Shri Mukesh O.Parikh, Ahmedabad V. The Dy.CIT.,Circle-15, Ahmedabad

CO 108/AHD/2010

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7294 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 28-06-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 28-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD D BENCH BEFORE: SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO.633/AHD/2010 A. Y. 2007-08 WITH C.O. NO.108/AHD/2010 (BY ASSESEE) (ARISING OUT OF ITA NO. 633/AHD/2010) THE DCIT, CIRCLE-15 AHMEDABAD APPELLANT VS. SHRI MUKESH O. PARIKH 103, SHALIGRAM APARTMENT NEAR S.B.S., VASTRAPUR, AHMEDABAD PAN-ADIPP8616P RESPONDENT DEPARTMENT BY : SHRI B.L. YADAV, SR. D.R. ASSESSEE BY : WRITTEN SUBMISSION DATE OF HEARING : 17.05.2012 DATE OF PRONOUNCEMENT 28.06.2012 / ORDER PER : A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE REVENUE AND THE C.O. IS FILED BY THE ASSESSEE AND BOTH ARE DIRECTED AGAINST THE ORDER OF LD. CIT(A)-XXI, DATED 31.12.2009 FOR THE ASSESSMENT YEAR 2007-08. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE DATE OF HEARING BUT THE WRITTEN SUBMISSIONS OF LD. A.R. OF THE ASSESSEE ARE AVAILABLE ON RECORD AND, I.T.A. NO.633/AHD/2010 A. Y. 2007-08 WITH C.O. NO.108/AHD/2010 (ARISING OUT OF ITA NO. 633/AH D/2010) 2 THEREFORE, WE PROCEED TO DECIDE THIS APPEAL AND THE C.O. BY CONSIDERING THE WRITTEN SUBMISSIONS OF THE ASSESSEE AND AFTER HEARI NG LD. D.R. OF THE REVENUE. 3. THE GROUNDS, RAISED BY THE REVENUE, IN THIS APP EAL ARE AS UNDER:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.5,00,000/- U/S 10 (10C) OF THE I.T. ACT RELYING ON HONBLE MUMBAI ITATS DECISION IN THE CASE OF VAISH ALI A SHELAR IN WHICH IT IS HELD THAT THE CLAIM U/S 10(10C) OF THE I.T. ACT IN RESPECT OF OERS SCHEME OF THE RBI IS ALLOWABLE. 2. THE DECISION QUOTED BY THE LD. CIT(A) DOES NOT FALL INTO THE FOUR CORNERS OF THIS CASE AS IT PERTAINS TO OERS SC HEME OF RBI AND NOT STATE BANK OF PATIALA OR STATE BANK OF INDIA. 3. THE LD. CIT(A) HAS DELETED THE ADDITION BASED O N THE DECISION OF MUMBAI ITAT WHICH IS NOT APPLICABLE IN GUJARAT. MOREOVER, THE LD. CIT(A) HAS ALSO IGNORED CIRCULAR NO.F.NO.200/34/2009-ITA.1 DATED 6.10.2009 OF CBDT A CCORDING TO WHICH EMPLOYEES OF STATE BANK OF PATIALA AND STATE BANK OF INDIA ARE NOT ELIGIBLE FOR DEDUCTION U/S 10(10C) OF THE INCOM E TAX ACT, 1961. 4. LD. D.R. OF THE REVENUE SUPPORTED THE ASSESSMEN T ORDER WHEREAS IN WRITTEN SUBMISSIONS, IT WAS SUBMITTED BY THE A.R. O F THE ASSESSEE THAT THE ISSUE IN DISPUTE IS COVERED IN FAVOUR OF THE ASSESSEE BY VARIOUS JUDGMENTS AS PER DETAILS BELOW, COPY OF WHICH ARE FURNISHED ALONG WI TH THE WRITTEN SUBMISSIONS AND THEY ARE:- A. ITO VS. KANAIYALAL VADILAL BHAVSAR, IN APPEAL NO .3276/A/2009 SMC BENCH. B. SHRI PANDYA VINODCHANDRA BHOGILAL VS. ITO, IN AP PEAL NO.1492/A/2010 C BENCH C. DAYAGAURI V. KORWALA VS. ITO, IN APPEAL NO.1281 /A/2010 B BENCH D. SMT. SHAKUNTALABEN NAGINKUMAR SHAH VS. ITO, IN APPEAL NO.537/A/2010 A BENCH 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE RECORD AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND THE JUDGMENTS CITED BY LD. A.R. OF THE ASSESSEE IN THE WRITTEN SU BMISSIONS. THE ISSUE IN DISPUTE I.T.A. NO.633/AHD/2010 A. Y. 2007-08 WITH C.O. NO.108/AHD/2010 (ARISING OUT OF ITA NO. 633/AH D/2010) 3 WAS DECIDED BY LD. CIT(A) AS PER PARA NO.7 & 8 OF H IS ORDER WHICH ARE REPRODUCED AS BELOW:- 7. I HAVE PERUSED THE ASSESSMENT ORDER, THE SUBMIS SIONS OF THE APPELLANT AND ALSO CAREFULLY CONSIDERED THE FAV OURABLE JUDGMENTS CITED ABOVE. IN A SIMILAR ISSUE, THE HONBLE JURIS DICTIONAL ITATS REFERRING TO THE DECISION OF HONBLE MUMBAI ITAT IN THE CASE OF VAISHALI A. SHELAR AND OTHERS GAVE A FINDING THAT T HE CLAIM U/S 10(10C) IN RESPECT OF OERS SCHEME OF THE RBI IS ALL OWABLE. THE ISSUE BEING CONTESTED IN THE CASE OF SEVERAL FORMER EMPLOYEES OF RBI AND IN VIEW OF RELIEF GRANTED BY THE VARIOUS JURISD ICTIONAL ITATS AND MY DECISIONS IN ORDER NO.CIT(A)-XXI/189/CIR.15/08-0 9 DATED 16.04.2009 AND NO.CIT(A)-XXI/299/WD.15(1)/08-09 DAT ED 27.04.2009 IN WHICH I HAVE ALLOWED THE EXEMPTION U/ S 10(10C) CLAIMED IN RESPECT OF EXIT OPTION SCHEME OF SBI, I AM OF THE OPINION THAT THERE IS NO REQUIREMENT FOR ANY ELABOR ATE DISCUSSION IN THIS REGARD. THOUGH CLAUSE (IV) OF RULE 2BA AS TO NON-FILLING OF THE VACANCIES CAUSED AS A RESULT OF OERS IS NOT COMPLIE D IN THE OERS OF THE SBI THE SAME HAS BEEN DISCUSSED IN MUMBAI ITATS DECISION IN VAISHALI SHELARS CASE REFERRED ABOVE AND IN VIEW O F THE BINDING DECISION OF THE JURISDICTIONAL ITATS, I HOLD THAT THE CLAIM OF THE APPELLANT U/S 10(10C) IN RESPECT OF EXIT OPTION SCH EME OF SBI IS ALLOWABLE UPTO A LIMIT OF RS.5,00,000/-. 8. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, TH E ASSESSING OFFICER IS DIRECTED TO DELETE THE DISALLOWANCE OF R S.5,00,000/- U/S 10(10C). 6. FROM THE ABOVE PARAS OF THE ORDER OF LD. CIT(A) , WE FEEL THAT LD. CIT(A) HAS DECIDED THE ISSUE BY FOLLOWING THE DECIS ION OF MUMBAI BENCH OF THE TRIBUNAL. BEFORE US LD. A.R. OF THE ASSESSEE HAS PO INTED OUT THAT AHMEDABAD BENCH OF THE TRIBUNAL HAS ALSO DECIDED SIMILAR ISSU E IN FAVOUR OF THE ASSESSEE. NO CONTRARY DECISION WAS BROUGHT TO OUR NOTICE BY L D. D.R. OF THE REVENUE AND IT IS ALSO NOT SHOWN BY LD. D.R. OF THE REVENUE THAT T HESE TRIBUNALS DECISIONS, CITED BY LD. A.R. OF THE ASSESSEE, ARE NOT APPLICAB LE IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. UNDER THIS POSI TION, WE DO NOT FIND ANY I.T.A. NO.633/AHD/2010 A. Y. 2007-08 WITH C.O. NO.108/AHD/2010 (ARISING OUT OF ITA NO. 633/AH D/2010) 4 REASON TO TAKE A CONTRARY VIEW IN THE PRESENT CASE AND HENCE, WE DECLINE TO INTERFERE IN THE ORDER PASSED BY LD. CIT(A). 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. 8. NOW WE TAKE UP THE C.O. OF THE ASSESSEE. IN TH E C.O. THE ASSESSEE HAS RAISED THE ISSUE REGARDING THE CONTENTION TO AL OW RELIEF U/S 89 IF IT IS HELD THAT ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S 10(10C). SINCE WE HAVE DECIDED THE ISSUE IN FAVOUR OF THE ISSUE ON THE FIRST ASPECT, I .E. REGARDING ALLOWABILITY OF DEDUCTION U/S 10(10C), THE CONTENTION RAISED BY THE ASSESSEE IN THE C.O. HAVE BECOME INFRUCTUOUS AND THEREFORE, REJECTED ACCORDIN GLY. 9. IN THE RESULT, THE C.O. OF THE ASSESSEE IS DISM ISSED. 10. IN THE COMBINED RESULT, THE APPEAL OF THE REVE NUE AS WELL AS C.O. OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON .06.2012 SD/- SD/- (KUL BHARAT) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY N.K. CHAUDHARY, SR. P.S. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ) / ' * ! , '# +