ACIT, CHENNAI V. Tamilnadu Warehousing Corporatiion Ltd., CHENNAI

ITA 1366/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96144 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 19-08-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 03-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B NISCHAL
• Keywords: Reasonable cause; Condonation of delay
• Section: 43B

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B B ENCH, CHENNAI . , ' $ , % ' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ./ I.T.A.NO.1366/MDS/2015 ( / ASSESSMENT YEAR: 2010-11) THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-3(1) NEW BLOCK,4 TH FLOOR, CHENNAI-34 VS M/S. TAMILNADU WAREHOUSING CORPORATION LTD. 82, ANNA SALAI, GUINDY, CHENNAI-600 034. PAN: AAACT2474Q ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : DR.B.NISCHAL, JCIT /RESPONDENT BY : NONE /DATE OF HEARING : 19 TH AUGUST, 2015 /DATE OF PRONOUNCEMENT : 23 RD SEPTEMBER, 2015 / O R D E R PER CHALLA NAGENDRA PRASAD, JM: THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-11, CHENNA I DATED 13.02.2015 FOR THE ASSESSMENT YEAR 2010-11. 2. THE APPEAL OF THE REVENUE IS BARRED BY LIMITATI ON OF THREE DAYS. THE REVENUE FILED A PETITION EXPLAINING THE REASON THAT THE RECORDS OF THIS CASE INADVERTENTLY GOT MIXED UP WITH OTHER FILES AND AS SOON AS RECORDS PERTAINI NG TO THIS CASE WAS TRACED, APPEAL PAPERS WERE PREPARED FOR SUBMISSION AND DELAY IN FILING OF APPEAL IS NEITHER WANTON NOR 2 ITA NO.1366/MDS/2015 WILLFUL AND THEREFORE PRAYS FOR CONDONATION OF DEL AY. WE HAVE PERUSED THE REASONS AND ARE SATISFIED THAT THERE IS A REASONABLE CAUSE FOR THE SHORT DELAY IN FILING OF T HE APPEAL. IN THE INTEREST OF JUSTICE, WE CONDONE THE DELAY IN FI LING OF THE APPEAL. THE PETITION FOR CONDONATION OF DELAY IS AL LOWED AND THE APPEAL IS ADMITTED. 3. THE ONLY ISSUE IN THE APPEAL OF THE REVENUE IS T HAT COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DELET ING THE DISALLOWANCE MADE IN RESPECT OF PROVISION FOR LEAVE ENCASHMENT DEBITED TO PROFIT AND LOSS ACCOUNT. DES PITE NOTICE, NONE APPEARED ON BEHALF OF THE ASSESSEE. SI NCE THE ISSUE INVOLVED IN THIS APPEAL IS COVERED BY THE DEC ISION OF THIS TRIBUNAL, WE PROCEED TO DISPOSE OFF THIS APPEAL, AF TER HEARING THE DEPARTMENTAL REPRESENTATIVE AND PERUSING RECORD S. 4. THE ASSESSING OFFICER WHILE COMPLETING THE ASSES SMENT DISALLOWED PROVISION FOR LEAVE ENCASHMENT STATING T HAT IN VIEW OF THE PROVISIONS OF SECTION 43B(F) OF THE ACT PROV ISION FOR LEAVE ENCASHMENT IS ALLOWABLE AS EXPENDITURE ONLY WHEN IT IS ACTUALLY PAID BEFORE THE DUE DATE OF FILING OF RETU RN OF INCOME. SINCE THE ASSESSEE HAS NOT PAID LEAVE ENCASHMENT A ND IT IS 3 ITA NO.1366/MDS/2015 ONLY A PROVISION, THE ASSESSING OFFICER DISALLOWED THE SAME WHILE COMPLETING THE ASSESSMENT. THE COMMISSIONER OF INCOME TAX (APPEALS) BY FOLLOWING THE ORDER OF THE CO- ORDINATE BENCH OF THIS TRIBUNAL IN ASSESSEES OWN C ASE FOR THE ASSESSMENT YEAR 2005-06 IN ITA NO.689/MDS/2008 DELETED THE DISALLOWANCE AGAINST WHICH THE REVENUE IS IN APPEAL BEFORE US. 5. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORTS THE ORDER OF THE ASSESSING OFFICER IN DISALLOWING PROVI SION FOR LEAVE ENCASHMENT, AS THE ASSESSEE HAD NOT MADE THE PAYMENT AND THE EXPENDITURE IS NOT ALLOWABLE EXPEN DITURE UNTIL THE PAYMENT IS MADE IN VIEW OF THE PROVISIONS OF SECTION 43B OF THE ACT. 6. THE ASSESSEE BEFORE THE COMMISSIONER OF INCOME T AX (APPEALS) RELIED ON THE ORDER OF THE CO-ORDINATE BE NCH IN ASSESSEES OWN CASE FOR THE EARLIER ASSESSMENT YEAR . 7. AFTER HEARING THE DEPARTMENTAL REPRESENTATIVE AN D ON PERUSAL OF RECORDS, WE FIND THAT THE ISSUE IN THE A PPEAL HAS BEEN DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSES SEE IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005-06 IN ITA 4 ITA NO.1366/MDS/2015 NO.689/MDS/2008. FOLLOWING THE SAID DECISION, THE COMMISSIONER OF INCOME TAX (APPEALS) DELETED THE DISALLOWANCE OBSERVING AS UNDER:- 6. DURING THE COURSE OF APPEAL PROCEEDINGS THE AR SUBMITTED THAT THE SAID ISSUE IS COVERED BY THE ORDER OF THE ITAT 'D' BENCH, CHENNAI THE APPELLANT'S OWN CASE FOR THE AY 05-06 AND ENCLOSED A COPY OF THE ORDER. FURTHER THE AR ALSO RELIED UPON THE JUDGEMENTS OF THE ITAT IN EIMCO ELECON(INDIA) LTD VS ADDL.CIT, AND ALSO THE DECISION OF THE HON'BLE SC BHARATH EARTH MOVERS. THE RELEVANT PORTION OF THE ORDER OF HON'BLE ITAT IN APPELLANTS OWN CASE IN ITA NO. 689/MDS/2008 AT PAGE 2 PARAS 5 & 6 ARE REPRODUCED BELOW: 5. WE HAVE HEARD BOTH PARTIES AND GONE THROUGH THE RELEVANT ORDER AVAILABLE WITH US. WE HAVE THOROUGHLY GONE THROUGH THE ISSUE IN DISPUTE AND MADE BY THE REVENUE AUTHORITY BY DISALLOWING THE CLAIM OF THE ASSESSEE U/ S 43 B(F) OF THE INCOME TAX ACT 1961 WHICH HAS ALREADY BEEN STRUCK DOWN BY THE HON'BLE CALCUTTA HIGH COURT IN THE AFORESAID REPORTED DECISION. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS NOT BROUGHT TO OUR NOTICE ANY CONTRARY DECISION RENDERED BY THE HON'BLE JURISDICTIONAL HIGH COURT OR THE HON'BLE SUPREME COURT OF INDIA, TO TAKE A DIFFERENT VIEW. THEREFORE, KEEPING IN VIEW THE FACT THAT THE ISSUE IN DISPUTE HAS ALREADY BEEN ADJUDICATED AND THE RELEVANT PROVISION IN DISPUTE, I.E. 43 B(F) OF THE INCOME TAX ACT,1961 HAS ALREADY BEEN STRUCK DOWN BY THE DECISION OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD. AND ANOTHER V. UNION OF INDIA (SUPRA), WE ARE OF THE CONSIDERED OPINION THAT THE IMPUGNED ORDER DATED 21.02.2008 PASSES BY THE FIRST APPELLATE AUTHORITY DESERVES TO BE CANCELLED. RESPECTFULLY FOLLOWING TH E AFORESAID DECISION OF THE HON'BLE CALCUTTA HIGH COURT, WE ALLOW THE APPEAL OF THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED. 7. RESPECTFULLY FOLLOWING THE DECISION OF THE HON BLE ITAT IN THE APPELLANTS OWN CASE, THE GROUNDS ARE ALLOWED. 5 ITA NO.1366/MDS/2015 8. ON GOING THROUGH THE ABOVE ORDER, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE COMMISSIONER OF INCOM E TAX (APPEALS) FOLLOWING THE DECISION OF CO-ORDINATE BEN CH IN ASSESSEES OWN CASE WHILE DELETING THE DISALLOWANCE . THUS, WE UPHOLD THE ORDER OF THE COMMISSIONER OF INCOME T AX (APPEALS) AND REJECT THE GROUNDS RAISED BY THE REVE NUE. 9. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD SEPTEMBER, 2015. SD/- SD/- ( # ) ( & (# ) ( CHANDRA POOJARI ) ( CHALLA NAG ENDRA PRASAD ) * / ACCOUNTANT MEMBER ( * / JUDICIAL MEMBER ( /CHENNAI, , /DATED 23 RD SEPTEMBER, 2015 SOMU ./ 0/ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. 1 () /CIT(A) 4. 1 /CIT 5. / 5 /DR 6. /GF .