M/s Saregama India Limited, Kolkata V. DCIT,Cir.-3(1), Kolkata

ITA 311/KOL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3579 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 15-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C J SINGH JCIT SR DR RESPONDEN
• Assessee Lawyers: P JHUNJHUNWALA
• Section: 28; 43B; 139; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, KOLKATA BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. GODARA, JUDICIAL MEMBER I.T.A. NO. 311/KOL/2017 ASSESSMENT YEAR: 2009-10 M/S. SAREGAMA INDIA LIMITED........................APPELLANT [PAN : AAACT 9815 B] DCIT, CIRCLE-3(1), KOLKATA.............................................................................RESPONDENT APPEARANCES BY: SHRI P. JHUNJHUNWALA, ADVOCATE, APPEARING ON BEHALF OF THE APPELLANT. SHRI C. J. SINGH, JCIT, SR. DR, APPEARING ON BEHALF OF THE RESPONDENT. DATE OF CONCLUDING THE HEARING : JANUARY 21 ST , 2019 DATE OF PRONOUNCING THE ORDER : FEBRUARY 20 TH , 2019 O R D E R PER J. SUDHAKAR REDDY :- THIS APPEAL IS FILED BY THE ASSESSEE AND IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-22, KOLKATA (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DATED 09/12/2016 ON THE FOLLOWING GROUNDS: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN DISALLOWING AN AMOUNT OF RS.10,35,486/- ON ACCOUNT OF UNPAID LEAVE ENCASHMENT UNDER SECTION 43B OF THE ACT. 2. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, MODIFY OR RESCIND THE GROUNDS HEREINABOVE BEFORE OR AT THE HEARING OF THIS APPEAL. 2. THE ISSUE IN QUESTION IS COVERED BY THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD. VS. UNION OF INDIA [292 ITR 470(CAL)]. THE HONBLE SUPREME COURT IN SLP CIVIL NO.22889/2008 ORDER DATED 08.05.2009 HELD AS FOLLOWS: PENDING HEARING AND FINAL DISPOSAL OF THE CIVIL APPEAL, DEPARTMENT IS RESTRAINED FROM RECOVERY OF PENALTY AND WHICH HAS ACCRUED TILL DATE. IT IS MADE CLEAR THAT AS FOR AS THE OUTSTANDING INTEREST DEMAND AS OF DATE IS CONCERNED, IT WOULD BE OPEN TO THE DEPARTMENT TO RECOVER THAT AMOUNT IN CASE CIVIL APPEAL OF THE DEPARTMENT IS ALLOWED. WE FURTHER MAKE IT CLEAR THAT THE ASSESSEE WOULD, DURING THE PENDENCY OF THIS CIVIL APPEAL, PAY TAX AS IF SEE. 43B(F) IS ON THE STATUTE BOOK AT THE SAME TIME IT WOULD BE ENTITLED TO MAKE A CLAIM IN ITS RETURN. 3. SECTION 43B(F) READS AS FOLLOWS: 2 M/S. SAREGAMA INDIA LIMITED I.T.A. NO. 311/KOL/2017 ASSESSMENT YEAR: 2009-10 [(F) ANY SUM PAYABLE BY THE ASSESSEE AS AN EMPLOYER IN LIEU OF ANY LEAVE AT THE CREDIT OF HIS EMPLOYEE,] SHALL BE ALLOWED (IRRESPECTIVE OF THE PREVIOUS YEAR IN WHICH THE LIABILITY TO PAY SUCH SUM WAS INCURRED BY THE ASSESSEE ACCORDING TO THE METHOD OF ACCOUNTING REGULARLY EMPLOYED BY HIM) ONLY IN COMPUTING THE INCOME REFERRED TO IN SECTION 28 OF THAT PREVIOUS YEAR IN WHICH SUCH SUM IS ACTUALLY PAID BY HIM : [PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY IN RELATION TO ANY SUM 33 WHICH IS ACTUALLY PAID BY THE ASSESSEE ON OR BEFORE THE DUE DATE APPLICABLE IN HIS CASE FOR FURNISHING THE RETURN OF INCOME UNDER SUB-SECTION (1) OF SECTION 139 IN RESPECT OF THE PREVIOUS YEAR IN WHICH THE LIABILITY TO PAY SUCH SUM WAS INCURRED AS AFORESAID AND THE EVIDENCE OF SUCH PAYMENT IS FURNISHED BY THE ASSESSEE ALONG WITH SUCH RETURN. 4. IN VIEW OF THE ABOVE, WE RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. KOLKATA, THE 20 TH FEBRUARY, 2019. SD/- SD/- [ S. S. GODARA ] [J. SUDHAKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 20.02.2019 (RS, SR. PS) COPY OF THE ORDER FORWARDED TO: 1. M/S. SAREGAMA INDIA LIMITED, 33, JESSORE ROAD, DUM DUM, KOLKATA 700 028. 2. DCIT, CIRCLE-3(1), KOLKATA. 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES