BIRLA SUNLIFE ASSET MANAGEMENT CO. LTD., MUMBAI V. D.C.I.T. RG. 8(1), MUMBAI

ITA 2200/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2516 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 10-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 03-04-2012
• Court: TRIBUNAL
• Department Lawyers: N P SINGH
• Assessee Lawyers: YOGESH A THAR
• Keywords: Recovery proceedings
• Section: 43B

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.2200/MUM/2012 ASSESSMENT YEAR: 2009-10 M/S BIRLA SUN LIFE ASSET MANAGEMENT COMPANY LIMITED, ONE INDIA BULLS CENTRE, TOWER 1, 17 TH FLOOR, JUPITER MILL COMPOUND, 841 SENAPATI BAPAT MARG, ELPHINSTONE ROAD, MUMBAI-400013 / VS. DCIT, RANGE-8(1), MUMBAI ( '# $ /ASSESSEE) ( % / REVENUE) P.A. NO. AAACB6134D '# $ / ASSESSEE BY SHRI YOGESH A. THAR % / REVENUE BY SHRI N.P.SINGH CIT-DR & %' ( $ ) / DATE OF HEARING : 25/10/2016 ( $ ) / DATE OF ORDER: 25/10/2016 M/S BIRLA SUN LIFE ASSET MANAGEMENT ITA NOS.2200/MUM/2012 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 17/01/2012 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE FIRST GROUND RAISED BY THE ASSESSEE PERTAINS TO UPHOLDING THE DISALLOWANCE OF PROVISION FOR LEAVE ENCASHMENT OF RS.3,53,84,604/- U/S 43B OF THE INCOME TAX ACT, 196 1 (HEREINAFTER THE ACT). 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI YOGESH A. THAR, CLAIMED THAT THE IMPUGNED ISSU E IS COVERED BY THE DECISION OF THE TRIBUNAL FOR ASSESSM ENT YEAR 2008-09 (ITA NO.1269 & 1479/MUM/2012) ORDER DATED 18/08/2016. THIS FACTUAL MATRIX WAS NOT CONTROVERTE D BY SHRI N.P. SINGH, LD. CIT-DR. HOWEVER, THE LD. CIT-DR DE FENDED THE ADDITION BY CONTENDING THAT IF THE VERSION OF THE A SSESSEE IS ACCEPTED THEN IT REQUIRES RE-EXAMINATION OF FACTS B Y THE LD. ASSESSING OFFICER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE, WE ARE REPRODUCING HEREUNDER THE DECISION OF THE CO ORDINATE BENCH OF THE TRIBUNAL (ITA NO.5457/MUM/2013) ORDER DATED 30/06/2015, FOR READY REFERENCE AND ANALYSIS:- THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 20.06.2013 OF THE COMMISSIONER OF I NCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO ASSESSMENT YEAR 2010-11. M/S BIRLA SUN LIFE ASSET MANAGEMENT ITA NOS.2200/MUM/2012 3 2. THE SOLE ISSUE RAISED IN THIS APPEAL IS RELATING TO THE DISALLOWANCE ON ACCOUNT OF PROVISION FOR LEAVE ENCA SHMENT OF RS.74,61,261/- UNDER SECTION 43B OF THE INCOME TAX ACT. THE ASSESSEE CLAIMED THAT THE PROVISION FOR LEAVE ENCAS HMENT WAS ASCERTAINED LIABILITY OF THE COMPANY AND THE SAME S HOULD NOT BE CONSTRUED AS THE ITEM COVERED BY SECTION 43B OF THE INCOME TAX ACT IN VIEW OF THE DECISION OF THE HONBLE KOLKATA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD. 292 ITR 470. T HE AO HOWEVER, HELD THAT THE SAID AMOUNT WAS REMAINED UNP AID AND THEREFORE THE PROVISION FOR LEAVE ENCASHMENT WAS SQ UARELY COVERED UNDER THE PROVISIONS OF SECTION 43B. IN APPEAL, THE LD. CIT(A) ALSO UPHELD THE FINDING OF THE AO. 3. BEFORE US, THE LD. A.R. OF THE ASSESSEE HAS BROU GHT OUR ATTENTION TO THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL DATED 23.01.2015 IN THE CASE OF AADITYA BIRLA FINA NCE LTD. VS. ACIT ITA NO.6630/M/2010 WHEREIN THE TRIBUNAL, WHIL E RELYING UPON VARIOUS OTHER DECISIONS OF THE TRIBUNAL AND AD OPTING THE SAME LINE, HAS RESTORED THE MATTER TO THE FILE OF T HE AO OBSERVING THAT SINCE THE MATTER IN THE CASE OF EXIDE INDUSTRI ES LTD. (SUPRA) WAS PENDING BEFORE THE HONBLE SUPREME COURT, THE A O TO ADJUDICATE THE ISSUE AFRESH IN THE LIGHT OF THE DEC ISION OF THE HONBLE SUPREME COURT AS MAY COME IN THE CASE OF E XIDE INDUSTRIES LTD. (SUPRA). THE RELEVANT PART OF THE DECISION OF THE CO-ORDINATE BENCH IN THE CASE OF AADITYA BIRLA FIN ANCE LTD. VS. ACIT (SUPRA) FOR THE PURPOSE OF REFERENCE IS REPRO DUCED AS UNDER: 4.2 AT THE OUTSET LD. AR OF THE ASSESSEE HAS PRODU CED BEFORE US A COPY OF ORDER OF THE TRIBUNAL IN THE CASE OF THE S ISTER CONCERN OF THE ASSESSEE M/S. BIRLA INSURANCE ADVISORY & BROKING SE RVICES LTD., IN ITA NO.7531/MUM/2010. THE TRIBUNAL IN THE SAID CASE HA S RESTORED THE MATTER ON THE IDENTICAL ISSUE TO THE FILE OF THE AO WHILE RELYING UPON THE DECISION IN THE CASE OF ESSAR EXPLORATION AND PRODUCTION IND IA LTD. VS. ACIT IN ITA NO.6189/MUM/2011 ORDER DATED 8/8/2012. THE OPERATI NG PART OF THE ORDER FOR THE SAKE OF CONVENIENCE IS REPRODUCED AS UNDER: 3. AT THE OUTSET LD. AR OF THE ASSESSEE HAS PRODU CED BEFORE US A COPY OF ORDER OF THE TRIBUNAL DATED 8/8/2012 IN IT A NO.6189/MUM/2011 IN THE CASE OF ESSAR EXPLORATION & PRODUCTION INDIA LT D. VS. ACIT, ORDER DATED M/S BIRLA SUN LIFE ASSET MANAGEMENT ITA NOS.2200/MUM/2012 4 8/8/2012 , IN WHICH SIMILAR ISSUE CAME UP FOR CONS IDERATION OF ITAT. BEFORE ITAT REFERENCE WAS MADE TO THE AFOREMENTION ED DECISION IN THE CASE OF M/S. UNIVERSAL MEDICARE PVT. LTD. VS. ACIT (SUPRA), AND AFTER HEARING BOTH THE PARTIES AND CONSIDERING THE ISSUE THAT IN ANOTHER MATTER IN THE CASE OF EXIDE INDUSTRIES LTD. VS. UNION OF INDIA, 2 92 ITR 470 (CAL), WHERE PROVISIONS OF SECTION 43B(F) WERE HELD TO BE ARBITR ARY AND IN SPECIAL LEAVE PETITION BEFORE HONBLE APEX COURT VIDE ORDER D ATED 8/9/2008 THE JUDGMENT OF HONBLE CULCUTTA HIGH HAS BEEN STAYE D AND ALSO THE FACT THAT HONBLE BOMBAY HIGH COURT HAS ADMITTED THE ISSUE IN CONSIDERATION IN THE APPEAL FILED BY THE DEPARTMENT IN THE CASE OF M /S. UNIVERSAL MEDICARE PVT. LTD.(SUPRA), THE MATTER WAS RESTORED BACK TO T HE FILE OF AO WITH THE FOLLOWING OBSERVATIONS: 7. WE OBSERVE THAT MUMBAI TRIBUNAL BY ITS ORDER DA TED 30.3.2009 IN THE CASE OF UNIVERSAL MEDICARE PVT LTD. (SUPRA) ALLOWED THE CLAIM OF PROVISION FOR LEAVE ENCASHMENT ON THE BASIS OF DECISION OF HO NBLE APEX COURT IN THE CASE OF BHARAT EARTH MOVERS (SUPRA) AS THE HONBLE C ALCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES (SUPRA) STRUCK DOWN TH E PROVISION OF SECTION 43B(F) BEING ARBITRARY, UNCONSCIONABLE. FURTHER, TH E DEPARTMENT FILED SLP BEFORE HONBLE APEX COURT AGAINST THE DECISION OF H ONBLE CALCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD (SUPRA) B Y ITS ORDER DATED 8.9.2008 IN SLP NO.12060/2008 HAS STAYED THE OPERATION OF JU DGMENT OF HONBLE CALCUTTA HIGH COURT. FURTHER, IT IS ALSO A FACT THA T HONBLE BOMBAY HIGH COURT HAS ADMITTED THE ISSUE UNDER CONSIDERATION IN THE APPEAL FILED BY DEPARTMENT IN THE CASE OF UNIVERSAL MEDICARE PVT LT D (SUPRA). AT THE TIME OF HEARING, ID A.R. SUBMITTED THAT THE SAID APPEAL IS YET TO BE DISPOSED OF. WE ALSO OBSERVE THAT ITAT KOLKATA BENCH BY ITS ORDE R DATED 30.1.2012 CONSIDERED THE SAID ISSUE AND BY FOLLOWING EARLIER DECISION ON IDENTICAL ISSUE IN THE CASE ERNST & YOUNG PVT LTD. (SUPRA) HA S RESTORED THE MATTER TO THE FILE OF AC WITH A DIRECTION TO ADJUDICATE THE S AME AS PER DECISION OF HONBLE APEX COURT IN THE CASE OF EXIDE INDUSTRIES LTD (SUPRA), IN VIEW OF ABOVE AND RESPECTFULLY FOLLOWING THE EARLIER DECISI ONS (SUPRA), WE SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTORE THE MAT TER BACK TO THE FILE OF AO FOR ADJUDICATION AFRESH AS PER THE DECISION OF H ONBLE APEX COURT IN THE CASE OF EXIDE INDUSTRIES LTD (SUPRA). 3.1 REFERRING TO THE ABOVE OBSERVATION IT WAS PLEAD ED BY LD. A.R THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF AO W ITH SIMILAR DIRECTIONS. 4. LD. D.R DID NOT HAVE ANY OBJECTION TO SUCH REQU EST OF LD. A.R. M/S BIRLA SUN LIFE ASSET MANAGEMENT ITA NOS.2200/MUM/2012 5 5. IN THIS VIEW OF THE SITUATION, AFTER HEARING BOT H THE PARTIES, RESPECTFULLY FOLLOWING SUBSEQUENT DECISION OF THE T RIBUNAL ON THIS ISSUE IN THE CASE OF ESSAR EXPLORATION & PRODUCTION INDIA LT D.,(SUPRA), WE RESTORE THIS ISSUE TO THE FILE OF A.O WITH SIMILAR DIRECTIO NS. THE RELEVANT OBSERVATIONS HAVE ALREADY BEEN REPRODUCED. WE DIRE CT ACCORDINGLY. 4.3 THE LD. REPRESENTATIVES OF THE PARTIES SUBMIT TED THAT THEY HAVE NO OBJECTION IF THE MATTER IN THIS CASE ALSO BE RE STORED TO THE FILE OF AO WITH A DIRECTION TO DECIDE THE SAME IN THE LIGHT OF ABOVE REPRODUCED DIRECTIONS. THIS ISSUE IS ACCORDINGLY RESTORED T O THE FILE OF AO TO DECIDE THE SAME AS PER THE DIRECTIONS GIVEN IN THE CASE OF SISTER CONCERN OF THE ASSESSEE AS REPRODUCED ABOVE. 4. THE LD. A.R., THEREFORE, WHILE ALSO RELYING UPON VARIOUS OTHER DECISIONS OF THE TRIBUNAL WHEREIN THE MATTER IS RESTORED TO THE FILE OF THE AO WITH THE DIRECTION TO DECIDE THE SAME AS PER THE PROPOSITION OF LAW THAT MAY BE LAID DOWN BY THE HON BLE SUPREME COURT IN THE CASE OF EXIDE INDUSTRIES LTD. (SUPRA) HAS STRESSED THAT THE MATTER IN THIS CASE BE ACCORDINGL Y RESTORED TO THE FILE OF THE AO. 5. THE LD. D.R. HAS ALSO NOT RAISED ANY OBJECTION AGAINST RESTORATION OF MATTER TO THE AO. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS CORRECT THAT THE DECISION OF THE HONBLE KOLKATA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD. (SUPRA) HAS BEEN STAYED BY THE HONBLE SUPREME COURT VIDE ORDER DATED 08.09.08 PASSED IN S LP TO APPEAL (CIVIL) CC 12060/2008 WHEREIN THE HONBLE S UPREME COURT HAS MADE THE FOLLOWING OBSERVATIONS: UPON HEARING COUNSEL THE COURT MADE THE FOLLOWING ORDER ISSUE NOTICE. IN THE MEANTIME, THERE SHALL BE STAY OF THE IMPUGNE D JUDGMENT, UNTIL FURTHER ORDER. 7. WE FURTHER FIND THAT THE HONBLE SUPREME COURT V IDE ORDER DATED 08.05.2009, PASSED IN SLP (CIVIL NO.228 89/2008) WHILE GRANTING THE LEAVE TO FILE APPEAL, HAS MADE T HE FOLLOWING OBSERVATIONS: ORDER M/S BIRLA SUN LIFE ASSET MANAGEMENT ITA NOS.2200/MUM/2012 6 DELAY CONDONED. LEAVE GRANTED. PENDING HEARING AND FINAL DISPOSAL OF THE CIVIL APP EAL, DEPARTMENT IS RESTRAINED FROM RECOVERING PENALTY AND INTEREST WHI CH HAS ACCRUED TILL DATE. IT IS MADE CLEAR THAT AS FAR AS THE OUTSTANDING INT EREST 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 THE STATUTE BOOK BUT AT THE SAME TIME IT WOULD BE ENTITLED TO MAKE A CLAIM IN ITS RETURNS. 8. A PERUSAL OF THE ABOVE OBSERVATIONS REVEALS THAT WHILE ACCEPTING THE PETITION FOR LEAVE TO FILE THE APPEAL VIDE ORDER DATED 08.05.2009, THE HONBLE SUPREME COURT HAS DIRECTED THAT PENDING THE HEARING AND DISPOSAL OF THE CIVIL APPEA L, THE DEPARTMENT IS RESTRAINED FROM RECOVERING PENALTY AN D INTEREST WHICH HAS ACCRUED TILL DATE. IT HAS ALSO BEEN MADE CLEAR THAT IT WOULD BE OPEN TO DEPARTMENT TO RECOVER THE AMOUNT O F OUTSTANDING INTEREST DEMAND IN CASE THE APPEAL OF T HE DEPARTMENT IS ALLOWED. IT HAS ALSO BEEN DIRECTED THAT DURING THE PENDENCY OF THE CIVIL APPEAL, THE ASSESSEE WILL PAY TAX AS IF S ECTION 43B(F) IS ON STATUTE BOOK BUT AT THE SAME TIME THE ASSESSEE W OULD BE ENTITLED TO MAKE A CLAIM IN THIS RESPECT IN ITS RET URNS. 9. IN VIEW OF THE OBSERVATIONS OF THE HONBLE SUPRE ME COURT, IN OUR VIEW, IT WILL BE PROPER TO DISPOSE OF THIS APPEAL IN THE LIGHT OF THE ORDER OF THE HONBLE SUPREME COURT DATED 08.05.2009 PASSED IN THE CASE OF CIT VS. EXIDE IND USTRIES LTD. (SUPRA). WE THEREFORE DISPOSE OF THE PRESENT APPEA L WITH A DIRECTION THAT THE ASSESSEE WILL PAY THE TAX AS IF SECTION 43B(F) IS ON THE STATUTE BOOK, HOWEVER, TILL THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. EXIDE INDUSTR IES LTD. (SUPRA), THE REVENUE WILL NOT RECOVER THE PENALTY A ND INTEREST WHICH MAY ACCRUE TILL THE DECISION OF THE APPEAL BY THE HONBLE SUPREME COURT IN THE CASE OF EXIDE INDUSTRIES LTD. IT WOULD BE OPEN TO THE DEPARTMENT TO RECOVER THE OUTSTANDING I NTEREST DEMAND IN CASE THE CIVIL APPEAL OF THE DEPARTMENT I N THE CASE OF M/S BIRLA SUN LIFE ASSET MANAGEMENT ITA NOS.2200/MUM/2012 7 EXIDE INDUSTRIES LTD. (SUPRA) IS ALLOWED BY THE H ONBLE SUPREME COURT. SUBJECT TO OUR ABOVE OBSERVATIONS, THE MATTER IS RESTORED TO THE FILE OF THE AO TO BE ADJUDICATED AF RESH AS PER THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F EXIDE INDUSTRIES LTD. (SUPRA). 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TH EREFORE PARTLY ALLOWED FOR STATISTICAL PURPOSES. 2.2. THE AFORESAID ORDER OF THE TRIBUNAL WAS FURTH ER CONSIDERED BY THE TRIBUNAL IN ORDER DATED 18/08/201 6 (ITA NO.1269 & 1474/MUM/2012). THEREFORE, WE ARE REPROD UCING HEREUNDER THE RELEVANT PORTION FROM THE AFORESAID O RDER OF THE TRIBUNAL FOR READY REFERENCE AND ANALYSIS:- 3. ONLY ISSUE RAISED BY THE ASSESSEE IN THE GROUND S OF APPEAL IS AGAINST CONFIRMATION OF DISALLOWANCE OF RS.21,67,547/- BY THE CIT(A) AS MADE BY THE AO FOR PROVISIONS OF LEAVE ENCASHMENT. 4. THE FACTS IN BRIEF ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTED THAT ASSESSEE H AS NOT PAID RS. 21,67,547/- PROVIDED ON ACCOUNT OF LEAVE E NCASHMENT IN RESPECT OF LEAVE AT THE CREDIT OF EMPLOYEES WHIC H WERE NOT ALLOWABLE AS NOT PAID BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME AND DISALLOWED THE SAME AS PER THE PROVISION S OF SECTION 43B(F) OF THE ACT.THE LD CIT(A) ALSO UPHELD THE ORDER OF CIT(A) ON THE GROUND THAT SLP HAS BEEN ADMITTED IN THE APEX COURT ON THE ISSUE OF ALLOWABILITY OF LEAVE ENCASHM ENT. 5. AT THE OUTSET, THE LD.AR SUBMITTED BEFORE US THA T THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE AO A ND KEEP THE MATTER ALIVE IN VIEW OF THE DECISION RENDERED BY TH E TRIBUNAL IN ITS OWN CASE IN ITA NO.5457/MUM/2013 (AY-2010-11 ) ORDER DATED 30.6.2015 IN WHICH THE IDENTICAL ISSUE HAS BE EN DECIDED BY THE CO-ORDINATE BENCH OF THE TRIBUNAL BY RELYI NG ON THE M/S BIRLA SUN LIFE ASSET MANAGEMENT ITA NOS.2200/MUM/2012 8 DECISION OF HONBLE SUPREME COURT RENDERED IN THE SPECIAL LEAVE PETITION (CIVIL NO.22889/2008) VIDE ORDER DAT ED 8.5.2009 DIRECTING THE REVENUE NOT TO RECOVER THE PENALTY AN D INTEREST WHICH MAY ACCRUE TILL THE DECISION OF THE APPEAL BY THE HONBLE SUPREME COURT IN THE CASE OF EXIDE INDUSTRIES LTD AND IT WOULD BE OPEN TO THE DEPARTMENT TO RECOVER OUTSTAND ING INTEREST DEMAND IN CASE CIVIL APPEAL IS ALLOWED BY THE HONBLE SUPREME COURT. THE LD. DR FAIRLY AGREED WITH THE SUBMISSION OF LD.AR. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIO NS AND PERUSED THE ORDER IN THE CASE OF ASSESSEE. WE FIND THAT IN THE CASE OF EXIDE INDUSTRIES LTD THE HONBLE SUPREME COURT HAS ADMITTED THE SPECIAL LEAVE PETITION ON THE IDENTI CAL ISSUE VIDE ITS ORDER DATED 8.5.2009 IN SLP (CIVIL NO.22889/20 08) ALLOWING TO FILE APPEAL BY THE REVENUE. WE FURTHER FIND TH AT THE CO- ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.5457/MUM/2 013 (SUPRA) FOLLOWING THE DECISION OF THE HONBLE APEX COURT DIRECTED THE AO TO KEEP RECOVERY OF TAX AND INTERE ST IN ABEYANCE TILL THE DECISION OF THE SUPREME COURT IN SLP (CIVIL NO.22889/2008) OF THE DEPARTMENT IN THE CASE OF EX IDE INDUSTRIES LTD AND IT WAS FURTHER RULED BY THE CO- ORDINATE BENCH THAT IT WOULD BE OPEN TO THE DEPARTMENT TO RE COVER THE OUTSTANDING DEMANDS IN CASE THE APPEAL OF THE DEPAR TMENT IS ALLOWED BY THE APEX COURT. THE OPERATIVE PART OF T HE DECISION IS REPRODUCED BELOW : 9. IN VIEW OF THE OBSERVATIONS OF THE HONBLE SUPR EME COURT, IN OUR VIEW, IT WILL BE PROPER TO DISPOSE OF THIS APPEAL I N THE LIGHT OF THE ORDER OF THE HONBLE SUPREME COURT DATED 08.05.2009 PASSED IN THE CASE OF CIT VS. EXIDE INDUSTRIES LTD. (SUPRA). WE THEREFORE DISPOSE OF THE PRESENT APPEAL WITH A DIRECTION THAT THE ASS ESSEE WILL PAY THE TAX AS IF SECTION 43B(F) IS ON THE STATUTE BOOK, HO WEVER, TILL THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F CIT VS. EXIDE INDUSTRIES LTD. (SUPRA), THE REVENUE WILL NOT RECO VER THE PENALTY AND INTEREST WHICH MAY ACCRUE TILL THE DECISION OF THE APPEAL BY THE HONBLE SUPREME COURT IN THE CASE OF EXIDE INDUSTR IES LTD. IT WOULD BE OPEN TO THE DEPARTMENT TO RECOVER THE OUTSTANDIN G INTEREST DEMAND IN CASE THE CIVIL APPEAL OF THE DEPARTMENT I N THE CASE OF EXIDE INDUSTRIES LTD. (SUPRA) IS ALLOWED BY THE H ONBLE SUPREME COURT. SUBJECT TO OUR ABOVE OBSERVATIONS, THE MATTE R IS RESTORED TO M/S BIRLA SUN LIFE ASSET MANAGEMENT ITA NOS.2200/MUM/2012 9 THE FILE OF THE AO TO BE ADJUDICATED AFRESH AS PER THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF EXIDE INDUSTR IES LTD. (SUPRA) WE FIND THAT THE FACTS OF THE CASE BEFORE US IS IDE NTIAL AS DECIDED BY THE COORDINATE BENCH IN THE DECISIONS(SU PRA) AND THEREFORE BY FOLLWING THE DECISION OF THE BENCH RES PECFULLY , WE RESTORE THE MATTER BACK TO THE FILE OF THE AO BY SE TTING ASIDE THE ORDER OF CIT(A) AND DECIDE THE ISSUE ACCORDINGL Y. THE GROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATIS TICAL PURPOSES. 2.3. CONSIDERING THE TOTALITY OF FACTS AND FOLLOWI NG THE AFORESAID ORDERS OF THE TRIBUNAL, WE REMAND THIS IS SUE TO THE FILE OF THE LD. ASSESSING OFFICER TO EXAMINE THE CL AIM OF THE ASSESSEE IN THE LIGHT OF THE AFORESAID ORDERS AND D ECIDE AFRESH IN ACCORDANCE WITH LAW. THUS, THIS GROUND OF THE AS SESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. 3. THE NEXT GROUND RAISED PERTAINS TO DISALLOWANCE OF PROVISION FOR EX-GRATIA EXPENSES OF RS.2,29,36,844/ -. OUR ATTENTION WAS INVITED TO PAGE-6 OF THE ASSESSMENT O RDER AND THE OBSERVATION MADE IN PARA-6 (PAGE-3) OF THE ASSE SSMENT ORDER. ATTENTION WAS ALSO INVITED TO THE GROUND RAI SED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL) BY EXPL AINING THAT IN THE GROUND OF APPEAL WRONG AMOUNT HAS BEEN MENTIONED. THE LD. CIT-DR THOUGH DEFENDED THE ADDI TION BUT DID NOT CONTROVERT THAT THERE WAS INADVERTENT ERROR ON BEHALF OF THE ASSESSEE ON THE BASIS OF WHICH ADJUDICATION COULD NOT BE MADE IN A REQUIRED MANNER. M/S BIRLA SUN LIFE ASSET MANAGEMENT ITA NOS.2200/MUM/2012 10 3.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT ICED THAT, A CONFUSION WAS CREATED THROUGH THE TAX AUDITORS REP ORT MENTIONING THAT THE GRATUITY OF RS.2,28,183/- WAS N OT PAID BY THE ASSESSEE. THE ASSESSEE VIDE LETTER DATED 22/07/ 2011 STATED THAT THE IMPUGNED GRATUITY WAS NOT PAID AS R EPORTED IN THE TAX AUDIT AND THE ADDITION WAS LEFT OUT IN THE TOTAL INCOME BY CLAIMING THAT IT WAS A CLERICAL ERROR. IT IS AL SO NOTED THAT IN THE GROUNDS RAISED BEFORE THE LD. COMMISSIONER OF I NCOME TAX (APPEAL), IT HAS BEEN MENTIONED THAT IT WAS A PROVI SION FOR EX- GRATIA BUT WRONG FIGURE WAS MENTIONED. CONSIDERING THE TOTALITY OF FACTS, THE ASSESSEE IS DIRECTED TO EXPL AIN THE FACTUAL MATRIX BEFORE THE ASSESSING OFFICER SO THAT THE SAM E CAN BE EXAMINED AND MAY BE DECIDED IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY TO SUBSTANTIATE ITS C LAIM, THUS, THIS GROUND IS ALSO ALLOWED FOR STATISTICAL PURPOSE S. 4. THE LAST GROUND RAISED BEFORE US IS WITH RESPEC T TO THE DISALLOWANCE OF RS.4,42,26,646/- BEING THE AMOU NT OF ADDITION MADE U/S 43B IN ASSESSMENT YEAR 2008-09 IN RESPECT OF PROVISION FOR EX-GRATIA. IT WAS EXPLAINED BY THE LD. COUNSEL THAT THIS AMOUNT WAS DECIDED IN FAVOUR OF THE ASSES SEE IN EARLIER YEAR, THEREFORE, IN THE PRESENT YEAR, IN AP PEAL HAS TO BE DISALLOWED. THIS FACTUAL MATRIX WAS NOT CONTROVERTE D BY LD. CIT-DR. UNDER THE CIRCUMSTANCES NARRATED BEFORE US, SINCE, THE IMPUGNED AMOUNT WAS ALLOWED TO THE ASSESSEE IN ASSESSMENT YEAR 2008-09, THEREFORE, IN THE PRESENT ASSESSMENT YEAR, IT HAS TO BE DISALLOWED. THE CLAIM OF THE M/S BIRLA SUN LIFE ASSET MANAGEMENT ITA NOS.2200/MUM/2012 11 ASSESSEE IS FORTIFIED BY THE DECISION OF THE LD. FI RST APPELLATE AUTHORITY DATED 01/12/2011 (ASSESSMENT YEAR 2008-09 ), WHEREIN, VIDE PARA 4 TO 4.3.6, THE ISSUE HAS BEEN D ELIBERATED UPON. IT IS FURTHER NOTED THAT THE LD. COMMISSIONE R OF INCOME TAX (APPEAL), WHILE DELETING THE ADDITION RELIED UP ON VARIOUS DECISION INCLUDING SHRIRAM PISTONS & RINGS LTD. VS CIT (2008) 307 ITR 363 (DEL.), CIT VS RAZA TEXTILE LTD. (2005) 199 CTR (ALL) 694. FINALLY, IT WAS HELD THAT THE EX-GRATIA PAYMENT DO NOT FALL WITHIN THE AMBIT OF SECTION 36(1)(II) OF THE A CT. SINCE, THE SAME ADDITION WAS DELETED IN ASSESSMENT YEAR 2008-0 9, AND NO APPEAL WAS FILED BY THE DEPARTMENT, BEING THE SA ME AMOUNT, IT HAS TO BE DISALLOWED IN THE PRESENT ASSE SSMENT YEAR, THUS, THIS GROUND IS DECIDED AGAINST THE ASSE SSEE BEING THE RELIEF HAS ALREADY BEEN GRANTED IN EARLIER ASSE SSMENT YEAR. FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 25/10/2016. SD/- SD/- ( N. K. PRADHAN ) (JOGINDER SINGH) ' # / ACCOUNTANT MEMBER $ # / JUDICIAL MEMBER MUMBAI; * DATED :25/10/2016 F{X~{T? P.S/. .. M/S BIRLA SUN LIFE ASSET MANAGEMENT ITA NOS.2200/MUM/2012 12 !%$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,-. / THE APPELLANT 2. /-. / THE RESPONDENT. 3. 0 0 1$ ( +, ) / THE CIT, MUMBAI. 4. 0 0 1$ / CIT(A)- , MUMBAI 5. 3%4$ , 0 +,)+ 5 , / DR, ITAT, MUMBAI 6. 6'7 / GUARD FILE. ! / BY ORDER, /3,$$ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI,