TIL Limited, Kolkata V. THE ACIT- RG-1, KOLKATA, Kolkata

ITA 1208/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9455 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 27-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MONDAL A
• Assessee Lawyers: SAURABH KEDIA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI A.T.VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 1208 / KOL / 2014 ASSESSMENT YEAR :2007-08 TIL LIMITED 1, TARATOLLA ROAD, GARDEN REACH, KOLKATA-24 [ PAN NO.AABCT 0704 G ] V/S . ACIT, RANGE-1, P-7, CHORINGHEE SQUARE, KOLKATA-69 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SAURABH KEDIA, CA /BY RESPONDENT SHRI P.K. MONDAL, ACIT-DR /DATE OF HEARING 31-01-2017 /DATE OF PRONOUNCEMENT 08-02-2017 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-I, KOLKATA DAT ED 28.02.2014. ASSESSMENT WAS FRAMED BY ACIT, RANGE-1, KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) VIDE HIS ORDER DATED 31.12.2009 FOR ASSESSMENT YEAR 2007-08. ITA NO.1208/KOL/2014 A.Y. 2007-08 TIL LTD. VS. ACIT, RG-1 KOL. PAGE 2 SHRI SAURABH KEDIA, LD. AUTHORIZED REPRESENTATIVE A PPEARED ON BEHALF OF ASSESSEE AND SHRI P.K.MONDAL, LD. DEPARTMENTAL REPR ESENTATIVE REPRESENTED ON BEHALF OF REVENUE. 2. ONLY ISSUE RAISED BY ASSESSEE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF ASSESSING OFFICER BY SUSTAI NING THE DISALLOWANCE FOR 1,29,73,646/- ON ACCOUNT OF PROVISION FOR LEAVE ENC ASHMENT. 3. AT THE OUTSET, IT WAS OBSERVED THAT ASSESSEE HAS CLAIMED EXPENSES TOWARDS LEAVE ENCASHMENT FOR 1,29,73,646/- ON ACCRUAL BASIS. BEFORE US LD. AR FOR THE ASSESSEE SUBMITTED THAT THE DEDUCTION ON ACCOUNT OF PROVISION OF LEAVE ENCASHMENT WAS CLAIMED ON THE JUDGMENT OF JUR ISDICTIONAL HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD. VS. UNION OF INDIA (2007) 292 ITR 470 (CAL) AND IN THIS REGARD, LD. AR FRANKLY ACCEPTED THAT TH E JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD. (SUPRA) HAS BEEN STAYED BY THE HON'BLE APEX COURT VIDE ORDER DATED 0 8.05.2009 AND THE RELEVANT EXTRACT IS REPRODUCED BELOW:- PENDING HEARING AND FINAL DISPOSAL OF THE CIVIL APP EALS, DEPARTMENT IS RESTRAINED FROM RECOVERING PENALTY AND INTEREST WHI CH HAS ACCRUED TILL DATE. IT IS MADE CLEAR THAT AS FAR AS THE OUTSTANDING INTERE ST DEMAND AS OF DATE IS CONCERNED, IT WOULD BE OPEN TO THE DEPARTMENT TO RE COVER THAT AMOUNT IN CASE CIVIL APPEAL OF THE DEPARTMENT IS ALLOWED. WE FURTHER MAKE IT CLEAR THAT THE ASSESSEE WOULD, D URING THE PENDENCY OF THIS CIVIL APPEAL, PAY TAX AS IF SECTION 43B(F) IS ON TH E STATUE BOOK BUT AT THE SAME TIME IT WOULD BE ENTITLED TO MAKE A CLAIM IN ITS RE TURNS. FURTHER, LD. AR FOR THE ASSESSEE PRAYED THAT THE MA TTER CAN BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICA TION IN TERMS OF DECISION OF HON'BLE APEX COURT. LD. DR FOR THE REVENUE AGREED T O THE SUBMISSION OF LD. AR. 4. IN VIEW OF THE ABOVE PROPOSITION, WE ARE INCLINE D TO RESTORE THE MATTER BACK TO THE FILE OF AO WITH A DIRECTION TO AWAIT FO R THE DECISION OF HON'BLE APEX ITA NO.1208/KOL/2014 A.Y. 2007-08 TIL LTD. VS. ACIT, RG-1 KOL. PAGE 3 COURT AND DECIDE ACCORDINGLY. HENCE, THIS GROUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 5. IN THE RESULT, APPEAL FILED BY ASSESSEE STANDS ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT 08 /02/2017 SD/- SD/- ( !') ( !') (ABY.T.VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP, SR.P.S $!% &- 08 / 02 /201 7 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-TIL LTD., 1, TARATOLLA ROAD, GARDEN REAC H, KOKATA-24 2. /RESPONDENT-ACIT, RANGE-1, P-7, CHOWRINGHEE SQUARE, KOLKATA-69 3. %.%/0 1 1 2 / CONCERNED CIT KOLKATA 4. 1 1 2- / CIT (A) KOLKATA 5. 567 /0, 1 /0 , / DR, ITAT, KOLKATA 6. 7:; < / GUARD FILE. BY ORDER/ 1! , /TRUE COPY/ / % 1 /0 ,