2013 (6) TMI 732

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..... w: 1. The order of the CIT(A) is opposed to law and facts of the case. 2(a) On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in holding that the provision of Rs. 20,08,455/- made on account of leave salary shall be allowed as deduction as the provision was on the basis of actuarial estimation irrespective of the fact that allowance of such provision of expense is prohibited under the provisions of section 43B(f) of the I.T.Act. 2(b) On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in holding that provision of Rs. 20,08,455/- made on account of leave salary shall be allowed as deduction merely on the fact that the provision was based on actuarial estimation wit .....

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..... ated 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 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 mat .....

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..... s 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 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. 6. In the re .....

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