Commissioner Of Income Tax vs Ranbaxy Laboratories Ltd
2011 Latest Caselaw 1547 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                ITA 377 OF 2010

                                  Judgment Delivered On: 17.3.2011
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     COMMISSIONER OF INCOME TAX                         . . . APPELLANT
                           Through :         Ms. Rashmi Chopra, Advocate

                                 VERSUS

RANBAXY LABORATORIES LTD.                              . . .RESPONDENT
                           Through:           Mr. M.S. Syali, Sr. Advcoate with
                                             Ms. Mahua Kalra, Ms. Madhavi
                                             Swarooop and Ms. Husnal Syali,
                                             Advocates.

CORAM :-

       HON'BLE MR. JUSTICE A.K. SIKRI
       HON'BLE MR. JUSTICE M.L. MEHTA

       1.      Whether Reporters of Local newspapers may be allowed
               to see the Judgment?
       2.      To be referred to the Reporter or not?
       3.      Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J.

1. In this appeal following questions of law are proposed by the

Revenue:-

(a) Whether the Ld. ITAT erred in law and on merits in holding that duty drawback relating to new industrial undertaking is eligible for deduction while computing book profit u/s 115 JA of the Income Tax Act, 1961?

(b) Whether the Ld. ITAT erred in law and on merits in holding that duty drawback is to be included while computing deduction u/s 80IA of the Income Tax Act, 1961?

(c) Whether the Ld. ITAT erred in law and on merits in deleting the addition on account of provision for pension?

(d) Whether the Ld. ITAT erred in law and on merits by holding that disallowance of provision for pension could not be disallowed u/s 43B of the Income-Tax Act, 1961.

2. In so far as question no. (a) is concerned, after reading the

order of the CIT (A) as well as the ITAT, we found that it does not

arise for consideration in this appeal. The Tribunal vide impugned

order has decided the appeals of the respondent assessee pertaining

to assessment year 1999-2000 and 2001-02. In this appeal we are

concerned with assessment year 2001-02. From the order of the CIT

(A) as well as ITAT, we find that this question of law pertains to

assessment year 1999-2000 and not this year.

3. In so far as question no.(b) is concerned, Mr. Syali, learned

Senior Counsel appearing for the respondent/assessee fairly

concedes that this issue has to be decided in favour of the Revenue

in view of the judgment of Supreme Court in the case of Liberty

India Vs. Commissioner of Income Tax,317 ITR 218.

4. Questions no. (c) and (d) relate to the provision for pension

made by the assessee. The assessee is following mercantile system

of accounting. It is having Superannuation Scheme for its

employees. As per the assessee, in order to retain managerial

employees it also introduced pension scheme for such managerial

employees which is over and above the benefits available under the

superannuation scheme of the company. This scheme was non-

funded and applicable to all management employees. The liability on

this account for the year in question amounting to ` 3,61,63,024/-

was provided following AS-15 based on actuarial valuation. For

making this provision, the assessee sought deduction thereof. The

Assessing Officer disallowed the same by invoking the provisions of

Section 43B (b) of the Act on the ground that even if it was an

ascertained liability, the deduction could not be allowed in the

absence of contribution to the pension fund. The CIT (A), however,

reversed the aforesaid decision of the Assessing Officer. Section

43B (b) of the Act reads as under:-

"43B. Notwitstanding anything contained in any other provision of this Act, a deduction otherwise allowable under this Act in respect of

(a)........................

(b) any sum payable by the assessee as an employer by way of contribution to any provident fund or superannuation fund or gratuity fund or any other fund for the welfare of employees."

5. Section 43 B (b) is inserted with a view not to allow certain

deduction unless actual payments are made in that behalf. The

question for consideration is as to whether provisions of clause (b) of

Section 43 B of the Act are applicable in the instant case. As stated

above, the assessee had created the provision for pension by

introducing pension Scheme over and above the benefits available

under the superannuation scheme. Whether such a provision would

be covered by any of the funds stipulated in clause (b), would be the

causal. Admittedly, the creation of the aforesaid provision for

pension can neither be treated as contribution to any provident fund

or superannuation fund or gratuity fund.

6. Ms. Rashmi Chopra, learned counsel for the Revenue, however,

argued that it would fall within the expression "any other fund for

the welfare of employees" which is specifically stipulated in clause

(b). We are unable to accept this submission of the learned counsel

for the Revenue. It cannot be denied that Section 43 B (b) was

inserted with a view to disallow certain statutory liabilities which

were disputed and not discharged for long period while availing tax

deduction under the garb of mercantile system of accounting. It

was for this reason that Section 43B of the Act provides that these

deductions would be admissible on actual payment. We are

concerned here with clause (b) of Section 43B of the Act. This

clause deals with certain funds available for the benefit of the

employees and, therefore, unless the payments are actually made to

those employees, the same would not be entitled for deduction.

Clause (b) of Section 43 B of the Act mentions about provident fund,

superannuation fund, gratuity fund and is followed by "any other

fund for the welfare of the employees". This last clause thus has to

take its colour from the previous clauses and has to be read ejusdem

generis.

7. It is stated at the cost of repetition that the intention of the

legislature behind enacting Section 43 (b) of the Act was to disallow

the statutory liabilities. The CIT (A), under these circumstances, was

right in its opinion that the legislature never intended to disallow a

claim for ascertained liability which is computed scientifically in

respect of the retiral benefits of its employees and which is not to

be contributed to a fund. The CIT (A) has supported its view by

referring to clause (f) of Section 43 B of the Act which was inserted

w.e.f. 1st April, 2002. Thus, by adding this clause, the legislature

made it clear that any such provision for leave encashment would

ipso facto not be eligible for deduction unless the actual payment is

made. For disqualifying a provision for leave encashment, a specific

clause had to be inserted by the legislature as the legislature was

conscious of the fact that this clause would not be covered by the

existing clause (b) of Section 43 B of the Act.

8. We are in agreement with the view of the CIT (A) that the

pension scheme of the assessee does not envisage any regular

contribution to any fund or trust or any other entity. The pension

scheme provides that pension would be paid by the appellant to its

employee on attaining the retirement age or resigning after having

rendered services for specified years. Thus, where the liability on

this account accrues from year to year, the same is payable on

retirement/resignation of the eligible employees. In view thereof, the

ratio of the judgment of the Supreme Court in Metal Box Company

of India Ltd. Vs. Their Workmen 73 ITR 53 and Bharat

Earthmovers Vs.CIT, 245 ITR 428 would clearly get attracted.

9. We, thus, decide these questions of law against the Revenue

and in favour of the assessee. As a result, this appeal is allowed in

respect of question no. (c) & (d).

10. This appeal stands disposed of in terms of the above.

(A.K. SIKRI) JUDGE

(M.L. MEHTA) JUDGE MARCH 17, 2011 skb