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Issues:
1. Entitlement to make provision for gratuity in respect of services rendered by employees to the vendor company. 2. Creation of an approved gratuity fund under section 40A(7) of the Income-tax Act. 3. Determination of whether the liability for gratuity for services rendered by employees to the vendor is a capital expenditure. Analysis: The case involved questions regarding the entitlement of the assessee to make provision for gratuity, creation of an approved gratuity fund, and the characterization of gratuity liability as a capital expenditure. The Tribunal referred the questions of law to the High Court for consideration, relating to the assessment years 1974-75 and 1975-76. The assessee, a subsidiary of a trading company, took over the business of a vendor company, and the agreement between them stipulated the continuity of employee services and the reconstitution of the gratuity fund approved by the Commissioner of Income-tax. The Income-tax Officer initially disallowed the gratuity provision claimed by the assessee, stating that there was no reconstitution of the approved gratuity fund as per the agreement terms. However, the Commissioner of Income-tax (Appeals) disagreed, holding that the approval granted to the fund continued despite the change in ownership. The Tribunal upheld the Commissioner's decision, emphasizing the continuity of the approved gratuity fund and the entitlement of the assessee to make contributions under section 40A(7)(b) of the Income-tax Act. The High Court concurred with the Tribunal's findings, clarifying that the modification in the trust deed post-business transfer did not amount to a reconstitution as perceived by the Income-tax Officer. The Court highlighted the continuous service provision in the agreement and the necessary modifications made to the gratuity fund, affirming the fund's approved status during the relevant assessment years. The Court further emphasized that the assessee was entitled to make contributions in accordance with the relevant provisions of the Income-tax Act. Regarding the incremental liability issue raised by the Revenue, the Court referenced a previous judgment to clarify that such liability is not within the scope of section 40A(7)(b)(ii) of the Income-tax Act. Consequently, the Court declined to answer the first question raised, stating that questions two and three did not apply to the case. The references were answered accordingly, and a copy of the judgment was to be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.
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