Bombay H.C : The ex gratia payment in excess of the limits prescribed under the Payment of Bonus Act, either under s. 36(1)(ii) or s. 37(1) of the Act, is allowable as business expenditure

High Court Of Bombay At Goa

CIT vs. Maina Ore Transport (P) Ltd.

Section 36(1)(ii), 37(1)

Asst. Year 1993-94

S.C. Dharmadhikari & Santosh Bora, JJ.

IT Ref. No. 1 of 2004

22nd August, 2008

Counsel Appeared :

S.R. Rivonkar, for the Appellant : Sudin M.S. Usgaonkar, for the Respondent

JUDGMENT

Santosh Bora, J. :

By this reference under s. 256(1) of the IT Act, 1961, the Income-tax Appellate Tribunal, Panaji Bench, Goa, (‘Tribunal’ for short) has referred the following questions of law for the opinion of this Court at the instance of the Revenue :

“(1) Whether the Tribunal was justified in holding that the ex gratia payment in excess of the limits prescribed under the Payment of Bonus Act, either under s. 36(1)(ii) or s. 37(1) of the Act, is allowable as business expenditure.

(2) Whether the Tribunal was justified in holding that ex gratia amount paid over and above the amount paid as per Bonus Act, was an allowable expenditure although the payment did not cover contractual payment or customary payment.”

2. Factual factors : The assessee, a company earns income from hiring of trucks, dumpers and barge. The assessment year is 1993-94. The respondent has made payment of ex gratia in the sum of Rs. 2,37,702 to its employees (in excess of the limits of 8.33 per cent under the Payment of Bonus Act). The respondent claims the deduction of the said amount in computing its total income. The Dy. CIT (Asst.), Special Range-II, Panaji disallowed the said claim on the ground that it is an excess payment than permissible limits as per the Act. The Dy. CIT held that the payment of only 8.33 per cent was in accordance with the Bonus Act and therefore, the payment of Rs. 2,37,702 which was in excess of 8.33 per cent-maximum statutory limit under the Act could not be allowed.

3. Feeling aggrieved by the order passed by the the Dy. CIT, the assessee/respondent filed an appeal before the
CIT(A). The CIT(A) vide his order dt. 2nd Sept., 1994 allowed the appeal thereby holding that the amount of Rs. 2,37,702 being the ex gratia was made to the employees in order to maintain healthy relations and industrial peace. The CIT(A) relied on the decision of Madras High Court in the case of CIT vs. Sivanandha Mills Ltd. (1987) 63 CTR (Mad) 11 : (1985) 156 ITR 629 (Mad) and the decision of CIT Karnataka-III, Bangalore in Revenue Petn. No. 8/89/9/CIT-III for the asst. yr. 1985-86 in the assessee’s own case. Dissatisfied with the order of CIT(A), Department preferred appeal before Tribunal.

4. The Tribunal, Pune Bench, Pune dismissed the Department’s appeal observing that the issue was concluded in favour of the assessee by a decision of the Bombay High Court in the case of CIT vs. Raghuvansi Mills Ltd. (IT Ref. No. 169 of 1987, dt. 25th Oct., 1993).

5. At the behest of the Revenue, Tribunal made the present reference under s. 256(1) for opinion on points mentioned in para 1 above.

6. Heard the learned counsel Shri S.R. Rivonkar for the appellant/Revenue and Shri Sudin M.S. Usgaonkar learned counsel for the respondent assessee.

7. Shri Usgaonkar for the respondent submits that apart from the decision of this Court in the case of Raghuvansi Mills Ltd. (supra), there are decisions of other High Courts too taking the same view. The learned counsel placed reliance on the following decisions : CIT vs. Shaw Wallace & Co. Ltd. (1991) 100 CTR (Cal) 188 : (1991) 190 ITR 455 (Cal), CIT vs. Rahimia Lands & Tea Co. (P) Ltd. (1992) 197 ITR 310 (Cal) subsequent decision of Calcutta High Court on the issue. He also relied on the decision of CIT vs. Sree Kamakhya Tea Co. (P) Ltd. (1993) 199 ITR 714 (Cal), CIT vs. National Engineering Industries Ltd. (1994) 208 ITR 1002 (Cal), CIT vs. Ganges Rope Co. Ltd. (2001) 252 ITR 524 (Cal), CIT vs. Rajasthan State Mineral Development Corporation (2003) 182 CTR (Raj) 440 : (2003) 261 ITR 479 (Raj).

8. Perusal of the aforesaid decisions of the Calcutta and Rajasthan High Courts shows that the object of the proviso to s. 36(1)(ii) of IT Act was to encourage the management to pay bonus in excess of what is statutorily bound to be paid to the employees provided the payment is justifiable as “reasonable payment.” It was observed that any other construction of the said provision would be artificial and may not be in keeping with such a benovelent provision. The decision in the case of Rajasthan State Mineral Development Corporation cited (supra) is somewhat similar to the facts of the instant case. The assessee company in the said case claimed deduction of ex gratia payment to its employees, the AO negatived the claim on the ground that the assessee had suffered a loss and no outstanding performance has been shown. The appellate authority also confirmed the order of the AO. The Rajasthan High Court held that the payment could be allowed under s. 37 since it has been incurred wholly or exclusively for the purpose of business. It further held that the payment has been made to maintain industrial harmony and in order to run the business.

9. We may usefully refer to the decision of the apex Court in the case of Mumbai Kamgar Sabha Bombay vs. Abdulbhai Faizullabhai & Ors. AIR 1976 SC 1455. (Hon’ble Justice V.R. Krishna Iyer & N.L. Untwalia, JJ). The apex Court considered the provisions of Payment of Bonus Act, 1965 particularly, the preamble s. 17 which pertains to adjustment of customary or interim bonus and s. 34 in respect of effect of laws and claims inconsistent with the said Act. It is observed as below : “The Bonus Act, speaks, and speaks as a whole code, on the sole subject of profit based bonus but is silent on and cannot therefore annihilate by implication, other distinct and different kinds of bonus such as the one oriented on custom. The gravitational pull on judicial construction of Part IV of Constitution has to some extent influenced this conclusion. Thus it can be held that the Bonus Act (as it stood in 1965) does not bar claims to customary bonus or those based on conditions of services……. Schematically speaking, statutory bonus is profit bonus. Nevertheless, there is provision for avoidance of unduly heavy burden under different heads of bonus. For this reason it is provided in s. 17 that where an employer has paid any puja bonus or other customary bonus, he will be entitled to deduct the amount of bonus so paid from the amount of bonus payable by him under the Act. Of course, if the customary bonus is thus recognized statutorily and, if in any instance it happens to be much higher than the bonus payable under the Act, there is no provision totally cutting off the customary bonus. The provision for deduction in s. 17, on the other hand, indicates the independent existence of customary bonus although, to some extent, its quantum is adjustable towards statutory bonus. Again s. 34 only emphasizes the importance of the obligation of the employer, in every case, to pay the statutory bonus. The other sub sections of s. 34 also do not destroy the survival of other types of bonus than provided by the Bonus Act……. Further it is clear from the long title of the Bonus Act of 1965 that it seeks to provide for bonus to persons employed ‘in certain establishments’ not in all establishments. Moreover, customary bonus does not require calculation of profits, available surplus because it is a payment founded on long usage and justified often by spending on festivals and the Act gives no guidance to fix the quantum of festival bonus; nor does it expressly wish such a usage. The conclusion seems to be fairly clear, unless the Court strains judicial sympathy contraraywise, that the Bonus Act, dealt with only profit bonus and matters connected therewith and did not govern customary, traditional or contractual bonus. The omission to mention the name of a festival as a matter of pleading does not detract from the claim of customary bonus.”….

Learned counsel for the appellant Shri S.R. Rivonkar with his usual fairness brought to our notice the decision of this Court (Division Bench Coram : Dr. B. P. Saraf & Dr. Mrs. Pratibha Upasani, JJ.) in CIT vs. Rajaram Bandekar & Sons (Shipping) (P) Ltd. (1999) 153 CTR (Bom) 52 : (1999) 237 ITR 628 (Bom).

In the said case reference was made for the opinion of the High Court as regards to the payment of ex gratia to the tune of Rs. 1,58,828 to the employees and whether such payment can be deducted as business expenditure by the assessee. This Court held that the Tribunal in the said case was not right in holding that the payment of ex gratia amount of Rs. 1,58,828 to the employees was by way of bonus for the service rendered and accordingly not allowable as deduction under s. 37 of the Act. The High Court remitted the matter back to the Tribunal for deciding the point afresh thereby giving reasonable opportunity of hearing to the assessee to satisfy the Tribunal that the conditions set out in the second proviso to s. 36(1)(ii) are fulfilled. It also directed that the Tribunal if satisfied may allow the deduction under s. 36(1)(ii) of the Act.

In the instant case, there is no dispute that the amount of Rs. 2,37,703 was paid by the assessee to its employees as ex gratia payment. Such payment was over and above the prescribed limits of 8.33 per cent There is also no dispute that the CIT, Panaji as well as the Tribunal have verified that such ex gratia payment was made by the assessee. There is also no dispute that CIT, Panaji and the Tribunal allowed consequential deductions from the assessee’s income.

In the case of Raghuvansi Mills Ltd. (supra) the Division Bench of this Court (Coram : Dr. B.P. Saraf and D.R. Dhanuka, JJ.) while deciding IT Ref. No. 169 of 1987 answered the following issues in the affirmative. “1. Whether on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that bonus of Rs. 5,26,767 was paid by the assessee company in excess of 8.33 per cent was allowable as a deduction under s. 36(1)(ii) and that the restriction imposed by first proviso to s. 36(1)(ii) applied to profit or productions linked bonus and not to other payments ? 2. Whether on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the additional bonus of Rs. 5,26,767 is allowable as a deduction under s. 37(1) in spite of specific restrictions imposed by proviso to s. 36(1)(ii) ?”

14. For the reasons stated above, we are of the view that the points for reference framed in para 1 above deserved to be answered in the affirmative as the same are covered by the decisions of this Court in the case of CIT vs. Rajaram Bandekar & Sons (Shipping) (P) Ltd. (supra) and CIT vs. Raghuvansi Mills Ltd. (supra). Accordingly the reference is answered and the same may be returned to the Tribunal.

[Citation : 324 ITR 100]