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2013 (9) TMI 1212 - AT - Income TaxDisallowance of claim for Provision for leave encashment u/s. 43B(f) - Disallowance of claim of provision for gratuity - Application filed seeking application for Gratuity fund - Result for Approval of Gratuity fund not declared - Duly ascertaining the fate of application filed before competent authority - HELD THAT - The operative part of the said decision reads as under - In answering the reference we hold that merely because in some cases the Revenue has not preferred appeal that does not operate as a bar for the Revenue to prefer an appeal in another case where there is just cause for doing so or it is in public interest to do so or for a pronouncement by the higher court when divergent views are expressed by the Tribunals or the High Courts. The Calcutta Bench of Tribunal 2012 (3) TMI 585 - ITAT KOLKATA has considered an identical issue in the case before and the Tribunal has set aside the matter to the file of the AO with the direction to consider the issue afresh as per the decision of Hon ble Apex Court 2009 (5) TMI 894 - SC ORDER . Accordingly the orders of Ld CIT(A) on this issue were set aside in both the years under consideration and restore them to the file of the AO with the direction to examine the issue afresh as per the discussion. Accordingly matter restored before the AO for fresh decision. The disallowance of claim of provision for gratuity - HELD THAT - The claim of Provision for gratuity was disallowed by the Assessing Officer on the ground that the gratuity fund was not approved by the Commissioner of Income-tax. Though the assessee contended that the application seeking approval of the Competent Authority is pending as on the date of the assessment but the Assessing Officer proceeded to disallow the claim saying that the same will be reviewed as and when the approval of the competent authority is received. It was not fair to disallow the claim of the assessee when the application is pending before the competent authority. Accordingly the Ld. CIT(A) allowed the claim made by the assessee under both the heads in both the years. Aggrieved the revenue has filed these appeals before the Hon ble Apex Court. The assessee could not explain about the steps taken by the assessee to pursue the application filed by it before the competent authority. Thus in these cases Court has not expressed its opinion. Matter restored back to AO.
Issues involved:
1. Disallowance of claim under the head "Provision of leave encashment" and "Provision of gratuity" for assessment years 2008-09 and 2009-10. Analysis: 1. Provision for leave encashment disallowance: - The AO disallowed the claim under section 43B(f) as it was not paid by the due date. Assessee cited a Calcutta High Court decision declaring section 43B(f) unconstitutional. - The Ld. CIT(A) allowed the claim based on the Kerala High Court decision and the Calcutta High Court decision, which was not challenged by the Revenue. - The Tribunal noted that the Supreme Court stayed the Calcutta High Court judgment and directed the AO to re-examine the issue in light of the Supreme Court's decision. 2. Provision for gratuity disallowance: - The AO disallowed the claim as the gratuity fund was not approved. Assessee's application for approval was pending. - The Ld. CIT(A) allowed the claim, stating that disallowance without approval was unfair. - The Tribunal directed the AO to re-examine the issue considering the fate of the application and instructed the assessee to pursue the matter with the competent authority. 3. Overall Decision: - The Tribunal set aside the Ld. CIT(A)'s orders on both issues and restored them to the AO for fresh examination. - The appeals filed by the revenue were treated as allowed for statistical purposes. This detailed analysis provides a comprehensive overview of the judgment, including the arguments presented, legal references cited, and the final decision rendered by the Tribunal.
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