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TMI Blog2019 (1) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... turns. We set aside the order of CIT(A) on this issue and restore the same to the file of the assessing officer with the direction to examine this issue afresh in accordance with the decision rendered by Hon’ble Supreme Court in the case of M/s Exide Industries Ltd COMMR. OF INCOME TAX & ORS Versus M/s EXIDE INDUSTRIES LTD. & ANR. - [2009 (5) TMI 894 - SUPREME COURT] - Appeal filed by the assessee is treated as allowed for statistical purposes. - ITA No.294/Coch/2017, ITA No.295/Coch/2017, ITA No.296/Coch/2017 - - - Dated:- 22-1-2019 - Shri Chandra Poojari, AM Shri George George K, JM For the Appellant : Sri.Rajakannan For the Respondent : Smt.A.S.Bindhu, Sr.DR ORDER PER GEORGE GEORGE K. (JM) These appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omission to disallow a sum of ₹ 11,90,576 claimed as provision for leave salary. Consequent to the order passed u/s 263 of the I.T.Act, the assessment order was completed u/s 143 r.w.s. 263 of the I.T.Act vide order dated 30.03.2014. 4.3 For the assessment year 2011-2012 the assessment was completed u/s 143 of the I.T.Act vide order dated 27.03.2014 arriving at a total income of ₹ 2,70,78,080. In the said assessment completed u/s 143 of the I.T.Act, the Assessing Officer had disallowed provision for leave salary amounting to ₹ 33,30,581. 5. Aggrieved by the above assessment orders for the assessment years 2009-2010, 2010-2011 and 2011-2012, the assessee preferred appeals to the first appellate authority. The CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sthan High Court in the case of CIT Vs. Raj. State Bride and Construction Corporation Ltd (2012)(346 ITR 53). We notice that the Rajasthan High Court, in the above cited case, has considered the claim of deduction of 'Provision for leave encashment' for assessment year 2000-01. However, the provisions of see. 43B(f) was inserted into the Act by Finance Act, 2001 w.e.f. 1.4.2002, which could not have been considered by Hon'ble Rajasthan High Court Hence, reliance placed by the assessee on the said decision may not be useful for the year under consideration. 8. We have also carefully gone through the decision rendered by the jurisdictional Kerala High Court in the case of Hindustan Latex Ltd (supra) and notice that the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eads as under:- Upon hearing counsel the Court made the following ORDER Issue notice. In the meantime, there shall be stay of the impugned judgment, until further orders . (b) The second order was passed on 08-05- 2009 in the petition for Special Leave to Appeal (Civil) No(s) 22889/2008 (from the very same judgment of the High Court of Calcutta). The order reads as under:- ''Pending hearing and final disposal of the Civil Appeal, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Tribunal, vide its decision dated 13-03-2012, 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 in the case of Exide Industries Ltd (supra). Accordingly, we set aside the orders of Ld CIT(A) on this issue in both the years under consideration and restore them to the file of the AO with the direction to examine the issue afresh in the light of discussions made supra. 4. Consistent with the view taken in the case of Kerala Feeds Ltd (supra), we set aside the order of Ld CIT(A) on this issue and restore the same to the file of the assessing officer with the direction to examine this issue afresh in accordance with the decision rendered by H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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