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2018 (8) TMI 1639 - AT - Income TaxDisallowance made towards leave encashment u/s 43B(f) - Held that:- We find that though the Hon’ble Calcutta High Court in the case of Exide Industries Ltd vs Union of India reported in [2007 (6) TMI 175 - CALCUTTA HIGH COURT] had struck down the provisions of section 43B(f) of the Act as unconstitutional, the revenue had carried the matter further to the Hon’ble Supreme Court [2008 (9) TMI 921 - SUPREME COURT]. Hon’ble Supreme Court had not stayed the judgement of the Calcutta High Court during Leave proceedings. But the Hon’ble Supreme Court had only passed an interim order on the impugned issue. Hence we deem it fit and appropriate , in the interest of justice and fair play, to remand this issue to the file of the ld AO to pass orders based on the outcome of the main appeal on merits by the Hon’ble Supreme Court as stated supra. Accordingly the ground no. 1 raised by the assessee in this regard is allowed for statistical purposes Disallowance made u/s 14A read with Rule 8D of the Rules both under normal provisions of the Act as well as u/s 115JB - Held that:- Co-ordinate Bench of this Tribunal in the case of REI Agro Ltd. [2013 (9) TMI 156 - ITAT KOLKATA] had held that only those investments which had yielded dividend income to the assessee are to be considered for the purpose of computing disallowance under third limb of Rule 8D(2) of the Rules. Accordingly, we direct the ld. AO to re-compute the disallowance in the light of above mentioned decision of this Tribunal for the purpose of normal computation of income under the Act. Disallowance u/s 14A read with Rule 8D of the Rule while computing the book profits u/s 115JB we find that this issue has been decided by the Hon’ble Special Bench of Delhi Tribunal in ACIT vs. Vireet Investment Pvt. Ltd [2017 (6) TMI 1124 - ITAT DELHI] held that the computation under clause (f) explanation (1) to section 115JB(2) is to be made without resorting to the computation as contemplated u/s 14A read with Rule 8D - in the present case assessee had not furnished the workings and the basis of arriving on the disallowance figure of ₹ 24,000/- u/s 14A before us. Hence AO is directed to examine the accounts of the assessee and the workings for ₹ 24,000/- disallowed u/s 14A by the assessee and decide the issue afresh in accordance with law. Disallowance of remaining portion of 50% of additional depreciation u/s 32(1)(iia) of the Act on plant and machinery put to use for a period of less than 180 days during the financial year 2008-09 relevant to assessment year 2009-10 - Held that:- We find that this issue is no longer res integra in view of the decision of Hon’ble Madras High Court in the case of CIT vs. Shri T. P. Textiles Pvt. Ltd. [2017 (3) TMI 739 - MADRAS HIGH COURT] as held he manner in which the Revenue chose to interpret the provision, as it stood prior to its amendment would lead to discrimination, in respect of plant and machinery, which was used for less than 180 days, as against that, which was used for 180 days or more - upon a plain reading of the unamended provision, it could not be said that the Assessee could not claim balance depreciation in the A. Y. , which follows the A. Y. , in which, the machinery had been bought and used, albeit, for less than 180 days. - decided in favour of assessee
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