ADITYA BIRLA SUN LIFE AMC LTD. (FORMERLY KNOWN AS M/S. BIRLA SUN LIFE ASSET MANAGEMENT CO. LTD. ), MUMBAI V. DCIT 6 (1)(2), MUMBAI

ITA 6579/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3703 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 19-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S MICHAEL JERALD
• Assessee Lawyers: ADITI GOSALIA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI BEFORE SHRI C.N. PRAS AD, HON'BLE JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL , HON'BLE ACCOUNTANT MEMBER ITA NO. 6579 /MUM/201 8 ( A. Y : 2013 - 14) M/S. ADITYA BIRLA SUN LIFE AMC LIMITED {FORMERLY KNOWN AS M/S. BIRLA SUNLIFE ASSET MANAGEMENT COMPANY LTD.,} ONE INDIABULLS CENTRE , TOWER - 1 17 TH FLOOR , JUPITER MILL COMPOUND 841, S.B. MARG, ELIPHINSTONE ROAD MUMBAI 400 013 PAN: AUMBO5956G V. DY. COMMISSIONER OF INCOME - TAX 6(1)(2) ROOM NO. 502, 5 TH FLOOR AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400 020 ( ASSESSEE ) (RESPONDENT) ASSESSEE BY : MS MANSHI PADHIAR & MS ADITI GOSALIA DEPARTMENT BY : SHRI S. MICHAEL JERALD DATE OF HEARING : 14.11.2019 DATE OF PRONOUNCEMENT : 22 .11 .2019 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 12, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED FOR THE A.Y. 2013 - 14. 2. ASSESSEE HAS RAISED FOLLOWING GROUND IN ITS APPEAL: - 2 ITA NO. 6579/MUM/201 8 (A. Y: 2013 - 14) M/S. ADITYA BIRLA SUN LIFE AMC LIMITED ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA S E AND IN LAW, THE HON'BLE CIT(A) ERRED IN UPHOLDING THE ACTION OF THE ASSESSING OF FICER OF DISALLOWING PROVISION FOR LEAVE ENCASHMENT OF .51,41,483/ - ON THE ALLEGED GROUND THAT PROVISIONS OF SECTION 43B(F) OF THE ACT ARE APPLICABLE AND NOT ULTRA VIRES. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT IDENTICAL ISSUE CAME UP FO R CONSIDERATION BEFORE THE TRIBUNAL IN M/S. ADITYA BIRLA NUVO LTD. V . ACIT IN ITA.NO. 659 & 615 /MUM/2009 DATED 30.06.2014 WHICH IS A SISTER CONCERN OF ASSESSEE FOR THE A.Y. 200 2 - 03 WHEREIN THE TRIBUNAL DECIDED THE ISSUE IN ITS FAVOUR BY ALLOWING THE CLAIM OF PROVISIONS FOR LEAVE SALARY BY FOLLOWING VARIOUS CASE LAWS . LD. COUNSEL FOR THE ASSESSEE SUB MITS THAT F ACTS BEING IDENTICAL THIS YEAR, THE SAME MAY BE FOLLOWED. LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITS THAT THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA.NO S . 5457/MUM/2013 & 3027/MUM/2015 DATED 30.06.2015 & 17.01.2017 FOR THE A.YS. 2010 - 11 & 2011 - 12 RESPECTIVELY SET - ASIDE THIS MATTER TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH AFTER THE DECISION OF THE HON'BLE SUPREME COURT IN THE C ASE OF EXIDE INDUSTRIES LTD. COPY OF THE ORDERS ARE PLACED ON RECORD . 4. LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. ON A PERUSAL OF THE ORDER OF THE TRIBUNAL IN ITA.NO. 3 ITA NO. 6579/MUM/201 8 (A. Y: 2013 - 14) M/S. ADITYA BIRLA SUN LIFE AMC LIMITED 545 7 /MUM/20 13 DATED 30.06.201 5 , WE FIND THAT IDENTICAL ISSUE CAME UP BEFORE THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.Y. 20 10 - 11 AND THE TRIBUNAL DECIDED THE ISSUE OBSERVING AS UNDER: - 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS CORRECT THAT THE DECISION OF THE HONBLE KOLKATA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD. (SUPRA) HAS BEEN STAYED BY THE HONBLE SUPREME COURT VIDE ORDER DATED 08.09.08 PASSED IN SLP TO APPEAL (CIVIL ) CC 12060/2008 WHEREIN THE HONBLE SUPREME COURT HAS MADE THE FOLLOWING OBSERVATIONS: UPON HEARING COUNSEL THE COURT MADE THE FOLLOWING ORDER ISSUE NOTICE. IN THE MEANTIME, THERE SHALL BE STAY OF THE IMPUGNED JUDGMENT, UNTIL FURTHER ORDER. 7. WE FU RTHER FIND THAT THE HONBLE SUPREME COURT VIDE ORDER DATED 08.05.2009, PASSED IN SLP (CIVIL NO.22889/2008) WHILE GRANTING THE LEAVE TO FILE APPEAL, HAS MADE THE FOLLOWING OBSERVATIONS: ORDER DELAY CONDONED. LEAVE GRANTED. PENDING HEARING AND FINAL DIS POSAL OF THE CIVIL APPEAL, DEPARTMENT IS RESTRAINED FROM RECOVERING PENALTY AND INTEREST WHICH HAS ACCRUED TILL DATE. IT IS MADE CLEAR THAT AS FAR AS THE OUTSTANDING INTEREST DEMAND AS OF DATE IS CONCERNED, IT WOULD BE OPEN TO THE DEPARTMENT TO RECOVER THA T AMOUNT IN CASE CIVIL APPEAL OF THE DEPARTMENT IS ALLOWED. WE FURTHER MAKE IT CLEAR THAT THE ASSESSEE WOULD, DURING THE PENDENCY OF THIS CIVIL APPEAL, PAY TAX AS IF SECTION 43B(F) IS ON THE STATUTE BOOK BUT AT THE SAME TIME IT WOULD BE ENTITLED TO MAKE A CLAIM IN ITS RETURNS. 4 ITA NO. 6579/MUM/201 8 (A. Y: 2013 - 14) M/S. ADITYA BIRLA SUN LIFE AMC LIMITED 8. A PERUSAL OF THE ABOVE OBSERVATIONS REVEALS THAT WHILE ACCEPTING THE PETITION FOR LEAVE TO FILE THE APPEAL VIDE ORDER DATED 08.05.2009, THE HONBLE SUPREME COURT HAS DIRECTED THAT PENDING THE HEARING AND DISPOSAL OF THE CIVIL AP PEAL, THE DEPARTMENT IS RESTRAINED FROM RECOVERING PENALTY AND INTEREST WHICH HAS ACCRUED TILL DATE. IT HAS ALSO BEEN MADE CLEAR THAT IT WOULD BE OPEN TO DEPARTMENT TO RECOVER THE AMOUNT OF OUTSTANDING INTEREST DEMAND IN CASE THE APPEAL OF THE DEPARTMENT I S ALLOWED. IT HAS ALSO BEEN DIRECTED THAT DURING THE PENDENCY OF THE CIVIL APPEAL, THE ASSESSEE WILL PAY TAX AS IF SECTION 43B(F) IS ON STATUTE BOOK BUT AT THE SAME TIME THE ASSESSEE WOULD BE ENTITLED TO MAKE A CLAIM IN THIS RESPECT IN ITS RETURNS. 9. IN VIEW OF THE OBSERVATIONS OF THE HONBLE SUPREME COURT, IN OUR VIEW, IT WILL BE PROPER TO DISPOSE OF THIS APPEAL IN THE LIGHT OF THE ORDER OF THE HONBLE SUPREME COURT DATED 08.05.2009 PASSED IN THE CASE OF CIT VS. EXIDE INDUSTRIES LTD. (SUPRA). WE THEREF ORE DISPOSE OF THE PRESENT APPEAL WITH A DIRECTION THAT THE ASSESSEE WILL PAY THE TAX AS IF SECTION 43B(F) IS ON THE STATUTE BOOK, HOWEVER, TILL THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. EXIDE INDUSTRIES LTD. (SUPRA), THE REVENUE W ILL NOT RECOVER THE PENALTY AND INTEREST WHICH MAY ACCRUE TILL THE DECISION OF THE APPEAL BY THE HONBLE SUPREME COURT IN THE CASE OF EXIDE INDUSTRIES LTD. IT WOULD BE OPEN TO THE DEPARTMENT TO RECOVER THE OUTSTANDING INTEREST DEMAND IN CASE THE CIVIL AP PEAL OF THE DEPARTMENT IN THE CASE OF EXIDE INDUSTRIES LTD. (SUPRA) IS ALLOWED BY THE HONBLE SUPREME COURT. SUBJECT TO OUR ABOVE OBSERVATIONS, THE MATTER IS RESTORED TO THE FILE OF THE AO TO BE ADJUDICATED AFRESH AS PER THE DECISION OF THE HONBLE SUPRE ME COURT IN THE CASE OF EXIDE INDUSTRIES LTD. (SUPRA). 6. SIMILARLY, THE TRIBUNAL IN ITA.NO. 3027/MUM/2015 DATED 17.01.2017 FOR THE A.Y. 2011 - 12 FOLLOWING ITS EARLIER ORDER FOR THE A.Y. 2010 - 11 RESTORED THIS MATTER TO THE FILE OF THE ASSESSING OFFICER WITH SIMILAR DIRECTIONS. THUS, FOLLOWING THE EARLIER YEAR ORDER OF THIS TRIBUNAL WE RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH SIMILAR DIRECTIONS FOR THE ASSESSMENT YEAR UNDER CONSIDERATION I.E. A.Y. 2013 - 14. 5 ITA NO. 6579/MUM/201 8 (A. Y: 2013 - 14) M/S. ADITYA BIRLA SUN LIFE AMC LIMITED 7. IN THE RESULT, APPEAL OF THE ASS ESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 22 ND NOVEMBER 2019 SD/ - SD/ - ( MANOJ KUMAR AGGARWAL ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 22 / 11 / 2019 GIRIDHAR , S R. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM