RAMANUJAM J.


The assessee seeks a direction in this petition to the Tribunal to refer the following two questions as arising out of the order of the Tribunal

"1. Whether the Tribunal was right in law in holding that the gratuity liability relating to the employees of Pandian Roadways Corporation Ltd., transferred to Kattabomman Transport Corporation Ltd., is not an allowable deduction?


2. Whether the Tribunal was right in holding that the payment was Ion capital account?" *


But the questions are covered by the decisions of this court in Stanes Motors (South India) Ltd. v. CIT, CIT v. Salem Bank Ltd. and CIT v. Pathinen Grama Arya Vysya Bank Ltd. The assessee in this case is engaged in running a transport service; A part of its business was taken over by the Kattabomman Transport Corporation Ltd. along with the buses running on the routes taken over by the Kattabomman Transport Corporation Ltd., and its employees on January 1, 1974. At the stage of transfer of a portion of the business, a sum of Rs. 9, 06, 104 was paid to the Kattabomman Transport Corporation Ltd., the transferee, as representing the gratuity liability in respect of the employees of the assessee transferred to the Kattabomman Transport Corporation Ltd.


The assessee in the course of the computation of the assessee's income by the ITO for the assessment year 1974-75, claimed deduction of the said sum as revenue expenditure. The ITO rejected the claim for deduction. The disallowance of the claim was upheld by the AAC. The assessee took the matter in appeal to the Income-tax Appellate Tribunal. The Tribunal also has taken the view that the claim for deduction of the said sum cannot be allowed. The Tribunal has factually found that it is only a provision which is transferred to another public sector Organisation, that as a provision it cannot be allowed because admittedly it does not satisfy the conditions under s. 40A(7), that gratuity liability is allowable either under s. 40A(7) or on the basis of actual payment and that in this case it can neither be brought under s. 40A(7) nor has there been an actual payment to the employees concerned. Hence, according to the Tribunal, in any view of the matter, the transfer of the said sum cannot be treated as coming for deduction. The Tribunal also took the view that the transfer of the amount to the transferee cannot be taken to be a charge on the profits for the year. The Tribunal has relied in support of its view on the decision of this court in Stanes Motors (South India) Ltd. v. CIT. Before the Tribunal, the decision of the Kerala High Court in CIT v. Standard Furniture Co. Ltd. was relied on, but the Tribunal has distinguished the case on facts and purported to follow the decision of this court in Stanes Motors (South India) Ltd. v. CIT. We find that the decision in Stanes Motors (South India) Ltd. v.CIT , has been followed in CIT v. Pathinen Grama Arya Vysya Bank Ltd. and CIT v. Salem Bank Ltd. The view taken in Stanes Motors (South India) Ltd. v. CIT is also in conformity with the view expressed by the Supreme Court in CIT v. Gemini Cashew Sales Corporation. In view of the preponderance of judicial opinion, we do not find any justification for directing a reference on the questions set out aboveThe learned counsel for the assessee has, however, pointed out that different view has been taken by this court in CIT v. Sri Venkateswara Bank Ltd. and CIT v. Srinivasa Perumal Bank Ltd. But we find that in those cases the gratuity liability has been worked out and those amounts have actually been paid to the employees whose services with the assessee had come to an end after the transfer of a portion of the business. On the facts of these cases, i

t has rightly been held that the actual payment of gratuity to the employees can be taken to be a revenue expenditure entitled to deduction. But in this case there is no direct payment of gratuity to the employees who have been transferred nor the conditions laid down in s. 40A(7) are satisfied Therefore, we are not inclined to refer the above questions. The petition is, therefore, dismissed. No costs.