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TMI Blog2017 (1) TMI 1660X X X X Extracts X X X X X X X X Extracts X X X X ..... est of Revenue. The Hon ble Apex Court in Malabar Industrial Company vs. CIT [ 2000 (2) TMI 10 - SUPREME COURT] held that Commissioner has jurisdiction to revise the assessment order if twin conditions as provided in section 263 are fulfilled i.e. the order is not only erroneous but prejudicial to the interest of Revenue, both twin conditions are essential perquisite. Order passed by AO is not prejudicial to the interest of Revenue, as the assessee has already paid the tax on the provisions for leave encashment. Thus, as per our considered opinion, the order passed by CIT was not warranted. Thus, we hold that the order passed by AO was in order. - Decided in favour of assessee. - ITA No.3427/Mum/2014 Assessment Year-2009-10 - - - Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings under section 143(3) of the Act. c. The Learned CIT ought to have appreciated that the appellant had disclosed all facts before the AO which has been duly considered by the AO during the assessment proceedings and hence the order of the CIT is bad in law and invalid. 2. Without prejudice to above grounds: a. The Learned CIT has erred in law and on facts in setting aside the order passed by the AO under section 143(3) and directing the AO to disallow amount of provision for leave encashment for the year under consideration disregarding the fact that the then AO has after detailed examination allowed claim of deduction of provision for leave encashment vide order under section 143(3) of the Act. b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exide Industries Ltd. Vs. Union of India 292 ITR 472. Thus, the assessee paid the tax by way of TDS and advance tax and claimed the deduction. The ld AR further argued that a show-cause notice u/s 263 dated 18.11.2013 was issued to the assessee. In the said notice the ld CIT disclosed that assessee made the provision of ₹ 60,61,204/- for leave encashment which is debited to the Profit Loss Account which ought to have been disallowed for computation of income, the disallowance was required to be made in specific provision of section 43(f) of the Act. The notice further disclosed that the decision of Kolkata High Court in case of Exide Industries Ltd. vs. UOI 292 ITR 470 is stayed by Hon ble Apex Court vide order dated 08.05.2009, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed by AO is neither erroneous nor prejudicial to the interest of Revenue. The assessee has already paid the tax and made the claim. The assessee has made sufficient disclosure and the order passed by ld. CIT is liable to be set aside. On the merit it was argued that the assessee made sufficient discloser in the return of income. At the time of scrutiny the AO raised the specific query with regard to the provision of leave encashment and the assessee vide reply dated 23.12.2011 filed detailed submission referring the decision of the Calcutta High Court and the order of Hon ble Apex Court in SLP No. 22889/2008 and also contended that the assessee has paid the tax. It was argued that the order is neither erroneous nor prejudicial to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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