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2018 (9) TMI 1899 - AT - Income TaxDisallowance of provision of leave encashment u/s 43B(f) for want of actual payment - HELD THAT:- Both parties inform us during the course of hearing that hon'ble jurisdictional high court’s decision in Exide Industries Ltd. vs. Union of India [2007 (6) TMI 175 - CALCUTTA HIGH COURT] quashing the statutory provision itself to be ultra vires. Hon'ble apex court [2009 (5) TMI 894 - SC ORDER] has stayed operation thereof vide order dated 08.05.2009. It further emerges that this tribunal’s order in assessee’s case itself in preceding assessment year [2018 (4) TMI 1757 - ITAT KOLKATA] has restored the very issue back to the Assessing Officer to be decided afresh after awaiting final order of hon'ble apex court. We adopt the same course of action in the impugned assessment year as well. The assessee’s instant former substantive ground is restored back to the Assessing Officer to be decided afresh after the final outcome in Revenue’s appeal in Exide Industries Ltd. Exclusion of sales tax incentive and state capital investment subsidy availed during the year being capital in nature in computing book profits section 115JB - HELD THAT:- The undisputed fact is that the incentive received by assessee is not in the nature of income earned during the course of business. Therefore, in our considered view, same cannot be regarded as “income” for the purpose of MAT u/s 115JB of the Act. Thus, the amount of incentive received by assessee should be excluded from the determination of book profit under the provision of Section 115JB of the Act. Thus, we reverse the order of Ld. CIT(A). and direct the AO to delete the same. This ground of assessee’s appeal is allowed. Section 14A r.w. 8D disallowance of administrative expenditure - HELD THAT:- CIT(A) has followed this tribunal’s decision in REI Agro Ltd. vs. DCIT [2013 (9) TMI 156 - ITAT KOLKATA] holding that only dividend yielding investments are to be considered for computing administrative expenditure disallowance as upheld in hon'ble jurisdictional high court. The CIT(A) has admittedly directed the Assessing Officer to adopt the same formula in impugned assessment year. DR fails to pin-point any irregularity or illegality therein during the course of hearing.
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