Appeal details
Counselvise Citation
[2018] 125 COUNSELVISE.COM (IT) 0467 (ITAT-KOLKATA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
11 month(s) 23 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
19-09-2018
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Assessment Year
2013-2014
Appeal Filed On
26-09-2017
Judgement Text
, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 2114 - 2116 / KOL / 20 17 ASSESSMENT YEAR :2013-14 M/S S.R. BATLIBOI & ASSOCIATES LLP (A LIMITED LIABILITY PARTNERSHIP WITH LLP IDENTITY NO.AAB-4295) SUCCESSOR TO M/S S.R BATLIBOI & ASSOCIATES EFFECTIVE1ST APRIL 2013, 22, CAMAC STREET, KOLKATA-16 [ PAN NO.ACHFS 9118 A ] M/S S V GHATALIA & ASSOCIATES LLP (A LIMITED LIABILITY PARTNERSHIP WITH LLP IDENTITY NO. AAB-4293) SUCCESSOR TO M/S S V GHATALIA & ASSOCIATES EFFECTIVE 1 ST APRIL 2013 22, CAMAC STREET, KOLKTA-16 [ PAN NO. ACHFS 9181 P ] M/S S R BATLIBOI & COMPANY LLP (A LIMITED LIABILITY PARTNERSHIP WITH LLP IDENTITY NO. AAB-4294) SUCCESSOR TO M/S S RBATLIBOI & COMPANY EFFECTIVE 1 ST APRIL 2013 22, CAMAC STREET, KOLKATA-16 [ PAN NO.ACHFS 9180 N ] V/S . DCIT, CIRCLE-22, KOLKATA /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI D. GHOSH, FCA /BY REVENUE SHRI R.C. CHOUDHURY, ADDL. CIT-DR /DATE OF HEARING 13-08-2018 /DATE OF PRONOUNCEMENT 19-09-2018 ITA NO.2114-2116/KOL/17 A.Y. 2013-14 M/S S R BATLIBOI & CO. VS. DCIT, CIR-22, KOL. PAGE 2 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THESE THREE ASSESSEES HAVE FILED THEIR AS MANY APPE ALS FOR ASSESSMENT YEAR 2012-13 AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-6 KOLKATAS SEPARATE ORDERS; ALL DATED 05 .09.2017, PASSED IN CASE NO.10065,10061 & 10057/CIT(A)/6/KOL/2016-17; UPHOLD ING THE ASSESSING OFFICERS IDENTICAL ACTION DISALLOWING LEAVE ENCASH MENT PROVISIONS U/S 43B(F) OF 262,438/- 11,93,287/- & 12,81,102/-; RESPECTIVELY, INVOLVING PROCEEDINGS U/S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. WE HAVE HEARD ALL THESE CASES TOGETHER SINCE IN VOLVING IDENTICAL QUESTION OF LEAVE ENCASHMENT PROVISION DISALLOWANCE (S) U/S 43B(F). CASE FILES PERUSED. THESE THREE APPEALS ARE THEREFORE DISPOSED OF VIDE INSTANT COMMON ORDER. 3. BOTH THE LEARNED REPRESENTATIVES ARE AD IDEM AT THE OUTSET THAT THAT HON'BLE JURISDICTIONAL HIGH COURTS DECISION IN EXIDE INDUSTRIES LTD. VS. UNION OF INDIA (2007) 292 ITR 470 (CAL) HAD QUASHED THIS STATUTOR Y PROVISION ITSELF TO BE ULTRA VIRES. HON'BLE APEX COURT HAS STAYED OPERATIO N THEREOF VIDE ORDER DATED 08.05.2009. THE REVENUES CIVIL APPEAL AGAINST THE SAME IS STATED TO BE PENDING BEFORE THE HON'BLE APEX COURT TILL DATE. 4. THE ASSESSEE TAKES US FIRST APPEAL ITA 2114/KOL/ 2017.IT SUBMITS THAT THE IMPUGNED DISALLOWANCE IN QUESTION OF 262,438/- COMPRISES OF 1,96,407/- PAID OUT OF THE PROVISION MADE FOR LEAVE ENCASHMENT IN EARLIER ASSESSMENT YEARS AND IN IMPUGNED ASSESSMENT YEAR WHEREAS A SIM ILAR AMOUNT OF 6,3031/- HAS BEEN REVERSED AND CREDITED TO PROFIT A ND LOSS ACCOUNT IN THE CURRENT IMPUGNED ASSESSMENT YEAR IS OUT OF PROVISIO N OF MADE LEAVE ENCASHMENT IN EARLIER ASSESSMENT YEAR. 5. COMING TO SECOND AND THIRD APPEALS, LEARNED COUN SEL SUBMITS THAT THE PROVISIONS IN QUESTION ARE BASED ON ACTUARIAL VALUA TION AND THEREFORE THE SAME OUGHT TO HAVE BEEN ALLOWED BY THE LOWER AUTHORITIES . LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY SUPPORTS THE IMPUGNED DISAL LOWANCE(ES) MADE STRICTLY ITA NO.2114-2116/KOL/17 A.Y. 2013-14 M/S S R BATLIBOI & CO. VS. DCIT, CIR-22, KOL. PAGE 3 IN TUNE WITH SEC. 43B(F) SINCE NO ACTUAL PAYMENT HA S BEEN MADE AT THE ASSESSEESS BEHEST QUA THE LEAVE ENCASHMENT AMOUNT IN QUESTION. 6. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL SUBMISSIONS. WE ARE OF THE VIEW THAT FIRST ASSESSEES IN ITA NO.211 4/KOL/2017 REQUIRES FACTUAL VERIFICATION OF THE RELEVANT PROVISION SUMS MADE IN EARLIER ASSESSMENT YEAR AS CREDITED, PAID AND REVERSED IN THE IMPUGNED ASSESSM ENT YEAR (SUPRA) TO AVOID AN INSTANCE OF DOUBLE ADDITION. COMING TO LATTER TW O CASES, WE ARE OF THE VIEW THAT ALTHOUGH VALIDITY OF SEC. 43B(F) ISSUE IS PEND ING BEFORE HON'BLE APEX COURT (SUPRA), THE FACT REMAINS THAT THEIR LORDSHIPS HAVE STAYED OPERATION OF HON'BLE JURISDICTIONAL HIGH COURTS DECISION. THE IMPUGNED DISALLOWANCE(ES) IN LATTER TWO ASSESSEES CASES IS VERY WELL PROPER THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANCE AS OF NOW SINCE THE ASSESSEES HAVE NOT MADE ACTUAL PAYMENT OF LEAVE ENCASHMENT SUMS. WE HOWEVER DIRECT THE ASS ESSING OFFICER IN ALL THESE CASES TO AWAITS HON'BLE APEX COURTS DECISION IN EXIDE INDUSTRIES LTD. (SUPRA) AND THEN PROCEED WITH THE MATTER AS PER LAW IN CONSEQUENTIAL PROCEEDINGS.. 7. THESE ASSESSEES APPEALS ARE ACCEPTED FOR STATIS TICAL PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT 19/09/2018 SD/- SD/- ( ) (( ) (DR. A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S )- 19 / 09 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-M/S S R BATLIBOI & CO. LLLP 22, CAMAC STREET KOL KATA-16 M/S S V GHATALIA & AS SOCIATES LLP 22, CAMAC STREET, KOLKATA-16 M/S S R BATLIBOI & C O. LLP 22, CAMAC STREET, KOLKATA-16 2. /REVENUE-DCIT, CIRCLE-22, KOLKATA 3. 4 5 / CONCERNED CIT KOLKATA 4. 5- / CIT (A) KOLKATA 5. 8 ((4, 4, / DR, ITAT, KOLKATA 6. = / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 4,
