FEDEX EXPRESS SERVICES (INDIA) P.LTD, MUMBAI V. ADDL CIT RG 8(1), MUMBAI

ITA 7409/MUM/2012

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6801 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 14-12-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: POOJA SWAROOP
• Keywords: Depreciation; Revenue expenditure; Capital expenditure
• Section: 43B; 143(3); 234B; 32; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI PAWAN SINGH, JM ./ I.T.A. NO. 7409/MUM/2012 ( / ASSESSMENT YEAR: 2008 - 09 ) FEDEX EXPRESS SE RVICES (INDIA) PRIVATE LIMITED 12, KOTESHWAR PALACE, JIVA MAHALE MARG, ANDHERI (EAST), MUMBAI - 400 069 / VS. ADDL. CIT, RANGE 8(1), AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 ./ ./ PAN/GIR NO. AAACP 3802 C ( / APPELLANT ) : ( / RESPONDENT ) & ./ I.T.A. NO. 3088/MUM/2014 ( / ASSESSMENT YEAR: 2009 - 10 ) FEDEX EXPRESS TRANSPORTATION AND SUPPLY CHAIN SERVICES INDIA PRIVATE LIMITED (FETSCS) [FEDEX EXPRESS SERVICES INDIA PRIVATE L IMITED MERGED WITH FETSCS W.E.F 01.10.2013] BOOMERANG, UNIT NO. 801, WING - A, 8 TH FLOOR, CHANDIVALI FARM ROAD, ANDHERI (EAST), MUMBAI - 400 072 / VS. DY. CIT 8(1), ROOM NO. 209, 2 ND FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 ./ ./ PAN/GIR NO. AAACP 3802 G ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI DHARMESH BAFNA/ SHRI RAVI SAWANA / RESPONDENT BY : MS. POOJA SWAROOP / DATE OF HE ARING : 15.03.2018 / DATE OF PRONOUNCEMENT : 01.06 .2018 2 ITA NO S . 7409/MU M/2012 3088/MUM/2014 / O R D E R PER S HAMIM YAHYA, A. M.: THESE ARE TWO APPEALS FILED BY THE ASSESSE E FOR THE ASSESSMENT YEAR S 2008 - 09 AND 2009 - 10 RESPECTIVELY. SINCE THE ISSUES ARE COMMON AN D THE APPEALS HAVE BEEN HEARD TOGETHER THESE ARE BEING CONSOLIDATED AND DISPOSED OF BY WAY OF THIS COMMON ORDER. ITA NO. 7409/MUM/2012 2. T HE GROUNDS RAISE D BY THE ASSESSEE READ AS UNDER: AGGRIEVED BY THE ORDER PASSED BY THE LEARNED ASSESSING OFFICER ('L EARNED AO'), IN PURSUANCE OF T H E DIRECTIONS OF THE HONORABLE DISPUTE RESOLUTION PANEL - I ('THE HONORABLE DRP'), UNDER SECTION 143(3) READ WITH SECTION 144C(13) AND SECTION 144C(5) OF THE INCOME - TAX ACT, 1961 ('THE ACT'), AND BASED ON THE FACTS AND CIRCUMS TANCES OF THE CASE, THE APPELLANT RESPECTFULLY SUBMITS THAT THE LEARNED AO AND THE HONORABLE DRP HAVE ERRED ON THE FOLLOWING GROUNDS EACH OF WHICH ARE WITHOUT PREJUDICE TO ONE ANOTHER: 1. IN DISALLOWING THE PROVISION FOR LEAVE ENCASHMENT OF RS . 43,32,598 AS EXPENDITURE FOR THE PURPOSES OF BUSINESS OF THE APPELLANT, WITHOUT ANY COGNIZANT AND SUFFICIENT REASONS. 2. IN HOLDING THAT THE APPELLANT WILL NOT BE ELIGIBLE TO CLAIM DEPRECIATION ON RS 45,779,802 PAID TO M/S FEDERAL EXPRESS INTERNATIONAL, INC CAPI TALIZED AS CAPITAL WORK - IN PROGRESS IN THE BOOKS OF ACCOUNTS ON THE PREMISE THAT THE APPELLANT HAS NOT COMPLIED WITH THE PROVISIONS OF CHAPTER XVII - B OF THE ACT AND IN REDUCING THE CAPITAL WORK IN PROGRESS TO BE CARRIED FORWARD IN THE SUBSEQUENT YEARS FROM RS 52,827,359 TO RS . 7,047,557 ON WHICH THE APPELLANT WILL BE ELIGIBLE TO CLAIM DEPRECIATION. IN NOT GRANTING CREDIT OF TAXES DEDUCTED AT SOURCE ON PAYMENTS MADE TO THE APPELLANT DURING THE AY 2008 - 09. 4. IN WRONGLY COMPUTING INTEREST UNDER SECTION 234B OF THE ACT WITHOUT GIVING APPROPRIATE CREDIT FOR TAXES DEDUCTED AT SOURCE ON PAYMENTS MADE TO THE APPELLANT DURING AY 2008 - 09. 5. IN WRONGLY COMPUTING INTEREST UNDER SECTION 234C OF THE ACT WITHOUT GIVING APPROPRIATE CREDIT FOR TAXES DEDUCTED AT SOURCE ON PAYMENTS MADE TO THE APPELLANT DURING AY 2008 - 09. A PROPOS GROUND NO. 1 : 3. B RIEF F ACTS ON THIS ISSUE ARE AS UNDER: 3 ITA NO S . 7409/MU M/2012 3088/MUM/2014 DURING ASSESSMENT YEAR 2008 - 09 THE ASS ESSEE CREATED A PROVISION OF RS. 4,332,598 / - FOR LEAVE ENCASHMENT TOWARDS UNUTILIZED LEAVE OF ITS EMPLOYEES. THE SAME WAS CLAIMED AS EXPENDITURE. THE ASSESSEE RELIED UPON THE DECISION OF THE CALCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LIMITED V UOI (292 ITR 470). THE ASSESSEE ADOPTED THE POSITION THAT THE UNPAID PROVISION OF LEAVE ENCASHMENT O F RS . 4,332,598 / - WAS NEITHER A CONTINGENT NOR A STATUTORY LIABILITY BUT EXPENDITURE INCURRED FOR THE PURPOSES OF ITS BUSINESS AND ALLOWABLE AS A DEDUCTION IN ARRIVING AT ITS TAXABLE INCOME IN THE YEAR IN WHICH THE PROVISION WAS MADE. HOWEVER, THE ASSESSEE DEPOSITED TAXES ON THE UNPAID PROVISION OF LEAVE ENCASHMENT IN THE FORM OF SELF ASSESSMENT TAX. AS THE ASSESSEE HAS NOT PAID THE LEAVE ENCASHMENT BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME FOR THE AY UNDER CONSIDERATION, THE ASSESSING OFFICER IS OF THE VIEW THAT THE SAME CANNOT BE ALLOWED AS A DEDUCTION IN COMPUTING THE TAXABLE INCOME OF THE ASSESSEE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 43B(F) OF THE ACT. THE ASSESSING OFFICER HAS ALSO POINTED OUT THAT APPEAL HAS BEEN FILED BY THE DEPARTMENT BEFORE THE SUPREME COURT AGAINST THE DECISION OF THE CALUCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LIMITED & ANR. (SUPRA). 4. UPON THE ASSESSEE'S OBJECTION , THE LEARNED DISPUTE RESOLUTION PANEL GAVE FOLLOWING DIRECTION: 5.3.1 WE HAVE ALSO SEEN TH AT THE ASSESSEE HAS FOLLOWED THE DECISION OF THE CALCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD & ANR (SUPRA) AND ADOPTED THE POSITION THAT PROVISION FOR UNPAID LEAVE ENCASHMENT OF RS 4,332,598 WAS NEITHER A CONTINGENT NOR A STATUTORY LIABILITY BU T EXPENDITURE INCURRED FOR THE PURPOSES OF ITS BUSINESS AND ALLOWABLE AS A DEDUCTION IN ARRIVING AT ITS TAXABLE INCOME IN THE YEAR IN WHICH THE PROVISION WAS MADE. IN THIS REGARD THE AO HAS POINTED OUT THAT THE DEPARTMENT HAS FILED A SPECIAL LEAVE PETITION BEFORE THE HON'BLE SUPREME COURT AGAINST THE DECISION OF THE CALCUTTA HIGH COURT IN THE CASE 4 ITA NO S . 7409/MU M/2012 3088/MUM/2014 OF EXIDE INDUSTRIES LTD & ANR (SUPRA). THUS IT IS CLEAR THAT THE ISSUE HAS NOT ATTAINED FINALITY . 5.3.2 IN LIGHT OF THE ABOVE, WE UPHOLD THE DECISION OF THE AO . 5. A GAINST THIS ORDER , THE ASSESSEE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECO RDS. WE FIND THAT THIS ISSUE IS COVERED AGAINST THE ASSESSE E BY SEVERAL CASE LAWS INCLUDING THAT IN THE ASSESSEES GROUP CASE IN ITA NO. 147 5/MUM/2012 IN THE CASE OF FEDERAL EXPRESS (INDIA) LTD. VS. ACIT VIDE ORDER DATED 20.03.2013. IN THIS CASE, THE TRIBUNAL HAS HELD AS UNDER: 4. WE HAVE PERUSED THE RECORDS AND CONSIDERED MATTER CAREFULLY. THE DISPUTE RAISED IS REGARDING ALLOWABILITY OF DEDUC TION ON ACCOUNT OF LEAVE ENCASHMENT ON THE BASIS OF PROVISIONS MADE IN THE ACCOUNTS. THE AO, DISALLOWED THE CLAIM ON THE GROUND THAT LEAVE ENCASHMENT HAS TO BE ALLOWED ON PAYMENT BASIS U/S 43 B (F). THE ASSESSEE HAS ARGUED THAT HONBLE HIGH COURT OF KOLKAT A IN CASE OF EXIDE INDUSTRIES (SUPRA) HAVE STRUCK DOWN THE PROVISIONS OF SECTION 43 B (F) AND THEREFORE, THE SAID PROVISIONS IS NOT APPLICABLE AND CLAIM HAS TO BE ALLOWED. HOWEVER, WE NOTE THAT THE JUDGMENT OF HONBLE HIGH COURT HAD BEEN CHALLENGED BY THE REVENUE BEFORE THE SUPREME COURT WHICH HAD STAYED THE OPERATION OF JUDGMENT AND HAS HELD THAT DURING THE PENDENCY OF THE APPEAL, THE ASSESSEE HAS TO PAY TAX AS IF SECTION 43B(F) WAS ON STATUTE BOOK. THEREFORE, CLAIM OF THE ASSESSEE COULD NOT BE ALLOWED ON THE BASIS OF JUDGMENT OF KOLKATA HIGH COURT IN CASE OF EXIDE INDUSTRIES LTD. (SUPRA). IN VIEW OF THE JUDGMENT THE SUPREME COURT (SUPRA) THE PROVISIONS OF SECTION 43B(F) HAVE TO BE TAKEN AS PART OF THE STATUTE WHILE CONSIDERING THE CLAIM OF DEDUCTION ON ACC OUNT OF LEAVE ENCASHMENT. WE THEREFORE SEE NO INFIRMITY IN THE ORDER OF CIT(A) CONFIRMING THE DISALLOWANCE MADE BY AO AND THE SAME IS THEREFORE, UPHELD. 7. R ESPECTFULLY FOLLOWING THE PRECEDENT AS ABOVE , WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE AS SESSING OFFICER. ACCORDINGLY , WE UPHOLD THE SAME. APROPOS GROUND NO. 2: 8. B RIEF FACTS ON THIS ISSUE ARE AS UNDER : 5 ITA NO S . 7409/MU M/2012 3088/MUM/2014 DURING ASSESSMENT YEAR 2008 - 09, TH E ASSESSEE PAID AN AMOUNT OF RS.4,5 7 , 79,802 / - TO FEDERAL EXP RESS INTERNATIONAL, INC (USA) AND REFLECTED THE SAME IN ITS FINANCIALS AS CAPITAL WORK - IN - P ROGRESS. IT WAS OBSERVED BY THE ASSESSING OFFICER THAT THE A SSESSEE HAS FAILED TO COMPLY WITH THE PROVISIONS OF CHAPTER XVII - B OF THE ACT BY NOT WITHHOLDING TAXES ON PAYMENTS OF RS .4,5 7 , 79,802 / - MADE TO M/S FE DERAL EXPRESS INTERNATIONAL, INC. ACCORDINGLY, HE HAS HELD THAT THE PAYMENT REQUIRES TO BE DISALLOWED UNDER THE PROVISIONS OF SECTION 40(A)(I) OF THE ACT. IT WAS SUBMITTED BY THE ASSESSEE THAT IN COMPUTING THE TAXABLE INCOME FOR AY 2008 - 09, THE ASSESSEE NE ITHER CLAIMED DEPRECIATION ON THE CAPITAL WORK IN PROGRESS , NOR DID IT CLAIM ED A DEDUCTION OF THIS A MOUNT. THE ASSESSING OFFICER HAS HELD THAT THE A SSESSEE WILL NOT BE ELIGIBLE TO CLAIM DEPRECIATION ON THIS SUM, AND HE HAS REDUCED THE CAPITAL WORK IN PROGR ESS TO BE CARRIED FORWARD IN THE SUBSEQUENT YEARS FROM RS .5,2 8 , 27,359 / - TO RS .7 0 , 47,557 / - ON WHICH THE A SSESSEE WILL BE ELIGIBLE TO CLAIM DEPRECIATION . 9. UP ON THE ASSESSEE'S OBJECTION , THE DISPUTE RESOLUTION PANEL HELD AS UNDER: 6.3 DISCUSSION AND DECISION: - WE HAVE GONE THROUGH THE ORDER OF THE AO AND SUBMISSION OF THE ASSESSEE. WE HAVE SEEN THAT THE ASSESSEE HAS MADE A PAYMENT TO M/S FEDERAL EXPRESS INTERNATIONAL INC ('FEU'), A COMPANY HAVING ITS OFFICE AT SINT GOELDELEPLEIN, 14, 1000, BRUSSELS. THERE IS NO DISPUTE THAT THESE PAYMENTS WERE MADE TO A NON RESIDENT. IN VIEW OF THIS, THE PAYMENTS MADE TO A NON RESIDENTS WILL GOVERNED BY THE PROVISIONS OF SECTION 195 OF THE ACT. IN TERMS OF THE PROVISIONS OF SECTION 195 ANY PERSON RESPONSIBLE FOR PAYIN G TO A NON RESIDENT, SHALL AT THE TIME OF CREDIT OF SUCH INCOME TO THE ACCOUNT OF PAYEE OR AT THE TIME OF PAYMENT THEREOF IN CASH OR BY THE ISSUE OF A CHEQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEVER IS EARLIER, DEDUCT INCOME - TAX THEREON AT THE RATES IN FOR CE. THE ASSESSEE HAD MADE THE PAYMENT OF RS. RS 45,779,802 TO FEII, AND FAILED TO DEDUCT INCOME TAX ON THE SAID PAYMENT MADE TO FEII. THEREFORE, THE ASSESSEE HAS VIOLATED THE PROVISIONS OF SECTION 195. THE AO HAS RIGHTLY ADJUSTED THE WORK IN PROGRESS OF TH E ASSESSEE. THE ACCOUNTING 6 ITA NO S . 7409/MU M/2012 3088/MUM/2014 TREATMENT GIVEN TO THIS PAYMENT AND NON CLAIM OF DEDUCTION IN THE RETURN HAS NO RELEVANCE FOR COMPLIANCE UNDER SECTION 195 OF THE ACT. SECTION 40 OF THE ACT DEALS WITH 'AMOUNTS NOT DEDUCTIBLE' AND ACCORDINGLY, ASSESSEE'S CLAIM TH AT NO DEDUCTION HAS BEEN CLAIMED IS POT MATERIAL. THE VIOLATION OF THE PROVISIONS OF SEC.195 OF THE ACT HAS RENDERED THE ASSESSEE SUBJECT TO SECTION 40 OF THE ACT AND A FUTURE DEPRECIATION CLAIM WILL TANTAMOUNT TO BE AN 'AMOUNT' IN TERMS OF SECTION 40 OF T HE ACT. IN THIS, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE DISALLOWANCE. 10. A GAINST THIS ORDER , THE ASSESSEE IS IN APPEAL BEFORE US. 11. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. THE L EARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT PRO VISIONS OF SECTION 40 (A)(IA) ARE NOT AT ALL ATTRACTED IN THIS CASE , AS THE SAID AMOUNT HAS NOT BEEN CLAIMED AS REVENUE EXPENDITURE. HENCE , HE SUBMITTED THAT THERE IS NO QUESTION OF DISALLOWING DEPRECATION CLAIMED ON THE CAPITAL ITEM SO ACQUIRED. FOR THIS P ROPOSITION , HE PLACED RELIANCE UPON FOLLOWING CASE LAWS: SR. NO. DECISIONS CITATION 1 CIT VS. MARK AUTO INDUSTRIES LTD. [358ITR 4 3(P&HHQ] 2. SAB MILLER INDIA LTD. VS. ACIT [155 1TD 1093 (MUMBAI TRIB.)] 3 SONIC BIOCHEM EXTRACTIONS (P.) LTD. VS. ITO [23 1 TR(T) 447 (MUMBAI TRIB.)] 4 SKOL BREWERIES LTD. VS. ACIT [28 ITR (T) 465 (MUMBAI TRIB.)] 5 KA W ASAKI MICROELECTRONICS INC. VS. DDIT(IT) [60 TAXMANN.COM 259(BANG. TRIB.)] 6. JAGUAR ENTERPRISES VS. DCIT [33 ITR(T) 483 (DELHI TRIB.)] 12. UP ON CAREFUL CONS IDERATION , WE FIND THAT IN THE ABOVE CASE LAWS IT HAS DULY BEEN HELD THAT WHEN THE PAYMENT IS IN THE REALM OF CAPITAL EXPENDITURE AND EXPENDITURE IS NOT CLAIMED AS REVENUE EXPENDITURE , THE PROVISIONS OF SECTION 4 O(A)(IA) ARE NOT APPLICABLE. IN THIS REGARD , WE MAY GAINFULLY REFER TO THE DECISION OF HONBLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT VS. MARK AUTO INDUSTRIES LTD. (SUPRA). I N THIS CASE THE QUESTION CONSIDERED BY THE HON OURABLE HIGH COURT WAS AS UNDER: 7 ITA NO S . 7409/MU M/2012 3088/MUM/2014 ( II ) WHETHER ON THE FACTS AND IN T HE CIRCUMSTANCES OF THE CASE LD. ITAT IS RIGHT IN LAW IN UPHOLDING THE ORDER OF LD. CIT(A), THAT THE PROVISION OF SECTION 40(A)(I) OF INCOME TAX ACT, 1961 ARE NOT APPLICABLE TO PAYMENTS OF TECHNICAL KNOW - HOW, SIMPLY BECAUSE ONLY PART OF IT IS WRITTEN OFF B Y THE ASSESSEE, EACH YEAR BY WAY OF DEPRECIATION U/S 32 OF INCOME TAX ACT, 1961? 13. T HE HONBLE HIGH COURT ANSWERED THE ABOVE QUESTION AS UNDER : 6. LEARNED COUNSEL FOR THE REVENUE WAS UNABLE TO SUBSTANTIATE THAT IN THE ABSENCE OF ANY REQUIREMENT OF LAW FOR MAKING DEDUCTION OF TAX OUT OF THE EXPENDITURE ON TECHNICAL KNOW - HOW WHICH WAS CAPITALIZED AND NO AMOUNT WAS CLAIMED AS REVENUE EXPENDITURE, THE DEDUCTION COULD BE DISALLOWED UNDER SECTION 40( A )( I ) OF THE ACT. ACCORDINGLY, NO INFIRMITY COULD BE FOUND IN THE ORDER PASSED BY THE TRIBUNAL WHICH MAY WARRANT INTERFERENCE BY THIS COURT. THUS, BOTH THE QUESTIONS ARE ANSWERED AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. 14. SIMILAR PROPOSITION W AS ALSO HELD BY THE RESPECTIVE D ECISIONS OF TRIBUNAL AS AB OVE. FOLLOWING THE ABOVE SAID PRECEDENTS , WE ARE OF THE CONSIDERED OPINION THAT ADVERSE INFERENCE DRAWN FOR LACK OF DEDUCTION OF TDS IN THIS CASE IS NOT SUSTAINABLE , INASMUCH AS THE PAYMENT WAS MADE IN RESPECT OF CAPITAL EXPENDITURE. HENCE , FOLLOWING THE A BOVE SAID PRECEDENTS , WE HOLD THAT ASSESSEE S CLAIM F OR DEPRECATION WAS JUSTIFIED. 15. THE OTHER GRO UNDS OF THE APPEAL ARE CONSEQUENTIAL AND HAVE BEEN ACCEPTED AS SUCH BY BOTH THE LD. COUNSELS FOR THE PARTIES . 16. IN THE RESULT , THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED . ITA NO. 3088/MUM/2014 17. THE GROUNDS OF APPEAL IN THIS APPEAL ARE AS UNDER: 1. DISALLOWANCE UNDER SECTION 43B OF THE ACT AMOUNTING TO RS 47,42,656 THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE UNDER SECTION 43B OF THE ACT ' BEING THE PROVISION FOR LEAVE ENCASHMENT OF RS 47,42,656 AS EXPENDITURE FOR THE 8 ITA NO S . 7409/MU M/2012 3088/MUM/2014 PURPOSES OF BUSINESS OF THE APPELLANT, ALTHOUGH THE VALIDITY OF THE SAID PROVISION HAS BEEN STRUCK DOWN BY THE CALCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD & A NR (SUPRA) AND SAME IS PENDING BEFORE SUPREME COURT. 2. DISALLOWANCE UNDER SECTION 40FA)FIA) OF THE ACT AMOUNTING TO RS 2.76,10,893 THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF DEPRECIATION AMOUNTING TO RS 2,76,10,893 CLAIMED BY THE APPELLANT ON COMPUTER SOFTWARE ON ACCOUNT OF FAILURE TO COMPLY WITH THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT AND IN DISREGARDING THE BINDING DECISIONS OF THE JURISDICTIONAL ITAT COVERING THE SAID ISSUE. 2.2 THE LEARNED CIT(A) FURTHER ERRED IN NOT DIREC TING THE RESPONDENT TO ALLOW THE ABOVE CLAIM OF DEPRECIATION IN THE YEAR OF PAYMENT OF TAXES DEDUCTED AT SOURCE IE AY 2013 - 14 18. THE GROUNDS RAISED ABOVE ARE SIMILAR TO THE ONE DEALT WITH BY US IN ITA NO. 7409/MUM/2012 ABOVE. FOLLOWING THE SAME REASONING , WE UPHOLD THE ORDERS OF THE AUTHORITIES BELOW ON GROUND NO. 1 RELATING TO CLAIM OF LEAVE ENCASHMENT AND ON THE GROUND NO. 2 RE LATING TO CLAIM OF DEPRECIATION , W E SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DIRECT THAT THE DE PRECIATION IS TO BE ALL OWED. 19. IN THE RESULT, BOTH THESE APPEAL S ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01.06.2018 SD/ - SD/ - ( PAWAN SINGH ) (S HAMIM YAHYA) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 01.06.2018 . . ./ ROSHANI , SR. PS 9 ITA NO S . 7409/MU M/2012 3088/MUM/2014 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT( A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI