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2015 (7) TMI 984 - ITAT MUMBAI

2015 (7) TMI 984 - ITAT MUMBAI - TMI - Disallowance on account of provision for leave encashment under section 43B - Held that:- It will be proper to dispose of this appeal in the light of the order of the Hon'ble Supreme Court in the case of "CIT vs. Exide Industries Ltd." (2009 (5) TMI 894 - SUPREME COURT. 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 statute book, however, till the decision of the Hon'ble Supreme .....

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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 Per Sanjay Garg, Judicial Member The present appeal has been preferred by the assessee against the order dated 20. .....

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x 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 23.01.2 .....

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;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 .....

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er dated 8/8/2012 , in which similar issue came up for consideration of 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 da .....

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encashment on the basis of decision of Hon'ble apex Court in the case of Bharat Earth Movers (supra) as the Honble Calcutta High Court in the case of Exide Industries (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 ju .....

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Pvt Ltd. (supra) has restored the matter to the file of AC with a direction to adjudicate the same as per decision of Hon'ble apex Court in the case of Exide Industries Ltd (supra), In view of above and respectfully following the earlier decisions (supra), we set aside the orders of authorities below and restore the matter 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 .....

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en reproduced. We direct accordingly". 4.3 The Ld. Representatives of the parties submitted that they have no objection if the matter in this case also be restored to the file of AO with a direction to decide the same in the light of above reproduced directions. This issue is accordingly restored to the file of AO to decide the same as per the directions given in the case of sister concern of the assessee as reproduced above." 4. The Ld. A.R., therefore, while also relying upon various .....

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rect 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 08.09.08 passed in SLP to Appeal (Civil) …CC 12060/2008 wherein the Hon'ble Supreme Court has made the following observations: "UPON hearing counsel the Court made the following ORDER Issue notice. In the meantime, there shall be stay of the impugned judgment, until further order." 7. We furthe .....

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o 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 petition for leave to file the appeal vide order dated 08.05.2009, the Hon'ble Supreme Court has directed that pending the hear .....

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