- (1.) THE assessee -appellant for the relevant assessment year did not claim any deduction on account of leave encashment which they might have to pay to their employees under the scheme. The assessment was complete under Section 143 of the Income -tax Act, 1961 on March 8, 2000. The assessee accepted the same by not preferring any appeal from the order of assessment. On August 9, 2000, the apex court in an identical case delivered a judgment reported in Bharat Evh Movers v. CIT : [2000]245ITR428(SC) , where the apex court held that such a liability on account of leave encashment was a liability in praesenti although it might be discharged at a later date and as such the assessee was entitled to claim appropriate deduction by debiting its profit and loss account and making a corresponding credit entry in the liability account. Soon after the judgment was delivered by the apex court the assessee applied for revision before the Commissioner within the statutory period of limitation. The Commissioner dismissed the revisional application by holding that the judgment in the case of Bharat Earth Movers : [2000]245ITR428(SC) was squarely applicable in the case of the assessee. However, he was not inclined to extend such benefit to the assessee in view of the fact that such judgment could not be applied retrospectively. Before the Commissioner the assessee also relied upon another decision of the apex court in the case of Kedarnath Jute Mfg. Co. Ltd. v. CIT reported in : [1971]82ITR363(SC) . In the said decision the assessee was maintaining its account on the mercantile basis. It had a sales tax liability for the particular assessment year. It did not claim any deduction as the assessment under the Sales Tax Act was not complete by the time the return was submitted. Soon after the submission of the return the sales tax authority assessed the assessee and imposed a liability of Rs. 1,49,776. The assessee immediately filed a revised return claiming deduction of such amount. It was contended on behalf of the Revenue that since no such deduction was claimed earlier at the time of filing of the return such liability accrued after the submission of the return could not be brought in by way of filing of the revised return. The apex court rejected the contention of the Revenue and held that even if the assessee under some misapprehension or mistake failed to make an entry in the books of account although he was entitled to in law to claim such deduction, such deduction must be allowed.
(2.) THE Commissioner also agreed with the submission of the assessee made in support of their contention by relying on the proposition of law laid down in Kedarnath Jute Manufacturing's case : [1971]82ITR363(SC) . The Commissioner, however, felt that such benefit of the judgment in Kedarnath Jute Manufacturing's case : [1971]82ITR363(SC) could only be availed of by the assessee had the Bharat Earth Movers's case : [2000]245ITR428(SC) decision been pronounced before the assessment was complete. Being aggrieved by and dissatisfied with the decision of the Commissioner dated July 13, 2001, appearing at pages 34 -36 of the paper book the appellant -assessee filed a writ petition before this Court. The learned single judge dismissed the writ petition by the judgment and order under appeal. His Lordship was of the view that the benefit of the judgment in the case of Bharat Earth : [2000]245ITR428(SC) could not be extended to the appellant as it would amount to double benefit in favour of the concerned assessee. His Lordship not only dismissed the writ petition but also directed the Revenue to reopen the assessments for the other years where the benefit of Bharat Earth's case : [2000]245ITR428(SC) was extended to the appellant -assessee although according to the appellant those assessment years were not the subject -matter of the writ petition.
(3.) BEING aggrieved by and dissatisfied with the judgment and order of the learned single judge the present appeal was filed by the assessee.;