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TMI Blog1993 (12) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... expenditure under this head in the immediately preceding accounting year amounted to Rs. 23,04,105 only. He also found that in many cases the claims were settled at lesser amounts. Therefore, the Assessing Officer was of the view that as on 31st March, 1986, the liability to the extent of Rs. 32,09,670 was neither ascertained nor accepted. Hence, he disallowed the claim in such sum. The assessee appealed. The CIT(A) noticed that an identical issue, though different in figures, had come up before him for the asst. yr. 1985-86 and for the detailed reasons stated in his order in ITA 34:CC:CIT:88-89 dt. 29th Nov., 1989 he held that the provision of Rs. 32,09,670 towards the claim for loss or damage of goods cannot be allowed in the assessment year under appeal. The assessee is on further appeal. 4. It is agreed before us that the issue is identical with that for the asst. yr. 1985-86 though figures are different. Both Sri C.K. Nair, the learned counsel for the assessee and Sri C. Abraham, the learned senior Departmental Representative submitted that they are adopting the same arguments as were advanced before us in the assessee's own case for the asst. yr. 1985-86, in ITA Nos. 104 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms might be a subject-matter of negotiations or persuasion or Court proceedings, but that is all in the realm of quantification of the claims and the quantification of the same at a later date cannot have a bearing on the accrual of the liability in the year of account. If the assessee had made an ad hoc provision without rhyme or reason one could say that the provision was excessive or unreasonable, but if the provision had been made on the basis of the claims themselves, merely because the assessee was either disputing the claims or seeking to reduce the amount of such claims, it cannot be said that the amount provided for in the books of accounts on the basis of the claims preferred by the consignors was either unreasonable or excessive or on an ad hoc basis. Thus, we reject the Revenue's arguments. 11. Sri C. Abraham, the learned senior Departmental Representative, submitted that when a consignor consigns goods he agreed for the conditions in terms of which the goods are accepted by the carrier and both the consignor and consignee are bound by the terms of the consignments note. In this connection, two sample copies of the Goods Forwarding Note (one of A.B.T. Parcel Service, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods are detained as confiscated by the Government, the carrier shall not be held responsible." (Kalpaka Transport Co. Ltd. Calicut). On the basis of the above documents, Sri Abraham vehemently contends that the transport company is not at all liable for the damages or loss of materials while in transit, unless it is shown that the loss or damage took place on account of criminal act or negligence of the carrier, its agents and servants. Reliance is placed on ss. 8 and 9 of the Carriers Act, 1865. Sec. 8 of the above Act reads as follows: "8. Common carrier liable for loss or damage caused by neglect or fraud by himself or his agent.—Notwithstanding anything hereinbefore contained, every common carrier shall be liable to the owner for loss of or damage to any property delivered to such carrier to be carried where such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servants and shall also be liable to the owner for loss or damage to any such property other than property to which the provisions of s. 3 apply and in respect of which the declaration required by that section has not been made, where such loss or damage has arisen from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agarwood. It is not the case of the Revenue that the claims relate to the above goods. If the declaration has been made and loss or damage arises on account of the criminal act on the part of the carrier, his agents or servants, then the carrier will be liable for the same. In respect of all other goods, the carrier will be liable for negligence. This is the effect of reading together ss. 8 and 3 with the Schedule to the Act. The Revenue places reliance on s. 9 of the Carriers Act, 1865 to say that unless the agents show that the loss arose out of his negligence or criminal act on his part, no liability arose to him. Sec. 9 of the above Act is as Follows: "9. Plaintiffs, in suits for loss, damage, or non-delivery, not required to prove negligence or criminal act.—In any suit brought against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants, or agents." A bare reading of the above section would show that the person claiming the damages or loss need not prove that suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isallowance of Rs. 32,09,670. 5. The assessee sought leave of the Tribunal to raise the following additional ground: "The additional lorry hire, hire advance, trip advances and spare bill payable to Saradhi Lines to the extent of Rs. 434000.49 may be allowed as a deduction in this year." The facts leading to the additional ground are as follows: The assessee had claimed as deduction in the assessment for the asst. yr. 1985-86 a sum of Rs. 43,400.49 in respect of additional lorry hire, hire advance, trip advances and spare bills payable to Saradhi Lines P. Ltd. The same was disallowed. The CIT(A) stated that the expenditure did not relate to the asst. yr. 1985-86. On second appeal also the Tribunal held that it did not relate to the asst. yr. 1985-86 since the debit notes were issued by Saradhi Liner P. Ltd., after 31st March, 1985 on which date the assessee closed its accounts for the asst. yr. 1985-86. Now that the matter is pending for the succeeding assessment year, namely, 1986-87, the assessee pleads that the sum of Rs. 43,400 should be considered for being allowed as a deduction as it pertained to the asst. yr. 1986-87. Sri Abraham has no objection to admitting the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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