TIL Limited, Kolkata V. DCIT, Circle - 1(2), Kolkata , Kolkata

ITA 462/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8248 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 16-03-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHUR Y
• Assessee Lawyers: JAI SONI
• Keywords: Set aside
• Section: 43B

Judgement Text

1 ITA NOS. 461-463/KOL/2018 T I L LIMITED, AYS- 2011-1 2 TO 2013-14 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NOS. 461 TO 463/KOL/2018 ASSESSMENT YEARS: 2011-12 TO 2013-14 T I L LIMITED (PAN: AABCT0704G) VS. DEPUTY COMMISSI ONER OF INCOME-TAX CIRCLE-1(2), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 19.06.2019 DATE OF PRONOUNCEMENT 17.07.2019 FOR THE APPELLANT SHRI JAI SONI, AR FOR THE RESPONDENT SHRI ROBIN CHOUDHURY, ADDL. CIT, SR. DR ORDER PER SHRI A.T.VARKEY, JM ALL THESE APPEALS FILED BY THE ASSESSEE ARE AGAINST THE SEPARATE ORDERS OF LD. CIT(A)- I, KOLKATA DATED 12.01.2018 FOR AY 2011-12 AND 2012 -13 AND 30.01.2018 FOR AY 2013-14 RESPECTIVELY. SINCE GROUNDS ARE COMMON AND FACTS A RE IDENTICAL EXCEPT VARIANCE IN AMOUNT, WE DISPOSE OF ALL THESE APPEALS BY THIS CONSOLIDATE D ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. APPEAL FOR AY 2011-12 IS TAKEN UP AS LEAD CASE AND THE RESULT OF WHICH WILL BE APPLICABLE IN ALL THE OTHER APPEALS. 2. THE SOLE GROUND OF APPEAL OF THE ASSESSEE IS AGA INST THE ACTION OF LD. CIT(A) IN UPHOLDING THE DISALLOWANCE BEING THE PROVISION MADE FOR LEAVE ENCASHMENT IN THE CURRENT ASSESSMENT YEAR ON THE BASIS OF ACCRUAL BASIS. 3. AT THE OUTSET ITSELF, THE LD. COUNSEL BROUGHT TO OUR NOTICE THAT SIMILAR ISSUE HAD COME UP BEFORE THIS TRIBUNAL IN ASSESSEES OWN CASE AND WHILE DISPOSING OF THE APPEAL FOR AY 2010-11 WHEREIN THE TRIBUNAL HAS OBSERVED THAT IN M /S. TIL LIMITED VS. DCIT, ITA NO. 844/KOL/2015 WHEREIN THE TRIBUNAL VIDE PARA 3 HAS H ELD AS UNDER: 2 ITA NOS. 461-463/KOL/2018 T I L LIMITED, AYS- 2011-1 2 TO 2013-14 3. AT THE OUTSET ITSELF, THE LD. COUNSEL BROUGHT T O OUR NOTICE THAT THE SIMILAR ISSUE HAD COME UP BEF ORE THIS TRIBUNAL IN M/S. S. R. BATLIBOI & CO. VS. DCIT , ITA NO.1598/KOL/2011 FOR AY 2007-08 WHEREIN THE TRIBUNAL VIDE PARA 4 HAS HELD AS UNDER: 4. AFTER HEARING RIVAL SUBMISSIONS AND GOING THROUG H 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 PROVI SION FOR LEAVE ENCASHMENT IN TERMS OF SUB-SECTION (F) OF SECTION 43B OF THE INCOME TAX AC T. THE ASSESSEE HAD ADVANCED ITS CLAIM RELYING ON THE DECISION OF THE HONBLE KOLKAT A HIGH COURT IN THE CASE OF M/S. EXIDE INDUSTRIES LTD. REPORTED IN 292 ITR 470. HOWE VER, THE ASSESSING OFFICER DID NOT ACCEPT THE ASSESSEES CLAIM OBSERVING THAT DEPARTME NT HAS PREFERRED A SPECIAL LEAVE PETITION BEFORE THE HONBLE SUPREME COURT AND STAY OF THE ORDER OF THE HONBLE KOLKATA HIGH COURT WAS GRANTED BY THE HONBLE APEX COURT. L D. SENIOR COUNSEL SUBMITTED THAT UNDER IDENTICAL CIRCUMSTANCES, TRIBUNAL HAS RESTORE D THE MATTER TO THE FILE OF ASSESSING OFFICER TO DECIDE THE ISSUE IN ACCORDANCE WITH THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF DCIT, CIRCLE-8, KOLKATA VS.- M/S. ERNS T & YOUNG PVT. LTD. IN ITA NO. 1787/KOL./2008. HE, THEREFORE, SUBMITTED THAT THE M ATTER 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 IDENTICAL ISS UE IN ITA NO. 1787/KOL./2008 IN THE CASE OF M/S. ERNST & YOUNG PVT. LTD. HAS OBSERVED A T 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 ENCASHMEN T WHICH WAS DELETED BY THE CIT(A.) FOLLOWING THE DECISION OF THE HONBLE JURIS DICTIONAL HIGH COURT IN THE CASE OF M/S. EXIDE INDUSTRIES LTD. (SUPRA). IT WAS POINT ED OUT BY THE LD. DR THAT THE HONBLE APEX COURT INSLP (CIVIL) 22889 OF 2008 HAS STAYED THE OPERATION OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT. IN VIEW OF 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 DIRECTION THAT HE WI LL READJUDICATE THIS ISSUE AS PER DECISION OF THE HONBLE 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 FILE OF ASSESSIN G OFFICER FOR ADJUDICATION AS PER THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF M /S. EXIDE INDUSTRIES LTD.(SUPRA). IN VIEW OF THE ABOVE AND RESPECTFULLY FOLLOWING THE SAME, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER BACK TO THE FILE OF AS SESSING OFFICER FOR ADJUDICATION AS PER THE DECISIO N OF HONBLE APEX COURT IN THE CASE OF M/S. EXIDE IND USTRIES LTD. (SUPRA). THIS GROUND OF APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN VIEW OF THE AFORESAID DECISION OF THE COORDIN ATE BENCH IN ASSESSEES OWN CASE FOR THE SAME ISSUE, WE SET ASIDE THE ORDER OF THE LD. C IT(A) AND RESTORE THE MATTER BACK TO THE 3 ITA NOS. 461-463/KOL/2018 T I L LIMITED, AYS- 2011-1 2 TO 2013-14 FILE OF THE AO FOR FRESH ASSESSMENT AFTER TAKING NO TE OF THE FINAL OUTCOME OF THE HONBLE APEX COURT DECISION IN SLP (CIVIL) 22889 OF 2008 IN M/S. EXIDE INDUSTRIES LTD. CASE AND THEREAFTER DECIDE THIS ISSUE AS PER THE DECISION OF HONBLE APEX COURT IN M/S. EXIDE INDUSTRIES LTD., SUPRA. THUS, THIS GROUND OF APPEA L OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, ALL THE APPEALS OF ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 17.07.2019 SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 17TH JULY, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. T I L LIMITED, 1, TARATOLLA ROA D, GARDEN REACH, KOLKATA-700 024. 2 RESPONDENT DCIT, CIRCLE-1(2), KOLKATA 3. 4. CIT(A)-1, KOLKATA (SENT THROUGH E-MAIL) CIT-, , KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR