ESSAR INVESTMENT LTD,MUMBAI vs. ITO 5(1)(4), MUMBAI
What did the Tribunal hold?
The Tribunal restored the issue of leave encashment provision to the Assessing Officer pending the Supreme Court's decision. For unabsorbed depreciation, the Tribunal followed coordinate bench decisions and directed the Assessing Officer to allow the assessee's claim.
What were the facts?
The assessee challenged the disallowance of provision for leave encashment and the disallowance of set off of unabsorbed depreciation. The provision for leave encashment was disallowed based on Section 43B(f), despite a High Court ruling, pending a Supreme Court decision. The unabsorbed depreciation issue was decided against the assessee by the CIT(A).
What were the issues?
Whether provision for leave encashment is allowable as a deduction under Section 43B, and whether unabsorbed depreciation from AY 2001-02 can be set off against current year's income.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cases cited in this judgment(2)Show listHide list
Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.
- General Motors India (P) Ltd. v. DCIT141 citing354 ITR 244 · 2013 · HC · Read judgment
- 47 Taxmann.com 3334 citing47 Taxmann.com 333
Income Tax Appellate Tribunal, “SMC” Bench, Mumbai
Before: Shri B.R. Baskaran (AM)
The assessee has filed this appeal challenging the order dated 9.6.2016 passed by the learned CIT(A)-12, Mumbai for A.Y. 2011-12 on the following issues :- a) Disallowance of provision for leave encashment u/s. 43B of the Act. b) Disallowance claim for set off unabsorbed depreciation relating to A.Y. 2001-02.
I heard the parties and perused the record. The assessee-company is engaged in the business of promotion of industrial undertaking and providing specialized management and project related services. The first issue relates to disallowance of provision for leave encashment made by the assessee to the tune ` 3.67 crores. Even though, Hon'ble Kokatta High Court has held in the case of Exide Industries that the amendment made in section 43B by inserting clause (f) relating to provision for leave encashment is not valid, yet the Hon'ble Supreme Court has stayed the said order. The Hon'ble Supreme Court has further held in his order dated 8.5.2009 in SLP No. 22889 of 2008 in the case of Exide Industries Ltd that during the pendency of this civil appeal the 2 M/s. Essar Investments Ltd.
assessee should pay tax as if section 43B(f) is on the statute book but at the same time it would be entitled to make a claim in its return. Accordingly, I restore this matter to the file of the Assessing Officer with the direction to amend the assessment order, if required, after this issue is decided by Hon'ble Supreme Court.
Next issue relates to deduction of claim for set off of unabsorbed depreciation relating to A.Y. 2011-12. This issue has been decided in favour of the assessee by Hon'ble Gujarat High Court in the case of General Motors India (P) Ltd. (354 ITR 244), wherein it has been held that unabsorbed depreciation available at the end of A.Y. 2001-02 shall be added to the current depreciation relating to A.Y. 2002-03. We noticed from the order passed by the learned CIT(A) that the decision rendered by Hon'ble Gujarat High Court in the above said case was followed by the Coordinate Bench in the case of Bajaj Hindustan Ltd. (47 Taxmann.com 333) and also in the case of M/s. Divyarath Developers P. Ltd. (ITA No. 5231/Mum/2012 dated 11.3.2015). Even though, the learned CIT(A) has taken note of these decisions, he has proceeded to confirm the order passed by the Assessing Officer on this issue. However, as noticed earlier, this issue has already been decided in favour of the assessee by the Coordinate Benches by following the decision rendered by Hon'ble Gujarat High Court in the case of General Motors India (P) Ltd. (supra). Hence, consistent with the view taken by the Coordinate Benches, I set aside the order passed by the learned CIT(A) and direct the Assessing Officer to allow the claim of the assessee.
In the result, appeal filed by the assessee is allowed.
Order has been pronounced in the Court on 3.5.2017.
More judgments on Section 43B
- Vco Consulatatns and Sevices Private… vs ITO, Corporate Ward 3(3), ChennaiITA 2145/CHNY/2025[2019-20]Status: Disposed16 Oct 2026AY 2019-20
- Siemens Gamesa Renewable Power Private… vs The Dy CIT Circle 8(2)(1), MumbaiITA 8020/MUM/2025[2017-18]Status: Disposed9 Oct 2026AY 2017-18
- Amritvarsha Industries Limited, Ambedkar… vs Assistant Commissioner of Income Tax…ITA 6481/DEL/2026[2010-2011]Status: Disposed7 Oct 2026AY 2010-2011
- Karaj Singh, Haryana vs PCIT (Central) Gurgaon, GurgaonITA 642/CHANDI/2026[2022-23]Status: Disposed1 Oct 2026AY 2022-23
- ACIT, Mumbai vs Imp Powers Limited, MumbaiITA 4982/MUM/2025[2012-13]Status: Disposed30 Sept 2026AY 2012-13
Recent GST High Court judgments
Search GST case law →- M/S Larsen And Toubro Limited vs. Joint Commissioner Of Central GST And Anr.Delhi · 27 Oct 2026
- T C Global INDIA Private Limited vs. Principal Commissioner Of Central GST, North DelhiDelhi · 27 Oct 2026
- Kamlasana Impex Private Limited vs. Director General Of GST Intelligence (Hq) Delhi) & Anr.Delhi · 27 Oct 2026
- Ritu Gautam Proprietor Of Ms Heritage International vs. Additional Commissioner Central Goods And Services Tax Appeals Ii Delhi & Anr.Delhi · 27 Oct 2026
- Sutha vs. The State Tax Officer(Inspection-3)Madras · 27 Oct 2026