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TMI Blog2016 (5) TMI 1322X X X X Extracts X X X X X X X X Extracts X X X X ..... ay and admit the revenue's appeal for hearing. 3. The only issue to be decided in this appeal of revenue is that with regard to the allowance of leave encashment of Rs. 1,47,66,197/-. 4. We have heard rival submissions and perused the material available on record. We find that the Ld. CIT(A) had allowed the claim of the assessee in respect of provision made for leave encashment by placing reliance on the decision of the Hon'ble Calcutta High Court in the case of Exide Industries Ltd. reported in Vs. Union of India (2007) 292 ITR 470 (Cal) but Ld. Sr. DR before us argued that subsequently Hon'ble Supreme Court has stayed this judgment of Hon'ble jurisdictional High Court vide order dated 08-05-2009 by following observations:- "Pending hearing and final disposal of the Civil Appeals, 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AY 2006-07 reported in (2015) 154 ITD 426 (Kolkata), which in turn placed reliance on the decision of Birla Corporation Ltd., supra. The decisions cited by Ld. AR were fairly conceded by the ld. DR. We find that the issue involved is squarely covered by the decision of Coordinate bench by this Tribunal in assessee's own case reported in (2015) 154 ITD 426 (Kolkata), wherein it was held as under: "The issue on proposition of law regarding allowance of remaining additional depreciation in the next assessment year u/s. 32(1)(iia) of the Act was covered in favour of assessee and against revenue by the decision of coordinate bench of ITAT Kolkata 'A' Bench in the case of Birla Corporation Ltd. Vs. DCIT in ITA No. 683/Kol/2011 for the assessment year 2007-08 dated 8-12-2014, wherein it was held that extra depreciation allowable u/s. 32(1)(iia) is an extra incentive which has been earned and calculated in the year of acquisition but restricted for that year to 50% on account of usage. The so earned incentive must be made available in the subsequent year. The overall deduction of depreciation u/s. 32 shall definitely not exceed the total cost of machinery and plant. Thus, assessee is ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 63 460.31 561.48 528.78 491.36 263.36 Long term investment Kesoram Industries Ltd. Kesoram Insurance Management Ltd. Bharuch Enviro Infrastructure Ltd. Vasavadatta Services Pvt. Ltd. MMA CETP Coop. Society Ltd. 3.04 0.01 0.01 0.01 0.12 3.04 0.01 0.01 0.01 0.12 3.04 0.01 0.01 0.01 0.12 3.04 0.01 0.01 0.01 0.12 3.04 0.01 0.01 0.01 0 3.04 0.01 0.01 0 0 3.04 0 0 0 0 Total 3.19 3.19 3.19 3.19 3.07 3.06 3.04 Number of times share capital is more than investment 145 145 144 176 172 161 87 It was argued from the aforesaid table that the borrowed funds were utilized only for the purpose of regular business of the assessee and no part of the borrowed funds were utilized for the purpose of making investments. Hence, the provision of rule 8D(2)(ii) of the Rules could not be invoked for the purpose of making disallowance. 12. Thirdly, it was argued that even assuming disallowance u/s. 14A of the Act read with Rule 8D(2) of the Rules are to be invoked then the investments yielding dividend income alone should be considered for the purpose of making the disallowance and the inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wance under Rule 8D of the Rules on presuming the average value of investment at ½% of the total value. In view of the above and respectfully following the coordinate bench decision in the case of J.K. Investors (Bombay) Ltd., supra, we uphold the order of CIT (A)". CIT vs R.E.I. Agro Ltd in GA 3022 of 2013 in ITAT 161 of 2013 dated 23.12.2013 rendered by Calcutta High Court "The Assessing Officer also disallowed the expenditure under section 14A of the Income Tax Act, 1961 without first recording that he was not ITA Nos..1146, 1138/Kol/2012-CAM Integrated Coal Mining Ltd 9 satisfied with the correctness of the claim as regards the claim that "no expenditure" was made by the assessee. Challenging the order of the tribunal, the present appeal has been filed. We have heard Mr.Bhowmik and are of the opinion that no point of law has been raised. Therefore, this appeal is dismissed". Hence, we hold that the action of the Ld. AO in directly embarking on Rule 8D(2) of the Rules is not appreciated and hence no disallowance u/s. 14A of the Act could be made in the facts of the instant case. 15. From the aforesaid chart reproduced in para 11 above, we also find that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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