JUDGMENT : B.L. Hansaria, C.J. - This reference u/s 256(1) of the Income Tax Act, 1961, (for short, "the Act"), relates to the assessment year 1978-79. The assessee was carrying on business as a contractor. It entered into a contract with Hira Cement for supplying limestone. The contract expired on March 15, 1978, and the learned Tribunal has found that the assessee's business was totally stopped on that day. The assessee was, however, made to pay a sum of Rs. 73,390 on account of payment of gratuity and compensation to the workers. It claimed deduction of this amount u/s 37(1) of the Act, The Income Tax Officer disallowed the claim in its entirety. On an appeal being preferred, a different view was taken by the Appellate Assistant Commissioner of Income Tax. But the learned Appellate Tribunal, on further appeal, disallowed deduction of the aforesaid expenses in determining the net income. On the prayer of the assessee, the following question has been referred to this court : "Whether, on the facts and circumstances of the case, the sum of Rs. 73,390 on account of payment of gratuity and compensation to the workers is an allowable deduction in computing the business income of the assessee for the assessment year 1978-79 ?" 2. At the outset, Shri Nayak, appearing for the assessee, contends that the statement that the business of the assessee was closed on March 15, 1978, is not borne out by materials on record. As, however, we are in an advisory jurisdiction, we cannot go behind the facts mentioned in the statement of case. We would, therefore, examine the question on the facts as stated by the learned Tribunal. On the facts as stated, it appears that the aforesaid amount was paid on the closure of the business. If the cpmpensation was paid on the closure of the business, the ratio of the Supreme Court's decision in Commissioner of Income Tax, Kerala Vs. Gemini Cashew Sales Corporation, Quilon squarely applies. The expenditure incurred in paying compensation on the closure of the business cannot, therefore, be regarded as an expenditure incurred "for the purpose of business" of which mention has been made in Section 37(1) of the Act as, for an expenditure to be for the purpose of business, the business has to continue. Gemini Cashew Sales Corporation, Quilon squarely applies. The expenditure incurred in paying compensation on the closure of the business cannot, therefore, be regarded as an expenditure incurred "for the purpose of business" of which mention has been made in Section 37(1) of the Act as, for an expenditure to be for the purpose of business, the business has to continue. What was stated in the aforesaid decision by the apex court relating to payment of compensation u/s 25FF of the Industrial Disputes Act, 1947, would apply to the payment of compensation on closure of business. 3. As to the payment of gratuity, Shri Nayak has drawn our attention to Commissioner of Income Tax, Bombay City I Vs. Fairdeal Corporation Pvt. Ltd.. That decision shows that the payment of gratuity was held to be deductible expenditure because the business was continuing and the payment was regarded as being prompted by commercial expediency. We are not in a position to take the same view in so far as the present payment is concerned. 4. This being the position in law, we would answer the question referred to us in the negative. But then, we would leave it open to the assessee, as fairly conceded by Shri Ray, to reapproach the Tribunal and to satisfy it, if possible, that its conclusion that the business of the assessee had come to a stop on March 15, 1978, is not borne out by materials on record. If the Tribunal comes to the conclusion that the business had not been stopped, it is apparent that the ratio of the aforesaid Supreme Court decision in Commissioner of Income Tax, Kerala Vs. Gemini Cashew Sales Corporation, Quilon, would not apply and the payment made on account of gratuity would be a deductible expenditure if the same had been incurred for commercial expediency. D.M. Patnaik, J. 5. I agree.