S.R. Batliboi & Co. LLP, Kolkata V. DCIT, Circle - 22, Kolkata, Kolkata

ITA 170/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0139 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 31-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Keywords: Set aside
• Section: 143(3); 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENC H KOLKATA BEFORE SHRI A.T. VARKEY, JM &DR. A.L.SAINI, AM ./ITA NO.170/KOL/2019 ( / ASSESSMENT YEAR: 2015-16) M/S S.R. BATLIBOI & CO. LLP (A LIMITED LIABILITY PARTNERSHIP WITH LLP IDENTITY NO. AAB-4294) 22, CAMAC STREET, 3 RD FLOOR, BLOCK-B, KOLKATA VS. DCIT, CIRCLE-22, KOLKATA. ./ ./PAN/GIR NO.: ACHFS 9180 N (APPELLANT) .. (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI SUPRIYO PAL, JCIT, SR. DR / DATE OF HEARING : 16/12/2019 /DATE OF PRONOUNCEMENT : 31/12/2019 / O R D E R PER DR. A.L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE , PE RTAINING TO ASSESSMENT YEAR 2015-16, IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEAL)-6, KOLKATA, WHICH IN TURN ARISE OUT OF A SSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX A CT, 1961 (IN SHORT THE ACT) DATED 22/12/2017. 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F ASSESSEE IN SPITE OF ISSUANCE OF NOTICE FOR HEARING MORE THAN ONE OCCASION AND LD . DEPARTMENTAL REPRESENTATIVE(DR), WAS PRESENT FOR THE APPELLANT R EVENUE. IN THE ABSENCE OF ANY APPEARANCE BY THE ASSESSEE, THE APPEAL IS BEING DIS POSED OF EX PARTE QUA THE M/S S.R. BATLIBOI & CO. LLP ITA NO.170/KOL/2019 ASSESSMENT YEAR: 2015-16 P PP PA AA AG GG GE EE E | || | 2 22 2 ASSESSEE, AFTER HEARING LD. DR FOR THE REVENUE ON M ERITS IN TERMS OF RULE 24 OF THE INCOME TAX APPELLATE, TRIBUNAL, RULES, 1963. 3. AT THE OUTSET ITSELF, WE NOTE THAT THE ISSUE UN DER CONSIDERATION IS COVERED BY THE JUDGMENT OF THE CO-ORDINATE BENCH IN THE CASE OF S. R. BATLIBOI & ASSOCIATE CO. IN ITA NO. 1598/KOL/2011 FOR AY 2007-08, WHEREIN TH E TRIBUNAL VIDE 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. 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). M/S S.R. BATLIBOI & CO. LLP ITA NO.170/KOL/2019 ASSESSMENT YEAR: 2015-16 P PP PA AA AG GG GE EE E | || | 3 33 3 IN VIEW OF THE ABOVE AND RESPECTFULLY FOLLOWING THE SAME, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER BACK T O THE 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. 4. WE HAVE HEARD THE LD. D.R FOR THE REVENUE AND PE RUSED THE MATERIALS AVAILABLE ON RECORD. WE NOTE THAT IN VIEW OF THE AF ORESAID DECISION OF THE COORDINATE BENCH ON A SIMILAR ISSUE, WE SET ASIDE T HE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR A DJUDICATION AND AO TO AWAIT THE FINAL OUTCOME OF THE HONBLE APEX COURT IN SLP (CIV IL) 22889 OF 2008 IN M/S. EXIDE INDUSTRIES LTD. CASE AND DECIDE THIS ISSUE AS PER THE DECISION OF HONBLE APEX COURT IN M/S. EXIDE INDUSTRIES LTD., (SUPRA). THUS, THIS GROUND OF APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 31.12. 2019 SD/- ( A.T.VARKEY ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; / DATE: 31/12/2019 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. M/S S.R. BATLIBOI & ASSOCIATES 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 M/S S.R. BATLIBOI & CO. LLP ITA NO.170/KOL/2019 ASSESSMENT YEAR: 2015-16 P PP PA AA AG GG GE EE E | || | 4 44 4