M/s S R Batliboi & Associate LLP, Kolkata V. ACIT, CIR-54, KOLKATA, Kolkata

ITA 498/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1404 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 28-04-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: DEBABRATA GHOSH
• Section: 43B

Judgement Text

1 ITA NO.498/KOL/2015 S. R. BATLIBOI & ASSOCIATES LL.P., AY 2009-10 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE .., /AND . , ) [BEFORE SHRI A. T. VARKEY, JM & SHRI M. BALAGANESH , AM] I.T.A. NO. 498/KOL/2015 ASSESSMENT YEAR: 2009-10 M/S. S. R. BATLIBOI & ASSOCIATES LL P. (PAN: AABFS3421N) VS. ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-54, KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 06.07.2017 DATE OF PRONOUNCEMENT 20.09.2017 FOR THE APPELLANT SHRI DEBABRATA GHOSH, FCA FOR THE RESPONDENT SHRI SALLONG YADEN, ADDL. CIT ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-6, KOLKATA DATED 15.01.2015 FOR AY 2009-10. 2. THE SOLE GROUND OF APPEAL OF THE ASSESSEE IS AGA INST THE ACTION OF LD. CIT(A) IN CONFIRMING THE ACTION OF THE AO IN DISALLOWING A SU M OF RS.60,17,025/- BEING THE PROVISION MADE FOR LEAVE ENCASHMENT IN THE CURRENT ASSESSMENT YEAR ON THE BASIS OF ACTUARIAL VALUATION. 3. AT THE OUTSET ITSELF, THE LD. COUNSEL BROUGHT TO OUR NOTICE THAT THE SIMILAR ISSUE HAD COME UP BEFORE THIS TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 1598/KOL/2011 FOR AY 2007-08 WHEREIN THE TRIBUNAL VIDE PARA 4 HAS HELD A S UNDER: 2 ITA NO.498/KOL/2015 S. R. BATLIBOI & ASSOCIATES LL.P., AY 2009-10 4. AFTER HEARING RIVAL SUBMISSIONS AND GOING THROU GH 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 TH E FILE OF ASSESSING OFFICER FOR ADJUDICATION AS PER THE DECISION OF HONBLE APEX COURT IN THE CASE OF M/S. EXIDE INDUSTRIES LTD. (SUPRA). THIS GROUND OF APPEAL OF ASSESSEE IS ALLOWED FOR STATIST ICAL PURPOSES. HE, THEREFORE, SUBMITTED THAT THE MATTER MAY BE RES TORED BACK TO THE FILE OF ASSESSING OFFICER. 3 ITA NO.498/KOL/2015 S. R. BATLIBOI & ASSOCIATES LL.P., AY 2009-10 4. IN VIEW OF THE AFORESAID DECISION OF THE COORDIN ATE BENCH ON A SIMILAR ISSUE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE M ATTER BACK TO THE FILE OF THE AO FOR ADJUDICATION AND AO TO AWAIT THE FINAL OUTCOME OF T HE HONBLE APEX COURT IN SLP (CIVIL) 22889 OF 2008 IN M/S. EXIDE INDUSTRIES LTD. CASE AN D DECIDE THIS ISSUE AS PER THE DECISION OF HONBLE APEX COURT IN M/S. EXIDE INDUSTRIES LTD., S UPRA. THUS, THIS GROUND OF APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 20.09.20 17 SD/- SD/- (M. BALAGNESH) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 20TH SEPTEMBER, 2017 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. S. R. BATLIBOI & ASSOCIATES LL P.,22, CAMAC STREET, KOL-16. 2 RESPONDENT ACIT, CIRCLE-54, KOLKATA. 3. THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECRETARY