COMMISSIONER OF INCOME TAX vs RAJDEV SINGH and CO.

D.K. Jain, J.

In this reference u/s 256(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act), at the instance of the revenue, pertaining to the assessment year 1972-73, the following question has been referred for the opinion of this court :

"Whether, on the facts and the circumstances of the case, the Tribunal was right in law in allowing the provision for gratuity to staff amounting to Rs. 18,472 as an admissible deduction in the computation of the assessor�s business income for the assessment year 1972-73 ?"

The assessed is a firm. In its annual accounts for the previous year ended on 30-6-1971, the assessed claimed as business expenditure a sum of Rs. 18,472 under the head "gratuity to staff". According to the assessed the claim was made as per the actuarial valuation. However, during the course of the assessment proceedings, the assessing officer disallowed the said claim on the ground that neither gratuity fund has been approved by the Commissioner nor an irrevocable trust has been created by the assessed for the exclusive benefit of the employees. assessor�s appeal to the Appellate Assistant Commissioner was unsuccessful.

Aggrieved, the assessed preferred further appeal to the Tribunal. Observing that the method of accounting adopted by the assessed was mercantile; the assessed had introduced a gratuity scheme; the actuarial report had also been filed and similar deduction was allowed to the assessed in the preceding year, the Tribunal held that the expenditure in question was allowable. This order of the Tribunal has given rise to the question set out above.

We have heard Mr. R.C. Pandey, senior standing counsel for the revenue and Mr. S.K. Aggarwal for the assessee.

It is submitted by Mr. Pandey that provision for payment of gratuity could not be allowed as business expenditure as neither a gratuity fund was maintained by the assessed for the benefit of its employees nor the fund had been approved by the Commissioner. In support, reliance was placed on the decision of the Supreme Court in Shree Sajjan Mills Ltd. Vs. Commissioner of Income Tax, M.P., Bhopal and Another, wherein relevant principles on the issue, prior to the insertion of section 40A(7) by the Finance Act, 1975, with retrospective effect from 1-4-1973, have been exhaustively enumerated.

In our view, insofar as this court is concerned, the issue is no longer res integra. Applying the principle of law laid down in Sajjan Mills case (supra), in Commissioner of Income Tax Vs. Kelvinator of India Ltd., , it was held that prior to the insertion of section 40A(2), banning, except in the prescribed circumstances, allowance in respect of the provision of gratuity, which admittedly is not applicable in the present case, provision for payment of gratuity, if worked out on an actuarial valuation under a scheme on scientific basis, is a permissible business expenditure in the year concerned for the assessees following mercantile system of accounting. Again, following an earlier decision by this court in Dalmia Dadri Cement Ltd. v. CIT (1930) 126 ITR 851 , against which SLP was also dismissed by the Supreme Court (See (1983) 144 ITR 111 a similar view was expressed in The Commissioner of Income Tax (Central) Vs. Dalmia Dadri Cement Ltd., .

In the instant case, as noted above, the Tribunal has found as a fact that the provision for gratuity had been made under a scheme on actuarial basis, for which a report had also been filed. In the light of the facts found by the Tribunal, which are not under challenge, we are of the view that the Tribunal was correct in law in holding that the liability on this account was allowable as business expenditure.

Accordingly, the question is answered in the affirmative i.e., in favor of the assessed and against the revenue. There will, however, be no order as to costs.