HADOTI KSHETRIYA GRAMIN BANK,AJMER vs. DEPUTY COMMISSIONER OF INCOME TAX, AJMER

PER VIJAY PAL RAO, J.M.

These two appeals by the assessee are directed against two separate orders of ld. CIT (A), Ajmer dated 17.01.2018 and 03.01.2018 for the assessment years 2009-10 and 10-11 respectively. The assessee has raised the common grounds in these appeals. The ground raised for the assessment year 2009-10 are as under :-

“ 1. That the ld. CIT (A), Ajmer has erred in law and the facts of the case in confirming the unnecessary additions by disallowance of Insurance Premium paid to LIC regarding Leave Encashment Liability and enhancement totaling to Rs. 1,02,63,449/- (Rs. 70,74,658 + Rs. 31,88,791), the same needs to be deleted :-

2 ITA Nos. 273 & 274/JP/2018. Baroda Rajasthan Kshetriya Gramin Bank, Ajmer. • That the disallowance of Insurance Premium paid to LIC & Others regarding Leave Encashment Liability of Rs. 70,74,658/- is bad in law as the expenditure is allowable under Section 36/37. Honorable High Court, Uttarakhand in ITA No. 39 of 2009 CIT vs. M/s. The Nainital Bank Limited & Honorable ITAT, Delhi in Hero Moto Corp Ltd. vs. CIT (2013) 60 SDT 25 (Delhi) has allowed similar contribution to LIC as deductible expenditure. 2. That the ld. CIT (A), Ajmer has erred in enhancement of assessment by an income of Rs. 31,88,791/- treating the internal accretions by LIC & Others to our contributions regarding Leave Encashment Liability, ascertained by Annual Actuarial Valuation (which is arrived by deducting the till date accretions). The same has neither been received nor accrued to the Appellant.”

Insurance premium paid to the LIC regarding Leave Encashment Liability. The AO

disallowed the claim of premium paid by the assessee for leave encashment liability

to the LIC on the ground that the payment was not made to the employees but it

was paid to the Insurance Company. On appeal, the ld. CIT (A) has confirmed the

order of the AO by following the order in the assessee’s own case for the

assessment year 2014-15.

assessment year 2014-15 had accepted the claim of the assessee on principle that

the premium paid to the LIC regarding the leave encashment liability is an allowable

claim by following the earlier decision of the Tribunal in the case of Jhalawar

Kendriya Sahakari Bank Ltd. vs. ACIT dated 14.08.2014 in ITA Nos. 1032/JP/2011

and 1051/JP/2011. However, since there were more than one policy taken by the

assessee for the assessment year 2014-15 and the amount of premium was also

3 ITA Nos. 273 & 274/JP/2018. Baroda Rajasthan Kshetriya Gramin Bank, Ajmer.

more than Rs. 14 crores, therefore, the Tribunal remitted the matter to the AO for

fresh adjudication after verification of the facts. Whereas for the assessment years

2009-10 and 10-11 the amount of premium is very small in comparison to the

assessment year 2014-15 and the entire premium was paid only to the LIC. Hence

the ld. A/R has submitted that the claim of the assessee may be allowed by following

the earlier decision of the Tribunal in the case of Jhalawar Kendriya Sahakari Bank

Ltd. vs. ACIT (supra). He has further submitted that the remanding back of the

issue would cause a serious hardship to the assessee as the money of the assessee

would remain with the department and the assessee being a small cooperative bank

would lose the interest at least @ 6% as the department would pay only 6% per

annum interest on the refund as against the cost of the fund is around 12%. Hence

the ld. A/R has submitted that the claim of the assessee may be allowed.

3.1. On the other hand, the ld. D/R has submitted that the ld. CIT (A) has

followed the order for the assessment year 2014-15 and this Tribunal has already

remitted the issue to the record of the AO, therefore the issue may be decided in

terms of the earlier order of the Tribunal in assessee’s own case.

record, we note that an identical issue was considered by the Tribunal in assessee’s

own case for the assessment year 2014-15 vide order dated 17.05.2018 in ITA No.

272/JP/2018 in para 4.1 to 4.3 as under :-

“4.1 The Ground No. 2 (II) of the assessee is regarding the disallowance of insurance premium paid to LIC and others towards leave encashment liability of Rs. 34,19,23,944/- (Rs. 35,19,00,000 less Rs. 99,76,056). Brief facts of the case are that the AO during the course of assessment proceeding requested the assessee bank to

4 ITA Nos. 273 & 274/JP/2018. Baroda Rajasthan Kshetriya Gramin Bank, Ajmer.

furnish the information relating to the amount of leave encashment and confirm as to whether the amount of leave encashment shown in P&L a/c is actually paid to the employees. If the same is paid to the employees then the assessee bank shall furnish the documentary proof for the same. The assessee bank submitted reply of the above query vide letter No. 18028 dated 29-12-2016 which has been considered by the AO. However, the AO did not find the assessee bank’s reply acceptable on the following grounds:- (i) It is seen that the assessee bank has been claiming this deduction on the basis of investment made for this purpose with the LIC, Bajaj Allianz, future generali, Aviva, HDFC, India first and Birla. Any payment for leave encashment in future has to be made out of that fund. However, no such deduction is allowable under any of the provisions of the Income Tax Act and deduction if any has to be allowed only on the actual payment made to the employees. (ii) The contention of the assessee bank was duly considered but was not acceptable for the reason that section 37(1) provides for the allowing of any expenditure laid out or expended wholly and exclusively for the purpose of the business. It does not cover any provision made for the purpose of any future liability. (iii) The provisions made by the assessee for leave encashment expenses (although the payment has been made to LIC) is not a payment to employees and as such the expenses are not allowable under the provisions of section 43B(f) of the Income Tax Act, 1961. The case of the assessee is clearly hit by the provisions of Section 43B(f) of the Act. As the assessee has not made any payment to employees more particularly in view of the provisions of section 43B(f) of the Act, the deduction in respect of expenses claimed by the assessee on account of provisions for leave encashment is not allowable to the assessee. (iv) Moreover the assessee has not furnished the documentary proof that the group leave encashment fund is an approved fund by the competent authority.

In view of the above reasons , the provision made for the leave encashment of Rs. 35,19,00,000/-is disallowed and added to the total income of the assessee by the AO. 4.2 In first appeal, the ld. CIT(A) has confirmed the addition of Rs. 34,19,23,944/- by observing as under:- ‘’4.12…..The appellant has also relied upon the decision of ITAT Jaipur in the case of Jhalawar Kendriya Sahakari Bank. In this case also, the relief was allowed to the appellant on the submission made by the appellant that ‘’after contribution of premium, the appellant has no control over the same’’. (page No 9 of the order). The

5 ITA Nos. 273 & 274/JP/2018. Baroda Rajasthan Kshetriya Gramin Bank, Ajmer.

Tribunal also relied upon the decision of Hon'ble Supreme Court in the case of Textool Company Ltd and decision of ITAT Delhi in the case of The Nainital Bank Limited. As I have already discussed above the facts of Textool Compay Limited, on which the decision of The Nainital Bank Limited was based were totally different from the facts of the appellant’s case. Therefore, the decision of ITAT Jaipur is also not applicable to the case of the appellant because the appellant has absolute control over the funds parked with these companies and the employees do not have any control over these funds. The other decision relied upon by the appellant are not relevant for deciding the allowability of deduction u/s 43B(f). I have gone through the various decisions relied upon by the appellant carefully. In the decision given by the ITAT Delhi ‘H’ Bench in the case of the Nainital Bank, the amount paid to LIC on account of leave encashment was allowed as deducting relying on the decision of the Supreme Court in the case of CIT vs Textool Company Ltd (262 iktr 257) and the decision in the case of Associated Electrical Industries (India) Pvt. Ltd. I have gone through the decision of the Supreme Court in the case of Textool Company Ltd. carefully. The issue decided by the Hon'ble Supreme Court in that case was admissibility of deduction of the payment made to LIC towards gratuity fund u/s 36(1)(v) of the I.T. Act, 1961. The issue of allowability of deduction u/s 43(B)(f) of leave encashment was not there before the Hon'ble Supreme Court. The Hon'ble Supreme Court allowed the claim of the appellant observing as under:- ‘’Having considered the matter in the light of the background facts, we are of the opinion that there is no merit in the appeal. True that a fiscal statute is to be construed strictly and nothing should be added or subtracted to the language employed in the Section, yet a strict construction of a provision does not rule out the application of the principles of reasonable construction to give effect to the purpose and intention of any particular provision of the Act (See: Shri Sajjan Mills Ltd. vs LD. CIT, M.P. & Anr.(1985) 156 ITR 585). From a bare reading of section 36(1)(v) of the Act, it is manifest that the real intention behind the provision is that the employer should not have any control over the funds of the irrevocable trust created exclusively for the benefit of the employees. In the instant case, it is evident from the findings recorded by the Commissioner and affirmed by the Tribunal that the assessee had absolutely no control over the funds created by the LIC for the benefit of the employees of the assessee and further al the contribution made by the assessee in the said fund ultimately came back to the Textool Employees Gratuity Fund, approved by the Commissioner with effect from the following previous year. Thus the conditions stipulated in Section 36(1)(v) of the Act were satisfied.’’ ……. Thus I am of the opinion that even the decision of Associated Electrical India Pvt. Ltd is also not applicable in the case under consideration.

6 ITA Nos. 273 & 274/JP/2018. Baroda Rajasthan Kshetriya Gramin Bank, Ajmer.

The appellant has also relied upon the decision of ITAT Jaipur in the case of Jhalawar Kendriya Sahakari Bank. In this case also, the relief was allowed to the appellant on the submission made by the appellant that ‘’after contribution of premium, the appellant has no control over the same’’’ (Page No. 9 of the order). The Tribunal also relied upon the decision of Hon'ble Supreme Court in the case of Textool Company Ltd and decision of ITAT Delhi in the case of the Nainital Bank Limited. As I have already discussed above the facts of Textool Company Limited on which the decision of the Nainital Bank Ltd was based were totally different from the facts of the appellant’s case. Therefore, the decision of ITAT Jaipur is also not applicable to the case of the appellant because the appellant has absolute control over the funds parked with these companies and employees do not have any control over these funds. The other decision relied upon by the appellant are not relevant for deciding the allowability of deduction u/s 43B(f) 4.13 It is pertinent to mention that in the A.Y. 2009-10 and 2010-11,the appellant itself had shown the funds parked with LIC and other companies for leave encashment as investment in Schedule II of the Balance Sheet (Rs. 4,35,91,748 and Rs. 5,77,16,828 as on 31-03-2009 and 31-03-2010 respectively) In the A.Y. 2010-11, the interest accrued on such funds was credited to the Profit & Loss Account under the head ‘’Other income’’. Therefore, I find no justification for claiming investment of same nature as expenditure in the A.Y. 2014-15. 4.14 As per information furnished by the appellant, the actual amount paid towards leave encashment to employees through LIC was Rs. 99,76,056/-, therefore, in view of the discussion made above, the deduction of Rs. 99,76,056/- is held to be allowable u/s 43B(f) because this was the sum payable and actually paid by the assessee as employer in lieu of any leave at the credit of his employee, as specified u/s 43B(f). Accordingly, out of the total disallowance of Rs. 35,19,00,000/- disallowance of Rs. 99,76,056/- is deleted and the remaining disallowance of Rs. 34,19,23,944/- (Rs. 35,19,00,000 – Rs. 99,76,056) is hereby confirmed. 4.3 We have heard the rival contentions and perused the materials available on record. During the course of hearing, the ld.AR of the assessee drew our attention to the decision of ITAT Jaipur Bench in the case Jhalawar Kendriya Sahakari Bank Ltd vs ACIT (ITA No.1032/JP/2011 and ITA No. 1051/JP/2011 in the case of ACIT vs Jhalawar Kendriya Sahakari Bank Ltd wherein the Bench has allowed the benefit of Group leave encashment Scheme to the Bank by observing as under:- ‘’19. Apropos the Departmental appeal, the assessee took a policy from LIC named as Jhalwar Kendriya Sahakari Bank Employee Group Leave Encashment Scheme. The facts are mentioned in detail above. The payment of leave encashment is a contractual liability8, a charge on assessee's profit. To ensure timely benefit of leave encashment of employees’ scheme is devised by the LIC, which works out the leave encashment liability and fixation of premium. The liability is ascertained and crystallized on a scientific method by the LIC. Thus, the assessee's payment of Rs. 40 lacs towards the same is within the framework of the scheme. In our considered view, the same is allowable deduction. This view further supported by the Hon'ble Supreme Court in the case of Textool Co. Ltd (supra) and ITAT

7 ITA Nos. 273 & 274/JP/2018. Baroda Rajasthan Kshetriya Gramin Bank, Ajmer.

judgement in the case of Nainital Bank Ltd (supra). Respectfully following the same, we hold that the assessee is eligible for this deduction.’’

The ld.AR of the assessee further submitted that the assessee has discharged its liability towards leave encashment scheme, the same is therefore, allowable as expenditure u/s 37(1)of the Act. Taking into consideration the above facts and circumstances of the case and the decisions relied upon by the ld.AR of the assessee, it will be in the interest of equity and justice to restore the issue to the file of the AO for afresh adjudication. The assessee is directed to submit the written submission alongwith relevant details before the AO. Thus Ground No. 2(ii) of the assessee is allowed for Statistical purposes.”

Thus the Tribunal after considering the factual matrix of the issue remitted the same

to the record of the AO for afresh adjudication after considering the relevant details

to be filed by the assessee. However, the Tribunal has accepted the position of

allowability of the claim if the same is regarding the premium paid for a policy taken

from the LIC for Employees Group Leave Encashment Scheme. Accordingly, as far

as the allowability of the claim for payment of premium of policy taken by the

assessee for Employees Group Leave Encashment Scheme, the same is allowable

expenditure. However, since the ld. CIT (A) has pointed out that the assessee itself

has shown the payment as investment in the LIC and other companies and the

interest accrued on such fund was credited to the Profit & Loss account, therefore,

the AO has to just verify the fact whether any income accruing on the policy taken

by the assessee was actually received by the assessee or it is just an accounting

treatment by the assessee without actual income. Further, if the benefit accrued on

the policy is only accumulated to the fund itself which is to be used for discharge of

liability on account of Leave Encashment, then such income though assessee has

8 ITA Nos. 273 & 274/JP/2018. Baroda Rajasthan Kshetriya Gramin Bank, Ajmer.

credited in the Profit & Loss account would not partake the character of real income

but it would be only accumulation of the value of the policy to be used for discharge

of the liability on account of leave encashment. Hence, in view of the above facts

and circumstances of the case, we direct the AO to verify these facts and then allow

the claim of the assessee in the above terms.

Order pronounced in the open court on 03/08/2018.

Sd/- Sd/- (foØe flag ;kno) (fot; iky jkWo ½ (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member

Jaipur Dated:- 03/08/2018. Das/ आदेश की प्रतिलिपि अग्रेषित@ब्वचल वf जीम वतकमत वितूंतकमक जवरू

सहायक पंजीकार@ Aेेपेजंदज. त्महपेजतंत

9 ITA Nos. 273 & 274/JP/2018. Baroda Rajasthan Kshetriya Gramin Bank, Ajmer.