RAMANUJAM J.

The following questions have been referred to this court by the Income-tax Appellate Tribunal at the instance of the Revenue :

"(1) Whether, on the facts and in the circumstances of the case, the sum of Rs. 5, 12, 306 being 25% of the technical service charges paid to Mansfield Tyre and Rubber Company was liable to be disallowed as capital expenditure ?

(2) Whether, on the facts and in the circumstances of the case, the assessee was entitled to relief under section 80J in respect of its Kottayam unit ?

(3) Whether, on facts and in the circumstances of the case, the assessee was entitled to a deduction of incremental liability of the provision for gratuity ?

(4) Whether, on the facts and in the circumstances of the case, the royalty relatable to export sales was entitled to weighted deduction under section 35B ?

So far as the first question is concerned, we find that in the assessee's own case for an earlier assessment year, a similar question was referred to this court in T.C. Nos. 774 and 775 of 1976 CIT v. Madras Rubber Factory Ltd. and this court after a detailed consideration answered the question against the Revenue by its judgment dated September 17, 1982. Since the decision rendered in that case is squarely applicable to the facts of this case, following the said decision we have to answer the first question against the Revenue.

Coming to the second question, we find that in assessee's own case for the earlier assessment year, a similar question was referred to this court in T. C. No. 188/78 and this court by its order dated July 5, 1983, answered the question in the affirmative and against the Revenue. Therefore, following the said decision of this court in T. C. No. 188 of 1978, CIT v. Madras Rubber Factory Ltd. the second question is answered in the affirmative and against the Revenue.The third question relates to the point as to whether the assessee is entitled to a deduction of incremental liability of the provision for gratuity as claimed by it. It is seen that the assessee's claim for allowance of a provision for gratuity was rejected by the ITO in the absence of the amount being calculated as per the scientific actuarial valuation. The AAC upheld the disallowance. When the was before the Tribunal, the assessee had worked out the incremental liability on actuarial basis at Rs. 5, 59, 644. Having regard to the fact that the actual incremental liability had been worked out the incrementtal liability on actuarial basis at Rs. 5, 59, 644, the Tribunal held that the assessee is entitled to claim the allowance but directed the ITO to verify the figures and determine the actual increment liability for gratuity for the grant of allowance. Aggrieved by the allowance of the said claim by the Tribunal, the third question has been referred. It is the contention of the learned counsel for the revenue that as the actual figure of the provision made for gratuity pertaininig to the year or that of earlier years are not available either from the orders of the authorities below or from the assessee's books of account, the ITO as well as the AAC disallowed the claim. But the Tribunal has allowed the claim only on the basis of certain figures furnished by the assessee as representing the incremental liability and directed the ITO to veryfy the figures and allow the proper incremental liability for gratuity. It is no doubt true that it is only when the matter came up before the Tribunal, the incremental liability has been worked out as per the actuarial basis and at the earlier stage, the incremental liability could not exactly be determined on a scientific and actuarial basis. The mere fact that the assessee was not able to exactly calculate the actual incremental liability at any earlier stage cannot be taken to deprive it of an allowance if it is entitled to the same under the provisions of the statue. It the assessee has worked out the incremental liability as per the actuarial basis and furnished the figures be