Decided on July 29,1993



J.K.VERMA, A. M. : - (1.) BOTH these appeals involve similar points and, hence, are being disposed of by a common order for the sake of convenience.
(2.) The assessee-firm has been carrying on the business of owning stones mines and extracting stones therefrom and selling those stones. For the asst. yr. 1985-86 and CIT, Jaipur took action under S. 263 of the IT Act and directed that outstanding sales-tax liability amounting to Rs. 21,290, including sales-tax liabilities of Rs. 2,574 in the books of branch at Darah Mines be allowed and added to the income of the assessee according to provisions of S. 43B. The learned CIT rejected the arguments on behalf of the assessee that in view of the decision of the Honble Andhra Pradesh High Court in the case of Sinkakollu Subba Rao & Co. vs. Union of India & Ors. (1988) 173 ITR 708 (AP) the unpaid amount of sales-tax as on the last date of the accounting year should not be disallowed if it is paid within the time allowed under the relevant Sales-tax law, although after the previous year of the assessee. Since this Bench of the Tribunal has been consistently following this decision the ratio of which has since been followed by almost every High Court in the country except by Honble Delhi High Court, we hold that since the Revenue has not challenged that the sales-tax was actually paid within the time allowed under the Sales-tax law and since the assessee has filed photo copies of challans for payment of the sales-tax in April, 1985, we direct that the outstanding sales-tax liability may not be disallowed. To this extent, the order of the learned CIT, Jaipur is cancelled. The assessee has moved an application whereby it has sought an amendment regarding the language of Ground No. 3 in which it has sought to substitute the words "Bonus" for the words "Provident Fund" in Ground No. 3 in the Grounds of Appeal. It has been explained that the assessee had actually paid Rs. 50,000 as bonus to its employees and an amount of Rs. 1 lakh had remained outstanding which was actually paid subsequently within the time allowed under the Payment of Bonus Act. Shri Jain submitted that according to S. 19 of the Payment of Bonus Act where there is no dispute between the employer and the employees, the payment can be made within 8 months of the end of the accounting year. Since in this case the accounting year ended on 31st March, 1985 and since, according to Shri Jain, the payment of Rs. 50,000 was made on 13th May, 1985 and another Rs. 50,000 on 2nd Sept., 1985, i.e., within the time permissible under the Payment of Bonus Act, it should be allowed on the same principle as laid down in the case of Sinkakollu Subba Rao & Co. (supra).
(3.) THE learned Departmental Representative, on the other hand, vehemently argued that the learned CIT had mentioned that the balance amount of Rs. 1 lakh was not an ascertained liability but the assessee itself had shown it as provision for payment of bonus. In this way, according to the learned Departmental Representative, the case was not covered by ratio of decision of Sinkakollu Subba Rao & Co. (supra) and since it was only an unascertained liability, it could not be allowed as a deduction in view of the accepted principles of accountancy and in any case had to be disallowed under S. 43B.;

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