TMI Blog2013 (9) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The Calcutta Bench of Tribunal [ 2012 (3) TMI 585 - ITAT KOLKATA] has considered an identical issue in the case before and the Tribunal, has set aside 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 [ 2009 (5) TMI 894 - SC ORDER] . Accordingly, the orders of Ld CIT(A) on this issue were set aside in both the years under consideration and restore them to the file of the AO with the direction to examine the issue afresh as per the discussion. Accordingly matter restored before the AO for fresh decision. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 and 2009-10. 2. The disallowance of claim made under the head Provision of leave encashment and Provision of gratuity in both the years, having been reversed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutta in the case of Exide Industries Ltd.(referred supra). With regard to the claim of Provision for gratuity, it was contended before the Ld. CIT(A) that the approval should be 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 enca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has further held that the Revenue having not challenged the correctness of the law laid down by the Calcutta High Court, it is not open to the Revenue to challenge its correctness in the 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 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble jurisdictional High Court. We further notice that the Hon ble Supreme Court has modified the decision rendered in the case of Berger Paints (supra) in its subsequent decision in the case 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the fate of the said application. Before us, the Ld Counsel for the assessee could not explain about the steps taken by the assessee to pursue the application filed by it before the competent authority. Under these circumstances, we are unable to express any opinion on this issue and accordingly, in our view, this matter also requires fresh examination at the end of the AO by duly considering the fate of application, referred above. Accordingly, we set aside the orders of Ld CIT(A) on this issue in both the years and restore them to the file of the AO with the direction to examine the issue afresh by duly ascertaining the fate of application filed before the competent authority seeking approval of the gratuity fund. The assessee is also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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