Commissioner of Income Tax vs United India Insurance Co.

N.V. Balasubramanian, J.—The question of law referred for our consideration by the Income Tax Appellate Tribunal u/s 256(2) of the

Income Tax Act, 1961 reads as under :

Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the sum of Rs. 44,541 being the

provision ''for bonus should be allowed as a deduction in computing the total income of the assessee ?

The assessee is carrying on insurance business and was assessed in the status of an association of persons. In computing the income of the

assessee for the assessment year 1973-74, the relevant accounting year ended on December 31, 1972, the assessee made a provision of Rs.

44,541 towards bonus and claimed the same as deduction from its business income in addition to the claim for deduction of actual payment of

bonus. The claim of the assessee for deduction of the provision was made on the basis that the assessee-company got merged with the General

Insurance Corporation during the course of the calendar year 1972 and, therefore, it made a provision for bonus as it was the last year of its

business. The Income Tax Officer rejected the claim of the assessee and held that the assessee has claimed double deduction towards bonus, one

by way of actual payment and another on the basis of provision, and if both the amounts were allowed, it would not reflect the correct income of

the assessee for the assessment year 1973-74.

The assessee carried the matter in appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) held

that the accounting year ended on the assessment year 1973-74 was the last year in which the erstwhile owner of the business was being assessed

and the real income of the assessee has to be brought to tax and, therefore, the assessee was entitled to claim deduction in addition to the claim for

deduction of the bonus actually paid. He, therefore, deleted the addition of Rs. 44,541 made by the Income Tax Officer in the original assessment

computed by him. The Department carried the matter in appeal before the Income Tax Appellate Tribunal. The Income Tax Appellate Tribunal

agreed with the view of the Commissioner of Income Tax (Appeals) and held that the provision for bonus made being a revenue charge, the non-

allowance would result in the computation of income which is not real, and, therefore, the assessee was justified in claiming the provision for bonus

for a sum of Rs. 44,541 made in its account as a deductible item.

The Revenue has challenged the order of the Appellate Tribunal on the question of law set out earlier referred to. Learned counsel for the

Revenue submitted that the assessee had been claiming deduction towards bonus allowance on the basis of the actual payment and it was allowed

and it is not permissible for the assessee to make the claim on the basis of the provision for bonus in addition to the claim for deduction of actual

payment made by the assessee, and if the claim of the assessee for actual payment and the provision for bonus are allowed, it would distort the

income of the assessee and, therefore, the Tribunal was not justified in allowing both the claims of the assessee. Learned counsel for the assessee

supported the order of the Income Tax Appellate Tribunal.

We have carefully considered the submissions of learned counsel. The Revenue has not disputed the fact that the assessee was claiming

deduction towards the bonus on the basis of actual payment. The business of the assessee was taken over and it ceased to be a private sector

undertaking and has become a public sector undertaking during the relevant accounting year for the assessment year 1973-74. There is no dispute

that the liability towards bonus to its employees has become crystallised in view of the take over of the business of the assessee and to ascertain

the real income of the assessee during the accounting year for the assessment year 1973-74, the deduction of the provision made for the

crystallised liability is reasonable and, therefore, the fact that the actual bonus paid in accordance with the actual practice adopted by the assessee

was allowed would not prevent in any way the assessee from claiming the deduction towards the provision for the actual liability that arose during

the accounting year and without the liability being determined and allowed in the computation of the income of the assessee, it would not be

possible to arrive at the real income of the assessee. We are, therefore, of the opinion that the Commissioner of Income Tax (Appeals) as well as

the Appellate Tribunal was correct in holding that the provision made by the assessee was a revenue charge and once it is held to be a revenue

charge, the non-allowance or disallowance of the same would distort the computation of business income of the assessee. We have held that the

allowance of actual payment would not prevent the assessee from claiming deduction as it cannot be said that there was a double deduction as the

double deduction postulates the deduction of the same amount and it cannot be said that the assessee is claiming double deduction of the same

amount one by way of actual payment and another by way of provision for bonus. The assessee made a provision for the bonus in addition to the

actual payment on the ground that the liability had accrued to the assessee during the accounting year as it happened to be the last accounting year

of the assessee''s business and, therefore, in our opinion, the assessee is entitled to claim deduction of the actual payments made as well as

provision for bonus made during the accounting year. We are, therefore, of the opinion that both the Commissioner of Income Tax (Appeals) as

well as the Tribunal have come to the correct conclusion in holding that the provision for bonus should be allowed as a deduction in computing the

total income of the assessee for the relevant assessment year.

Accordingly, we answer the question of law referred to us in the affirmative, against the Revenue and in favour of the assessee. The assessee is

entitled to costs of Rs. 750.