TMI Blog2015 (7) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... peal by the Hon'ble Supreme Court in the case of "Exide Industries Ltd." It would be open to the Department to recover the outstanding interest demand in case the Civil Appeal of the Department in the case of "Exide Industries Ltd." (supra) is allowed by the Hon'ble Supreme Court. Subject to our above observations, the matter is restored to the file of the AO to be adjudicated afresh as per the decision of the Hon'ble Supreme Court in the case of "Exide Industries Ltd." (supra). - Decided partly in favour of assessee for statistical purposes. - ITA No. 5457/M/2013 - - - Dated:- 30-6-2015 - G S Pannu, AM And Sanjay Garg, JM, JJ. For the Appellant : Shri Yogesh Thar, AR For the Respondent : Shri Yogesh Kamat, Sr. AR ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue afresh in the light of the decision of the Hon'ble Supreme Court as may come in the case of Exide Industries Ltd. (supra). The relevant part of the decision of the coordinate Bench in the case of Aaditya Birla Finance Ltd. Vs. ACIT (supra) for the purpose of reference is reproduced as under:- 4.2 At the outset Ld. AR of the assessee has produced before us a copy of order of the Tribunal in the case of the sister concern of the assessee M/s. Birla Insurance Advisory Broking Services Ltd., in ITA No.7531/Mum/2010. The Tribunal in the said case has restored the matter on the identical issue to the file of the AO while relying upon the decision in the case of Essar Exploration and Production India Ltd. vs. ACIT in ITA No.618 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra) struck down the provision of section 43B(f) being arbitrary, unconscionable. Further, the department filed SLP before Hon'ble apex Court against the decision of Hon'ble Calcutta High Court in the case of Exide Industries Ltd (supra) by its order dated 8.9.2008 in SLP No.12060/2008 has stayed the operation of judgment of Hon'ble Calcutta High Court. Further, it is also a fact that Hon'ble Bombay High Court has admitted the issue under consideration in the appeal filed by department in the case of Universal Medicare Pvt Ltd (supra). At the time of hearing, Id A.R. submitted that the said appeal is yet to be disposed of. We also observe that ITAT Kolkata Bench by its order dated 30.1.2012 considered the said issue and by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced above. 4. The Ld. A.R., therefore, while also relying upon various other decisions of the Tribunal wherein the matter is restored to the file of the AO with the direction to decide the same as per the proposition of law that may be laid down by the Hon'ble Supreme Court in the case of Exide Industries Ltd. (supra) has stressed that the matter in this case be accordingly restored to the file of the AO. 5. The Ld. D.R. has also not raised any objection against restoration of matter to the AO. 6. We have considered the rival submissions. It is correct that the decision of the Hon'ble Kolkata High Court in the case of Exide Industries Ltd. (supra) has been stayed by the Hon'ble Supreme Court vide order dated 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to Department to recover the amount of outstanding interest demand in case the appeal of the Department is allowed. It has also been directed that during the pendency of the Civil Appeal, the assessee will pay tax as if section 43B(f) is on statute book but at the same time the assessee would be entitled to make a claim in this respect in its returns. 9. In view of the observations of the Hon'ble Supreme Court, in our view, it will be proper to dispose of this appeal in the light of the order of the Hon'ble Supreme Court dated 08.05.2009 passed in the case of CIT vs. Exide Industries Ltd. (supra). We therefore dispose of the present appeal with a direction that the assessee will pay the tax as if section 43B(f) is on the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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