BARODA RAJASTHAN KSHETRIYA GRAMIN BANK, AJMER V. DEPUTY COMMISSIONER OF INCOME TAX, AJMER

MA 52/JPR/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7217 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-10-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 22-07-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RUNI PAL JCIT DHK
• Assessee Lawyers: AJAY SOMANI
• Keywords: Period of limitation; Competent authority; Set aside
• Section: 37(1); 254(2)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH B, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM M.A. NO. 52/JP/2019 ( ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 272/JP/2018) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2014-15. BARODA RAJASTHAN KSHETRIYA GRAMIN BANK PLOT NO. 2343, 2 ND FLOOR, VAISHALI NAGAR, AJMER. CUKE VS. THE DCIT, CIRCLE-1, AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAAJB 1164 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI AJAY SOMANI (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. RUNI PAL (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 18.10.2018. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 18/10/2018. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE THOUGH HAS NOT POINTED OUT ANY MISTAKE IN THE ORDER DATED 17.05.2018 OF TH IS TRIBUNAL. 2. WE HAVE HEARD THE LD. A/R AS WELL AS THE LD. D/R AND CAREFULLY PERUSED THE IMPUGNED ORDER DATED 17.05.2018 OF THE TRIBUNAL. T HE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT SINCE THE AO HAS MISUNDERSTOOD THE O RDER AND MIS-INTERPRETED THE FINDING OF THE TRIBUNAL, THEREFORE, THE ASSESSEE HA S FILED THIS MISCELLANEOUS APPLICATION. HE HAS ALSO SUBMITTED THAT FOR THE AS SESSMENT YEARS 2009-10 AND 2010-11 THE TRIBUNAL HAS AGAIN DECIDED THIS ISSUE O F DISALLOWANCE OF LEAVE ENCASHMENT LIABILITY VIDE ORDER DATED 03.08.2018 IN ITA NOS. 273 & 274/JP/2018. DESPITE THE SUBSEQUENT ORDER OF THIS TRIBUNAL, THE AO HAS NOT GRANTED RELIEF TO THE 2 MA NO. 52/JP/2019 BARODA RAJASTHAN KSHETRIYA GRAMIN BANK, AJMER. ASSESSEE. THUS THE LD. A/R HAS SUBMITTED THAT THE A SSESSEE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION FOR SEEKING SOME APPROPRI ATE DIRECTIONS TO THE AO. 3. ON THE OTHER HAND, THE LD. D/R HAS VEHEMENTLY OP POSED THE MISCELLANEOUS APPLICATION AND SUBMITTED THAT THE MISCELLANEOUS AP PLICATION IS NOT MAINTAINABLE AS NO MISTAKE HAS BEEN POINTED OUT BY THE ASSESSEE IN THE ORDER OF THE TRIBUNAL. FURTHER, THE MISCELLANEOUS APPLICATION IS ALSO BARR ED BY LIMITATION. 4. AT THE OUTSET, WE NOTE THAT THIS MISCELLANEOUS A PPLICATION HAS BEEN FILED BY THE ASSESSEE ON 22 ND JULY, 2019 AGAINST THE ORDER DATED 17.05.2018. THE REFORE, IT IS BEYOND THE PERIOD OF LIMITATION PROVIDED UNDER SECT ION 254(2) OF THE IT ACT BEING 6 (SIX) MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER IS PASSED. THUS THE MISCELLANEOUS APPLICATION IS BARRED BY LIMITATION. THE ASSESSEE HAS ALSO NOT POINTED OUT HOW THE MISCELLANEOUS APPLICATION IS NOT BARRED BY LIMITATION AND MAINTAINABLE. FURTHER IT IS APPARENT THAT THE ASSESSEE HAS NOT PO INTED OUT ANY MISTAKE IN THE IMPUGNED ORDER OF THE TRIBUNAL BUT SINCE THE AO HAS REFUSED TO GRANT ANY RELIEF, THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS APPLIC ATION. THE PROPER REMEDY FOR THE REFUSAL OF RELIEF BY THE AO IN THE SET ASIDE PROCEE DINGS ARE THE APPEAL BEFORE THE LD. CIT (A) AND NOT SEEKING THE RELIEF IN THE MISCELLAN EOUS APPLICATION. THE TRIBUNAL HAS SET ASIDE THE ISSUE OF LEAVE ENCASHMENT LIABILITY T O THE RECORD OF THE AO IN PARA 4.1 TO 4.3 AS UNDER :- 4.1 THE GROUND NO. 2 (II) OF THE ASSESSEE IS REGARD ING THE DISALLOWANCE OF INSURANCE PREMIUM PAID TO LIC AND OTHERS TOWARDS LEAVE ENCASHMENT LIABILITY OF RS. 34,19,23,944/- (RS. 35,19,00,000 L ESS RS. 99,76,056). BRIEF FACTS OF THE CASE ARE THAT THE AO DURING THE COURSE OF AS SESSMENT PROCEEDING REQUESTED THE ASSESSEE BANK TO FURNISH THE INFORMAT ION RELATING TO THE AMOUNT OF LEAVE ENCASHMENT AND CONFIRM AS TO WHETHE R THE AMOUNT OF LEAVE ENCASHMENT SHOWN IN P&L A/C IS ACTUALLY PAID TO THE EMPLOYEES. IF THE SAME IS PAID TO THE EMPLOYEES THEN THE ASSESSEE BAN K SHALL FURNISH THE 3 MA NO. 52/JP/2019 BARODA RAJASTHAN KSHETRIYA GRAMIN BANK, AJMER. DOCUMENTARY PROOF FOR THE SAME. THE ASSESSEE BANK S UBMITTED REPLY OF THE ABOVE QUERY VIDE LETTER NO. 18028 DATED 29-12-2016 WHICH HAS BEEN CONSIDERED BY THE AO. HOWEVER, THE AO DID NOT FIND THE ASSESSEE BANKS REPLY ACCEPTABLE ON THE FOLLOWING GROUNDS:- (I) IT IS SEEN THAT THE ASSESSEE BANK HAS BEEN CLAI MING THIS DEDUCTION ON THE BASIS OF INVESTMENT MADE FOR THIS PURPOSE WITH THE LIC, BAJAJ ALLIANZ, FUTURE GENERALI, AVIVA, HDFC, INDIA FIRST AND BIRLA . ANY PAYMENT FOR LEAVE ENCASHMENT IN FUTURE HAS TO BE MADE OUT OF THAT FUN D. HOWEVER, NO SUCH DEDUCTION IS ALLOWABLE UNDER ANY OF THE PROVISIONS OF THE INCOME TAX ACT AND DEDUCTION IF ANY HAS TO BE ALLOWED ONLY ON THE ACTUAL PAYMENT MADE TO THE EMPLOYEES. (II) THE CONTENTION OF THE ASSESSEE BANK WAS DULY C ONSIDERED BUT WAS NOT ACCEPTABLE FOR THE REASON THAT SECTION 37(1) PR OVIDES FOR THE ALLOWING OF ANY EXPENDITURE LAID OUT OR EXPENDED WHOLLY AND EXC LUSIVELY FOR THE PURPOSE OF THE BUSINESS. IT DOES NOT COVER ANY PROVISION MA DE FOR THE PURPOSE OF ANY FUTURE LIABILITY. (III) THE PROVISIONS MADE BY THE ASSESSEE FOR LEAV E ENCASHMENT EXPENSES (ALTHOUGH THE PAYMENT HAS BEEN MADE TO LIC ) IS NOT A PAYMENT TO EMPLOYEES AND AS SUCH THE EXPENSES ARE NOT ALLOWABL E UNDER THE PROVISIONS OF SECTION 43B(F) OF THE INCOME TAX ACT, 1961. THE CASE OF THE ASSESSEE IS CLEARLY HIT BY THE PROVISIONS OF SECTION 43B(F) OF THE ACT. AS THE ASSESSEE HAS NOT MADE ANY PAYMENT TO EMPLOYEES MORE PARTICULARLY IN VIEW OF THE PROVISIONS OF SECTION 43B(F) OF THE ACT, THE DEDUCT ION IN RESPECT OF EXPENSES CLAIMED BY THE ASSESSEE ON ACCOUNT OF PROVISIONS FO R LEAVE ENCASHMENT IS NOT ALLOWABLE TO THE ASSESSEE. (IV) MOREOVER THE ASSESSEE HAS NOT FURNISHED THE DO CUMENTARY PROOF THAT THE GROUP LEAVE ENCASHMENT FUND IS AN APPROVED FUND BY THE COMPETENT AUTHORITY. IN VIEW OF THE ABOVE REASONS , THE PROVISION MADE F OR THE LEAVE ENCASHMENT OF RS. 35,19,00,000/-IS DISALLOWED AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE BY THE AO. 4.2 IN FIRST APPEAL, THE LD. CIT(A) HAS CONFIRMED T HE ADDITION OF RS. 34,19,23,944/- BY OBSERVING AS UNDER:- 4.12..THE APPELLANT HAS ALSO RELIED UPON THE DE CISION OF ITAT JAIPUR IN THE CASE OF JHALAWAR KENDRIYA SAHAKARI BA NK. IN THIS CASE ALSO, THE RELIEF WAS ALLOWED TO THE APPELLANT ON TH E SUBMISSION MADE BY THE APPELLANT THAT AFTER CONTRIBUTION OF PREMI UM, THE APPELLANT HAS NO CONTROL OVER THE SAME. (PAGE NO 9 OF THE O RDER). THE TRIBUNAL ALSO RELIED UPON THE DECISION OF HON'BLE S UPREME COURT IN THE CASE OF TEXTOOL COMPANY LTD AND DECISION OF ITA T DELHI IN THE CASE OF THE NAINITAL BANK LIMITED. AS I HAVE ALREA DY DISCUSSED ABOVE THE FACTS OF TEXTOOL COMPAY LIMITED, ON WHICH THE D ECISION OF THE NAINITAL BANK LIMITED WAS BASED WERE TOTALLY DIFFER ENT FROM THE FACTS OF THE APPELLANTS CASE. THEREFORE, THE DECIS ION OF ITAT JAIPUR IS 4 MA NO. 52/JP/2019 BARODA RAJASTHAN KSHETRIYA GRAMIN BANK, AJMER. ALSO NOT APPLICABLE TO THE CASE OF THE APPELLANT BE CAUSE THE APPELLANT HAS ABSOLUTE CONTROL OVER THE FUNDS PARKE D WITH THESE COMPANIES AND THE EMPLOYEES DO NOT HAVE ANY CONTROL OVER THESE FUNDS. THE OTHER DECISION RELIED UPON BY THE APPELL ANT ARE NOT RELEVANT FOR DECIDING THE ALLOWABILITY OF DEDUCTION U/S 43B(F). I HAVE GONE THROUGH THE VARIOUS DECISIONS RELIED UPON BY T HE APPELLANT CAREFULLY. IN THE DECISION GIVEN BY THE ITAT DELHI H BENCH IN THE CASE OF THE NAINITAL BANK, THE AMOUNT PAID TO LIC O N ACCOUNT OF LEAVE ENCASHMENT WAS ALLOWED AS DEDUCTING RELYING O N THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT VS TEXTOOL COMPANY LTD (262 IKTR 257) AND THE DECISION IN THE CASE OF ASSO CIATED ELECTRICAL INDUSTRIES (INDIA) PVT. LTD. I HAVE GONE THROUGH TH E DECISION OF THE SUPREME COURT IN THE CASE OF TEXTOOL COMPANY LTD. C AREFULLY. THE ISSUE DECIDED BY THE HON'BLE SUPREME COURT IN THAT CASE WAS ADMISSIBILITY OF DEDUCTION OF THE PAYMENT MADE TO L IC TOWARDS GRATUITY FUND U/S 36(1)(V) OF THE I.T. ACT, 1961. T HE ISSUE OF ALLOWABILITY OF DEDUCTION U/S 43(B)(F) OF LEAVE ENC ASHMENT WAS NOT THERE BEFORE THE HON'BLE SUPREME COURT. THE HON'BLE SUPREME COURT ALLOWED THE CLAIM OF THE APPELLANT OBSERVING AS UNDER:- HAVING CONSIDERED THE MATTER IN THE LIGHT OF THE BACKGROUND FACTS, WE ARE OF THE OPINION THAT THERE IS NO MERIT IN THE APPEAL. TRUE THAT A FISCAL STATUTE IS TO BE CONSTRUED STRICTLY AND NOTH ING SHOULD BE ADDED OR SUBTRACTED TO THE LANGUAGE EMPLOYED IN THE SECTION, YET A STRICT CONSTRUCTION OF A PROVISION DOES NOT RULE OUT THE A PPLICATION OF THE PRINCIPLES OF REASONABLE CONSTRUCTION TO GIVE EFFEC T TO THE PURPOSE AND INTENTION OF ANY PARTICULAR PROVISION OF THE ACT (S EE: SHRI SAJJAN MILLS LTD. VS LD. CIT, M.P. & ANR.(1985) 156 ITR 585). FROM A BAR E READING OF SECTION 36(1)(V) OF THE ACT, IT IS MANIFEST THAT THE REAL I NTENTION BEHIND THE PROVISION IS THAT THE EMPLOYER SHOULD NOT HAVE ANY CONTROL OV ER THE FUNDS OF THE IRREVOCABLE TRUST CREATED EXCLUSIVELY FOR THE BENEF IT OF THE EMPLOYEES. IN THE INSTANT CASE, IT IS EVIDENT FROM THE FINDINGS RECOR DED BY THE COMMISSIONER AND AFFIRMED BY THE TRIBUNAL THAT THE ASSESSEE HAD ABSOLUTELY NO CONTROL OVER THE FUNDS CREATED BY THE LIC FOR THE BENEFIT OF THE EMPLOYEES OF THE ASSESSEE AND FURTHER AL THE CONTRIBUTION MADE BY TH E ASSESSEE IN THE SAID FUND ULTIMATELY CAME BACK TO THE TEXTOOL EMPLOYEES GRATUITY FUND, APPROVED BY THE COMMISSIONER WITH EFFECT FROM THE F OLLOWING PREVIOUS YEAR. THUS THE CONDITIONS STIPULATED IN SECTION 36(1)(V) OF THE ACT WERE SATISFIED. . THUS I AM OF THE OPINION THAT EVEN THE DECISION OF ASSOCIATED ELECTRICAL INDIA PVT. LTD IS ALSO NOT APPLICABLE IN THE CASE UNDER CONSIDERATION. THE APPELLANT HAS ALSO RELIED UPON THE DECISION OF ITAT JAIPUR IN THE CASE OF JHALAWAR KENDRIYA SAHAKARI BANK. IN THIS CA SE ALSO, THE RELIEF WAS ALLOWED TO THE APPELLANT ON THE SUBMISSION MADE BY THE APPELLANT THAT AFTER CONTRIBUTION OF PREMIUM, THE APPELLANT HAS NO CONTROL OVER THE SAME (PAGE NO. 9 OF THE ORDER). THE TRIBUNAL ALSO RELIED UPON THE DECISION OF HON'BLE SUPREME COURT I N THE CASE OF TEXTOOL COMPANY LTD AND DECISION OF ITAT DELHI IN T HE CASE OF THE NAINITAL BANK LIMITED. AS I HAVE ALREADY DISCUSSED ABOVE THE FACTS OF 5 MA NO. 52/JP/2019 BARODA RAJASTHAN KSHETRIYA GRAMIN BANK, AJMER. TEXTOOL COMPANY LIMITED ON WHICH THE DECISION OF TH E NAINITAL BANK LTD WAS BASED WERE TOTALLY DIFFERENT FROM THE FACT S OF THE APPELLANTS CASE. THEREFORE, THE DECISION OF ITAT J AIPUR IS ALSO NOT APPLICABLE TO THE CASE OF THE APPELLANT BECAUSE THE APPELLANT HAS ABSOLUTE CONTROL OVER THE FUNDS PARKED WITH THESE C OMPANIES AND EMPLOYEES DO NOT HAVE ANY CONTROL OVER THESE FUNDS. THE OTHER DECISION RELIED UPON BY THE APPELLANT ARE NOT RELEV ANT FOR DECIDING THE ALLOWABILITY OF DEDUCTION U/S 43B(F) 4.13 IT IS PERTINENT TO MENTION THAT IN THE A.Y. 2 009-10 AND 2010- 11,THE APPELLANT ITSELF HAD SHOWN THE FUNDS PARKED WITH LIC AND OTHER COMPANIES FOR LEAVE ENCASHMENT AS INVESTMENT IN SCHEDULE II OF THE BALANCE SHEET (RS. 4,35,91,748 AND RS. 5,77, 16,828 AS ON 31- 03-2009 AND 31-03-2010 RESPECTIVELY) IN THE A.Y. 20 10-11, THE INTEREST ACCRUED ON SUCH FUNDS WAS CREDITED TO THE PROFIT & LOSS ACCOUNT UNDER THE HEAD OTHER INCOME. THEREFORE , I FIND NO JUSTIFICATION FOR CLAIMING INVESTMENT OF SAME NATUR E AS EXPENDITURE IN THE A.Y. 2014-15. 4.14 AS PER INFORMATION FURNISHED BY THE APPELLANT, THE ACTUAL AMOUNT PAID TOWARDS LEAVE ENCASHMENT TO EMPLOYEES T HROUGH LIC WAS RS. 99,76,056/-, THEREFORE, IN VIEW OF THE DISC USSION MADE ABOVE, THE DEDUCTION OF RS. 99,76,056/- IS HELD TO BE ALLOWABLE U/S 43B(F) BECAUSE THIS WAS THE SUM PAYABLE AND ACTUALL Y PAID BY THE ASSESSEE AS EMPLOYER IN LIEU OF ANY LEAVE AT THE CR EDIT OF HIS EMPLOYEE, AS SPECIFIED U/S 43B(F). ACCORDINGLY, OUT OF THE TOTAL DISALLOWANCE OF RS. 35,19,00,000/- DISALLOWANCE OF RS. 99,76,056/- IS DELETED AND THE REMAINING DISALLOWANCE OF RS. 34,19 ,23,944/- (RS. 35,19,00,000 RS. 99,76,056) IS HEREBY CONFIRMED. 4.3 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE DREW OUR ATTENTION TO THE DECISION OF ITAT JAIPUR B ENCH IN THE CASE JHALAWAR KENDRIYA SAHAKARI BANK LTD VS ACIT (ITA NO.1032/JP/ 2011 AND ITA NO. 1051/JP/2011 IN THE CASE OF ACIT VS JHALAWAR KENDRI YA SAHAKARI BANK LTD WHEREIN THE BENCH HAS ALLOWED THE BENEFIT OF GROUP LEAVE ENCASHMENT SCHEME TO THE BANK BY OBSERVING AS UNDER:- 19. APROPOS THE DEPARTMENTAL APPEAL, THE ASSESSEE TOOK A POLICY FROM LIC NAMED AS JHALWAR KENDRIYA SAHAKARI BANK EMPLOYEE GROUP LEAVE ENCASHMENT SCHEME. THE FACTS ARE MENTIO NED IN DETAIL ABOVE. THE PAYMENT OF LEAVE ENCASHMENT IS A CONTRAC TUAL LIABILITY8, A CHARGE ON ASSESSEE'S PROFIT. TO ENSURE TIMELY BEN EFIT OF LEAVE ENCASHMENT OF EMPLOYEES SCHEME IS DEVISED BY THE L IC, WHICH WORKS OUT THE LEAVE ENCASHMENT LIABILITY AND FIXATI ON OF PREMIUM. THE LIABILITY IS ASCERTAINED AND CRYSTALLIZED ON A SCIENTIFIC METHOD BY THE LIC. THUS, THE ASSESSEE'S PAYMENT OF RS. 40 LAC S TOWARDS THE SAME IS WITHIN THE FRAMEWORK OF THE SCHEME. IN OUR CONSIDERED VIEW, THE SAME IS ALLOWABLE DEDUCTION. THIS VIEW FU RTHER SUPPORTED BY THE HON'BLE SUPREME COURT IN THE CASE OF TEXTOOL CO. LTD (SUPRA) 6 MA NO. 52/JP/2019 BARODA RAJASTHAN KSHETRIYA GRAMIN BANK, AJMER. AND ITAT JUDGEMENT IN THE CASE OF NAINITAL BANK LTD (SUPRA). RESPECTFULLY FOLLOWING THE SAME, WE HOLD THAT THE A SSESSEE IS ELIGIBLE FOR THIS DEDUCTION. THE LD.AR OF THE ASSESSEE FURTHER SUBMITTED THAT TH E ASSESSEE HAS DISCHARGED ITS LIABILITY TOWARDS LEAVE ENCASHMENT S CHEME, THE SAME IS THEREFORE, ALLOWABLE AS EXPENDITURE U/S 37(1)OF THE ACT. TAKING INTO CONSIDERATION THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND THE DECISIONS RELIED UPON BY THE LD.AR OF THE ASSESSEE, IT WILL BE IN THE INTEREST OF EQUITY AND JUSTICE TO RESTORE THE ISSUE TO THE FILE OF THE AO FOR AFRESH ADJUDICATION. THE ASSESSEE IS DIRECTED TO SUBMIT TH E WRITTEN SUBMISSION ALONGWITH RELEVANT DETAILS BEFORE THE AO. THUS GROU ND NO. 2(II) OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THEREFORE, THE TRIBUNAL WHILE REMANDING THE MATTER TO THE RECORD OF THE AO HAS ALSO CONSIDERED THE DECISION IN CASE OF JHALAWAR KENDRIY A SAHAKARI BANK LTD. SUBSEQUENTLY THE TRIBUNAL VIDE ORDER DATED 03.08.20 18 IN ITA NOS. 273 & 274/JP/2018 FOR THE ASSESSMENT YEARS 2009-10 AND 20 10-11 HAS ALSO CONSIDERED THIS ISSUE AND DIRECTED THE AO TO VERIFY THE FACTS AND T HE DECIDE THE CLAIM IN PARA 4 AS UNDER :- 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD, WE NOTE THAT AN IDENTICAL ISSUE WAS CONSIDERED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2014-15 VIDE ORDER DATED 17.05.2018 IN ITA NO. 272/JP/2018 IN PARA 4.1 TO 4.3 AS UNDER :- 4.1 THE GROUND NO. 2 (II) OF THE ASSESSEE IS REGARD ING THE DISALLOWANCE OF INSURANCE PREMIUM PAID TO LIC AND OTHERS TOWARDS LEAVE ENCASHMENT LIABILITY OF RS. 34,19,23,944/- (RS. 35,19,00,000 L ESS RS. 99,76,056). BRIEF FACTS OF THE CASE ARE THAT THE AO DURING THE COURSE OF AS SESSMENT PROCEEDING REQUESTED THE ASSESSEE BANK TO FURNISH THE INFORMAT ION RELATING TO THE AMOUNT OF LEAVE ENCASHMENT AND CONFIRM AS TO WHETHE R THE AMOUNT OF LEAVE ENCASHMENT SHOWN IN P&L A/C IS ACTUALLY PAID TO THE EMPLOYEES. IF THE SAME IS PAID TO THE EMPLOYEES THEN THE ASSESSEE BAN K SHALL FURNISH THE DOCUMENTARY PROOF FOR THE SAME. THE ASSESSEE BANK S UBMITTED REPLY OF THE ABOVE QUERY VIDE LETTER NO. 18028 DATED 29-12-2016 WHICH HAS BEEN 7 MA NO. 52/JP/2019 BARODA RAJASTHAN KSHETRIYA GRAMIN BANK, AJMER. CONSIDERED BY THE AO. HOWEVER, THE AO DID NOT FIND THE ASSESSEE BANKS REPLY ACCEPTABLE ON THE FOLLOWING GROUNDS:- (I) IT IS SEEN THAT THE ASSESSEE BANK HAS BEEN CLAI MING THIS DEDUCTION ON THE BASIS OF INVESTMENT MADE FOR THIS PURPOSE WITH THE LIC, BAJAJ ALLIANZ, FUTURE GENERALI, AVIVA, HDFC, INDIA FIRST AND BIRLA . ANY PAYMENT FOR LEAVE ENCASHMENT IN FUTURE HAS TO BE MADE OUT OF THAT FUN D. HOWEVER, NO SUCH DEDUCTION IS ALLOWABLE UNDER ANY OF THE PROVISIONS OF THE INCOME TAX ACT AND DEDUCTION IF ANY HAS TO BE ALLOWED ONLY ON THE ACTUAL PAYMENT MADE TO THE EMPLOYEES. (II) THE CONTENTION OF THE ASSESSEE BANK WAS DULY C ONSIDERED BUT WAS NOT ACCEPTABLE FOR THE REASON THAT SECTION 37(1) PR OVIDES FOR THE ALLOWING OF ANY EXPENDITURE LAID OUT OR EXPENDED WHOLLY AND EXC LUSIVELY FOR THE PURPOSE OF THE BUSINESS. IT DOES NOT COVER ANY PROVISION MA DE FOR THE PURPOSE OF ANY FUTURE LIABILITY. (III) THE PROVISIONS MADE BY THE ASSESSEE FOR LEAV E ENCASHMENT EXPENSES (ALTHOUGH THE PAYMENT HAS BEEN MADE TO LIC ) IS NOT A PAYMENT TO EMPLOYEES AND AS SUCH THE EXPENSES ARE NOT ALLOWABL E UNDER THE PROVISIONS OF SECTION 43B(F) OF THE INCOME TAX ACT, 1961. THE CASE OF THE ASSESSEE IS CLEARLY HIT BY THE PROVISIONS OF SECTION 43B(F) OF THE ACT. AS THE ASSESSEE HAS NOT MADE ANY PAYMENT TO EMPLOYEES MORE PARTICULARLY IN VIEW OF THE PROVISIONS OF SECTION 43B(F) OF THE ACT, THE DEDUCT ION IN RESPECT OF EXPENSES CLAIMED BY THE ASSESSEE ON ACCOUNT OF PROVISIONS FO R LEAVE ENCASHMENT IS NOT ALLOWABLE TO THE ASSESSEE. (IV) MOREOVER THE ASSESSEE HAS NOT FURNISHED THE DO CUMENTARY PROOF THAT THE GROUP LEAVE ENCASHMENT FUND IS AN APPROVED FUND BY THE COMPETENT AUTHORITY. IN VIEW OF THE ABOVE REASONS , THE PROVISION MADE F OR THE LEAVE ENCASHMENT OF RS. 35,19,00,000/-IS DISALLOWED AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE BY THE AO. 4.2 IN FIRST APPEAL, THE LD. CIT(A) HAS CONFIRMED T HE ADDITION OF RS. 34,19,23,944/- BY OBSERVING AS UNDER:- 4.12..THE APPELLANT HAS ALSO RELIED UPON THE DE CISION OF ITAT JAIPUR IN THE CASE OF JHALAWAR KENDRIYA SAHAKARI BA NK. IN THIS CASE ALSO, THE RELIEF WAS ALLOWED TO THE APPELLANT ON TH E SUBMISSION MADE BY THE APPELLANT THAT AFTER CONTRIBUTION OF PREMI UM, THE APPELLANT HAS NO CONTROL OVER THE SAME. (PAGE NO 9 OF THE O RDER). THE TRIBUNAL ALSO RELIED UPON THE DECISION OF HON'BLE S UPREME COURT IN THE CASE OF TEXTOOL COMPANY LTD AND DECISION OF ITA T DELHI IN THE CASE OF THE NAINITAL BANK LIMITED. AS I HAVE ALREA DY DISCUSSED ABOVE THE FACTS OF TEXTOOL COMPAY LIMITED, ON WHICH THE D ECISION OF THE NAINITAL BANK LIMITED WAS BASED WERE TOTALLY DIFFER ENT FROM THE FACTS OF THE APPELLANTS CASE. THEREFORE, THE DECIS ION OF ITAT JAIPUR IS ALSO NOT APPLICABLE TO THE CASE OF THE APPELLANT BE CAUSE THE APPELLANT HAS ABSOLUTE CONTROL OVER THE FUNDS PARKE D WITH THESE 8 MA NO. 52/JP/2019 BARODA RAJASTHAN KSHETRIYA GRAMIN BANK, AJMER. COMPANIES AND THE EMPLOYEES DO NOT HAVE ANY CONTROL OVER THESE FUNDS. THE OTHER DECISION RELIED UPON BY THE APPELL ANT ARE NOT RELEVANT FOR DECIDING THE ALLOWABILITY OF DEDUCTION U/S 43B(F). I HAVE GONE THROUGH THE VARIOUS DECISIONS RELIED UPON BY T HE APPELLANT CAREFULLY. IN THE DECISION GIVEN BY THE ITAT DELHI H BENCH IN THE CASE OF THE NAINITAL BANK, THE AMOUNT PAID TO LIC O N ACCOUNT OF LEAVE ENCASHMENT WAS ALLOWED AS DEDUCTING RELYING O N THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT VS TEXTOOL COMPANY LTD (262 IKTR 257) AND THE DECISION IN THE CASE OF ASSO CIATED ELECTRICAL INDUSTRIES (INDIA) PVT. LTD. I HAVE GONE THROUGH TH E DECISION OF THE SUPREME COURT IN THE CASE OF TEXTOOL COMPANY LTD. C AREFULLY. THE ISSUE DECIDED BY THE HON'BLE SUPREME COURT IN THAT CASE WAS ADMISSIBILITY OF DEDUCTION OF THE PAYMENT MADE TO L IC TOWARDS GRATUITY FUND U/S 36(1)(V) OF THE I.T. ACT, 1961. T HE ISSUE OF ALLOWABILITY OF DEDUCTION U/S 43(B)(F) OF LEAVE ENC ASHMENT WAS NOT THERE BEFORE THE HON'BLE SUPREME COURT. THE HON'BLE SUPREME COURT ALLOWED THE CLAIM OF THE APPELLANT OBSERVING AS UNDER:- HAVING CONSIDERED THE MATTER IN THE LIGHT OF THE BACKGROUND FACTS, WE ARE OF THE OPINION THAT THERE IS NO MERIT IN THE APPEAL. TRUE THAT A FISCAL STATUTE IS TO BE CONSTRUED STRICTLY AND NOTH ING SHOULD BE ADDED OR SUBTRACTED TO THE LANGUAGE EMPLOYED IN THE SECTION, YET A STRICT CONSTRUCTION OF A PROVISION DOES NOT RULE OUT THE A PPLICATION OF THE PRINCIPLES OF REASONABLE CONSTRUCTION TO GIVE EFFEC T TO THE PURPOSE AND INTENTION OF ANY PARTICULAR PROVISION OF THE ACT (S EE: SHRI SAJJAN MILLS LTD. VS LD. CIT, M.P. & ANR.(1985) 156 ITR 585). FROM A BAR E READING OF SECTION 36(1)(V) OF THE ACT, IT IS MANIFEST THAT THE REAL I NTENTION BEHIND THE PROVISION IS THAT THE EMPLOYER SHOULD NOT HAVE ANY CONTROL OV ER THE FUNDS OF THE IRREVOCABLE TRUST CREATED EXCLUSIVELY FOR THE BENEF IT OF THE EMPLOYEES. IN THE INSTANT CASE, IT IS EVIDENT FROM THE FINDINGS RECOR DED BY THE COMMISSIONER AND AFFIRMED BY THE TRIBUNAL THAT THE ASSESSEE HAD ABSOLUTELY NO CONTROL OVER THE FUNDS CREATED BY THE LIC FOR THE BENEFIT OF THE EMPLOYEES OF THE ASSESSEE AND FURTHER AL THE CONTRIBUTION MADE BY TH E ASSESSEE IN THE SAID FUND ULTIMATELY CAME BACK TO THE TEXTOOL EMPLOYEES GRATUITY FUND, APPROVED BY THE COMMISSIONER WITH EFFECT FROM THE F OLLOWING PREVIOUS YEAR. THUS THE CONDITIONS STIPULATED IN SECTION 36(1)(V) OF THE ACT WERE SATISFIED. . THUS I AM OF THE OPINION THAT EVEN THE DECISION OF ASSOCIATED ELECTRICAL INDIA PVT. LTD IS ALSO NOT APPLICABLE IN THE CASE UNDER CONSIDERATION. THE APPELLANT HAS ALSO RELIED UPON THE DECISION OF ITAT JAIPUR IN THE CASE OF JHALAWAR KENDRIYA SAHAKARI BANK. IN THIS CA SE ALSO, THE RELIEF WAS ALLOWED TO THE APPELLANT ON THE SUBMISSION MADE BY THE APPELLANT THAT AFTER CONTRIBUTION OF PREMIUM, THE APPELLANT HAS NO CONTROL OVER THE SAME (PAGE NO. 9 OF THE ORDER). THE TRIBUNAL ALSO RELIED UPON THE DECISION OF HON'BLE SUPREME COURT I N THE CASE OF TEXTOOL COMPANY LTD AND DECISION OF ITAT DELHI IN T HE CASE OF THE NAINITAL BANK LIMITED. AS I HAVE ALREADY DISCUSSED ABOVE THE FACTS OF TEXTOOL COMPANY LIMITED ON WHICH THE DECISION OF TH E NAINITAL BANK LTD WAS BASED WERE TOTALLY DIFFERENT FROM THE FACT S OF THE 9 MA NO. 52/JP/2019 BARODA RAJASTHAN KSHETRIYA GRAMIN BANK, AJMER. APPELLANTS CASE. THEREFORE, THE DECISION OF ITAT J AIPUR IS ALSO NOT APPLICABLE TO THE CASE OF THE APPELLANT BECAUSE THE APPELLANT HAS ABSOLUTE CONTROL OVER THE FUNDS PARKED WITH THESE C OMPANIES AND EMPLOYEES DO NOT HAVE ANY CONTROL OVER THESE FUNDS. THE OTHER DECISION RELIED UPON BY THE APPELLANT ARE NOT RELEV ANT FOR DECIDING THE ALLOWABILITY OF DEDUCTION U/S 43B(F) 4.13 IT IS PERTINENT TO MENTION THAT IN THE A.Y. 2 009-10 AND 2010- 11,THE APPELLANT ITSELF HAD SHOWN THE FUNDS PARKED WITH LIC AND OTHER COMPANIES FOR LEAVE ENCASHMENT AS INVESTMENT IN SCHEDULE II OF THE BALANCE SHEET (RS. 4,35,91,748 AND RS. 5,77, 16,828 AS ON 31- 03-2009 AND 31-03-2010 RESPECTIVELY) IN THE A.Y. 20 10-11, THE INTEREST ACCRUED ON SUCH FUNDS WAS CREDITED TO THE PROFIT & LOSS ACCOUNT UNDER THE HEAD OTHER INCOME. THEREFORE , I FIND NO JUSTIFICATION FOR CLAIMING INVESTMENT OF SAME NATUR E AS EXPENDITURE IN THE A.Y. 2014-15. 4.14 AS PER INFORMATION FURNISHED BY THE APPELLANT, THE ACTUAL AMOUNT PAID TOWARDS LEAVE ENCASHMENT TO EMPLOYEES T HROUGH LIC WAS RS. 99,76,056/-, THEREFORE, IN VIEW OF THE DISC USSION MADE ABOVE, THE DEDUCTION OF RS. 99,76,056/- IS HELD TO BE ALLOWABLE U/S 43B(F) BECAUSE THIS WAS THE SUM PAYABLE AND ACTUALL Y PAID BY THE ASSESSEE AS EMPLOYER IN LIEU OF ANY LEAVE AT THE CR EDIT OF HIS EMPLOYEE, AS SPECIFIED U/S 43B(F). ACCORDINGLY, OUT OF THE TOTAL DISALLOWANCE OF RS. 35,19,00,000/- DISALLOWANCE OF RS. 99,76,056/- IS DELETED AND THE REMAINING DISALLOWANCE OF RS. 34,19 ,23,944/- (RS. 35,19,00,000 RS. 99,76,056) IS HEREBY CONFIRMED. 4.3 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE DREW OUR ATTENTION TO THE DECISION OF ITAT JAIPUR B ENCH IN THE CASE JHALAWAR KENDRIYA SAHAKARI BANK LTD VS ACIT (ITA NO.1032/JP/ 2011 AND ITA NO. 1051/JP/2011 IN THE CASE OF ACIT VS JHALAWAR KENDRI YA SAHAKARI BANK LTD WHEREIN THE BENCH HAS ALLOWED THE BENEFIT OF GROUP LEAVE ENCASHMENT SCHEME TO THE BANK BY OBSERVING AS UNDER:- 19. APROPOS THE DEPARTMENTAL APPEAL, THE ASSESSEE TOOK A POLICY FROM LIC NAMED AS JHALWAR KENDRIYA SAHAKARI BANK EMPLOYEE GROUP LEAVE ENCASHMENT SCHEME. THE FACTS ARE MENTIO NED IN DETAIL ABOVE. THE PAYMENT OF LEAVE ENCASHMENT IS A CONTRAC TUAL LIABILITY8, A CHARGE ON ASSESSEE'S PROFIT. TO ENSURE TIMELY BEN EFIT OF LEAVE ENCASHMENT OF EMPLOYEES SCHEME IS DEVISED BY THE L IC, WHICH WORKS OUT THE LEAVE ENCASHMENT LIABILITY AND FIXATI ON OF PREMIUM. THE LIABILITY IS ASCERTAINED AND CRYSTALLIZED ON A SCIENTIFIC METHOD BY THE LIC. THUS, THE ASSESSEE'S PAYMENT OF RS. 40 LAC S TOWARDS THE SAME IS WITHIN THE FRAMEWORK OF THE SCHEME. IN OUR CONSIDERED VIEW, THE SAME IS ALLOWABLE DEDUCTION. THIS VIEW FU RTHER SUPPORTED BY THE HON'BLE SUPREME COURT IN THE CASE OF TEXTOOL CO. LTD (SUPRA) AND ITAT JUDGEMENT IN THE CASE OF NAINITAL BANK LTD (SUPRA). 10 MA NO. 52/JP/2019 BARODA RAJASTHAN KSHETRIYA GRAMIN BANK, AJMER. RESPECTFULLY FOLLOWING THE SAME, WE HOLD THAT THE A SSESSEE IS ELIGIBLE FOR THIS DEDUCTION. THE LD.AR OF THE ASSESSEE FURTHER SUBMITTED THAT TH E ASSESSEE HAS DISCHARGED ITS LIABILITY TOWARDS LEAVE ENCASHMENT S CHEME, THE SAME IS THEREFORE, ALLOWABLE AS EXPENDITURE U/S 37(1)OF THE ACT. TAKING INTO CONSIDERATION THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND THE DECISIONS RELIED UPON BY THE LD.AR OF THE ASSESSEE, IT WILL BE IN THE INTEREST OF EQUITY AND JUSTICE TO RESTORE THE ISSUE TO THE FILE OF THE AO FOR AFRESH ADJUDICATION. THE ASSESSEE IS DIRECTED TO SUBMIT TH E WRITTEN SUBMISSION ALONGWITH RELEVANT DETAILS BEFORE THE AO. THUS GROU ND NO. 2(II) OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THUS THE TRIBUNAL AFTER CONSIDERING THE FACTUAL MAT RIX OF THE ISSUE REMITTED THE SAME TO THE RECORD OF THE AO FOR AFRESH ADJUDIC ATION AFTER CONSIDERING THE RELEVANT DETAILS TO BE FILED BY THE ASSESSEE. HOWEV ER, THE TRIBUNAL HAS ACCEPTED THE POSITION OF ALLOWABILITY OF THE CLAIM IF THE SAME IS REGARDING THE PREMIUM PAID FOR A POLICY TAKEN FROM THE LIC FOR EM PLOYEES GROUP LEAVE ENCASHMENT SCHEME. ACCORDINGLY, AS FAR AS THE ALLO WABILITY OF THE CLAIM FOR PAYMENT OF PREMIUM OF POLICY TAKEN BY THE ASSESSEE FOR EMPLOYEES GROUP LEAVE ENCASHMENT SCHEME, THE SAME IS ALLOWABLE EXPE NDITURE. HOWEVER, SINCE THE LD. CIT (A) HAS POINTED OUT THAT THE ASSE SSEE ITSELF HAS SHOWN THE PAYMENT AS INVESTMENT IN THE LIC AND OTHER COMPANIE S AND THE INTEREST ACCRUED ON SUCH FUND WAS CREDITED TO THE PROFIT & L OSS ACCOUNT, THEREFORE, THE AO HAS TO JUST VERIFY THE FACT WHETHER ANY INCO ME ACCRUING ON THE POLICY TAKEN BY THE ASSESSEE WAS ACTUALLY RECEIVED BY THE ASSESSEE OR IT IS JUST AN ACCOUNTING TREATMENT BY THE ASSESSEE WITHOUT ACTUAL INCOME. FURTHER, IF THE BENEFIT ACCRUED ON THE POLICY IS ONLY ACCUMULATED T O THE FUND ITSELF WHICH IS TO BE USED FOR DISCHARGE OF LIABILITY ON ACCOUNT OF LE AVE ENCASHMENT, THEN SUCH INCOME THOUGH ASSESSEE HAS CREDITED IN THE PROFIT & LOSS ACCOUNT WOULD NOT PARTAKE THE CHARACTER OF REAL INCOME BUT IT WOULD B E ONLY ACCUMULATION OF THE VALUE OF THE POLICY TO BE USED FOR DISCHARGE OF THE LIABILITY ON ACCOUNT OF LEAVE ENCASHMENT. HENCE, IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE DIRECT THE AO TO VERIFY THESE FACTS AND TH EN ALLOW THE CLAIM OF THE ASSESSEE IN THE ABOVE TERMS. 11 MA NO. 52/JP/2019 BARODA RAJASTHAN KSHETRIYA GRAMIN BANK, AJMER. THEREFORE, WHILE PASSING THE SUBSEQUENT ORDER DATED 03.08.2018 THE TRIBUNAL HAS CONCURRED WITH THE FINDINGS OF THE TRIBUNAL GIVEN I N THE IMPUGNED ORDER DATED 17.05.2018. HENCE IN VIEW OF THE FACTS AND CIRCUMS TANCES THAT WHEN NO MISTAKE APPARENT ON RECORD IS POINTED OUT BY THE ASSESSEE T HEN THE MISCELLANEOUS APPLICATION FOR SEEKING THE RELIEF WHICH WAS NOT GRANTED BY THE AO IS NOT MAINTAINABLE. EVEN OTHERWISE, THE MISCELLANEOUS APPLICATION IS BARRED BY LIMITATION, HENCE THE SAME IS DISMISSED. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 18/10/20 19. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 18/10/2019. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- BARODA RAJASTHAN KSHETRIYA GRAMIN BANK, AJMER. 2. THE RESPONDENT THE DCIT, CIRCLE-1, AJMER. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (MA NO. 52/JP/2019) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 12 MA NO. 52/JP/2019 BARODA RAJASTHAN KSHETRIYA GRAMIN BANK, AJMER. 13 MA NO. 52/JP/2019 BARODA RAJASTHAN KSHETRIYA GRAMIN BANK, AJMER.