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Income Tax Appellate Tribunal, “A” BENCH: KOLKATA
Before: Shri Mahavir Singh, JM & Shri M. Balaganesh, AM]
Per Shri Mahavir Singh, JM:
This appeal by assessee is arising out of order of CIT(A)-VI, Kolkata vide Appeal No. 210/CIT(A)-VI/R-6/2010-11/Kol dated 28.01.2013. Assessment was framed by Addl. CIT, Range-6, Kolkata u/s. 143(3) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) for Assessment Year 2008-09 vide his order dated 31.12.2010.
At the outset, it is noticed that while adjudicating MA No. 19/Kol/2015 arising out of this the Tribunal has recalled its order qua the additional ground raised by the assessee vide order dated 20.11.2015. The relevant ground reads as under: “That without prejudice to Ground No. 5, the Ld. DCIT be directed to exclude a sum of Rs.22,24,105/- being payment made on account of Leave Liability during the Asst. Year 2002-03 in case the dept.’s appeal is allowed in their favour and deduction for provision made for Leave Liability is withdrawn.”
Ld. Counsel for the assessee in view of the above additional ground regarding leave liability argued that this issue is pending before Hon’ble Supreme Court in the case of Exide Industries Ltd. Vs. Union of India (2007) 292 ITR 470 (Cal) but he fairly conceded that subsequently Hon'ble Supreme Court has stayed this judgment of Hon'ble jurisdictional High Court vide order 08-05-2009 by following observations:- “Pending hearing and final disposal of the Civil Appeals, 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. We further make it clear that the assessee would, during the pendency of this Civil Appeal, pay tax as if section 43B(f) is on the Statue Book but at the same time it would be entitled to make a claim in its returns.”
In view of the above, Ld. counsel for the assessee fairly stated that let Hon'ble Supreme Court decide the issue and by that time the matter can be remitted back to the file of AO for fresh adjudication in term of the decision of Hon'ble Supreme Court. On this, Ld. CIT DR has not objected to the same. Accordingly, we set aside this issue to the file of the AO to await the decision of Hon'ble Supreme Court and decide the issue accordingly. This issue of assessee’s appeals is remitted back to the file of AO and allowed for statistical purposes.