ASIT C. MEHTA INVESTMENT INTERMEDIATES LTD, MUMBAI V. DCIT RG 4(1), MUMBAI

ITA 4845/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70916 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 24-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Section: 43B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . . , . ! , '# ' $ BEFORE SHRI I.P. BANSAL, JM AND SHRI SANJAY ARO RA, AM ./ I.T.A. NO. 4845/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2009-10 ASIT C.MEHTA INVESTMENT INTERMEDIATES LIMITE, NUCLEUS HOUSE, 5 TH FLOOR, SAKI VIHAR ROAD, ANDHERI (EAST), MUMBAI 400 072 % % % % / VS. THE DCIT, RANGE 4(1), AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 ' '# ./ ( ./ PAN/GIR NO. : AAACA 5009N ( ') / APPELLANT ) .. ( *+') / RESPONDENT ) ') , '/ APPELLANT BY SHRI SATISH R. MODY *+') 7 , ' /RESPONDENT BY SHRI S.S.RANA % 7 8# / DATE OF HEARING : 04/09/2013 9 & 7 8# / DATE OF PRONOUNCEMENT : 04/09/2013 ': / O R D E R PER I.P.BANSAL,J.M: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS D IRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-8, MUMBAI DATED 01/06/2012 F OR ASSESSMENT YEAR 2009- 10. GROUND OF APPEAL READS AS UNDER: THE ASSESSING OFFICER HAS ERRED IN DISALLOWING AN AMOUNT OF RS.11,22,136/- BEING THE PROVISIONS MADE BY YOUR PETITIONER IN RESPECT OF LEAVE ENCASHMENT. THE LD. AR HAS ERRED IN DISREGARDING THE DECISION OF CALCUTTA HIGH COURT IN EXIDE INDUSTRIES VS. UNION OF INDIA (2007) 164 TAXMAN 9. ./ I.T.A. NO. 4845/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2009-10 2 2. THE AO REFERRING TO AMENDMENT IN CLAUSE(F) OF SE CTION 43B INSERTED W.E.F. 1/4/2002 DISALLOWED A SUM OF RS.11,22,136/- IN RESP ECT OF SUM PAYABLE BY THE ASSESSEE TO ITS EMPLOYEES AS LEAVE ENCASHMENT ON TH E GROUND THAT THE SAID AMOUNT CAN BE ALLOWED IN THE PREVIOUS YEAR IN WHICH IT HAS BEEN ACTUALLY PAID. THE ASSESSEE RELYING UPON THE DECISION OF HONBLE C ULCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES VS. UNION OF INDIA, 164 TA XMAN 9 CONTENDED THAT THE PROVISIONS OF SECTION 43B(F) ARE ARBITRARY AND UNC ONSTITUTIONAL. HOWEVER, AO RELYING UPON VARIOUS OTHER DECISIONS, IN WHICH SUC H PROVISION HAVE BEEN SAID TO BE CONSTITUTIONALLY VALID MADE THE DISALLOWANCE. THE DISALLOWANCE HAS BEEN UPHELD BY LD. CIT(A). 3. AFTER NARRATING THE FACTS IT WAS SUBMITTED BY LD . AR THAT ON SIMILAR FACTS MUMBAI ITAT IN THE CASE OF ESSAR EXPLORATION & PRO DUCTION INDIA LTD VS. ACIT VIDE ORDER DATED 8/8/2012 IN ITA NO.6189/MUM/2011 H AS RESTORED THE MATTER BACK TO THE FILE OF AO WITH THE FOLLOWING OBSERVATI ONS: 7. WE OBSERVED THAT MUMBAI TRIBUNAL BY ITS ORD ER DATED 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 HONBLE APEX COURT IN THE CASE OF BHARAT EARTH MOVERS (SUPRA) AS HONBLE CALCUTTA HIGH COURT IN THE CASE OF EXCISE INDUSTRIES (SUPRA) STRUCK DOWN THE PROVISION OF SEC TION 438(F) BEING ARBITRARY, UNCONSCIONABLE. FURTHER, THE DEPARTMENT FILED SLP B EFORE HONBLE APEX COURT AGAINST THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD (SUPRA) BY ITS ORDER DATED 8.9.2008 IN SLP NO.1 2060/2008 HAS STAYED THE OPERATION OF JUDGMENT OF HONBLE CALCUTTA HIGH COUR T. FURTHER, IT IS ALSO A FACT THAT HONBLE BOMBAY HIGH COURT HAS ADMITTED THE ISSUE UN DER CONSIDERATION IN THE APPEAL FILED BY DEPARTMENT IN THE CASE OF UNIVERSAL MEDICARE PVT LTD (SUPRA). AT THE TIME OF HEARING, ID A.R. SUBMITTED THAT THE SAID AP PEAL IS YET TO BE DISPOSED OF. WE ALSO OBSERVE THAT ITAT KOLKATA BENCH BY ITS ORDER D ATED 30.1.2012 CONSIDERED THE SAID ISSUE AND BY FOLLOWING EARLIER DECISION ON IDE NTICAL ISSUE IN THE CASE ERNST & YOUNG PVT LTD. (SUPRA) HAS RESTORED THE MATTER TO T HE FILE OF AO WITH A DIRECTION TO ADJUDICATE THE SAME AS PER DECISION OF HONBLE APEX COURT IN THE CASE OF EXIDE INDUSTRIES LTD (SUPRA). IN VIEW OF ABOVE AND RESPEC TFULLY FOLLOWING THE EARLIER DECISIONS (SUPRA), WE SET ASIDE THE ORDERS OF AUTHO RITIES BELOW AND RESTORE THE MATTER BACK TO THE FILE OF AO FOR ADJUDICATION AFRE SH AS PER THE DECISION OF HONBLE APEX COURT IN THE CASE OF EXIDE INDUSTRIES LTD (SUP RA). 8. IN THE RESULT, APPEAL FILED BY ASSESSEE IS TREAT ED AS ALLOWED FOR STATISTICAL PURPOSES. ./ I.T.A. NO. 4845/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2009-10 3 COPY OF THE AFOREMENTIONED ORDER WAS PLACED ON OUR RECORD AND WAS ALSO GIVEN TO LD. DR. 4. HOWEVER, LD. DR RELIED UPON THE ORDER PASSED BY AO AND LD. CIT(A). 5. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY CONSIDERED. ADOPTING A CONSISTENT APPROACH, RESPEC TFULLY FOLLOWING THE AFOREMENTIONED DECISION OF CO-ORDINATE BENCH, WE PA SS SIMILAR ORDER AND RESTORE THIS MATTER BACK TO THE FILE OF AO WITH SIMILAR DIR ECTIONS. WE ORDER ACCORDINGLY. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS CONSIDERED AS ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 04/09/2013 . ': 7 & #' ; <%= 04/09/2013 7 > SD/- SD/- ( SANJAY ARORA) (I.P.BANSAL) /ACCOUNTANT MEMBER '# /JUDICIAL MEMBER MUMBAI; <% DATED 04/09/2013 ': ': ': ': 7 77 7 *8?@ *8?@ *8?@ *8?@ A'@&8 A'@&8 A'@&8 A'@&8 / COPY OF THE ORDER FORWARDED TO : 1. ') / THE APPELLANT 2. *+') / THE RESPONDENT. 3. B ( ) / THE CIT(A)- 4. B / CIT 5. @C> *8% , , / DR, ITAT, MUMBAI 6. >D E / GUARD FILE. ':% ':% ':% ':% / BY ORDER, +@8 *8 //TRUE COPY// F FF F / G G G G (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . % . .VM , SR. PS