1972 (8) TMI 34 - HC - Income Tax

Whether, on the facts and in the circumstances of the case and on a true construction of the Government notification dated April 27, 1961, it could be held that no liability accrued to the assessee-company for the payment of the gratuity for the assessment year under appeal ? - contention put forward was that, under the notification an employee, who was removed from service for serious misconduct, was not entitled to any gratuity and to that extent the liability was contingent and uncertain. Now, such a case would indeed be rare and cannot convert the entire liability into a contingent one. At any rate that circumstance must have been taken into consideration in the actuarial valuation worked out by the actuary. In actuarial valuation all contingencies are taken into consideration before arriving at the discounted value of a liability like the present one - For the reasons stated above, we answer the question in the negative, in favour of the assessee

Issues Involved:
1. Liability for payment of gratuity.
2. Ascertainment of liability for gratuity.
3. Contingent vs. present liability.
4. Applicability of Section 36(1)(v) of the Income-tax Act.

Detailed Analysis:

1. Liability for Payment of Gratuity:
The primary issue was whether the liability for gratuity payment accrued to the assessee-company for the assessment year 1962-63, under the Government notification dated April 27, 1961. The assessee claimed a deduction of Rs. 1,37,811 for gratuity payments, which was disallowed by the Income-tax Officer, the Appellate Assistant Commissioner, and the Income-tax Appellate Tribunal on the grounds that no ascertained liability arose during the relevant accounting year.

2. Ascertainment of Liability for Gratuity:
The court required the discounted value of the future gratuity payment to effectively dispose of the reference. The Tribunal found that the amount claimed did not represent the true discounted value and sought expert calculations from an actuary. Based on the actuary's report, the Tribunal determined the fair estimate of the discounted present value of the gratuity payment as on September 30, 1961, to be Rs. 1,05,200. The court held that the liability for gratuity, although payable in the future, was certain and ascertainable under the mercantile system of accounting.

3. Contingent vs. Present Liability:
The court referenced the Supreme Court decision in Metal Box Company of India Ltd. v. Their Workmen, which established that a liability already accrued, though to be discharged at a future date, is a proper deduction while working out the profits and gains of a business. The court held that the estimated liability for gratuity based on actuarial valuation was a permissible deduction, as it was a liability in praesenti, though payable in the future, and was ascertainable.

The court distinguished this case from Standard Mills Co. Ltd. v. Commissioner of Wealth-tax, where the Supreme Court held that the liability to pay gratuity was a contingent liability and not a debt in praesenti under section 2(m) of the Wealth-tax Act. The court emphasized that the issue at hand was whether a trader could provide for his liability to pay gratuity from his gross receipts, which was affirmed as permissible if the liability was ascertainable and its discounted present value could be determined.

4. Applicability of Section 36(1)(v) of the Income-tax Act:
The department argued that the payment of gratuity should be allowed only in accordance with section 36(1)(v) of the Income-tax Act, which permits deductions for contributions to an approved gratuity fund created under a trust. The court clarified that this case was not governed by section 36(1)(v) as it dealt with the computation of gross profit itself, not with deductions from taxable income already assessed. The Supreme Court in Metal Box Company of India Ltd. also addressed this, stating that section 36 deals with expenditure deductible from taxable income, not with deductions while making the profit and loss account.

The department's contention that only the gratuity relating to the relevant previous year should be deductible was dismissed. The court explained that the liability for gratuity was first imposed by the notification on November 1, 1960, and included past services of employees to ascertain the quantum of liability, which did not imply that any part of the gratuity was payable in earlier years.

The court also addressed the argument regarding the contingent nature of liability due to the possibility of employees being removed for serious misconduct. It noted that such cases were rare and would have been considered in the actuarial valuation.

Conclusion:
The court answered the question in the negative, in favor of the assessee and against the department, allowing the assessee to deduct the discounted present value of the gratuity payment. The assessee was entitled to the costs of the reference, assessed at Rs. 200.

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