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TMI Blog2019 (1) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... ng disposed off by this consolidated order. 3. The solitary issue that is raised in these appeals is whether the CIT(A) is justified in confirming the disallowance of provisions made in the accounts for leave salary payable? 4. The brief facts of the case are as follows:- 4.1 The assessee is a Co-operative Society, engaged in the business of Banking. For the assessment year 2009-2010, return of income was filed on 14.05.2010 declaring Rs. 1,77,95,992. The assessment u/s 143(3) of the I.T.Act was completed vide order dated 29.11.2011 at a total income of Rs. 1,84,61,910. Subsequently, the assessment was set aside by the Commissioner of Income-tax u/s 263 of the I.T.Act for the reason that the Assessing Officer had allowed deduction u/s 36 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has filed the present appeals before the Tribunal. The learned AR reiterated the submissions made before the Income-tax Authorities. The learned Departmental Representative, on the other hand, supported the assessment orders and the orders of the CIT(A). 7. We have heard the rival submissions and perused the record. We find an identical issue had come up for consideration before this Tribunal in the case of Muthoot Vehicles and Asset Finance Ltd vs. ACIT in ITA No.623/Coch/2013 dated 6.12.2013 wherein it was held as under: ''3. We have heard the rival contentions on this issue. We notice that this bench of Tribunal has considered an identical issue in the case of M/s Kerala Feeds Ltd (ITA No. 179 & 180/Coch/2013) and the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered by the Hon'ble Calcutta High Court has not been challenged before the Supreme Court. (Para 5 and 8). Accordingly, the Hon 'ble Kerala High Court, by following the decision rendered by the Hon'ble Supreme Court in the case of Berger Paints Ltd Vs. CIT (266 ITR 99), has further held that the Revenue having not challenged the correctness of the law laid down by the Calcutta High Court, it is not open to the Revenue to challenge its correctness in the case of another assessee. 9. However, we notice that the department has challenged the decision rendered by the Hon'ble Calcutta High Court in the case of Exide Industries Ltd, by filing appeal before Hon'ble Supreme Court and the Hon'ble Apex Court has stayed the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutta High Court in the case of Exide Industries Ltd (supra), but also observed that the assessee would, during the pendency of this Civil Appeal, pay tax as if Section 43B(f) is on the Statute Book. Though the interim orders were passed by the Hon'ble Apex Court in the years 2008/2009, it was not brought to the notice of Hon'ble jurisdictional High Court We further notice that the Hon'ble Supreme Court has modified the decision rendered in the case of Berger Paints (supra) in its subsequent decision in the case of Gangadharan (304 ITR 61). 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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