2013 (6) TMI 732

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....: 1. The order of the CIT(A) is opposed to law and facts of the case. 2(a) On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in holding that the provision of Rs. 20,08,455/- made on account of leave salary shall be allowed as deduction as the provision was on the basis of actuarial estimation irrespective of the fact that allowance of such provision of expense is prohibited under the provisions of section 43B(f) of the I.T.Act. 2(b) On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in holding that provision of Rs. 20,08,455/- made on account of leave salary shall be allowed as deduction merely on the fact that the provision was based on actuarial estimation with....

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....ted 8/8/2012 , in which similar issue came up for consideration of ITAT. Before ITAT reference was made to the aforementioned decision in the case of M/s. Universal Medicare Pvt. Ltd. vs. ACIT(supra), and after hearing both the parties and considering the issue that in another matter in the case of Exide Industries Ltd. vs. Union of India, 292 ITR 470 (Cal), where provisions of section 43B(f) were held to be arbitrary and in Special Leave Petition before Hon'ble Apex Court vide order dated 8/9/2008 the judgment of Hon'ble Culcutta High has been stayed and also the fact that Hon'ble Bombay High Court has admitted the issue in consideration in the appeal filed by the department in the case of M/s. Universal Medicare Pvt. Ltd.(supra), the matt....