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TMI Blog2019 (4) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to the file of Assessing Officer to decide the issue as per the decision of coordinate bench in Everest Industries Ltd. vs. JCIT (2018 (4) TMI 426 - ITAT MUMBAI). The grounds of appeal is restored to the file of AO in case the decision of Hon'ble Supreme Court comes in favour of the assessee in future, then the assessee is free to seek amendment of assessment order. - Appeal of the assessee is allowed for statistical purpose - ITA No. 501/Mum/2018 - - - Dated:- 27-3-2019 - Shri Pawan Singh, Judicial Member And Shri N.K. Pradhan, Accountant Member For the Appellant : Shri Ajit Shah(AR) For the Respondent : Shri S.K. Mishra (Sr. DR) ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 143(3) on 12.03.2013. During the assessment, the assessee claimed that they have offered to tax of ₹ 49,81,018/- in respect of leave encashment provision as disallowable u/s. 43B(f) of the Act, the same should not be disallowed in computing the income for the year. The assessee relied upon the decision of Hon ble Kolkata High Court in Exide Industries Ltd. vs. Union of India, wherein the said provision is declared as invalid. The claim of assessee was not accepted by Assessing Officer holding that the assessee has itself offered the same in computation of income along with the return of income as disallowable. On appeal before the ld. CIT(A), the action of Assessing Officer was upheld. The ld. CIT(A) concluded that in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue afresh. 5. We have considered the submission of parties and have gone through the orders of authorities below. We have noted that the Assessing Officer not accepted the revised claim of the assessee. The ld. CIT(A) also concurred with the decision of Assessing Officer. However, keeping in view the ratio of law laid down by Hon ble jurisdictional High Court in CIT vs. CIT vs. Pruthvi Brokers and Shareholders (supra), we admit the additional ground of claim raised by assessee and restore the issue to the file of Assessing Officer to decide the issue as per the decision of coordinate bench in Everest Industries Ltd. vs. JCIT (supra). For appreciation of fact the relevant part of decision of Everest Industries Ltd. (supra) is extracted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e heard learned Departmental Representative and perused the record. We noticed that the Cochin Bench of the Tribunal has considered an identical issue and restored the matter to the file of the Assessing Officer with following observations :- '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 Tribunal, vide its order dated 27-09-2013, has set aside this issue to the file of the AO with the following observations:- 7. We have heard the rival contentions and perused the record. With regard to the claim of Provision for leave encashment, the Ld Counsel placed reliance on the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judgment of the Hon'ble Calcutta High Court. In fact, the Hon'ble Apex Court has passed two interim orders in this regard, which are detailed below:- (a) The first order was passed on 08-09-2008 in the petition for Special Leave to Appeal (Civil) CC 12060/2008 in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 10. We also notice that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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