Calcutta H.C : Whether, on the facts and in the circumstances of the case, the sum of Rs. 50,061 representing the amount of unpaid bonus written back in the accounts could be assessed under s. 41(1) of the IT Act, 1961, in the asst. yr. 1971-72 ?

Sections 261, 41(1)

Asst. Year 1971-72

Counsel Appeared

A.C. Moitra & Sunil Mukherjee, for the Revenue : Dr. D. Pal & M. Seal, for the Assessee

DIPAK KUMAR SEN, J.:

In this application, the CIT, West Bengal-V, Calcutta, seeks a certificate that the case in which a judgment dt. 18th Feb., 1985, has been delivered by this Court in CIT vs. Agarpara Co. Ltd. [reported at (1986) 55 CTR (Cal) 218 : (1986) 158 ITR 78 (Cal) : TC19R.249], is a fit one for appeal to the Supreme Court.

The following questions are stated to be substantial questions of law involved in the case :

“(i) Whether, on the facts and in the circumstances of the case, the sum of Rs. 50,061 representing the amount of unpaid bonus written back in the accounts could be assessed under s. 41(1) of the IT Act, 1961, in the asst. yr. 1971-72 ?

(ii) Whether, in view of the specific provisions of the Payment of Bonus Act, such unclaimed bonus can be regarded as a liability beyond two years ?”

We are unable to accept the contentions of the Revenue. In fact, it has been held in the judgment that the liability to pay bonus by the assessee to its employees cannot continue indefinitely and as the assessee had provided for payment of bonus, the liability under the statute, viz., the Payment of Bonus Act, stood discharged. If the concerned employees did not claim such bonus as provided, even after laps of a substantial period, it cannot be held that the liability of the employer would continue. By the said judgment, the Tribunal has been directed to investigate whether the unclaimed bonus represents the excess of the requirement to be provided for payment of such bonus and why bonus had not been claimed by the employees in the past years. The Tribunal has been directed to dispose of the case in the light of the principles laid down in the judgment. The Tribunal has been given liberty to take additional evidence while disposing of the case under s. 260 of the Act.

For the above reasons, we are of the view that this is a case not fit for appeal to the Supreme Court. The application is rejected. There will be no order as to costs.

SHYAMAL KUMAR SEN, J.:

I agree.

[Citation : 175 ITR 445]