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TMI Blog2015 (7) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... section 43B of the Income Tax Act. The assessee claimed that the provision for leave encashment was ascertained liability of the company and the same should not be construed as the item covered by section 43B of the Income Tax Act in view of the decision of the Hon'ble Kolkata High Court in the case of " Exide Industries Ltd." 292 ITR 470. The AO however, held that the said amount was remained unpaid and therefore the provision for leave encashment was squarely covered under the provisions of section 43B. In appeal, the Ld. CIT(A) also upheld the finding of the AO. 3. Before us, the Ld. A.R. of the assessee has brought our attention to the decision of the co-ordinate Bench of the Tribunal dated 23.01.2015 in the case of "Aaditya Birla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITAT. Before ITAT reference was made to the aforementioned decision in the case of M/s. Universal Medicare Pvt. Ltd. vs. ACIT(supra), and after hearing both the parties and considering the issue that in another matter in the case of Exide Industries Ltd. vs. Union of India, 292 ITR 470 (Cal), where provisions of section 43B(f) were held to be arbitrary and in Special Leave Petition before Hon'ble Apex Court vide order dated 8/9/2008 the judgment of Hon'ble Culcutta High has been stayed and also the fact that Hon'ble Bombay High Court has admitted the issue in consideration in the appeal filed by the department in the case of M/s. Universal Medicare Pvt. Ltd.(supra), the matter was restored back to the file of AO with the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back to the file of AO for adjudication afresh as per the decision of Hon'ble apex Court in the case of Exide Industries Ltd (supra)." 3.1 Referring to the above observation it was pleaded by Ld. A.R that the matter may be restored back to the file of AO with similar directions. 4. Ld. D.R did not have any objection to such request of Ld. A.R. 5. In this view of the situation, after hearing both the parties, respectfully following subsequent decision of the Tribunal on this issue in the case of Essar Exploration & Production India Ltd.,(supra), we restore this issue to the file of A.O with similar directions. The relevant observations have already been reproduced. We direct accordingly". 4.3 The Ld. Representatives of the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nting the leave to file appeal, has made the following observations: "ORDER Delay condoned. Leave granted. Pending hearing and final disposal of the Civil Appeal, Department is restrained from recovering penalty and interest which has accrued till date. It is made clear that as far as the outstanding interest demand as of date is concerned, it would be open to the Department to recover that amount in case Civil Appeal of the Department is allowed. We further make it clear that the assessee 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." 8. A perusal of the above observations reveals that while accepting the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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