TMI Blog2019 (1) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... essee 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. 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 Industries Ltd COMMR. OF INCOME TAX & ORS Versus M/s EXIDE INDUSTRIES LTD. & ANR. - [2009 (5) TMI 894 - SUPREME COURT] - Appeal filed by the assessee is treated as allowed for statistical purposes. - ITA No. 294/Coch/2017, ITA No. 295/Coch/2017 And ITA No. 296/Coch/2017 - - - Dated:- 22-1-2019 - Shri Chandra Poojar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 27.03.2014 arriving at an income of ₹ 2,07,85,970. 4.2 Similarly for assessment year 2010-2011 the original assessment order was set aside u/s 263 of the I.T.Act for the reason that there was an omission to disallow a sum of ₹ 11,90,576 claimed as provision for leave salary. Consequent to the order passed u/s 263 of the I.T.Act, the assessment order was completed u/s 143 r.w.s. 263 of the I.T.Act vide order dated 30.03.2014. 4.3 For the assessment year 2011-2012 the assessment was completed u/s 143 of the I.T.Act vide order dated 27.03.2014 arriving at a total income of ₹ 2,70,78,080. In the said assessment completed u/s 143 of the I.T.Act, the Assessing Officer had disallowed provision for leave salary a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rajasthan High Court in the case of CIT Vs. Raj. State Bride and Construction Corporation Ltd (2012)(346 ITR 53). We notice that 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 see. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 following ORDER Issue notice. 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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/Ko/j2011 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 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 Kera ..... X X X X Extracts X X X X X X X X Extracts X X X X
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