# S.Subba Rao & Co and others v. Union

- **Citation:** (2007) 2 ILRA 594
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-05-25
- **Case number:** Civil Misc. Writ Petition No23440 of 2007
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-subba-rao-co-and-others-v-union-40965
- **Pages:** 6

## Text

594 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
(Delivered by Hon'ble Sushil Harkauli, J.)

1. We have heard learned counsel
for the Income Tax Department.

The question referred in this case is:-

"Whether, on the facts and in the
circumstances of the case, the Appellate
Tribunal is legally correct in holding that
liability relating to the employeer's
contribution to Provident Fund, Family
Pension, State Insurance and Deposit
Linked Insurance is not disallowable u/s
43-B of the I.T. Act, 1961?"

2. The issue precisely is whether the
contribution payable, but not actually
paid, is entitled to be claimed as
deduction by the employer/assessee.

3. The words of Section 43 B in the
title to that section, as also at the end of
that
section
limit
the
allowing
of
deductions only to actual payments.

4. Reliance is placed in the
Tribunal's order, upon a decision of the
Andhra Pradesh High Court in the case of
S.Subba Rao & Co and others Vs. Union
of India (1988) 173 ITR 708, for the
conclusion that deductions can be made
although actual payment has not been
made, if the contribution is payable.

5. The Andhra Pradesh High Court
has not held any such proposition in that
decision and the Tribunal's order dated
6.10.1989
is
based
upon
a
total
misreading and misapplication of that
decision.

6. The view taken by the Karnataka
High Court in the case of CIT Vs. Amco.
Batteries (2006) 287 ITR 80 at the end of
para 7 of that law report lays down the
correct law in the following words:-

"Therefore, unless the aforesaid
sums are paid, as a matter of fact, the
employer/ assessee is not entitled to claim
deductions."

7. We approve the decision of the
Karnataka High Court in respect of the
contribution contemplated under Section
43 B of the Income Tax Act.

8. Thus our answer to the referred
question is that the Appellate Tribunal
was not right in saying that the employer's
contribution to Provident Fund, Family
Pension, State Insurance and deposit
linked insurance was not disallowable
under section 43 B. In fact, the said
contributions, which may have been
payable had not been actually paid during
the relevant year, were liable to be
disallowed.

9.

Reference
disposed
of
accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2007

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No23440 of 2007

Committee of Management, Sri Kachcha
Baba Inter College, Jalhopur Varanasi
and others

...Petitioners
Versus
Regional Committee Pancham Mandal,
Varanasi and others
...Respondents

Constitution
of
India-Art.
226-Locus
Standi-Petition challenging the validity
of committee of management-by the
2 All] C/m, Sri K.B. Inter College & ors. V. Regional Committee Pancham Mandal & ors. 595
members of the socity-held-members of
Society has no locus standi.

Held: Para 9

In Dr. P.S. Rastogi V. Meerut University,
Meerut, (1977)1 UPLBEC 415 it was held
that
in
individual
member
of
the
committee of management had no locus
standi to file a petition. Similar view was
held by a learned Single Judge in the
case of Bhagwan Kaushik Vs. State of
U.P. and others [supra]. A division bench
in Anjani Kumar Mishra's case, [supra] in
Special
Appeal
also
held
that
the
members of a society had no right to
agitate the result of the elections, as
they had no locus standi to challenge the
result of the elections. In the present
case, the petitioners are the members of
the general body. It is not a rival
committee of management as alleged by
them in the writ petition, inasmuch as
admittedly, the authorised controller
was
managing
the
affairs
of
the
administration since the year 1996.

(B) Constitution of India-Art. 226-finding
of facts-recorded by the authorized
controller-regarding the membership of
society-such finding are finding of factwrit court can not interfere.

Held: Para 9

The petitioners are none other than the
members of the general body of the
society and, in view of the decisions of
this Court, they have no locus standi to
file the present writ petition. Further, in
my opinion, the list of electoral college
which
has
been
finalised
by
the
authorised controller and affirmed by the
regional committee is based on findings
of fact which cannot be interfered in a
writ jurisdiction.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri Awadhesh Kumar
Singh, the learned counsel for the
petitioners and Sri P.S. Baghel, the
learned counsel appearing for respondent
no.6 and the learned Standing Counsel
appearing for respondent Nos.1,2 and 3.

2. Briefly stated, the facts giving rise
to the present petition is, that Civil Misc.
Writ petition No.43629 of 1998 and Civil
Misc. Writ petition No.9089 of 1999,
filed by the parties, was disposed of, by a
common judgment dated 21.11.2002, in
which it had come on record that the last
election of the committee of management,
Kachcha Baba Inter College, Jalhopur,
Varanasi was held in the year 1996, and
which was the subject matter in the said
writ petitions. The Court, while disposing
of the writ petition, by an order dated
21.11.2002,
directed
that
since
the
authorised controller was continuing in
the college, he would hold fresh elections
after verifying the list of the members.
Based on the aforesaid judgment, the rival
parties submitted their list of the members
before the authorised controller. The
authorised controller, after considering
the matter, passed an order dated
24.2.2003, rejecting the list supplied by
the rival parties and, finalised the list of
the members on the basis of the evidence
brought on the record. Based on the
aforesaid
determination,
the
District
Inspector of Schools, by an order dated
16.6.2003, granted permission to hold the
election for the period 2003-2006. Based
on the aforesaid direction, the authorised
controller conducted the election on
31.12.2003. Before the result of the
elections could be announced and, before
the authorised controller could give
charge to an elected body of the
committee of management, Writ Petition
No.28892 of 2003 was filed by the
petitioners in which an interim order was
passed, namely:
596 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
"In the meantime, if any elections are
held by Prabandh Sanchalak, result of the
same shall not be declared, except with
leave of this Court."

3. The said interim order continued
till the disposal of the writ petition. The
Court in its judgment dated 16.5.2006
held that since the result of the elections
had not been declared so far, the Court
directed
the
regional
committee
to
consider and decide the objections of the
parties and further directed the regional
committee to consider the list of members
finalised by the authorised controller and
thereafter take an appropriate decision
with regard to the validity of the elections
conducted by the authorised controller.

4. Based on the aforesaid directions
of the Court, the regional committee, after
considering the objections of the parties
issued
an
order
dated
18.4.2007,
upholding the finalisation of the list
determined by the authorised controller
by its order dated 24.2.2003 and, also
declared the result of the elections holding
that the said election was valid and
consequently, recognised the elections of
Sri Dhananjay Singh as the Manager of
the Committee of Management. The
petitioners, being
aggrieved by the
aforesaid order, has filed the present writ
petition.

5. The learned counsel for the
petitioners submitted that the life of the
committee of management, as per the
Scheme of Administration was three years
and one month and thereafter, the
committee
of
management
became
functus officio. Admittedly, the elections
were held on 31.12.2003 which term had
expired on 30.12.2006 and consequently,
the elections of Sri Dhananjay Singh
could not continue beyond 30.12.2006.
Consequently, the order of the regional
committee recognising the elections of Sri
Dhananjay Singh, which was held on
31.12.2003 was redundant and could not
be given effect to. The learned counsel for
the petitioners further submitted that the
list of the electoral college, as determined
by the authorised controller, and affirmed
by the regional committee was wholly
erroneous and was finalised without any
application of mind. The objection raised
by the petitioners was not considered and
consequently, the said list was liable to be
set aside and a fresh direction was
required to be issued to the authorised
controller for holding fresh election of the
committee of management of the society.

6. On the other hand, Sri P.S.
Baghel, the learned counsel for the
respondents submitted that the writ
petition
was
not
maintainable.
The
learned counsel for the respondents
submitted that the writ petition has been
filed by a group of members of the
General Body of the Society and that the
writ petition was not maintainable at their
instance. In support of his submissions,
the learned counsel for the respondents
has relied upon a decision of this Court in
Writ
Petition
No.31886
of
2004,
Bhagwan Kaushik Vs. State of U.P. and
others, decided on 30.1.2006 as well as a
judgment of a Division Bench of the
Court dated 19.2.2007 passed in Special
Appeal No.194 of 2007, Anjani Kumar
Mishra Vs. State of U.P. and others
wherein it had been held that the members
of the society had no right to agitate the
result of the elections since it had no locus
standi to challenge the result of the
elections. The learned counsel for the
respondents further submitted that the
election which was conducted by the
2 All] C/m, Sri K.B. Inter College & ors. V. Regional Committee Pancham Mandal & ors. 597
authorised controller on 31.12.2003 had
not yet been completed, since, the result
had not yet been declared, consequently,
the term of the committee had not as yet
begun. Therefore, the expiry of three
years and one month in the present case
on 30.12.2006 did not arise. The learned
counsel further submitted that the starting
point of the term of the committee of
management
would
be
when
the
committee of management was given
charge and the period of three years
would begin from that date.

7. In support of his contention, the
learned counsel for the respondents
placed reliance upon a decision of a
Division
Bench
of
this
Court
in
Committee of Management, Jangali
Baba Intermediate College Garwar,
district Ballia and another Vs. Deputy
Director of Education, Vth Region,
Varanasi and others(1991)2 UPLBEC
1183 as well as a decision of a learned
Single Judge of this Court in Committee
of Management, Lakhori Inter College,
Moradabad and another Vs. District
Inspector of Schools, Moradabad and
others, (2002)1 UPLBEC 199.

8. Having given my thoughtful
consideration in the matter this Court is of
the opinion, that the petitioners are not
entitled for any relief. The writ petition is
not maintainable.

9. In Dr. P.S.Rastogi V. Meerut
University, Meerut, (1977) 1 UPLBEC
415 it was held that in individual member
of the committee of management had no
locus standi to file a petition. Similar view
was held by a learned Single Judge in the
case of Bhagwan Kaushik Vs. State of
U.P. and others [supra]. A division bench
in Anjani Kumar Mishra's case, [supra] in
Special Appeal also held that the
members of a society had no right to
agitate the result of the elections, as they
had no locus standi to challenge the result
of the elections. In the present case, the
petitioners are the members of the general
body. It is not a rival committee of
management as alleged by them in the
writ petition, inasmuch as admittedly, the
authorised controller was managing the
affairs of the administration since the year
1996. The elections were conducted by
the authorised controller. Consequently,
the petitioners cannot be held to be the
rival committee of management. The
petitioners are none other than the
members of the general body of the
society and, in view of the decisions of
this Court, they have no locus standi to
file the present writ petition. Further in
my opinion, the list of electoral college
which has been finalised by the authorised
controller and affirmed by the regional
committee is based on findings of fact
which cannot be interfered in a writ
jurisdiction.

10. In Committee of Management,
Kisan Shiksha Sadan, Banksahi, Basti
and another Vs. Assistant Registrar,
Firms Societies and Chits, Gorakhpur
Region, Gorakhpur, (1995) UPLBEC
1242, a Division Bench of this court held

"The list of members determined by
the authority was not open for a member
of the society to challenge in a writ
jurisdiction and the proper course open to
him was to approach the Civil Court and
seek an appropriate relief. In my view
also, the appropriate remedy to challenge
the determination of the list of the
electoral college cannot be adjudicated in
a writ jurisdiction under Article 226 of the
Constitution of India and the appropriate
598 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
remedy for the petitioners is to file a civil
suit."

With regard to the last submission of
the learned counsel for the petitioners,
this Court is of the opinion, that the
election conducted by the authorised
controller on 31.12.2003 had not yet been
concluded. In my opinion, the election is
concluded upon the declaration of the
result. In the present case, the High Court,
had issued an interim order staying the
declaration of the result. The declaration
was subsequently made by the regional
committee by the impugned order dated
18.4.2007. Consequently, as per the
Scheme of Administration, the term of the
committee of management, being three
years plus one month, would start from
the date of the declaration of the result.
Thus, the question of its expiry on
30.12.2006 does not arise, inasmuch as
the election was concluded only upon the
declaration of the result on 18.4.2007.
Consequently, the term of the committee
of management would only begin from
18.4.2007 onwards.

In Committee of Management,
Lakhori Inter College, Moradabad and
another
Vs.
District
Inspector
of
Schools,
Moradabad
and
others,
(2002)1 UPLBEC199, this Court held :

"The principle laid down there is not
in dispute. Looking to the Scheme of
Administration which is annexed as
Annexure-4 to the counter affidavit filed
by the respondents it is clear that the
period
prescribed
therein
for
the
Committee of Management is three years
and the earlier validly elected Committee
of Management automatically comes to
an end after one month thereafter. It is
significant that the language used therein
makes no option. The Scheme of
Administration has been framed under the
U.P. Intermediate Education Act and the
language used therein for the life of
committee of Management is mandatory
and its ceaser is also automatic. However,
the question still remains regarding the
starting point for the computation of this
period of three years. In none of the
decisions relied upon this question has
been gone into. The petitioners' argument
is it would only start running from the
date
newly
elected
Committee
of
Management takes charge as such."

In Committee of Management,
Jangali Baba Intermediate College,
Garwar District Ballia and another Vs.
Deputy Director of Eduction, Vth
Region, Varanasi and others, 1991(2)
UPLBEC 1183 a division bench of this
Court held :

"The purpose of prescribing period
of three years is that elected Committee of
Management to function. If for some
reasons even after election, the newly
elected Committee of Management is not
made to take charge from the earlier
Committee of Management or from the
Prabandh Sanchalak the period of that
Committee of Management would not
start. However, the day such elected
Committee of Management taken over
charge and or starts functioning as such,
then the period of three years starts
running. By looking to the relevant clause
of the Scheme of Administration we feel
thereafter the period of three years is
fixed and in no case extended even if
intermittently
such
Committee
of
Management is not able to discharge its
function on account of in fighting
litigations between the parties, or on
account of stay order passed by this
2 All] NOIDA V. State Public Service Tribunal, Locknow and another
599
Court. It is thus necessary for the
authority to come to the conclusion, in
case of such dispute, of the date from
which
the
elected
Committee
of
Management has taken charge or started
to function as such. In the present case
the dispute raised by the petitioners is
that even after the election on 7th July,
1985 on account of stay order of this
Court as aforesaid it could neither take
charge nor start functioning, thus the
period of three years could not be from
the date of election and thus the impugned
order holding its period having come to
an end is legally not justified."

In view of the aforesaid, this Court is
of the opinion, that the period of three
years has only begun from the date of the
declaration of the result on 18.4.2007.
Consequently, the term of the new
committee of management of respondent
no.6 has not as yet expired as it has only
begun on 18.4.2007.

In view of the aforesaid, the writ
petition fails and is dismissed summarily.
In the circumstances of the case, there
shall be no order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2007

BEFORE
THE HON'BLE ANJANI KUMAR, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 43860 of 1998
With
Civil Misc. Writ Petition No. 43862 of 1998
Civil Misc. Writ Petition No. 43863 of 1998
Civil Misc. Writ Petition No. 43864 of 1998
Civil Misc. Writ Petition No. 43866 of 1998

New
Okhla
Industrial
Development
Authority (NOIDA) Sector-6, Ghaziabad
Gautam Budh Nagar

...Petitioner
Versus
State Public Service Tribunal, Lucknow
and another

...Respondents

Counsel for the Petitioner:
Sri S.G. Hasnain
Sri A.K. Mishra
Sri A.K. Roy
Sri Indra Raj Singh

Counsel for the Respondents:
Sri S.D. Kautilya
Sri Neeraj Agrawal
S.C.

U.P. Public Service Tribunal-Act 1976Section 4 (1)-maintainability of claim
petition-by
daily
wager-muster
roll
employee-having
no
contract
of
employment with NOIDA as workman
under the definition of U.P. Industrial
Tribunal Act-held-not maintainable.

Held: Para 24

The contesting respondents have clearly
said that they are only muster roll daily
wage
employees.
Being
daily
wage
employees on muster roll the contesting
respondents are admittedly workmen as
defined under 1947 Act. Therefore on the
pleadings of the contesting respondents
before the Tribunal, it is evident that the
said application was not maintainable
due to the absence of grounds on which
the application under Section 4 could
have been filed.
Case law discussed:
W.P. No. 9216 (SS) 93 decided on 10.11.93,
1981 LLT (Service) 101, 1981 AWC-481, 1985
U.P.S.C. 212, W.P. No. 4580/75 decided on
27.1.77, 1980 (2) LLJ-48, ALR 1986 (6) 91,
AIR 1955 SC-123, AIR 2001 SC-2699, 2006
SCC (2) 670, AIR 1960 SC-122, AIR 1960 sC122, AIR 1964 SC-1230(1244), AIR 1969 SC513, AIR 1975 SC-43, AIR 1991 SC-772, AIR
2002 SC-1351, AIR 1967 SC-997