "Taxes & Incentives (a guide for investors)" published by Indian Investment Centre (a Government of India organisation) in October, 1983. notes on clauses and memorandum explaining provisions in Bill are available in (1976) 102 ITR (St) 161 to 178 and 178 to 199 respectively, respective relevant paragraphs being at page 166(clause 10) and 187(paragraphs 36 and 37). Board s circular is published at pp. 17 to 53 (statute section) of 105 ITR. paragraph dealing with provisions of s. 44C is paragraphs 25.1 to 25.3 at pp. 36 and 37. relevant extract from book called "Taxes & Incentives", published by Indian Investment Centre is made available to us by assessee at p. 58 of its paperbook. Notes on clause do not through any light inasmuch as salient features of section are only repeated therein. However, memorandum explaining provision in Bill, Board s circular and extract from "Taxes & Incentives" clearly indicate that provisions of s. 44C were introduced in Act to get over following difficulties: "It is extremely difficult to scrutinise and verify claims in respect of such expenses, particularly in absence of account books of head office which are kept outside India. Foreign companies operating through branches in India sometimes try to reduce incident of tax in India by inflating their claims in respect of head office expenses." difficulties of above nature cannot exist in case where entire Head office expenditure is for purpose of business in India and books of Head office can be prodded. In our view provisions of s. 44C have been introduced to cover cases where non-resident assessee was incurring expenditure abroad which expenditure was in nature of "head office expenditure as business activities of non-resident assessee were not only confined to India but also outside India. books of accounts of head office were not produced. There was possibility of non-resident assessee s claiming inflated expenditure attributable to business in India: but there was no effective method to verify claim. It was to get over these difficulties that ceiling was provided for expenditure in nature of head office expenditure". Accordingly we hold that section does not apply in assessee s case. There is no necessarily for special provision as in such case claim for expenditure in nature of head office expenditure for allowance or disallowance can be considered under s. 37 of Act itself without any difficulty." In view we have taken, strictly speaking it is not necessary to consider alternative claim of assessee. Since, however, detailed arguments were advanced before Special Bench, we have considered it desirable to consider and adjudicate alternative contention as well. Definition of "head office expenditure" as given in Explanation (iv) to s. 44c has already been quoted in para 9 of order. It means "executive and general administration expenditure". Expenditure on sales cannot certainly fall in above category. major portion of so called "head office expenditure" taken by IAC (Assessment) covers expenditure for supervising sales which is included in commission paid to its Secretaries WDG by non-resident assessee. We are aware that definition has used expression "including expenditure incurred in respect of items (a), (b), (c) and (d)" under Explanation (iv). However, definition read carefully means and can, according to us, only mean that while outer parameter of "head office expenditure" is exhaustive, it is inner parameter only which is inclusive. In other words, in order to constitute "head office expenditure" expenditure on items (a), (b), (c) and (d) has necessarily to be of nature of "executive and general administration expenditure." Thus, in terms of its definition, expression "head office expenditure" is nothing but "executive and administration expenditure. However expression execution and administration expenditure" will mean not only what is ordinarily understood by expression but also expenditure which falls under category of "executive and general administration expenditure" automatically falls under "head office expenditure" whether it is expended directly as such or is incurred indirectly in one of four manners referred to therein. Since expenditure on sale cannot as such fall under "executive and administrative expenditure", same to extent it is attributable to sales, will not fall under head office expenditure". In interpreting expression "head office expenditure" in manner we have done, we have derived support from Supreme Court decision in case of CGT vs. Getti Chettiar (1971) 82 ITR 599 (SC) where it was held that interpretation clause which extends meaning of word does not take away its ordinary meaning. It is pertinent to mention that commission at 3 per cent of sales paid to WDG by assessee is not only for supervising sales but also for performing functions of non-resident assessee s registered office in London. According to us it will be reasonable in circumstances to hold that commission at rate of 2 per cent is referable to supervision of sales and balance, i.e., 1 per cent is referable to activities of "executive and administrative nature." Both parties agree that if allocation is made of expenditure in this manner, nothing would remain to disallowed out of "head office expenditure" under s. 44C assuming it applies in case of assessee. Accordingly, order of CIT(A) is confirmed. In result, Departmental appeal is dismissed. In result, Departmental appeal is dismissed. *** INSPECTING ASSISTANT COMMISSIONER v. GODRICKE GROUP LTD.