TMI Blog2015 (12) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... introduced section 43B (f) wherein leave encashment provision were covered, therefore it is apparent that earlier to that it was allowed on accrual basis irrespective of the year of payment. - Decided against revenue - ITA No.4240/Del/2012, ITA No. 5234/Del/2012, ITA No.5312/Del/2013 - - - Dated:- 9-11-2015 - C M Garg, JM Prashant Maharishi, AM For The Appellant : Shri K Sampath, CA Shri Raja Kumar, Adv For The Respondent : Shri P Dam Kanunjna, Sr. DR ORDER Per: Prashant Maharishi: 1. All these three appeals are preferred by assessee against the common disallowance u/s 43B (f) of the Act on account of unpaid provision of leave encashment payable to employees for 3 years for AY: 2008-09, 2009-10 2010-11. As t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame is disallowed. Assessee carried the matter before the CIT (A) who dismissed the appeal of the assessee concurring with the views of the AO. Facts for the subsequent assessment year i.e. A.Y. 2009-10 and 2010-11 are identical. Therefore, assessee is in appeal before us for all the three years raising identical grounds of appeal. . 4. Ld. AR of the assessee Mr. K. Sampat, CA submitted that disallowance made by the AO is incorrect and provisions of section 43B (f) are held to be constitutionally in valid and therefore the disallowance made for all three years be deleted. For this proposition he relied on various judicial precedents as under:- i. Exide Industries Ltd. vs. Union of India, 292 ITR 470 ii. DCIT vs. A.P. State Seeds De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under :- 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. 7. We are afraid we cannot agree with the views of ld. AR that addition may be deleted. As rightly submitted by the learned AR, the provisions of section 43B (f) wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Calcutta in Excide Industries case (supra) and the SLP stated above is still pending. Therefore, the opinion of the Tribunal so far as disallowance claimed in respect of leave encashment under Section 43B(f) of the Act, as on today, the provision seems to be in force in the light of the stay order granted by the Apex Court in the SLP. Therefore, as long as Section 43B (f) is on Statute, the said disallowance is justified 8. Since the provisions made by assessee of leave encashment remains to be paid, we are of the considered opinion that the Commissioner of Income Tax (Appeals) has rightly confirmed the disallowance made by the Assessing Officer on unpaid leave encashment provisions applying provision of section 43B (f) of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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