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In the case of Deputy Commissioner of Income-tax vs. Esquire Video Film Services (P.) Ltd (74ITD57) the assessee who followed the mercantile system of accounting though provided for interest to banks yet disputed such liability. The banks had filed a suit against the assessee for recovery of the principal amount along with interest. At the close of the year the suit was pending in the High Court. The Mumbai Bench of the Tribunal was to answer the question whether the liability provided in the books of account is an accrued liability or a contingent liability.

Before addressing the issue in this appeal the Bench brought out a distinction between a statutory liability and contractual liability. It held that the principles of law applicable in respect of the statutory liabilities differ with the principles of law applicable to contractual liabilities. In the case of statutory liability the liability that is accrued under the statute is allowable as a deduction notwithstanding the fact that the assessee has disputed the liability either by way of an appeal or otherwise. This is however further now subject to actual payment after insertion of section 43B under the Income tax Ac

In the case of contractual liability the Bench held that the law is totally different. In referring to the Bombay High Court view and the Apex Court decision in the case of CIT v. Swadeshi Cotton & Flour Milk (P.) Ltd. (53 ITR 134).

In this case the assessee had received certain waivers, which it offered to tax in the later years. In other words, the assessee has ultimately not been held liable to interest for which a provision was made in the accounts for assessment years 1986-87 and 1987-88. Following the law of the land the Mumbai Bench restored the additions of Rs. 53,40,607 and Rs. 54,99,305 for assessment years 1986-87 and 1987-88 respectively and directed the assessing officer to delete the amount assessed in assessment year 1989-90 out of the above additions rather than calling upon the assessee to take appropriate action u/s 154 in A .Y. 1989-90 seeking withdrawal of amount offered for tax u/s 41 which action would be just and reasonable.

Also the Allahabad High Court in the case of Commissioner of Income-tax Vs. Oriental Motor Car Co. (P.) Ltd. (124ITR74) held that the mere fact that an assessee keeps his accounts on the mercantile system does not give him a handle to debit liability of every kind whatsoever. The liability that can be debited is only that which is certain, and which arises in present. In this case the amount of infringement commission so claimed was negotiable and was therefore not definite.

under the mercantile system of accounting it is not
left to the sweet will of the assessee to debit in its account any amount
towards its expenses and claim that the provision so made will have to be
allowed by the tax authorities. It is true that under the mercantile
system of accounting all items of credit are brought into credit immediately
they become legally due and before they are actually received, and all
expenditure is debited for which a legal liability has been incurred before
it is actually disbursed. But before a credit or debit entry can legitimately
be made in the accounts it must be shown that a certain enforceable
liability has accrued or arisen. Such liability must be one that has been
ascertained and capable of being enforced by the person in whose favour
the debit has been raised. The mercantile system can never be “stretched
to embrace all sorts of provisional, notional or contingent payments which
the assessee considers that he might ultimately be called upon to pay.

It is well settled that anticipated losses and contingent liabilities can-
not be claimed under the mercantile system of accounting. The liability
must be definite and real.

However any liability arising under any breach of contract when ascertainable would not be in the nature of a contingent liability and hence would be deductible. In other words when there is no uncertainty or when the very incurring of the expenditure is not tentative the liability would be deductible. The Delhi High Court decision in the case of Commissioner of Income-tax v. Dalmia Dadri Cement Ltd. (195ITR290) is a direct pointer on this very principle of deduction.

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