M/S. SRBC & Co. LLP, Successor entity to SRBC & Co. w.e.f. 01/04/2013, Kolkata V. DCIT, Circle-22, Kolkata, Kolkata

ITA 168/KOL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3538 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 31-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: DEBABRATA GHOSH
• Keywords: Set aside
• Section: 143(3); 13; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENC H KOLKATA BEFORE SHRI S.S.GODARA, JM &DR. A.L.SAINI, AM ./ITA NOS.167 & 168/KOL/2019 ( / ASSESSMENT YEARS: 2014-15 & 2015-16) M/S S.R.B.C. & CO. LLP (A LIMITED LIABILITY PARTNERSHIP WITH LLP IDENTITY NO. AAB-4318) 22, CAMAC STREET, 3 RD FLOOR, BLOCK-B, KOLKATA VS. DCIT, CIRCLE-22, KOLKATA. ./ ./PAN/GIR NO.: ACHFS 9117 R (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI DEBABRATA GHOSH, ADVOCATE RESPONDENT BY : SMT. RANU BISWAS, ADDL. CIT / DATE OF HEARING : 31/10/2019 /DATE OF PRONOUNCEMENT : 13 /11/2019 / O R D E R PER BENCH: THE CAPTIONED TWO APPEALS FILED BY THE ASSESSEE , PERTAINING TO ASSESSMENT YEARS 2014-15 & 2015-16 RESPECTIVELY, ARE DIRECTED AGAINST THE SEPARATE ORDERS PASSED BY THE COMMISSIONER OF INCOME TAX (APPEAL)-6 , KOLKATA IN APPEAL NO. CIT(A)-6/KOL/10180/2016-17 AND APPEAL NO. CIT(A)-6/ KOL/10163/2017-18, WHICH IN TURN ARISE OUT OF SEPARATE ASSESSMENT ORD ERS PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT). 2. SINCE THESE APPEALS FILED BY THE ASSESSEE FOR DI FFERENT ASSESSMENT YEARS, COMMON AND IDENTICAL ISSUES ARE INVOLVED THEREFORE, THESE HAVE BEEN CLUBBED AND M/S SRBC & CO. LLP ITA NOS.167 & 168/KOL/2019 ASSESSMENT YEARS:2014-15& 2015-16 P PP PA AA AG GG GE EE E | || | 2 22 2 HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PA SSED FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. THE ASSESSEES APPEAL IN ITA NO. 167/KOL/2018 F OR A.Y. 2014-15 IS TAKEN AS LEAD CASE. THE GROUNDS OF APPEAL RAISED BY THE ASSE SSEE ARE AS FOLLOWS: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -6 [CIT(A) FOR SHORT] HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE DISA LLOWANCE OF A SUM OF RS. 31,69,373/- BEING THE PROVISION MADE FOR LEAVE ENCA SHMENT IN THE CURRENT ASSESSMENT YEAR ON THE BASIS OF ACTUARIAL VALUATION . 2. THE ORDER OF THE LEARNED CIT(A) TO THE EXTEND IN DICATED ABOVE IS CONTRARY TO THE FACTS, LAW AND THE PRINCIPLES OF NATURAL JUS TICE. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR MODIFY ANY OF THE GROUNDS OF APPEAL AT OR BEFORE THE HEARING OF THE A PPEAL. 4. AT THE OUTSET ITSELF, THE LD. COUNSEL BROUGHT TO OUR NOTICE THAT THE SIMILAR ISSUE HAD COME UP BEFORE THIS TRIBUNAL IN M/S. S. R. BATL IBOI & CO. VS. DCIT, ITA NO. 1598/KOL/2011 FOR AY 2007-08 WHEREIN THE TRIBUNAL V IDE PARA 4 HAS HELD AS UNDER: 4. AFTER HEARING RIVAL SUBMISSIONS AND GOING THROU GH THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE ORDER OF THE TRIBUNAL CITED SUPRA, WE FIND THAT THE ISSUE IS DEALT BY THE COORDINATE BENCH OF THIS TRIBUNAL AS UNDER: 3. AT THE OUTSET, LD. SENIOR COUNSEL FOR THE ASSES SEE SUBMITTED THAT IN ALL THESE THREE APPEALS, THE ISSUE RELATES TO ALLOWABILITY OF PROVISION FOR LEAVE ENCASHMENT IN TERMS OF SUB-SECTION (F) OF SECTION 4 3B OF THE INCOME TAX ACT. THE ASSESSEE HAD ADVANCED ITS CLAIM RELYING ON THE DECISION OF THE HONBLE KOLKATA HIGH COURT IN THE CASE OF M/S. EXIDE INDUST RIES LTD. REPORTED IN 292 ITR 470. HOWEVER, THE ASSESSING OFFICER DID NOT ACC EPT THE ASSESSEES CLAIM OBSERVING THAT DEPARTMENT HAS PREFERRED A SPECIAL L EAVE PETITION BEFORE THE HONBLE SUPREME COURT AND STAY OF THE ORDER OF THE HONBLE KOLKATA HIGH COURT WAS GRANTED BY THE HONBLE APEX COURT. LD. SE NIOR COUNSEL SUBMITTED THAT UNDER IDENTICAL CIRCUMSTANCES, TRIBUNAL HAS RE STORED THE MATTER TO THE FILE OF ASSESSING OFFICER TO DECIDE THE ISSUE IN AC CORDANCE WITH THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF DCIT, CIRCLE- 8, KOLKATA VS.- M/S. ERNST & YOUNG PVT. LTD. IN ITA NO. 1787/KOL./2008. HE, THEREFORE, SUBMITTED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER. 4. LEARNED DEPARTMENTAL REPRESENTATIVE DID NOT RAIS E ANY OBJECTION. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND HAVE PERUSED THE RECORDS OF THE CASE. WE FIND THAT TRIBUNAL ON I DENTICAL ISSUE IN ITA NO. M/S SRBC & CO. LLP ITA NOS.167 & 168/KOL/2019 ASSESSMENT YEARS:2014-15& 2015-16 P PP PA AA AG GG GE EE E | || | 3 33 3 1787/KOL./2008 IN THE CASE OF M/S. ERNST & YOUNG PV T. LTD. HAS OBSERVED AT PARA 12 IN PAGE 6 AS UNDER :- 12. GROUND NO. 5 OF THE REVENUES APPEAL IS AGAINS T THE RELIEF ALLOWED BY THE CIT(A.) IN RESPECT OF PROVISION FOR LEAVE EN CASHMENT WHICH WAS DELETED BY THE CIT(A.) FOLLOWING THE DECISION OF TH E HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S. EXIDE INDUSTRIES LTD. (SUPRA). IT WAS POINTED OUT BY THE LD. DR THAT THE HONBLE APEX COURT INSLP (CIVIL) 22889 OF 2008 HAS STAYED THE OPERATI ON OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT. IN VIEW O F THE ABOVE, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THIS P OINT AND RESTORE THE MATTER BACK TO THE FILE OF THE AO WITH THE DIRECTIO N THAT HE WILL READJUDICATE THIS ISSUE AS PER DECISION OF THE HON BLE APEX COURT IN THE CASE OF M/S. EXIDE INDUSTRIES LTD. (SUPRA). RESPECTFULLY FOLLOWING THE SAME WE SET ASIDE THE OR DERS OF AUTHORITIES BELOW ON THIS POINT AND RESTORE THE MATTER BACK TO THE FI LE OF ASSESSING OFFICER FOR ADJUDICATION AS PER THE DECISION OF THE HONBLE APE X COURT IN THE CASE OF M/S. EXIDE INDUSTRIES LTD.(SUPRA). IN VIEW OF THE ABOVE AND RESPECTFULLY FOLLOWING THE SAME, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER BACK TO TH E FILE OF ASSESSING OFFICER FOR ADJUDICATION AS PER THE DECISION OF HONBLE APEX CO URT IN THE CASE OF M/S. EXIDE INDUSTRIES LTD. (SUPRA). THIS GROUND OF APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN VIEW OF THE AFORESAID DECISION OF THE COORDIN ATE BENCH ON A SIMILAR ISSUE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTOR E THE MATTER BACK TO THE FILE OF THE AO FOR ADJUDICATION AND ASSESSING OFFICER TO AW AIT THE FINAL OUTCOME OF THE HONBLE APEX COURT IN SLP (CIVIL) 22889 OF 2008 IN M/S. EXIDE INDUSTRIES LTD. CASE AND DECIDE THIS ISSUE AS PER THE DECISION OF H ONBLE APEX COURT IN M/S. EXIDE INDUSTRIES LTD., SUPRA. THUS, THIS GROUND OF APPEA L OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 13.11. 2019 SD/- ( S.S.GODARA ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 13 /11/2019 ( SB, SR.PS ) M/S SRBC & CO. LLP ITA NOS.167 & 168/KOL/2019 ASSESSMENT YEARS:2014-15& 2015-16 P PP PA AA AG GG GE EE E | || | 4 44 4 COPY OF THE ORDER FORWARDED TO: 1. M/S S.R.B C & CO. LLP 2. DCIT, CIRCLE-22, KOLKATA 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES