The Tinplate Company of India Limited , Kolkata V. DCIT, Circle - 3, Kolkata, Kolkata

ITA 555/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4721 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 02-04-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHANKAR HALDER SRDR
• Assessee Lawyers: RAJESH SHARMA
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (D), KOLKATA [ BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER ] I.T.A. NO. 555/KOL/2018 ASSESSMENT YEAR: 2011-12 THE TINPLATE COMPANY OF INDIA LTD..............................................APPELLANT 4, BANKSHALL STREET, KOLKATA 700 001. [PAN: AABCT 0129 P] DCIT, CIRCLE 3 KOLKATA..................................................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. APPEARANCES BY: SHRI RAJESH SHARMA, CA APPEARING ON BEHALF OF THE ASSESSEE. SHRI SHANKAR HALDER, SR. DR (JCIT) APPEARING ON BEHALF OF THE REVENUE DATE OF CONCLUDING THE HEARING : JANUARY 31, 2019 DATE OF PRONOUNCING THE ORDER : FEBRUARY 08, 2019 ORDER PER P.M. JAGTAP, VICE PRESIDENT THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 1KOLKATA DATED 25.01.2018 AND THE GROUNDS RAISED BY THE ASSESSEE THEREIN READ AS UNDER: 1(A). THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(APPEALS) ERRED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN INVOKING THE PROVISIONS OF SECTION 43B(F) OF THE ACT IN DISALLOWING A SUM OF RS. 2,69,68,179/- ON ACCOUNT OF PROVISION FOR LEAVE ENCASHMENT. 1(B). THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(APPEALS) ERRED IN UPHOLDING THE DISALLOWANCE OF RS. 2,69,68,179/- DISREGARDING A BINDING DECISION OF THE HONBLE HIGH COURT OF JURISDICTION. 2. THAT ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN INVOKING THE PROVISIONS OF RULE 8D WITHOUT SATISFYING PRE-CONDITION FOR INVOKING THE PROVISIONS OF RULE 8D. 3. THAT ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN CHARGING INTEREST U/S 234D OF THE ACT. 2 I.T.A. NO. 555/KOL/2018 ASSESSMENT YEAR: 2011-12 THE TINPLATE COMPANY OF INDIA 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS AGREED BY THE LEARNED REPRESENTATIVES OF BOTH THE SIDES, A SIMILAR ISSUE AS INVOLVED IN GROUND NO. 1 RELATING TO THE ASSESSEES CLAIM ON ACCOUNT OF PROVISION OF LEAVE ENCASHMENT HAS ALREADY BEEN CONSIDERED AND DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2006-07 TO 2009-10 VIDE ITS ORDER DATED 04.10.2017 PASSED IN ITA NOS. 165- 166/KOL/2017 AND 968-969/KOL/2015. A COPY OF THE SAID ORDER IS PLACED ON RECORD BY THE LEARNED COUNSEL FOR THE ASSESSEE AND PERUSAL OF THE SAME SHOWS THAT A SIMILAR ISSUE WAS DECIDED BY THE TRIBUNAL VIDE PARAGRAPH NOS. 3 AND 4 OF THE SAID ORDER WHICH ARE EXTRACTED HEREUNDER: 3. AT THE OUTSET ITSELF, THE LD. COUNSEL BROUGHT TO OUR NOTICE THAT THE SIMILAR ISSUE HAD COME UP BEFORE 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 THROUGH 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 ASSESSEE SUBMITTED THAT IN ALL THESE THREE APPEALS, THE ISSUE RELATES TO ALLOWABILITY OF PROVISION FOR LEAVE ENCASHMENT IN TERMS OF SUB-SECTION (F) OF SECTION 43B OF THE INCOME TAX ACT. THE ASSESSEE HAD ADVANCED ITS CLAIM RELYING ON THE DECISION OF THE HONBLE KOLKATA HIGH COURT IN THE CASE OF M/S. EXIDE INDUSTRIES LTD. REPORTED IN 292 ITR 470. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE ASSESSEES CLAIM OBSERVING THAT DEPARTMENT 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. LD. SENIOR COUNSEL SUBMITTED THAT UNDER IDENTICAL CIRCUMSTANCES, TRIBUNAL HAS RESTORED 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. ERNST & YOUNG PVT. LTD. IN ITA NO. 1787/KOL./2008. HE, THEREFORE, SUBMITTED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER. 3 I.T.A. NO. 555/KOL/2018 ASSESSMENT YEAR: 2011-12 THE TINPLATE COMPANY OF INDIA 4. LEARNED DEPARTMENTAL REPRESENTATIVE DID NOT RAISE ANY OBJECTION. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND HAVE PERUSED THE RECORDS OF THE CASE. WE FIND THAT TRIBUNAL ON IDENTICAL ISSUE IN ITA NO. 1787/KOL./2008 IN THE CASE OF M/S. ERNST & YOUNG PVT. LTD. HAS OBSERVED AT PARA 12 IN PAGE 6 AS UNDER :- 12. GROUND NO. 5 OF THE REVENUES APPEAL IS AGAINST THE RELIEF ALLOWED BY THE CIT(A.) IN RESPECT OF PROVISION FOR LEAVE ENCASHMENT WHICH WAS DELETED BY THE CIT(A.) FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S. EXIDE INDUSTRIES LTD. (SUPRA). IT WAS POINTED 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 POINT AND RESTORE THE MATTER BACK TO THE FILE OF THE AO WITH THE DIRECTION THAT HE WILL 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 ORDERS OF AUTHORITIES BELOW ON THIS POINT AND RESTORE THE MATTER BACK TO THE FILE OF ASSESSING 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 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 STATISTICAL PURPOSES. 4. IN VIEW OF THE AFORESAID DECISION OF THE COORDINATE BENCH ON A SIMILAR ISSUE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR ADJUDICATION IN ACCORDANCE WITH THE DECISION OF HONBLE APEX COURT IN THE CASE OF M/S. EXIDE INDUSTRIES LTD., SUPRA. THUS, THIS GROUND OF ALL THE APPEALS OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. IN THE RESULT, APPEALS OF ASSESSEE FOR AYS 2006-07 AND 2007-08 ARE DISPOSED OFF. 3. AS THE ISSUE INVOLVED IN THE YEAR UNDER CONSIDERATION AS WELL AS ALL THE FACTS RELEVANT THERETO ARE SIMILAR TO A.Y. 2006-07 TO 2009-10, WE RESPECTFULLY FOLLOW THE ORDER OF THE TRIBUNAL FOR THE SAID YEARS AND RESTORE THIS ISSUE TO THE FILE OF THE A.O. FOR DECIDING THE SAME AFRESH AS 4 I.T.A. NO. 555/KOL/2018 ASSESSMENT YEAR: 2011-12 THE TINPLATE COMPANY OF INDIA PER THE SAME DIRECTIONS AS GIVEN BY THE TRIBUNAL FOR A.Y. 2006-07 TO 2009-10. GROUND NO. 1 OF THE ASSESSEES APPEAL IS ACCORDINGLY TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 4. GROUND NO. 2 RAISED BY THE ASSESSEE IN THIS APPEAL IS NOT PRESSED BY THE LEARNED COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING BEFORE US. THE SAME IS ACCORDINGLY DISMISSED AS NOT PRESSED. 5. THE ISSUE INVOLVED IN GROUND NO. 3 RELATING TO CHARGING OF INTEREST U/S 234D OF THE ACT IS CONSEQUENTIAL AND THE ASSESSING OFFICER IS DIRECTED TO ALLOW CONSEQUENTIAL RELIEF, IF ANY, TO THE ASSESSEE ON THIS ISSUE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH FEBRUARY, 2019. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 08/02/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. THE TINPLATE COMPANY OF INDIA, 4, BANSHALL STREET, KOLKATA 700 001. 2. DCIT, CIRCLE 3, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA