M/S. S R BATLIBOI & ASSOCIATES LLP,KOLKATA vs. DCIT, CIRCLE - 22, KOLKATA, KOLKATA

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ITA 2114/KOL/2017Status: DisposedITAT Kolkata19 September 2018AY 2013-143 pages
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What did the Tribunal hold?

The Tribunal directed the Assessing Officer to await the decision of the Apex Court in the Exide Industries Ltd. case regarding the validity of Section 43B(f). For two of the assessees, the disallowance was upheld for now as no actual payment was made, while for the first assessee, factual verification was required to avoid double addition.

What were the facts?

The ITAT heard appeals concerning the disallowance of leave encashment provisions under Section 43B(f) for assessment year 2013-14. The disallowances were made by the Assessing Officer and upheld by the CIT(A).

What were the issues?

The primary issue was the disallowance of leave encashment provisions under Section 43B(f) and the pending legal challenge to the validity of this section.

Which sections of the Income-tax Act were involved?

Section 43B(f),Section 143(3)

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Income Tax Appellate Tribunal, KOLKATA BENCH “D” KOLKATA

Before: Shri S.S.Godara & Dr. A.L. Saini

-2116/Kol/17 A.Y. 2013-14 M/s S R Batliboi & Co. vs. DCIT, Cir-22, Kol. Page 2 आदेश /O R D E R PER S.S.Godara, Judicial Member:- These three assessees have filed their as many appeals for assessment year 2012-13 against the Commissioner of Income Tax (Appeals)-6 Kolkata’s separate orders; all dated 05.09.2017, passed in case No.10065,10061 & 10057/CIT(A)/6/Kol/2016-17; upholding the Assessing Officer’s identical action disallowing leave encashment provisions u/s 43B(f) of ₹262,438/- ₹11,93,287/- & ₹12,81,102/-; respectively, involving proceedings u/s. 143(3) of the Income Tax Act, 1961; in short ‘the Act’.

2.

We have heard all these cases together since involving identical question of leave encashment provision disallowance(s) u/s 43B(f). Case files perused. These three appeals are therefore disposed of vide instant common order.

3.

Both the Learned Representatives are ad idem at the outset that that hon'ble jurisdictional high court’s decision in Exide Industries Ltd. vs. Union of India (2007) 292 ITR 470 (Cal) had quashed this statutory provision itself to be ultra vires. Hon'ble apex court has stayed operation thereof vide order dated 08.05.2009. The Revenue’s civil appeal against the same is stated to be pending before the hon'ble apex court till date.

4.

The assessee takes us first appeal ITA 2114/Kol/2017.It submits that the impugned disallowance in question of ₹262,438/- comprises of ₹1,96,407/- paid out of the provision made for leave encashment in earlier assessment years and in impugned assessment year whereas a similar amount of ₹6,3031/- has been reversed and credited to profit and loss account in the current impugned assessment year is out of provision of made leave encashment in earlier assessment year.

5.

Coming to second and third appeals, learned counsel submits that the provisions in question are based on actuarial valuation and therefore the same ought to have been allowed by the lower authorities. Learned Departmental Representative strongly supports the impugned disallowance(es) made strictly

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