AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (4) TMI 274
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....acts in circumstances of the case and in law erred .in holding that the amount of Rs. 49,81,018/- being the provision made for leave salary made by the appellant based on actuarial valuation was not allowable as deduction u/s. 43B(f) of the Act and also further erred in holding that the claim in respect of the same was not made in the return of income and hence, not allowable 2. The above grounds of appeal are distinct and separate and without prejudice to each other. 3. It is humbly prayed that the reliefs as prayed for hereinabove and/or such other reliefs as may be justified by the facts and circumstances of the case and as may meet the ends of justice should be granted. 2. Brief facts of the case are that the assessee-company is en....
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.... present appeal before us. 3. We have heard the submission of ld. Authorized Representative (AR) of the assessee and ld. Departmental Representative (DR) for the revenue and perused the material available on record. The ld. AR of the assessee submits that in view of the decision of Hon'ble jurisdictional High Court in CIT vs. Pruthvi Brokers & Shareholders [349 ITR 336 (Bom), the assessee is entitled to raise additional grounds of appeal before the appellate authority. The ld. AR of the assessee further submits that on merit, the sole grounds of appeal, the assessee is covered in favour of assessee by the decision of co-ordinate bench in Everest Industries Ltd. vs. JCIT [2018] 90 taxmann.com 330 (Mum. Trib.), wherein it was held that if th....
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....n for leave encashment is not a statutory liability and hence it is not liable to be disallowed u/s. 43B of the Act. In this regard, the assessee placed its reliance on the decision rendered by Hon'ble Calcutta High Court in the case of Exide Industries Ltd. v. Union of India[2007] 292 ITR 470/164 Taxman 9. The Assessing Officer, however, disallowed the claim of the assessee on the reasoning that the decision rendered by Hon'ble Calcutta High Court in the case of Exide Industries Ltd. (supra) holding that the provisions of section 43B(f) is unconstitutional, has since been stayed by Hon'ble Supreme Court. The learned CIT(A) also confirmed the same. 14. The Learned AR submitted that Hon'ble Cochin Bench of the ITAT has cons....
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....ashment for assessment year 2000-01. However, the provisions of sec. 43B(f) was inserted into the Act by Finance Act,2001 w.e.f. 1.4.2002, which could not have been considered by Hon'ble Rajasthan High Court. Hence, reliance placed by the assessee on the said decision may not be useful for the year under consideration. 8. We have also carefully gone through the decision rendered by the jurisdictional Kerala High Court in the case of Hindustan Latex Ltd. (supra) and notice that the High Court has allowed the claim of the assessee on two grounds viz., (a) The Hon'ble Kerala High Court, in para 5 of its order, has concurred with the view expressed by the Hon'ble Calcutta High Court in the case of Exide Industries Ltd (supra) ....
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....eave to Appeal (Civil) No(s) 22889/2008 (from the very same judgment of the High Court of Calcutta). The order reads as under:- Pending hearing and final disposal 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 that 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. Thus, it is noticed that the Hon'ble Apex Court h....