TaxTMI 
TaxTMI 
2013 (9) TMI 1212
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....sed by the Ld. CIT(A), the revenue has filed these appeals before us in both the years. 3. The facts relating to the case are stated in brief. The assessee is a Kerala State Public Sector Undertaking manufacturing cattle feeds. In both the years, the assessee claimed deduction of provision created for leave encashment and gratuity as detailed below:- Nature of claim 2008-09 2009-10 Provision for Leave Encashment 983019 1444179 Provision for Gratuity 2298789 997012 4. The claim of "Provision for leave encashment" was disallowed by the AO u/s. 43B(f) of the Act, since it was not paid by the due date for filing return of income. The assessee, invited the attention of the AO to the decision rendered by the Hon'ble Calcutta High Court in th....
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....e deemed to have been granted, since the application filed by it before the competent have not been rejected by the competent authority so far. The Ld. CIT(A) opined that it was not fair to disallow the claim of the assessee when the application is pending before the competent authority. Accordingly, the Ld. CIT(A) allowed the claim made by the assessee under both the heads in both the years. Aggrieved, the revenue has filed these appeals before us. 7. We have heard the rival contentions and perused the record. With regard to the claim of "Provision for leave encashment", the Ld Counsel placed reliance on the decision of Hon'ble Kerala High Court in the case of Hindustan Latex Ltd (supra) and also on the decision rendered by Hon'ble Rajast....
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....e case of another assessee. 9. However, we notice that the department has challenged the decision rendered by the Hon'ble Calcutta High Court in the case of Exide Industries Ltd, by filing appeal before Hon'ble Supreme Court and the Hon'ble Apex Court has stayed the judgment of the Hon'ble Calcutta High Court. In fact, the Hon'ble Apex Court has passed two interim orders in this regard, which are detailed below:- (a) The first order was passed on 08-09-2008 in the petition for Special Leave to Appeal (Civil)... CC 12060/2008 in the case of CIT Vs. Exide Industries Ltd (from the judgment and order dated 27-6-2007 in APO No.301/2005 of The High Court of Calcutta). The order reads as under:- "Upon hearing counsel the Court made the followi....
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....se of Gangadharan (304 ITR 61). The operative part of the said decision reads as under:- "In answering the reference, we hold that merely because in some cases the Revenue has not preferred appeal that does not operate as a bar for the Revenue to prefer an appeal in another case where there is just cause for doing so or it is in public interest to do so or for a pronouncement by the higher court when divergent views are expressed by the Tribunals or the High Courts." 10. We also notice that the Calcutta Bench of Tribunal has considered an identical issue in the case of S.R Batliboy & Co. in ITA No.1598/Kol/2011 and the Tribunal, vide its decision dated 13-03-2012, has set aside the matter to the file of the AO with the direction to conside....