ACIT CIR 4(2), MUMBAI V. HARINAGAR SUGAR MILLS LTD, MUMBAI

ITA 1062/MUM/2011

• Counselvise Citation: 106219914 RSA 2011
• Duration Of Justice: 4 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 11-02-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 04-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JEETENDRA KUMAR
• Keywords: Depreciation
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH H , MUMBAI BEFORE SHRI R.C. SHARMA , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 1062/M/2011 ASSESSMENT YEAR: 200 7 - 0 8 DCIT 4(2), ROOM NO.642, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 VS. M/S. HARINAGAR SUGAR MILLS LTD., WORLD TRADE CENTRE, CENTER NO.1, 10 TH FLOOR, CUFF PARADE, COLABA, MUMBAI 400 005 PAN: AAACH 2831 H (APPELLANT) (RESPONDENT) ITA NO. 205 /M/2011 A SSESSMENT YEAR: 200 7 - 08 M/S. HARINAGAR SUGAR MILLS LTD., WORLD TRADE CENTRE, CENTER NO.1, 10 TH FLOOR, CUFFE PARADE, MUMBAI 400 005 PAN: AAACH 2831 H VS. A CIT 4(2), AAYAKAR BHAVAN , 6 TH FLOOR, MUMBAI - 400020 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI KANCHAN KAUSHAL WITH ARPIT AGRAWAL, A.R. REVENUE BY : SHRI JEETENDRA KUMAR, D.R. DATE OF HEARING : 11.02 .201 5 DATE OF PRONOUNCEMENT : 08.05. 2015 O R D E R PER SANJAY GARG, JUD ICIAL MEMBER: THE ABOVE TITLED CROSS APPEALS ONE BY THE REVENUE AND THE OTHER BY THE ASSESSEE HAVE BEEN PREFERRED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME ITA NO.1062/M/2011 & ITA NO.205/M/2011 M/S. HARINAGAR SUGAR MILLS LTD. 2 TAX (APPEALS) [(HEREINAFTER REFERRED TO AS THE CIT(A) ] DATED 23.11.2010 AND THE SAME ARE TAK EN TOGETHER FOR DISPOSAL BY THIS COMMON ORDER. FIRST WE TAKE UP THE REVENUES APPEAL. REVENUES APPEAL ( ITA NO. 1062/M/ 2011 ) 2. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: ' 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.9,96,748/ - MADE IN RESPECT OF DEPRECIATION ON TRACTORS AS RELATABLE TO AGRICULTURAL OPERATION WHILE COMPUTING T HE ADJUSTED BOOK PROFIT U/S.115J B OF THE I.T.ACT MADE BY THE BY ASSESSING OFFICER. 2. ON THE FA CTS AND IN THE CIRCUMSTANCES OF THE CASE, THE IMPUGNED ORDER OF THE LD.CIT(A) IS CONTRARY TO LAW TO BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NEC ESSARY.' 3. AT THE OUTSET, THE LD. A.R. OF THE ASSESSEE HAS STATED THAT THE ISSUE RAISED BY THE REVENUE IS SQUARELY COVERED BY THE DECISION OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR A.Y. 1997 - 98 TO 1999 - 2000 WHICH HAS BEEN FURTHER FOLLOWED BY THE TRI BUNAL IN THE ASSESSEES OWN CASE FOR A.Y. 2001 - 02. THE RELEVANT FINDINGS OF THE TRIBUNAL GIVEN VIDE PARA 21 OF THE ORDER DATED 29.09.07 RELEVANT TO A.Y. 2001 - 02 PASSED IN ITA NO.6961/M/2004 IS REPRODUCED AS UNDER: 21. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH SIDES, MATERIAL ON RECORD AND ORDERS OF AUTHORITIES BELOW. WE FIND THAT SIMILAR ISSUE CAME UP FOR ADJUDICATION BEFORE THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.YS. 1997 - 98 TO 1999 - 2000 AND THE TRIBUNAL UPHELD THE DECISION OF LEARNED CIT(A) ON THIS ISSUE. THE RELEVANT FINDINGS OF THE TRIBUNAL ARE AS UNDER: - 'THE LAST ISSUE IS REGARDIN G DELETION OF ADDITION BEING THE DEPRECIATION ON TRACTORS AS RELATABLE TO THE AGRICULTURAL O P ERATIONS WHILE COMPUTING INCOME UNDER SECTION 115JA OF THE INCOME TA X ACT, 1961. THE ASSESSING OFFICER MADE THE ITA NO.1062/M/2011 & ITA NO.205/M/2011 M/S. HARINAGAR SUGAR MILLS LTD. 3 ADDITION ON THE GROUND THAT THE AMOUNT, OF EXPENDITURE RELATABLE TO ANY INCOME TO WHICH ANY OF THE PROVISIONS AFTER CHAPTER - = III APPLIES AND THE SAID EXPENDITURE HELD AS NOT ALLOWABLE. IN THIS CONTEXT, IT WAS SU BMITTED BY THE ASSESSEE THAT THE ASSESSING OFFICER HAD ERRED IN ADDING BACK THE SUM OF RS. 3,91,016/ - IN THE ASSESSMENT YEAR 1997 - 98 BEING THE DEPRECIATION ON TRACTORS RELATABLE TO THE AGRICULTURAL OPERATIONS WHILE COMPUTING THE ADJUSTED BOOK PROFITS UNDER SECTION 115 J A OF THE ACT. THE CIT(A) DELETED THE SAME AT THE STRENGTH OF DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF APPOLO TYRES LTD. VS. CIT, REPORTED IN 250 ITR 273 WHEREIN IT HAS BEEN HELD THAT THE ASSESSING OFFICER DOES NOT HAVE JURISDICTION TO GO BEHIND THE NET PROFIT SHOWN IN THE PR OFIT AND LOSS ACCOUNT WHEN TH E SAME HAS BEEN COMPUTED AS PER THE PROVISIONS OF THE COM P ANY'S ACT AND WHOSE ACCOUNT HAS ALREADY BEEN SCRUTINIZED AND CERTIFIED BY THE STATUTORY AUDITORS. NOTHING CONTRARY WAS BROUGH T TO OUR KNOWLEDGE BY THE REVENUE IN THIS CONTRAR Y . SO WE ARE NOT INCLINED TO INTERFERE IN THE FINDINGS OF THE C1T(A), WHO HAS DELETED THE ADDITION MADE BEING THE DEPRECIATION ON TRACTORS, AS RELATABLE TO AGRICULTURAL OPERATIONS WHILE COMPUTING THE INCOME UNDER SECTION 115 J A OF THE ACT. THE SAME IS UP - HELD.' RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE CO - ORDINATE BENCH, WE REJECT THE GROUND RAISED BY THE REVENUE. 4. WE FIND THAT THE LD. CIT(A) HAS ALSO DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE RE LYING UPON THE DECISIONS OF THE TRIBUNAL IN THE ASSESSEES OWN CASE IN EARLIER ASSESSMENT YEARS. THE LD. D.R. HAS NOT BROUGHT ANY DECISION CONTRARY TO THE ABOVE FINDINGS. HENCE, RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL IN THE ASSESSEES OWN CA SE FOR EARLIER ASSESSMENT YEARS, THIS ISSUE IS ACCORDINGLY DECIDED IN FAVOUR OF THE ASSESSEE. THE APPEAL OF THE REVENUE IS THEREFORE DISMISSED. ASSESSEES APPEAL (ITA NO.205/M/2011) 5. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: 1 A) THE L D.CIT (APPEALS) ERRED IN CONFIRMING DISALLOWANCE OF RS.9,26 , 647/ - BEING FOREIGN TOUR EXPENSES IN RELATION TO TRAINING COURSE ATTENDED BY SHRI VEDANG PITTIE. ITA NO.1062/M/2011 & ITA NO.205/M/2011 M/S. HARINAGAR SUGAR MILLS LTD. 4 B) YOUR APPELLANT PRAYS THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSING OFFI CER MAY BE DIRECTED TO DELETE THE SAID ADDITION. 2 A) THE LD.CIT (APPEALS) ERRED IN CONFIRMING ADDITION OF RS. 19,74,366/ - BEING PROVISION FOR LEAVE ENCASHMENT UNDER SECTION 43B OF THE ACT. B) YOUR APPELLANT PRAYS THAT, ON THE FACTS AND CIRCUMSTANCES O F THE CASE, THE ASSESSING OFFICER MAY BE DIRECTED TO DELETE THE SAID ADDITION. 3. YOUR APPELLANT CRAVES LEAVE TO ADD, TO ALTER TO VARY OR TO AMEND THE ABOVE GROUNDS OF APPEAL. GROUND NO.1(A) & 1 (B) 6. THE A SSESSING O FFICER (HEREINAFTER REFERRED TO AS THE AO) NOTICED THAT THE ASSESSEE COMPANY HAD DEBITED FOREIGN TOUR EXPENSES OF RS.9 , 26 , 6 4 7/ - IN RELATION TO THE TRAINING COURSE ATTENDED BY SHRI VEDANG PITTIE, SON OF SHRI VIVEK PITTIE (WHOLE TIME DIRECTOR OF THE COMPANY) IN SOUTH AFRICA. THE A O OBSERVED THAT THE SAID SHRI VEDANG PITTIE WAS NOT THE EMPLOYEE OF THE ASSESSEE COMPANY AND THAT THE FOREIGN TRAVEL OF SHRI VEDANG PITTIE WAS NOT IN ANY WAY CONNECTED TO THE BUSINESS OF THE ASSESSEE COMPANY AND THAT THE SAME WAS PURELY PERSONAL IN NATURE. THE AO AC CORDINGLY DISALLOWED THE AMOUNT OF RS.6,26,647/ - IN RELATION TO THE FOREIGN TOUR EXPENSES OF SHRI VEDANG PITTIE. 7. IN APPEAL BEFORE THE LD. CIT(A), IT WAS SUBMITTED THAT THE ASSESSEE COMPANY HAD BEEN ENGAGED IN THE BUSINESS OF SUGAR MILLS. THE COMPANY HAD DEPUTED SHRI VEDANG PITTIE TO TAKE TRAINING COURSE IN SOUTH AFRICA IN THE LATEST TECHNOLOGICAL TRENDS PREVAILING IN THE SUGAR INDUSTRY/COMMERCE. THE ARRANGEMENT WITH SHRI VEDANG PITTIE IS THAT HE WOULD TAKE TRAINING IN SOUTH AFRICA FOR A PERIOD OF 10 WEEKS RELATING TO SUGAR ENGINEERING WHICH HAD BEEN ORGANISED BY SUGAR MILL RESEARCH INSTITUTE, UNIVERSITY OF KWAZULU - NATAL, DURBAN , SOUTH AFRICA. SHRI VEDANG PITTIE HAD AGREED TO SUBMIT HIS REPORT ON THE LATEST TECHNOLOGICAL TRENDS PREVAILING IN THE SUGA R INDUSTRY AND HE HAD ALSO ITA NO.1062/M/2011 & ITA NO.205/M/2011 M/S. HARINAGAR SUGAR MILLS LTD. 5 AGREED TO WORK WITH THE COMPANY AFTER COMPLETION OF HIS COURSE AT SOUTH AFRICA SO AS TO TRAIN THE OTHER MEMBERS OF THE STAFF IN THE COMPANY WITH LATEST TECHNIQUES. A COPY OF THE RESOLUTION PASSED IN THE BOARD MEETING DATED 08.07 .06 AND THE MOU EXECUTED BY THE COMPANY WITH SHRI VEDANG PITTIE WAS ALSO FILED. IT WAS ALSO SUBMITTED THAT SHRI VEDANG PITTIE HAD SERVED THE COMPANY AFTER TAKING COURSE AS PER THE STIPULATIONS CONTAINED IN MOU. THE LD. CIT(A), HOWEVER, DID NOT AGREE WITH THE CONTENTIONS OF THE ASSESSEE AND OBSERVED THAT AT THE TIME OF THE TOUR/TRAINING SHRI VEDANG PITTIE WAS NOT THE EMPLOYEE OF THE COMPANY AND ANY EXPENDITURE INCURRED BEFORE THE EMPLOYMENT OF THE PERSON COULD NOT BE TREATED AS EXPENDITURE INCURRED IN THE EMPLOYEES OF THE COMPANY. HE THEREFORE UPHELD THE DISALLOWANCE MADE BY THE AO. 8. BEFORE US, THE LD. A.R. OF THE ASSESSEE HAS REITERATED HIS SUBMISSIONS AS WERE MADE BEFORE THE LD. CIT(A). THE LD. D.R. ON THE OTHER HAND HAS RELIED UPON THE FINDINGS O F THE LOWER AUTHORITIES. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. LD. A.R. OF THE ASSESSEE HAS BROUGHT OUR ATTENTION TO THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. RAS INFORMATION TECHNOLOGIES (P) LTD. (2011) 238 CTR ( KAR.) 76 WHEREIN IN ALMOST IDENTICAL FACT AND CIRCUMSTANCES THE EXPENDITURE WAS CLAIMED BY THE ASSESSEE IN RELATION TO EXPENDITURE ON FOREIGN EDUCATION OF MANAGING DIRECTORS SON. THE ASSESSEE COMPANY IN THAT CASE HAD BEEN ENGAGED IN CONSULTANCY IN MANUFA CTURING AND ENGINEERING INDUSTRY. THE SON OF THE MANAGING DIRECTOR WAS AN ENGINEERING GRADUATE. THE COMPANY SPONSORED THE CANDIDATURE OF THE SON OF THE MANAGING DIRECTOR TO PURSUE HIS POST GRADUATION COURSE IN MANUFACTURING AND ENGINEERING. DURING THE C OURSE OF PURSING HIS POST GRADUATE COURSE AT USA, THE CONCERNED STUDENT KEPT THE ITA NO.1062/M/2011 & ITA NO.205/M/2011 M/S. HARINAGAR SUGAR MILLS LTD. 6 COMPANY UPDATED ABOUT THE LATEST TRENDS AND DEVELOPMENTS IN THE FIELD AND WAS ALSO SENDING KEY INPUTS IN THE FORM OF ARTICLES, RESEARCH PAPERS ETC. TO ENABLE THE COMPANY TO KE EP ITSELF UPDATED OF THE TECHNICAL KNOWHOW KNOWLEDGE. HE HAD ALSO AGREED TO WORK FOR THE COMPANY ON COMPLETION OF HIS COURSE ABROAD. FOR THE SUBSEQUENT YEARS, THE ASSESSEE COMPANY HAD SHOWN HIGHER TURNOVER AND HIGHER PROFIT. THE HONBLE KARNATAKA HIGH C OURT UNDER THE CIRCUMSTANCES HELD THAT THE MONEY SPENT BY THE ASSESSEE IN SPONSORING THE EDUCATIONAL EXPENSES OF THE STUDENT IN A DISCIPLINE IN WHICH ASSESSEE COMPANY WAS CARRYING ON ITS BUSINESS WAS PERMISSIBLE EXPENDITURE. THE LD. A.R. FURTHER RELIED UP ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SAKAL PAPER PVT. LTD. VS. CIT 114 ITR 256 WHEREIN THE HONBLE BOMBAY HIGH COURT HAS OBSERVED THAT THE RELATIONSHIP BETWEEN THE DIRECTORS AND THE TRAINEE IS ALSO TO BE BORNE IN MIND. THE TRA INEE IN THAT CASE I.E. THE DAUGHTER OF THE DIRECTOR OF THE COMPANY WAS SENT FOR SPECIALIZED EDUCATION IN JOURNALISM AND WHEREAS THE COMPANY WAS ALSO RUNNING BUSINESS IN THE SAME FIELD, IT WAS HELD THAT THE FACTUM OF CLOSE RELATIONSHIP OF THE TRAINEE WITH T HE TWO DIRECTORS ITSELF WOULD CONFER ASSURANCE ON ANY SCRUTINISING MIND THAT AS FAR AS POSSIBLE THE RESULT OF THE TRAINING WOULD BE UTILISED FOR THE BENEFIT OF THE COMPANY. NOW COMING TO THE FACTS OF THE PRESENT CASE, THE SON OF THE MANAGING DIRECTOR OF T HE COMPANY NAMELY SHRI VEDANG PITTIE HAD ATTENDED THE 10 WEEKS COURSE IN SUGAR ENGINEERING ORGANISED BY ORGANISED BY SUGAR MILLING RESEARCH INSTITUTE, DURBAN, SOUTH AFRICA. THE TOTAL EXPENDITURE CLAIMED ON THE TRAINING IS RS .9 , 26 , 647/ - . IN THE LIGHT OF T HE DECISION OF THE HONBLE KARNATAKA HIGH COURT (SUPRA) AND THAT OF THE HONBLE BOMBAY HIGH COURT (SUPRA) AND ALSO KEEPING IN MIND THE AMOUNT EXPENDED TOWARDS THE EDUCATIONAL EXPENSES OF THE SON OF THE MANAGING DIRECTOR AND THE NATURE OF THE EDUCATION AND ALSO OTHER ATTENDING CIRCUMSTANCES, THE AMOUNT EXPENDED BY THE ASSESSEE COULD NOT BE SAID TO BE A DEVICE TO AVOID PAYMENT OF TAX OR REDUCE TAX LIABILITY. THE LD. ITA NO.1062/M/2011 & ITA NO.205/M/2011 M/S. HARINAGAR SUGAR MILLS LTD. 7 A.R. OF THE ASSESSEE HAS PRODUCED ON THE FILE A CERTIFICATE DATED 10.02.15 CERTIFYING THAT SH RI VEDANG PITTIE HAS SERVED THE COMPANY AFTER COMPLETION OF THE STUDY COURSE AT DURBAN FOR A PERIOD OF ONE YEAR I.E. FROM DECEMBER 2006 TO NOVEMBER 2007 WITHOUT ANY REMUNERATION IN COMPLIANCE TO THE MOU DATED 29.07.2006 ENTERED INTO BETWEEN THE ASSESSEE CO MPANY AND SHRI VEDANG PITTIE. IT HAS BEEN FURTHER CERTIFIED THAT SHRI VEDANG PITTIE HAS CONTINUED SERVING THE COMPANY FROM DECEMBER 2007 TILL HIS APPOINTMENT AS AN EXECUTIVE OF THE COMPANY WITHOUT ANY REMUNERATION. THIS FACT THAT SHRI VEDANG PITTIE, AFTE R COMPLETION OF HIS COURSE ABROAD, HAS SERVED THE COMPANY AS PER CERTIFICATE DATED 10.02.2015 IS REQUIRED TO BE VERIFIED BY THE AO FROM THE RELEVANT RECORD OF THE COMPANY. 10. WE ACCORDINGLY RESTORE THIS ISSUE TO THE FILE OF THE AO FOR THE LIMITED PURPO SE OF VERIFICATION OF THE FACT THAT SHRI VEDANG PITTIE HAD SERVED THE COMPANY AFTER HIS COMPLETION OF THE COURSE. IF THIS CONTENTION IS FOUND CORRECT, THEN IN VIEW OF THE DISCUSSION MADE ABOVE, THE EXPENDITURE INCURRED IN THE FOREIGN TRAINING OF SHRI VEDAN G PITTIE WILL BE ALLOWED BY THE AO. THIS ISSUE IS ACCORDINGLY DECIDED IN FAVOUR OF THE ASSESSEE SUBJECT TO THE ABOVE VERIFICATION BY THE AO. GROUND NO.2 11. GROUND NO.2 IS RELATING TO DISALLOWANCE ON ACCOUNT OF PROVISION FOR LEAVE ENCASHMENT. THE ASSES SEE HAD CLAIMED DEDUCTION FOR PROVISION MADE FOR LEAVE ENCASHMENT AMOUNTING TO RS . 19 , 74 , 366/ - WHICH WAS ADDED BY THE AO TO THE INCOME OF THE ASSESSEE UNDER SECTION 43B OF THE ACT. THE ASSESSEE CLAIMED THAT THE PROVISION FOR LEAVE ENCASHMENT WAS ASCERTAINE D LIABILITY OF THE COMPANY AND THE SAME SHOULD NOT BE CONSTRUED AS THE ITEM COVERED BY SECTION 43B OF THE INCOME TAX ACT IN VIEW OF THE DECISION OF THE HONBLE KOLKATA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD. 292 ITR 470. THE AO ITA NO.1062/M/2011 & ITA NO.205/M/2011 M/S. HARINAGAR SUGAR MILLS LTD. 8 HOWEVER, HELD THA T THE SAID AMOUNT WAS REMAINED UNPAID AND THEREFORE THE PROVISION FOR LEAVE ENCASHMENT WAS SQUARELY COVERED UNDER THE PROVISIONS OF SECTION 43B. IN APPEAL, THE LD. CIT(A) ALSO UPHELD THE FINDING OF THE AO. 12. BEFORE US, THE LD. A.R. OF THE ASSESSEE HAS BROUGHT OUR ATTENTION TO THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL DATED 23.01.2015 IN THE CASE OF AADITYA BIRLA FINANCE LTD. VS. ACIT ITA NO.6630/M/2010 WHEREIN THE TRIBUNAL, WHILE RELYING UPON VARIOUS OTHER DECISIONS OF THE TRIBUNAL AND ADOPTING THE SAME LINE, HAS RESTORED THE MATTER TO THE FILE OF THE AO OBSERVING THAT SINCE THE MATTER IN THE CASE OF EXIDE INDUSTRIES LTD. (SUPRA) WAS PENDING BEFORE THE HONBLE SUPREME COURT, THE AO TO ADJUDICATE THE ISSUE AFRESH IN THE LIGHT OF THE DECI SION OF THE HONBLE SUPREME COURT AS MAY COME IN THE CASE OF EXIDE INDUSTRIES LTD. (SUPRA). THE RELEVANT PART OF THE DECISION OF THE CO - ORDINATE BENCH IN THE CASE OF AADITYA BIRLA FINANCE LTD. VS. ACIT (SUPRA) FOR THE PURPOSE OF REFERENCE IS REPRODUCE D AS UNDER: 4.2 AT THE OUTSET LD. AR OF THE ASSESSEE HAS PRODUCED BEFORE US A COPY OF ORDER OF THE TRIBUNAL IN THE CASE OF THE SISTER CONCERN OF THE ASSESSEE M/S. BIRLA INSURANCE ADVISORY & BROKING SERVICES LTD., IN ITA NO.7531/MUM/2010. THE TRIBUNAL I N THE SAID CASE HAS RESTORED THE MATTER ON THE IDENTICAL ISSUE TO THE FILE OF THE AO WHILE RELYING UPON THE DECISION IN THE CASE OF ESSAR EXPLORATION AND PRODUCTION INDIA LTD. VS. ACIT IN ITA NO.6189/MUM/2011 ORDER DATED 8/8/2012. THE OPERATING PART OF TH E ORDER FOR THE SAKE OF CONVENIENCE IS REPRODUCED AS UNDER: 3. AT THE OUTSET LD. AR OF THE ASSESSEE HAS PRODUCED BEFORE US A COPY OF ORDER OF THE TRIBUNAL DATED 8/8/2012 IN ITA NO.6189/MUM/2011 IN THE CASE OF ESSAR EXPLORATION & PRODUCTION INDIA LTD. VS . ACIT, ORDER DATED 8/8/2012 , IN WHICH SIMILAR ISSUE CAME UP FOR CONSIDERATION OF ITAT. BEFORE ITAT REFERENCE WAS MADE TO THE AFOREMENTIONED DECISION IN THE CASE OF M/S. UNIVERSAL MEDICARE PVT. LTD. VS. ACIT(SUPRA), AND AFTER HEARING BOTH THE PARTIES AND CONSIDERING THE ISSUE THAT IN ANOTHER MATTER IN THE CASE OF EXIDE INDUSTRIES LTD. VS. UNION OF INDIA, 292 ITR 470 ITA NO.1062/M/2011 & ITA NO.205/M/2011 M/S. HARINAGAR SUGAR MILLS LTD. 9 (CAL), WHERE PROVISIONS OF SECTION 43B(F) WERE HELD TO BE ARBITRARY AND IN SPECIAL LEAVE PETITION BEFORE HONBLE APEX COURT VIDE OR DER DATED 8/9/2008 THE JUDGMENT OF HONBLE CULCUTTA HIGH HAS BEEN STAYED AND ALSO THE FACT THAT HONBLE BOMBAY HIGH COURT HAS ADMITTED THE ISSUE IN CONSIDERATION IN THE APPEAL FILED BY THE DEPARTMENT IN THE CASE OF M/S. UNIVERSAL MEDICARE PVT. LT D.(SUPRA), THE MATTER WAS RESTORED BACK TO THE FILE OF AO WITH THE FOLLOWING OBSERVATIONS: 7. WE OBSERVE THAT MUMBAI TRIBUNAL BY ITS ORDER DATED 30.3.2009 IN THE CASE OF UNIVERSAL MEDICARE PVT LTD. (SUPRA) ALLOWED THE CLAIM OF PROVISION FOR LEAVE ENCASHM ENT ON THE BASIS OF DECISION OF HONBLE APEX COURT IN THE CASE OF BHARAT EARTH MOVERS (SUPRA) AS THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES (SUPRA) STRUCK DOWN THE PROVISION OF SECTION 43B(F) BEING ARBITRARY, UNCONSCIONABLE. FURTHER, TH E DEPARTMENT FILED SLP BEFORE HONBLE APEX COURT AGAINST THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD (SUPRA) BY ITS ORDER DATED 8.9.2008 IN SLP NO.12060/2008 HAS STAYED THE OPERATION OF JUDGMENT OF HONBLE CALCUTTA HIGH COURT. FURTHER, IT IS ALSO A FACT THAT HONBLE BOMBAY HIGH COURT HAS ADMITTED THE ISSUE UNDER CONSIDERATION IN THE APPEAL FILED BY DEPARTMENT IN THE CASE OF UNIVERSAL MEDICARE PVT LTD (SUPRA). AT THE TIME OF HEARING, ID A.R. SUBMITTED THAT THE SAID APPEAL IS YET TO BE DISPOSED OF. WE ALSO OBSERVE THAT ITAT KOLKATA BENCH BY ITS ORDER DATED 30.1.2012 CONSIDERED THE SAID ISSUE AND BY FOLLOWING EARLIER DECISION ON IDENTICAL ISSUE IN THE CASE ERNST & YOUNG PVT LTD. (SUPRA) HAS RESTORED THE MATTER TO THE FILE OF AC WITH A DIRECTION TO ADJUDICATE THE SAME AS PER DECISION OF HONBLE APEX COURT IN THE CASE OF EXIDE INDUSTRIES LTD (SUPRA), IN VIEW OF ABOVE AND RESPECTFULLY FOLLOWING THE EARLIER DECISIONS (SUPRA), WE SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTOR E THE MATTER BACK TO THE FILE OF AO FOR ADJUDICATION AFRESH AS PER THE DECISION OF HONBLE APEX COURT IN THE CASE OF EXIDE INDUSTRIES LTD (SUPRA). 3.1 REFERRING TO THE ABOVE OBSERVATION IT WAS PLEADED BY LD. A.R THAT THE MATTER MAY BE RESTORED BACK TO T HE FILE OF AO WITH SIMILAR DIRECTIONS. 4. LD. D.R DID NOT HAVE ANY OBJECTION TO SUCH REQUEST OF LD. A.R. 5. IN THIS VIEW OF THE SITUATION, AFTER HEARING BOTH THE PARTIES, RESPECTFULLY FOLLOWING SUBSEQUENT DECISION OF THE TRIBUNAL ON THIS ISSUE IN THE C ASE OF ESSAR EXPLORATION & PRODUCTION INDIA LTD.,(SUPRA), WE RESTORE THIS ISSUE TO THE FILE OF A.O WITH SIMILAR DIRECTIONS. THE RELEVANT OBSERVATIONS HAVE ALREADY BEEN REPRODUCED. WE DIRECT ACCORDINGLY. 4.3 THE LD. REPRESENTATIVES OF THE PARTIES SUBM ITTED THAT THEY HAVE NO OBJECTION IF THE MATTER IN THIS CASE ALSO BE RESTORED TO THE FILE OF AO WITH A DIRECTION TO DECIDE THE SAME IN THE LIGHT OF ABOVE REPRODUCED DIRECTIONS. THIS ISSUE IS ACCORDINGLY RESTORED TO THE FILE OF AO TO DECIDE THE SAME A S PER THE DIRECTIONS GIVEN IN THE CASE OF SISTER CONCERN OF THE ASSESSEE AS REPRODUCED ABOVE. ITA NO.1062/M/2011 & ITA NO.205/M/2011 M/S. HARINAGAR SUGAR MILLS LTD. 10 13. THE LD. A.R. AS WELL AS THE LD. D.R., IN THIS CASE, HAVE ALSO STATED THAT THEY HAVE NO OBJECTION IF THE MATTER IS RESTORED TO THE FILE OF THE AO AS PER THE ABOVE REPRODUCED DIRECTIONS. THIS ISSUE IS ACCORDINGLY RESTORED TO THE FILE OF THE AO AS PER THE ABOVE REPRODUCED DIRECTIONS OF THE CO - ORDINATE BENCH OF THE TRIBUNAL. 14. GROUND NO.3 IS GENERAL IN NATURE AND DOES NOT REQUIRE ANY ADJUDICATION. 15. IN VIEW OF OUR FINDINGS GIVEN ABOVE, THE APPEAL OF THE REVENUE IS HEREBY DISMISSED AND THAT OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 08.05. 201 5 . SD/ - SD/ - ( R .C. SHARMA ) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 08.05.2015 . * KISHORE , SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.