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

ITA 556/KOL/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6024 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 02-04-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: VIVEK CHURIWALA ACA
• Keywords: Set aside
• Section: 43B

Judgement Text

1 ITA NO. 556/KOL/2018 THE TINPLATE COMPANY OF IN DIA LTD., AY- 2012-13 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 556/KOL/2018 ASSESSMENT YEAR: 2012-13 THE TINPLATE COMPANY OF INDIA LTD. (PAN: AABCT0129P) VS. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-3(1), KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 18.09.2019 DATE OF PRONOUNCEMENT 25.09.2019 FOR THE APPELLANT SHRI VIVEK CHURIWALA, ACA FOR THE RESPONDENT SHRI SUPRIYO PAL, JCIT, SR. DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF THE LD. CIT(A)-1, KOLKATA DATED 25.01.2018 FOR AY 2012-13. 2. THE FIRST GROUND OF APPEAL OF THE ASSESSEE IS AG AINST 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 ACTUARIAL VALUATION . 3. AT THE OUTSET ITSELF, IT WAS BROUGHT TO OUR NOTI CE THAT THE SIMILAR ISSUE HAD COME UP BEFORE THIS TRIBUNAL IN M/S. S. R. BATLIBOI & CO. V S. DCIT, ITA NO. 1598/KOL/2011 FOR AY 2007-08 WHEREIN THE TRIBUNAL VIDE PARA 4 HAS HELD A S UNDER: 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: 2 ITA NO. 556/KOL/2018 THE TINPLATE COMPANY OF IN DIA LTD., AY- 2012-13 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 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 TO AWAIT THE FINAL OUTCOME OF THE HON BLE APEX COURT IN SLP (CIVIL) 22889 OF 2008 IN M/S. EXIDE INDUSTRIES LTD. CASE AND DECIDE THIS ISSUE AS PER THE DECISION OF HONBLE APEX COURT IN M/S. EXIDE INDUSTRIES LTD., SUPRA. T HUS, THIS GROUND OF APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3 ITA NO. 556/KOL/2018 THE TINPLATE COMPANY OF IN DIA LTD., AY- 2012-13 5. GROUND NO. 2 OF ASSESSEES APPEAL IS AGAINST THE ACTION OF LD. CIT(A) IN UPHOLDING THE ACTION OF AO IN MAKING ADJUSTMENTS AGAINST TAXE S PAID AMOUNTING TO RS.3,22,38,555/-. AT THE TIME OF HEARING, THE LD. AR DID NOT PRESS TH IS GROUND OF APPEAL HENCE, THE SAME IS DISMISSED BEING NOT PRESSED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER IS PRONOUNCED IN THE OPEN COURT ON 25TH SEPT EMBER, 2019. SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 25TH SEPTEMBER, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT THE TINPLATE COMPANY OF INDIA LTD., 4, BANKSHALL STREET, KOLKATA-700 001. 2 RESPONDENT DCIT, CIRCLE-3(1), KOLKATA. 3. 4. CIT(A)-1, KOLKATA CIT-, , KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR