COMMISSIONER OF Income Tax, BOMBAY CITY-II vs ASIAN PAINTS (INDIA) P. LTD.

DESAI J. - In our opinion, both these references can be disposed of by a common order. The assessee in both the matters, who is the respondent is Asian Paints (India) Pvt. Ltd. In Income/tax Reference No. 97 of 1972, we are concerned with the computation of super profits tax for the assessment year 1963-64. In Income Tax Reference No. 102 of 1972, we are concerned with the computation of surtax of the assessment years 1964-65 and 1965-66. In both the reference the question which is required to be considered is whether the identical amount of Rs. 1,70,000 shown in the balance sheet of the company as "gratuity reserve "in all the three assessment years under consideration would be a reserve and hence includible in the computation of capital or not.

The question referred to us may now be set out. In Income Tax Reference No. 97 of 1972, the following question stands referred to us :

"Whether, on the facts and in the circumstances of the case, the gratuity reserve shown in the balance sheet of the company in the amount of Rs. 1,70,000 is includible in the compilation of capital as on January 1, 1962, in terms of rule 1 of the Second Schedule of the Super profits Tax Act, 1963, for the assessment year 1962-63 ?"

Similarly, in Income Tax Reference No. 102 of 1972, the following question stands referred to us :

"Whether, on the facts and in the circumstances of the case, the gratuity reserve shown in the balance sheet of the company in the amount of Rs. 1,70,000 is includible in the computation of capital as on January 1, 1963, and as on January 1, 1964, in terms of rule 1 of the Second Schedule to the Companies (Profits) Surtax Act, 1964, for the assessment years 1963-64 and 1964-65 ?"

In its rather cryptic order, which is reproduced in the statement of the case, the Tribunal has stated that it follows its decision in S.P.T. Appeal No. 50 of 1967-68. We are informed at the Bar that that was an appeal concerning Bombay Tyres International Ltd., (originally Firestone Tyre & Rubber Co. of India Ltd.) in which matter a reference was made to the High Court, which reference we have concluded in favour of the assessee Commissioner of Income Tax Vs. Bombay Tyres International Ltd.,

From the fact that an identical amount was carried forward in all the three assessment years as "gratuity reserve", it would appear that this was just setting apart in an ad hoc manner and without any correlation to the actual or estimated liability for the payment of gratuity. If that be so, then following out decision in Commissioner of Income Tax, Bombay-II Vs. Forbes Forbes Campbell and Co. Ltd., we are required to hold that the sum would constitute a reserve and will be required to be i clouded in the computation of capital on January 1, 1962, January 1, 1963, as also on January 1, 1964.

Accordingly, both the question are answered the affirmative and in favour of the assessee.

Parties are directed to bear their own costs of the two references.