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2013 (9) TMI 1212 - AT - Income TaxDisallowance of claim for “Provision for leave encashment” u/s. 43B(f) - Disallowance of claim of “provision for gratuity” - Application filed seeking application for Gratuity fund - Result for Approval of Gratuity fund not declared - Duly ascertaining the fate of application filed before competent authority - HELD THAT:- 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.” 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. The disallowance of claim of “provision for gratuity” - HELD THAT:- The claim of “Provision for gratuity” was disallowed by the Assessing Officer on the ground that the gratuity fund was not approved by the Commissioner of Income-tax. Though the assessee contended that the application seeking approval of the Competent Authority is pending as on the date of the assessment but the Assessing Officer proceeded to disallow the claim saying that the same will be reviewed as and when the approval of the competent authority is received. 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 the Hon'ble Apex Court. The assessee could not explain about the steps taken by the assessee to pursue the application filed by it before the competent authority. Thus, in these cases, Court has not expressed its opinion. Matter restored back to AO.
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