Income Tax Appellate Tribunal - Ahmedabad
Deputy Commissioner Of Income-Tax vs Prabhudas Kishoredas Tobacco Products ... on 31 January, 1995
Equivalent citations: [1995]54ITD176(AHD)
ORDER
Phool Singh, Judicial Member
1. The revenue has preferred this appeal against order dated 30-3-1990 recorded by CIT (Appeals)-HI, Ahmedabad, by which the appeal of assessee relating to assessment year 1987-88 was disposed of.
2. The first ground of this appeal is as under :
The learned CIT (Appeals) erred in law and on facts in directing the Assessing Officer to allow deduction on account of liabilities for wages for damaged bidies as well as on account of bonus of Rs. 8,08,023 and Rs. 86,30,975 respectively.
For proper appreciation of the pleas put up before us, it will be in the fitness of things to give out the brief facts giving rise to this ground of the revenue.
3. The assessee-company was a closely held company in the assessment year 1987-88, the year under consideration and was engaged in the business of manufacturing and sales of bidies. It had more than 60 branches in different parts of India. The assessee-company filed its return of income for assessment year 1987-88 on 17-8-1987 declaring income at Rs. 3,89,58,925. During assessment proceedings the Assessing Officer (hereinafter referred to as AO) observed that the assessee-company has debited Rs. 94,38,998 as accrued liability towards payment of bonus of bidi workers and also towards half wages for damaged bidies and the details thereof are as under :
1. Bonus to workers Rs. 86,30,975
2. Wages for damaged bidies Rs. 8,08,023 Rs. 94,38,998 The Assessing Officer called for the details as to how bonus is payable to the workers and wages for damaged bidies. Regarding the claim of payment of bonus, the assessee-company asserted before the Assessing Officer that the same was claimed in view of the decision of the Hon'ble Supreme Court in the case of P.M. Patel & Sons v. Union of India decided on 25-9-1985 (copy of judgment furnished) regarding applicability of Employees' Provident Fund Act to Bidi Industries. As the Hon'ble Supreme Court concluded that the home-workers are employees of manufacturers of bidies within the definition contained in Clause (1) of Section 2 of Employees' Provident Fund Act, on the same basis these workers shall be entitled to get bonus. The assessee further contended that in case of Addl CIT v. Kale Khan Mohammad Hanif [1978] 114 ITR 812 (MP), the same controversy was there and bidi rollers were held entitled for bonus. Reliance was also placed on the decision of Central Paints Ltd v. CIT[1984] 146 ITR 212 (MP). Reference to the Amendment made to Section 43B of IT Act was also made and pleaded that Sub-clause (c) has been inserted in that section w.e.f. 1-4-1989 and prior to that even bonus provision was allowable in cases where assessees were following the mercantile system of accounting and liabilities had been incurred. Lastly, it was pleaded that in case any amount will not be found due to workers, the same shall be brought back for taxation in view of provisions of Section 41(1) of the Income-tax Act.
4. The Assessing Officer considered all these pleas and concluded that the decision of Hon'ble Supreme Court in the case of P.M. Patel & Sons (supra) was distinguishable. There was no statutory liability on the assessee to pay the bonus nor there was any demand from the workers to pay the bonus nor any payment was made by assessee in the next accounting year. He was of the opinion that provisions of Section 43B of the Act which stood amended w.e.f. 1-4-1989 show the very intention of the Legislature that no claim of assessee for such type of liability will be allowable unless the payment is made. Accordingly, the Assessing Officer disallowed the claim of assessee for payment of bonus.
5. About the claim of the assessee regarding liabilities for wages for damaged bidies to workers, the Assessing Officer observed that the assessee claimed that liability to be statutory and on the other hand M.P. Bidi Manufacturers' Association was fighting this case and not willing to pay that amount to the workers and thus claim of assessee was without any force and the same was also rejected.
6. The assessee came in appeal and the learned CIT (Appeals) gave out the facts of the case relating to claim of assessee about the payment of bonus and half wages for damaged bidies and the contention of the assessee put forward before the Assessing Officer and also the pleas of the learned counsel for assessee and then after considering the whole controversy concluded on merits and while allowing that claim of assessee observed as under :
I have given a careful consideration to the issue at hand. I have 'gone through the operative portion relating to the issue at hand of the impugned order, have perused the written submission made on behalf of the appellant and have also paid due consideration to the submissions made by the learned counsel for the appellant during the course of this appeal proceedings. Having done so I am inclined to agree with the appellant's counsel that the action of the IAC (Asst.) is patently not justifiable, in regard to the two claims made by the assessee before the IAC (Asst.) as discussed above, on the facts and in the circumstances of the case. The liabilities in question were obviously statutory liabilities and were quantifiable. It is immaterial in the circumstances to take into consideration as to whether the appellant was contesting such liabilities or had not made any provision for such liabilities in the accounts to decide the issue. It is not as if the mischief of Section 43B as it stood at the relevant point of time was attracted in the instant case. The decision of the Supreme Court in the case of P.M. Patel & Sons (supra) clearly lays down the relationship between the bidi workers and the bidi manufacturers, albeit in the background of entitlement of benefits of Provident Fund. The relationship between such workers and management being that of employees and that the employer, as held by the Supreme Court, the liability for payment of bonus did accrue to the assessee in view of the provisions of the payment of Bonus Act, 1965.
7. The other claim of the assessee regarding half wages for damaged bidies was also allowed relying upon the decision of M.P. High Court in the case of Kale Khan Mohammad Hanif (supra) as that liability was treated as statutory liability. It is revenue who has come in appeal before us.
8. The learned Sr. D.R. placing reliance on the order of Assessing Officer contended before us that assessee's case is that of accrual of liability in the year under consideration on the basis of decision of Hon'ble Supreme Court in the case of P.M. Patel& Sons (supra) decided on 25-9-1985 but that decision was not applicable as the contention before the Hon'ble Supreme Court was about the applicability of Employees' Provident Fund Act, 1952 but here the provisions of Payment of Bonus Act are in question which are different to provisions of the said Act, as definition of 'employee' is quite different to the definition of "workman" given in Employees' Provident Fund Act. He further pointed out that the assessee along with other Bidi Manufacturers had questioned the applicabilities of the provisions of Bonus Act to Bidi workers, by filing writ before the Hon'ble Supreme Court asserting that they are not liable to pay bonus to their workers under Payment of Bonus Act, 1965. The Assessing Officer also observed that no agreement in between the assessee and its workers has come before the authorities under which there may be any obligation on the part of assessee to pay bonus. Even no claim for bonus has come from the workers in the year under consideration nor assessee was able to prove before the authorities or even before the Tribunal that any amount of bonus had been paid by it to any workers for assessment year under consideration in spite of the fact that 6 - 7 years have since passed. The modus operandi adopted by the assessee is that the assessee was getting bidies manufactured through contractors, who were getting bidies rolled by workers and it was contractors who were employers of those workers and thus there is no question of payment of any bonus by assessee to its workers.
9. The learned Sr. D.R. Shri B.R. Meena, further pleaded that facts of the case indicate that making provisions for payment of bonus is to be treated unilateral act on the part of assessee as there is no claim from the side of workers nor any agreement in between the assessee and the workmen nor any statutory liability. Reliance was placed on the decision of Macneill & Magor Lid. v. CIT [1983] 141 ITR 521 in which their Lordships of Calcutta High Court have laid down that in case there was no understanding or agreement and only a unilateral decision by the assessee itself without anything more, there was no accrued liability of the assessee and the amount would not be deductible. The Sr. D.R. pointed out that mere provision of bonus will not suffice for basis of deduction but legal liabilities to pay bonus must also be there. On the basis of above, the contention of the learned Sr. D.R. was that Assessing Officer was justified in rejecting the claim of assessee for deduction of Rs. 86,30,975 on account of accrued liability for bonus to workers.
10. As against it, the learned counsel, Shri S.N. Soparkar who appeared for the assessee contended that accounting period for assessment year , 1987-88, the year under consideration was 1 -8-1985 to 31 -7-1986 and the Hon'ble Supreme Court delivered the decision in the case of P.M. Palel& Sons (supra) on 25-9-1985 during the currency of accounting year and as laid down in the case of CIT v. Andhra Pradesh Riding Club[l987] 168 ITR 393 (AP) even Orbiter Dicta of Supreme Court is binding on High Courts and other subordinate courts and then assessee was having bona fide belief to conclude that provisions of Bonus Act, 1965 are also applicable to assessee and other bidi manufacturers. No doubt, bidies manufacturers of Gujarat and other States have filed different petitions before the Hon'ble Supreme Court challenging the applicability of payment of Bonus Act but after the decision of Hon'ble Supreme Court in the case of P.M. Patel & Sons (supra) though involving provisions of Employees' Provident Fund Scheme, the bidi manufacturers withdrew their petitions challenging the validity of the Payment of Bonus Act so far as entitlement of workmen to get bonus was concerned and on this basis, the assessee was justified in making a provision for payment of bonus to its workmen treating the said liability as accrued one as the assessee was following mercantile system of accounting and that provision was to be made in the year under consideration. The learned counsel further contended that whether the provisions of Bonus Act are applicable or not, is not the question to be examined but it is to be found out whether assessee was having reasonable basis for making such a provision for payment of bonus. The learned counsel placed reliance on the decision of Hon'ble Andhra Pradesh High Court in the case of CIT v. Investigation & Security Service (India) (P.) Ltd [l990] 182 ITR 358 in which the assessee was following mercantile system of accounting and provision was made for liability of ESI Act which was disputable as case was pending in Court. Their Lordships concluded that assessee was entitled to provision of any liability under ESI Act. He also referred to the decision in Addl CIT v. Jai Bajrang Nail Industries [ 1974] 95 ITR 415 (Punj. & Har.) and 45 TTJ 574 (Mad.) to substantiate the plea that the case of assessee is fully covered and assessee was justified in making a provision for making payment of bonus to its workers.
11. After going through the material placed before us by the concerned parties and what has come before us through the rival submissions of the learned representatives of the parties, it is undisputed fact that the assessee was following mercantile system of accounting in assessment year 1987-88, the year under consideration and the business of the assessee is that of manufacturing and selling of bidies. The assessee has come with assertions that it was getting bidies manufactured through more than 25,000 bidi workers employed through contractors. In the year under consideration, the assessee claimed for deduction of Rs. 86,30,975 for bonus to workers on account of accrued liability, which, in the opinion of assessee, accrued after the decision of Hon'ble Supreme Court in the case of P.M. Patel & Sons (supra). The only point at present for scrutiny before us is to find out whether any accrued liability for payment of bonus to workers can be inferred out of this decision of Hon'ble Supreme Court or not and for that we have to go through in brief as to what were the facts of that case and how the Hon'ble Supreme Court decided the same.
12. It may be seen that the Employees Provident Fund and Misc. Provisions Act, 1952 provides for the institution of Provident Funds for employees in factories and other establishments. Originally it did not extend to the bidi industries. For the first time Government of India vide Notification No. GSR 660 dated 17-5-1977 added beedi industry to Schedule I of the Act with effect from 31-5-1977. Another Notification No. GSR 677 dated 23-5-1977 was issued so as to bring the beedi industries within the province of Employees' Provident Fund Scheme, 1952. Several beedi manufacturers including the assessee, challenged the constitutional validity of the above referred to Notifications on the ground that Employees' Provident Fund Scheme cannot be extended to home workers because there was no relationship of employers and employees between the manufacturers and the home workers who cannot be described as "employees" within the definition given in Employees Provident Fund Act and on other different ground.
13. To begin with, the Hon'ble Supreme Court categorised the workers associated with bidi manufacturing work into three categories :
(i) those workers to whom work may be entrusted by the manufacturer(s) directly to prepare the bidi at home after obtaining a supply of raw material consisting of tobacco, bidi leaves and thread from the bidi manufacturers;
(ii) those workers employed by the manufacturers through contractors and the manufacturers pass on raw materials to such workers for rolling bidies in their dwelling houses and there is in a sense a direct relationship between the manufacturers and those workers; and
(iii) those workers to whom the work is entrusted by independent contractors who treat workers as their own employees and get the work done by them either at their own premises or in the dwelling house of the worker(s) in order to fulfil and complete the contract entered into with the manufacturers for the supply of finished product from the raw materials supplied by the manufacturers to the contractors.
14. Their Lordships on going through the materials on record observed that some of the home workers had been working regularly for several years exclusively for single manufacturer(s) and depending for their livelihood on that work and they attend the factory during specified hours to secure raw material for making bidies at home and for delivering the manufactured bidies to the staff at the factory while quantity of leaves and tobacco supplied was fixed by the manufacturers and registers of the raw materials and of payment of wages are maintained at the factory. Record was maintained about manufactured bidies received from the home workers and the quantity rejected for which log book or a wage-card is issued to the home workers. In that context their Lordships also had gone through the definition of "employees" given in Clause (i) of Section 2 of Beedi and Cigar Workers (Conditions of Employment) Act, 1966 and the Rules framed by the State Governments under that Act and examined the case law whether provisions of Employees' Provident Fund Act will be applicable to home workers.
15. Their Lordships of the Hon'ble Supreme Court discussed different cases decided by Hon'ble Supreme Court to find out the relationship of "employee" and "employer" between bidi workers and bidi manufacturers so that applicability of Employees' Provident Fund Act may be scrutinised in context to different categories of bidi workers. The first case referred to by the Hon'ble Supreme Court is that of Chintaman Rao v. State of Madhya Pradesh [1958]SCR 1340 in which it was laid down that independent contractors known as Sattedars with whom manufacturers contracted for supply of bidies cannot be described as workers within the definition of Sub-section (1) of Section 2 of the Factories Act. The Hon'ble Court laid down the principle that the test for determining the relationship of master and servant lay in the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant was to do but also the manner in which he should do it. Reference to the case of Birdhichand Sharma v. First Civil Judge [1961] SCR 161 was also made in which the same controversy was there and their Lordships held that in the case of bidi industries the right of rejection of the bidies if they did not come up to the proper standard, was evidence of the supervision and control exercised by the manufacturer. This view of Hon'ble Supreme Court was followed in different cases referred to in that judgment except the scope of test of control was made wider in the case of Silver Jubilee Tailoring House v. Chief Inspector of Shops &Establishments[l974] 1 SCR 747.But in another case of bidi manufacturer, i.e., Mangalore Ganesh Beedi Works v. Un ion of India [ 1974] 3 SCR 221, the Hon'ble Court adopted the test of rejection of defective bidies as basis for determining whether the bidi workers were the employees of the manufacturer or the independent contractors.
16. Applying the above test in the case of applicability of provisions of Employees' Provident Fund Act, their Lordships were of the opinion that the test of control and supervision lies in right of rejection as the manufactured bidies are brought by home workers at the manufacturers' premises and it is he who has to exercise that right of rejection and thus those home workers who are getting raw materials through contractors are still to be treated as "employees" under Clause (f) of Section 2 of Employees' Provident Funds Act.
17. The whole reading of the judgment of Hon'ble Supreme Court referred to above shall show that their Lordships were concerned with those bidi workers who were categorised as in category-II The reason is that manufacturers themselves admitted before Hon'ble Supreme Court that they have no problem with bidi workers of category-I as they are to be treated their employees/workmen for the purpose of applicability of "Employees' Provident Funds Act" and Hon'ble Supreme Court itself has laid down that workmen in category-Ill are not to be treated as home workers for the manufacturers as they are working under independent contractors with whom manufacturers were entering into different contracts for providing finished bidies and in those cases it was contractor who was exercising the right of rejection of sub-standard bidies. The conclusion was that only those home workers who were of category-II were to be covered under the provisions of Employees' Provident Funds Act and not all the home workers.
18. From the very beginning the contention of the assessee for allowing the deduction of Rs. 86,30,975 on account of provision for making payment of bonus was on the judicial pronouncement of Hon'ble Supreme Court in the case of P.M. Patel & Sons (supra) then assessee was under obligation to justify the claim based on the said judgment and for that assessee was required to come with specific facts before the authorities below giving out the number of bidi workers employed by it for category-I and then number of home workers of category-II and category-Ill and then to give the basis for working of the amount of Rs. 86,30,975. The assessee did not bring anything on record either before the authorities below or before us about these details which were very much relevant. Needless to point out that assessee is claiming deduction then it was the duty of the assessee to justify that claim by furnishing the details thereof and nothing was furnished in the case in hand justifying the provision of Rs. 86,30,975 in view of the judgment of Hon'ble Supreme Court.
19. The Bench enquired from the learned counsel for assessee as to what are the details of the workers engaged in bidi manufacturing and what was about the payment of bonus made to the workers after assessment year 1987-88 in which the provision of Rs. 86,30,975 was made. The learned counsel vide his letter dated 29-12-1994 has submitted that as many as 25,000 workers engaged by the assessee through the contractors and the individual account of the workers were being maintained by the contractors. He further pointed out that in the previous year 1991 -92, the dispute between the labourers and the assessee as regards the payment of bonus has been settled and the assessee was required to pay "small amount" as compared to the provisions for payment of bonus made in the earlier year and the assessee has written back the excess provisions for assessment year 1987-88 in his P & L a/c. and has paid tax thereon under Section 41(1) of the IT Act.
20. The assessee did not assert that registers of the raw material and of payment of wages to home workers were maintained by it or it was maintaining the record of the manufactured bidies received from the home workers and the quantity rejected or maintaining any log book or a wage-card issued to the home workers as is observed at p. 6 in the decision of the Hon'ble Supreme Court. In the absence of these facts and further by specific admission of learned counsel for assessee that relevant record of home workers was being maintained by contractors then the only inference shall be that those home workers cannot be treated as home workers of category - II but they have to be treated as the home workers described in category-Ill by the Hon'ble Supreme Court. These facts mentioned by the assessee and that too on the pointed question made by the Bench, indicate two points that the workers employed by the contractors were employees of contractors that is why the contractors were maintaining individual a/c of those workers. In case those workers were in category-II of home workers, then registers of raw material, registers of payment of wages must have been maintained at the factory by manufacturers including the record showing the bidies received from the home workers and the quantity rejected with a log book or wage-card issued to each worker as observed by Hon'ble Supreme Court in the case of P.M. Patel & Sons (supra). As these documents are being maintained by contractors, the inference shall be that these 25,000 workers are employees of contractors who have been categorised in category-Ill by Hon'ble Supreme Court.
21. This inference is further strengthened from the important circumstances that assessee has paid "small amount" as bonus to its workers as stated in para 4 of the letter dated 29-12-1994 furnished by assessee and details of payment of that "small amount" have not been furnished in spite of specific query. The mode of using the words "small amount" by the assessee indicates that this amount will be negligible and not substantive.
22. It is again relevant, that in case the assessee was employer of those 25,000 workers or those workers would have been home workers as of category-II then the amount of bonus paid to those workers would have been near about Rs. 80,00,000 for which provision was made but virtually assessee paid "small amount" as bonus and that must be in relation to those employees who were working in the establishment of assessee or working as home workers employed through contractors, i.e., as described in category no. I and category no. II.
23. As observed above, the assessee failed to furnish any basis to work out the sum of Rs. 86,30,975 as provision for payment of bonus to bidi workers, then it may be taken that the assessee might have made an estimate for making this provision for bonus payment to treat it as accrued liability but this approach of the assessee is also not getting support in view of the observations of their Lordships of Hon'ble Gujarat High Court in the case of Saurashtra Cement & Chemical Industries Ltd. v. CIT[ 1995] 80 Taxman 61 where their Lordships observed as under :
The basis of taxing income is accrual of income as well as actual receipt. If for want of necessary material crystallising the expenditure is not in existence in respect of which such income or expenses relate, the mercantile system does not call for the adjustment in the books of accounts on estimate basis. It is actually known income or expenses right to receive or liability to pay which has come to be crystallised, is to be taken into account under mercantile system of maintaining books of accounts. An estimated income or liability, which is yet to be crystallised, can only be adjusted as contingency item but not as an accrued income or liability of that year.
24. Applying this analogy to the facts of the case of assessee, the liability to pay the bonus was not crystallised in the year under consideration and it has not to be treated as accrued liability of that year. Once there was no accrued liability, the claim of assessee for deduction of Rs. 86,30,975 for payment of bonus was not allowable.
25. The assessee placed reliance before the authorities below on the decision of Kale Khan Mohammad Hanif's case (supra) and their Lordships were concerned with the provision for bonus to bidi workers. Their Lordships laid down that authorities below including the Appellate Tribunal failed to examine the question whether the provision for bonus made in the relevant assessment year by assessee was covered by any legal liability of the assessee under the Payment of Bonus Act or an award or settlement but simply allowed the deduction as assessee maintained its accounts according to mercantile system and the case was remanded to the Tribunal for fresh enquiry. The reasoning of this case go against the very plea of the learned counsel for assessee, as he argued that the Tribunal is not to examine whether assessee was liable to pay bonus or not but to see whether assessee was having any basis for making provision for bonus or not. Here assessee has not come with the plea that it was having any legal liability under the Payment of Bonus Act, 1965 or an award has been passed by any competent authority or bidi workers and assessee have arrived at any settlement to pay the bonus. The assessee's case is based on the judgment of Hon'ble Supreme Court in the case of P.M. Patel& Sons (supra). We have already observed that assessee has failed to bring the necessary details either before the authorities below or before the Tribunal to justify its claim of Rs. 86,30,975 for; provision of bonus. Mere fact that assessee was maintaining its accounts on mercantile system shall not be sufficient to allow the claim of assessee as laid down in the case of Kale Khan Mohammad Hanif (supra) because the legal liability for payment of bonus should actually be incurred or payment should be made for allowing deduction even under mercantile system of accounting. So, the case of assessee fails on this ground.
26. To wriggle out from the arguments of learned D.R. that assessee was not approached by the workers with the demand of bonus payment nor any agreement /settlement was arrived at in between the assessee and the home workers, the learned counsel for assessee invited our attention to the letter dated 29-12-1994 in which it was mentioned that it is wrong on the part of Assessing Officer to observe that no demand was raised by the labourers for payment of bonus. Further reference to the notice dated 23-3-1983 received by assessee from the Commissioner of Labour, Madhya Pradesh, was made and a photostat copy of that letter is as Annexure B to this letter of assessee. We have gone through that letter of Labour Commissioner, M.P. and that cannot be treated as notice of demand of bonus. It simply reads that there was a meeting under the Chairmanship of State Minister for Labour on 29-10-1982 in which bidi manufacturers and representatives of bidi rollers were present for consideration of the allow ability of bonus payment of home workers and it was decided that association of bidi manufacturers will communicate later on after due deliberation as to whether they are ready to pay any bonus and if so, its quantity and the mode. This was simply a query put up by the Labour Commissioner. Secretary of Bidi Manufacturers, must have replied to him on this query but that communication is withheld as to what was decided by bidi manufacturers. So, it is wrong that labourers have put up any demand for payment of bonus or there was any agreement in between the assessee and home workers for payment of bonus.
27. In the end the learned counsel placed reliance on the decision of Jai Bajrang Nail Industries' case (supra) but the facts of that case are quite different as assessee made some provisions for payment of bonus and afterwards Payment of Bonus Act came into operation which forced the assessee to file a revised return claiming additional bonus and the amount of bonus was treated as part of expenditure for that accounting year. In the same way the facts of the case in Investigation & Security Services (India) (P.) Ltd. (supra) are not applicable as unless and until assessee justifies the claim for making the provision of bonus payment, such claim cannot be allowed.
28. On the basis of what has been discussed above, the accumulated result of our observation is that assessee has failed to substantiate its claim for making provision for payment of bonus of the amount of Rs. 86,30,975, as assessee failed to give the necessary basis as to how that amount is worked out and by not filing the details of workers and there was no basis with the authorities below or with the Tribunal to verify the applicability of the decision of Hon'ble Supreme Court relied by the assessee. We are also of the considered opinion that assessee had wrongly made the decision of Hon'ble Supreme Court as basis for making provision for bonus payment as that was not squarely applicable to all types of workers. The assessee had no basis to claim the huge amount as provision for payment of bonus while in fact he made payment of "small amount". Assessee must have paid bonus to those workers who came in categories of employees or upon whom the assessee was exercising the powers of master and not to those who were not employees of assessee or were employees of contractors described in category-Ill and thus no claim was allowable for this fact. At this stage we are alive to this fact also that restoration for deciding the matter afresh would have been fair to some extent but we are not doing so as it was the obligation of the assessee to furnish all information to substantiate its claim which the assessee did not fulfil and thus the result is that the claim of assessee was rightly rejected by the Assessing Officer treating it as not tenable and the CIT (Appeals) was not justified in allowing the same.
29. The assessee also claimed an amount of Rs. 8,08,023 as deduction on account of liabilities for the wages for damaged bidies. The details of this claim again are missing and the assessee placed reliance on the decision of Hon'ble M.P. High Court in the case of Kale Khan Mohammad Hanif (supra). We have gone through the said decision but for claiming the amount, some details of the assessee were must which have not been furnished by the assessee before any of the authorities below nor before us. No doubt, the Hon'ble High Court laid down that assessee of that case could not make payment of wages due to pending proceedings before the Hon'ble Supreme Court challenging the vires of the provisions of Rule 29(2) of M.P. Bidi Cigar Workers (Conditions of Employment) Rules, 1968 but the amount was allowable as liability arising under Rule 29 was ascertainable. That judgment was rendered on 22-4-1981 and the assessee must have come with specific assertion as to what happened to the proceedings before Hon'ble Supreme Court and how the assessee has worked out the claim of Rs. 8,08,023 but nothing has come on record. In the absence of any information produced by the assessee before the authorities below or before us as till now the assessee has not come before us saying that any amount has been paid by it under the liability of Rule 29, the claim was not allowable.
30. We are of the opinion that this ground of revenue is allowed and we confirm the findings of the Assessing Officer for reasoning mentioned above.
31. to 35. [These paras are not reproduced here, as they involved minor issues.]