TaxTMI 
TaxTMI 
2019 (4) TMI 274
X X X X Extracts X X X X
X X X X Extracts X X X X
..... The Learned Commissioner of Income Tax, in the facts 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.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ll. Aggrieved by the order of ld. CIT(A), the assessee has filed the 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ought to disallow the same u/s. 43B of the Act, the assessee contended that the Provision 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Rajasthan High Court, in the above cited case, has considered the claim of deduction of Provision for leave encashment 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....otice. In the meantime, there shall be stay of the impugned judgment, until further orders." (b) The second order was passed on 08-05-2009 in the petition for Special Leave 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....de the matter to the file of the AO with the direction to consider the issue afresh as per the decision of Hon'ble Apex Court in the case of Exide Industries Ltd. (supra). Accordingly, we set aside the orders of Ld CIT(A) on this issue in both the years under consideration and restore them to the file of the AO with the direction to examine the issue afresh in the light of discussions made supra." 4. Consistent with the view taken in the case of Kerala Feeds Ltd. (supra), we set aside the order of Ld CIT(A) on this issue and restore the same to the file of the assessing officer with the direction to examine this issue afresh in accordance with the decision rendered by Hon'ble Supreme Court in the case of M/s. Exide....