Tamilnadu Warehousing Corporation Limited, CHENNAI V. ACIT, CHENNAI

ITA 323/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9713 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 09-02-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 15-02-2016
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Assessee Lawyers: R SANKARANARAYANAN
• Keywords: Reopening of assessment; Business income; Depreciation; Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 43B; 143(3); 244A; 142(1); 148

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL A BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , J UDICIAL MEMBER ./ I.T.A.NO. 3 23 /MDS/2016 / ASSESSMENT YEAR :20 0 8 - 09 TAMILNADU WAREHOUSING CORPORATION LIMITED, 82, ANNA SALAI, GUINDY, CHENNAI 600 032. [PAN: A A A C T2474Q ] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX , CO RPORATE CIR CLE 3 ( 1), CHENNAI 600 0 34 . ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI R. SANKARANARAYANAN, C.A. / RESPONDENT BY : SHRI SHIVA SRINIVAS , J CIT / DATE OF HEARING : 0 9 . 0 2 .201 7 / DATE OF P RONOUNCEMENT : 04 . 0 5 .201 7 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 11 , CHENNA I DATED 16 . 1 2 .201 5 RELEVANT TO THE ASSESSMENT YEAR 20 0 8 - 09, WHEREIN THE ASSESSEE HAS CHALLENGED WITH REGARD TO VALIDITY OF REOPENING OF ASSESSMENT AS WELL AS CONFIRMATION OF DISALLOWANCE OF LEAVE SALARY PROVISION . 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A GOVERNMENT COMPANY ENGAGED IN WAREHOUSING AND STORAGE OF MATERIALS. THE ASSESSEE I.T.A. NO.3 23 /M/16 2 HAS FILED RETURN OF INCOME ON 30.09.2008 ADMITTING A TOTAL INCOME OF .7,60,79,408/ - . THE RETURN FILED BY THE ASSESSEE WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT] AND SUBSEQUENTLY, THE ASSESSMENT WAS REOPENED BY ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT DATED 07.03.2014 BY RECORDING RE ASONS THEREUNDER. IN RESPONSE TO THE NOTICE UNDER 148 OF THE ACT, THE ASSESSEE FILED A LETTER DATED 18.03.2014 REQUESTING TO TREAT THE RETURN ALREADY FILED AS THE ONE FILED IN RESPONSE TO THE NOTICE. THEREAFTER, NOTICES UNDER SECTION 143(2) AND 142(1) OF T HE ACT DATED 27.06.2014 WERE ISSUED TO THE ASSESSEE. AFTER CONSIDERING THE DETAILS FURNISHED BY THE ASSESSEE IN RESPONSE TO THE ABOVE NOTICES, THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT UNDER SECTION 143(3) R.W.S. 147 OF THE ACT BY DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT .8,17,65,000/ - AFTER MAKING VARIOUS DISALLOWANCES. 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE LD. CIT(A) HAS PARTLY ALLOWED THE APPEAL OF TH E ASSESSEE. 4. ON BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE AUTHORITIES BELOW HA VE NOT GIVEN ANY SPECIFIC MISTAKE IN THE CASE OF THE ASSESSEE TO OFFER ANY INCOME WHICH HAS RES ULTED IN ESCAPEMENT OF INCOME WARRANTING REOPENING OF ASSESSMENT BEYOND FOURS OF ASSESSMENT . IT WAS FURTHER SUBMITTED THAT T HE I.T.A. NO.3 23 /M/16 3 TWO ADDITIONS MADE IN THE ASSESSMENT ORDER ARE NOT DUE TO OMISSION ON THE PART OF THE ASSESSEE. WITH R EGARD TO INTEREST U NDER SEC TION 244A OF THE ACT, IT HAS ALREADY BEEN OFFERED AND ASSESSED IN THE ASSESSMENT YEAR 2009 - 10 AND THE SAME INCOME CANNOT BE ASSESSED TWICE. AS OBSERVED BY THE CIT(A), SINCE, THERE IS NO MISTAKE ON THE PART OF THE ASSESSEE , HE HA S DIRECTED THE ASSESSING OFF ICER TO DELETE THE ADDITION, IF THE SAME WAS ALREADY ASSESSED IN THE ASSESSMENT YEAR 2009 - 10. THUS, THERE WAS NO MISTAKE ON THE PART OF THE A SSESSEE TO ADMIT THIS AMOUNT IN THE RETURN ALREADY FILED WARRANTING ISSUE OF NOTICE U NDER SECTION 148 OF THE ACT. W ITH REGARD TO THE SO CALLED OMISSION ON THE PART OF THE ASSESSEE TO OFFER THE UNPAID PORTION OF LEAVE ENCASHMENT, THE HON BLE SUPREME COURT, IN THE ORDER STAYING THE OPERATION OF THE DECISION OF THE CALCUTTA HIGH COURT IN THE CASE OF EXCIDE INDUSTRIES, HAS CLEARLY STATED THAT THE ASSESSEE'S CAN CONTINUE TO CLAIM SUCH PROVISION AS ALLOWABLE' IN THE RETURNS TO BE FILED. THUS, THERE IS NO OMISSION ON THE PART OF THE ASSESSEE ON THIS ISSUE ALSO . THUS, THERE WAS NO MISTAKE ON THE PART OF THE ASSESSEE ON THE TWO ADDITIONS MADE, RE - OPENING OF ASSESSMENT AFTER FOUR YEARS IS BAD IN LAW AND THE ASSESSMENT MADE ON THE INVALID AND PRAYED THAT THE RE - OPENING REQUIRES TO BE QUASHED. 5. ON THE OTHER HAND, THE LD. DR STRONGLY SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 6. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IN THIS CASE, ASSESSMENT I.T.A. NO.3 23 /M/16 4 UNDER SECTION 143(1) OF THE ACT WAS COMPLETED ACCEPTING THE RETURN FILED BY THE ASSESSEE AND NO SCRUTINY ASSESS MENT UNDER SECTION 143(3) OF THE ACT WAS DONE. SUBSEQUENTLY, AFTER RECORDING REASONS WITH REGARD TO THE CLAIM OF DEDUCTION OF LEAVE SALARY PROVISION AND DISCLOSURE OF RECEIPT OF REFUND RECEIVED FROM THE DEPARTMENT, NOTICE UNDER SECTION 148 OF THE ACT WAS I SSUED TO THE ASSESSEE. HOWEVER, THE ASSESSEE HAS NOT CHALLENGED THE REOPENING OF ASSESSMENT BEFORE THE ASSESSING OFFICER AND FILED ALL THE DETAILS AS REQUIRED BY HIM. AFTER VERIFICATION OF DETAILS, THE ASSESSMENT UNDER SECTION 143(3) R.W.S. 147 OF THE ACT WAS COMPLETED BY MAKING BOTH THE ABOVE ADDITIONS. ON APPEAL, THE LD. CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 6.1 IN VIEW OF THE DECISION OF THE TRIBUNAL IN THE CASE OF ACIT V. TUBE INVESTMENTS OF INDIA LTD. 133 ITD 79 (TM), THE COORDINATE BE NCHES OF THE TRIBUNAL, WHEREIN, IT WAS CATEGORICALLY HELD THAT WHAT IS NECESSARY TO REOPEN AN ASSESSMENT IS NOT FINAL VERDICT BUT A PRIMA FACIE REASON, I T IS A SETTLED LAW THAT ON THE BASIS OF MATERIAL, IF THERE IS A PRIMA FACIE CAUSE AVAILABLE BEFORE THE ASSESSING OFFICER, HE CAN FORM THE OPINION THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. AFTER RECORDING REASONS FOR REOPENING OF ASSESSMENT, THE ASSESSMENT WAS REOPENED UNDER SECTION 147 OF THE ACT. THE WORD REASON IN THE PHRASE REASON TO B ELIEVE WOULD MEAN CAUSE OR JUSTIFICATION. IN CASE THE ASSESSING OFFICER HAS A CAUSE OR JUSTIFICATION TO I.T.A. NO.3 23 /M/16 5 KNOW OR SUPPOSE THAT INCOME HAS ESCAPED ASSESSMENT, ACTION UNDER SECTION 148 OF THE ACT CAN BE TAKEN. BUT OBVIOUSLY, THERE SHOULD BE RELEVANT MATERIAL ON WHICH A REASONABLE MAN COULD HAVE FORMED A REQUISITE BELIEF. WHETHER THIS MATERIAL(S) WOULD CONCLUSIVELY PROVE THE ESCAPEMENT OF INCOME IS NOT THE CONCERN AT THAT PARTICULAR STAGE. SO WHAT IS REQUIRED IS THE SUBJECTIVE SATISFACTION OF THE ASSESSING OFFI CER BASED ON OBJECTIVE MATERIAL EVIDENCE. IN THE GIVEN CASE, THE ASSESSMENT UNDER SECTION 143(1) OF THE ACT WAS COMPLETED ON 1 8 .0 1 .20 1 0 AND MOREOVER NO SCRUTINY ASSESSMENT UNDER SECTION 143(3) OF THE ACT WAS DONE . THE REASON FOR REOPENING WAS ALSO RECORDED AS DISCUSSED ABOVE. 6. 2 BEFORE THE LD. CIT(A), THE AR OF THE ASSESSEE HAS CONTENDED THAT IN THIS CASE, THE ASSESSEE HAS FURNISHED ALL THE DETAILS IN THE RETURN FILED BY IT AND NO NEW MATERIAL HAS BEEN DISCOVERED BY THE ASSESSING OFFICER FOR THE REASSES SMENT FOR THAT ASSESSMENT YEAR. AS SEEN FROM THE REASONS RECORDED WHICH GIVES A CLEAR PICTURE THAT THE ASSESSING OFFICER HAS GOT MATERIAL EVIDENCE TO FORM HIS OPINION THAT INCOME HAS ESCAPED ASSESSMENT AND THAT IS WHY HE REOPENED THE ASSESSMENT AND ISSUED NOTICE UNDER SECTION 148 OF THE ACT. THERE CANNOT BE TWO OPINIONS. AT THAT POINT OF TIME OF REOPENING WHEN THE REASONS ARE RECORDED AFTER FORMING OPINION OF ESCAPEMENT OF INCOME IS ONLY RELEVANT. HENCE, THE PLEA OF THE LD. AR OF THE ASSESSEE IS NOT TENAB LE IN THE EYES OF LAW BEFORE THE LD. CIT(A) . UNDER SECTION 147, THE I.T.A. NO.3 23 /M/16 6 ASSESSING OFFICER CAN EITHER ASSESS OR RE - ASSESS BUT FOR TAKING ACTION THERE UNDER, HE HAS TO RECORD REASONS THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. IT IS ALSO MANDATED BY SE CTION 148(2) TO RECORD REASONS IN WRITING. THE REASSESSMENT PROCEEDINGS UNDER SECTION 147 ARE FURTHER SUBJECT TO SECTIONS 148,149,150,151,152 AND 153. IN THE PRESENT CASE, WE ARE REQUIRED TO DECIDE THE LIMITED ISSUE REGARDING THE VALIDITY OF PROCEEDINGS UN DERTAKEN WITHIN FOUR YEARS OF THE ASSESSMENT YEAR IN QUESTION. IN THIS CASE, MOREOVER, THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT WAS NOT DONE. IN CASE, (I) INCOME CHARGEABLE TO TAX HAS BEEN UNDER ASSESSED; OR (II) SUCH INCOME HAS BEEN ASSESSED AT TOO LOW RATE; OR (III) SUCH INCOME HAS BEEN MADE THE SUBJECTIVE OF EXCESS RELIEF UNDER THIS ACT; OR (IV) EXCESSIVE LOSS OR DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE UNDER THIS ACT HAS BEEN COMPUTED, THE ASSESSING OFFICER WOULD HAVE VALID COGNIZANCE U NDER S ECTION 147 OF THE ACT. THE REASONS RECORDED BY THE ASSESSING OFFICER CLEARLY DEMONSTRATES THAT THOUGH THE ASSESSEE PRODUCED BOOKS OF ACCOUNT, THE DISCREPANCY NOTICED BY THE ASSESSING OFFICER CAN ONLY BE POINTED OUT THAT DUE DILIGENT OF ASSESSING OFFICER. A S SUCH, THE PRODUCTION OF BOOKS ITSELF CANNOT CONSTITUTE FULL DISCLOSURE OF ALL MATERIAL FACTS FOR THE PURPOSE OF ASSESSMENT. BEING SO, WE ARE SATISFIED THAT THE ASSESSING OFFICER HAS REASONS TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. THIS FACT CONFE RS JURISDICTION ON THE ASSESSING OFFICER TO REOPEN THE ASSESSMENT. THE POWER UNDER SECTION 147 TO RE - ASSESS THE INCOME POST 1ST APRIL, 1989 ARE MUCH I.T.A. NO.3 23 /M/16 7 WIDER THAN THESE USED TO BE BEFORE. BUT STILL THE SCHEMATIC INTERPRETATION OF THE WORDS REASON TO BELIEVE FAILING WHICH SECTION 147 WOULD GIVE ARBITRARILY POWERS TO THE ASSESSING OFFICER TO REOPEN THE ASSESSMENT ON THE POWER TO AN ASSESSING OFFICER TO REOPEN ANY AND EVERY ASSESSMENT ORDER WHICH WOULD SIMPLY AMOUNT TO A REVIEW. THE CONCEPT CHANGE OF OPINION IS AN IN - BUILT TEST TO CHECK THE ABUSE OF POWER BY THE ASSESSING OFFICER. ON THE BASIS OF CHANGE OF OPINION WHICH, CANNOT BE PER SE A REASON TO REOPEN THE ASSESSMENT. HENCE, THE REOPENING IS HELD TO BE VALID. EVEN OTHERWISE, IT IS THE DUTY OF THE ASSESSE E TO BRING ALL THE FACTS TO THE KNOWLEDGE OF THE ASSESSING OFFICER AT THE TIME OF ASSESSMENT UNDER SECTION 143(1) OF THE ACT AND ONLY JUST FILING OF DOCUMENTS AT THE TIME OF ASSESSMENT IS NOT ENOUGH AND SHOULD BE DREW THE ATTENTION OF THE ASSESSING OFFICER TO ALL NECESSARY MATERIAL. 6.3 UNDER THE ABOVE FACTS AND CIRCUMSTANCES, WE HOLD THAT THE ENTIRE ASSESSMENT IN THIS CASE IS VALID AND THEREFORE, THE REOPENING OF ASSESSMENT IS UPHELD. 7. THE NEXT GROUND RAISED IN THE APPEAL OF THE ASSESSEE IS WITH REGAR D TO CONFIRMATION OF ADDITION OF .51,20,220/ - . THE ASSESSING OFFICER HAS NOTICED IN FORM 3CD THAT THE ASSESSEE HAS CLAIMED AN AMOUNT OF .90,24,000/ - AS LEAVE SALARY PROVISION. OUT OF THIS PROVISION, AN AMOUNT OF .39,03,780/ - WAS PAID DURING THE YEAR AND THE BALANCE AMOUNT OF .51,20,220/ - WAS NOT PAID. I.T.A. NO.3 23 /M/16 8 SINCE THE PROVISION IS NOT ALLOWABLE, THE BALANCE AMOUNT OF .51,20,220/ - WAS ADDED BACK TO THE INCOME OF THE ASSESSEE. BY FOLLOWING THE DECISION IN THE CASE OF SOUTH INDIAN BANK LTD. V. CIT [2014] 45 TAXM ANN.COM 428 (KERALA) AS WELL AS THE DECISION OF THE COORDINATE BENCHES OF THE TRIBUNAL IN THE CASE OF ACIT V. WARDEX PHARMACEUTICALS LTD. IN I.T.A. NOS. 2146 & 2147/MDS/2014 DATED 11.09.2015, THE LD. CIT(A) CONFIRMED THE ADDITION MADE ON THIS ACCOUNT. 7. 1 BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE, WHILE REITERATING THE SUBMISSIONS AS MADE BEFORE THE AUTHORITIES BELOW, ARGUED THAT THE ASSESSING OFFICER HAS FAILED TO CONSIDERED THE FACT THAT WHILE STAYING THE DECISION OF THE HON BLE CALCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD. & ANOTHER V. UOI 292 ITR 470, THE HON BLE SUPREME COURT HAS HELD THAT THE ASSESSEE CAN CONTINUE TO CLAIM THE ENTIRE PROVISION AS AN ALLOWABLE EXPENDITURE. 7.2 PER CONTRA, THE LD. DR HAS SUBMITTED THAT THE DISALLOWANCE OF UNPAID PORTION OF THE PROVISION OF LEAVE ENCASHMENT WAS ON THE BASIS OF THE SUBSEQUENT DECISION OF THE HON BLE SUPREME COURT STAYED THE OPERATION OF THE DECISION OF THE HON BLE CALCUTTA HIGH COURT IN THE CASE OF EXCIDE INDUSTRIES, WHICH HELD THAT THE AM ENDMENT TO SECTION 43B (F) OF THE ACT IS U L TRA VIRES. FURTHER, HE HAS SUBMITTED THAT THE PROVISIONS OF SECTION 43B (F) OF THE ACT ARE CLEAR AND THEREFORE DISALLOWANCE OF ACTUARIAL LEAVE ENCASHMENT I.T.A. NO.3 23 /M/16 9 WHICH WAS ADMITTEDLY UNPAID SHOULD BE UPHELD IN VIEW OF THE DECISION IN THE CASE OF ACIT V. WARDEX PHARMACEUTICALS LTD. (SUPRA) AND PLEADED THAT THE ORDER OF THE LD. CIT(A) SHOULD BE SUSTAINED. 7.3 WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WITH EFFECT FROM 01.04.2002, CLAUSE (F) HAS BEEN ADDED IN SECTION 43B OF THE INCOME TAX ACT , WHICH PROVIDES THAT DEDUCTION OF PROVISION OF EARNED LEAVE OF EMPLOYEES MADE BY THE ASSESSEE SHALL NOT BE ALLOWED AS DEDUCTION IN COMPUTING THE BUSINESS INCOME OF THE ASSESSEE PROVIDED SUCH SUM IS ACTUALLY PAID. IF SAME IS NOT PAID IN THE YEAR OF PROVISIONING , SAME SHALL BE ALLOWED SUBSEQUENTLY IN THE YEAR OF PAYMENT. THE HON BLE CALCUTTA HIGH COURT IN EXIDE INDUSTRIES LTD. VS. UNION OF INDIA, 292 ITR 470 HAS STRUC K DOWN THE SECTION 43B(F) OF THE ACT BEING ARBITRARY, UNCONSCIONABLE AND DE HORS THE FACTS APEX COURT DECISION IN THE CASE OF BHARAT EARTH MOVERS 245 ITR 428. HOWEVER, THE R EVENUE HAS PREFERRED AN APPEAL AGAINST THE ORDER OF HON BLE CALCUTTA HIGH COURT AND THE H ON BLE S UPREME C OURT HAS STAYED IT VIDE ITS ORDER DATED 08/05/2009 AS UNDER : - PENDING HEARING AND FINAL DISPOSAL OF THE CIVIL APPEAL, DEPARTMENT IS RESTRAINED FROM RECOVERING PENALTY AND INTEREST WHICH HAS ACCRUED TILL DATE. IT IS MADE CLEAR THAT AS FAR 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 CI VIL 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. I.T.A. NO.3 23 /M/16 10 7.4 AS PER THE STAY GRANTED BY THE HON BLE SUPREME COURT, THE CORRECT POSITION OF LAW IS THAT WE SHOULD READ THE ST ATUTE AS IF THOSE PROVISIONS ARE THERE ON THE STATUTE BOOK. THIS TRIBUNAL BEING A QUASI - JUDICIAL AUTHORITY AS TO DECIDE THE APPEAL ONLY BASED ON THE PROVISIONS OF SECTION 43B (F) OF THE ACT. IN OTHER WORDS, THE PROVISIONS OF SECTION 43B(F) CANNOT BE IGNORE D SINCE THE JUDGMENT OF THE CALCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD. WAS STAYED BY THE HON BLE APEX C OURT. THEREFORE, THE CLAIM OF THE ASSESSEE COULD BE ALLOWED ONLY IF IT IS ACTUALLY P AID ON THE DUE DATE FOR FILING THE RETURN OF INCOME. IT IS NOT THE CASE OF THE ASSESSEE THAT THE AMOUNT CLAIMED AS LEAVE ENCASHMENT WAS PAID BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME. OUR VIEW IS FURTHER STRENGTHENED BY DECISION OF THE HON BLE KE RALA H IGH C OURT WHEREIN , IT WA S HELD WHILE CONSIDERING IDENTICAL FACTS AND CIRCUMSTANCES IN CASE OF SOUTH INDIAN BANK LIMITED V CIT 45 TAXMANN.COM 428 ( KERALA ) AS UNDER: 6. THEN COMING TO THE SECOND ISSUE, IT PERTAINS TO THE PROVISION MADE FOR LEAVE E NCASHMENT AND THE DISALLOWANCE CLAIMED WAS UNDER SECTION 43B (F). AS ALREADY STATED ABOVE, THE OPINION OF THE CIT (APPEALS) WAS SET ASIDE BY THE TRIBUNAL IN THE LIGHT OF THE STAY ORDER OF THE JUDGMENT OF THE HIGH COURT OF CALCUTTA IN EXCIDE INDUSTRIES CASE (SUPRA) AND THE SLP STATED ABOVE IS STILL PENDING. THEREFORE, THE OPINION OF THE TRIBUNAL SO FAR AS DISALLOWANCE CLAIMED IN RESPECT OF LEAVE ENCASHMENT UNDER SECTION 43B(F) OF THE ACT, AS ON TODAY, THE PROVISION SEEMS TO BE IN FORCE IN THE LIGHT OF THE ST AY ORDER GRANTED BY THE APEX COURT IN THE SLP. THEREFORE, AS LONG AS SECTION 43B (F) IS ON STATUTE, THE SAID DISALLOWANCE IS JUSTIFIED . I.T.A. NO.3 23 /M/16 11 7.5 SINCE THE PROVISIONS MADE BY ASSESSEE OF LEAVE ENCASHMENT REMAINS TO BE PAID, WE ARE OF THE CONSIDERED OPINION TH AT THE LD. CIT(A) HAS RIGHTLY CONFIRMED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER ON UNPAID LEAVE ENCASHMENT PROVISIONS APPLYING PROVISION OF SECTION 43B (F) OF THE INCOME TAX ACT. 8 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORD ER PRONOUNCED ON THE 4 TH MAY , 201 7 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 04 . 0 5 .201 7 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.