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2022 (12) TMI 1156 - AT - Income TaxDisallowance in respect of provision for leave encashment - HELD THAT - We find that the issue with respect to applicability of provisions of Section 43B(f) is decided by the Hon ble Supreme Court in the case of M/s. Exide Industries Ltd 2020 (4) TMI 792 - SUPREME COURT in favour of the Revenue Since the Hon ble Supreme Court has decided the provisions of Section 43B(f) is constitutionally valid and operative for all purposes, therefore, respectfully following the Judgment of Hon ble Supreme Court in the case of Union of India Others vs., M/s. Exide Industries Ltd., Anr. (supra), we dismiss grounds of appeal No.1 of the assessee. Disallowance of claim of sales tax incentive - HELD THAT - Supreme Court in the case of Union of India vs., Kamlakshi Finance Corporation Ltd 1991 (9) TMI 72 - SUPREME COURT has held that mere fact that the order of the appellate authority is not acceptable to the Department and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. We find that since the order of the Special Bench of the Tribunal is still holds the field and in absence of any contrary decision brought to our notice by the Ld. D.R, and the order of the Ld. CIT(A) in deleting the addition made by the A.O. is in accordance with law, we find no reason to interfere with the order of the Ld. CIT(A) on this issue and, therefore, we hold that the amount of incentive is not a revenue receipt, but, it is a capital receipt and, therefore, we direct the A.O. to delete the addition. The Revenue fails in its grounds of appeal Nos.1(i) to 1(iv) and, therefore, the grounds on this issue are dismissed. Adding back the excise duty exemption - Capital receipt - After analyzing the Office Memorandum dated 14-06-2002 behind the grant of Incentive has held that Excise Duty refund granted with the object of creating avenues for Perpetual Employment, to eradicate the social problem of unemployment in the State by accelerated industrial development was a capital receipt. Further, the Departmental Appeal filed against the said High Court decision of Shree Balaii Alloys 2011 (1) TMI 394 - JAMMU AND KASHMIR HIGH COURT has also been dismissed by the Hon'ble Apex Court 2016 (4) TMI 1161 - SC ORDER So, this issue has attained finality. Since we find no infirmity in the order of the Ld. CIT(A) and the Ld. D.R. failed to put forth any contrary decision, we confirm the order of the Ld. CIT(A) on this issue and dismiss the grounds of appeal no.2(i) to 2(v) of the Revenue. Swap loss - loss on derivatives in the P/L account which includes mark to market loss in respect of the LIBOR hedging with ICICI Bank, Currency Swap Transaction with ICICI Bank and Currency Swap Transaction with Centurion Bank of Punjab presently known as HDFC Bank - AO disallowed the claim on the contention that the swap loss arose on account of conversion of foreign exchange on the balance sheet date and such conversion was basically a mark to market loss and not the actual loss hence it was purely notional in nature - A.O. treated the swap loss arose on account of conversion of foreign exchange basically a mark to market loss and not the actual loss and hence, the A.O. disallowed the claim of loss on foreign exchange - CIT(A) has allowed the issue in favour of the assessee - HELD THAT - We find that the Hon ble Supreme Court in the case of CIT vs., Woodard Governor India Pvt. Ltd 2009 (4) TMI 4 - SUPREME COURT has held that loss suffered by assessee on account of the exchange difference as on the date of the balance sheet is an item of allowable expenditure/s under section 37(1) and has taken consistent view in an another appeal in the case of ONGC Ltd. 2010 (3) TMI 81 - SUPREME COURT Since the order of the Ld. CIT(A) is in accordance with settled legal position of law, we, therefore, find no infirmity in his and in absence of any contrary decision/ material brought on record by the Ld. D.R, we dismiss the ground of appeal no.3 of the Revenue.
Issues Involved:
1. Disallowance of provision for leave encashment. 2. Nature of sales tax incentive (capital or revenue receipt). 3. Nature of excise duty exemption (capital or revenue receipt). 4. Allowability of foreign exchange fluctuation loss. 5. Deductibility of education cess. Detailed Analysis: 1. Disallowance of Provision for Leave Encashment: The assessee claimed a deduction of Rs.35,89,347/- for provision for leave encashment, which was disallowed by the A.O. under section 43B(f) of the I.T. Act, 1961. The CIT(A) confirmed this disallowance. The assessee argued that leave encashment was not covered under section 43B(f) and cited the Calcutta High Court decision in Exide Industries Ltd. However, the Supreme Court in Union of India & Others vs. M/s. Exide Industries Ltd. upheld the constitutional validity of section 43B(f), thereby confirming the disallowance. The Tribunal followed this judgment and dismissed the assessee's appeal on this ground. 2. Nature of Sales Tax Incentive: The assessee received a sales tax incentive of Rs.6,74,12,461/- under the New Package Scheme of Incentives (PSI), 1993, and treated it as a capital receipt. The A.O. treated it as a revenue receipt. The CIT(A) held that the incentive was a capital receipt, relying on the ITAT Special Bench decision in DCIT vs. Reliance Industries Ltd., which treated such incentives as capital receipts. The Tribunal upheld the CIT(A)'s decision, stating that the incentive was for industrial development and had a direct nexus with investment in fixed capital assets, thus confirming it as a capital receipt. 3. Nature of Excise Duty Exemption: The assessee claimed excise duty exemption of Rs.15,67,00,636/- as a capital receipt. The A.O. treated it as a revenue receipt. The CIT(A) treated it as a capital receipt, relying on the Jammu & Kashmir High Court decision in Shree Balaji Alloys vs. CIT, which was affirmed by the Supreme Court. The Tribunal upheld the CIT(A)'s decision, noting that the objective of the excise duty incentive was industrialization of backward areas for employment generation, thus confirming it as a capital receipt. 4. Allowability of Foreign Exchange Fluctuation Loss: The assessee claimed a foreign exchange fluctuation loss of Rs.1,30,85,426/- on derivatives. The A.O. disallowed it, considering it a notional loss. The CIT(A) allowed the claim, following the ITAT's earlier decisions for AY 2008-09 and 2009-10. The Tribunal upheld the CIT(A)'s decision, relying on the Supreme Court judgment in CIT vs. Woodward Governor India Pvt. Ltd., which allowed such losses as deductible under section 37(1) of the I.T. Act. 5. Deductibility of Education Cess: The A.O. disallowed the deduction of education cess. The CIT(A) allowed it. However, the Tribunal confirmed the A.O.'s decision, noting the subsequent amendment by the Finance Act, 2022, which clarified that education cess is not deductible. The assessee did not press this ground in light of the amendment. Conclusion: - The assessee's appeal was dismissed. - The revenue's appeal was partly allowed, confirming the disallowance of education cess and treating sales tax and excise duty incentives as capital receipts.
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