The ITO, Ward-15(4), Ahmedabad V. Shri Nalin Natwarlal Shah, Ahmedabad

ITA 122/AHD/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60561 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 28-06-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 12-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P JANGID

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD C BENCH BEFORE: SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER I.T.A. NO.122/AHD/2010 A. Y. 2007-08 INCOME TAX OFFICER WARD 15(4), AHMEDABAD APPELLANT VS. SHRI NALIN NATWARLAL SHAH D/2, SUBH ASHISH APARTMENT, O.P. SBI, NAVA VADAJ BRANCH AHMEDABAD-380 013 PAN-AMMPS8258B RESPONDENT DEPARTMENT BY : SRI J.P. JANGID, SR. D.R. ASSESSEE BY : SRI UMAID SINGH BHATI, A.R. DATE OF HEARING : 28.06.2012 DATE OF PRONOUNCEMENT 29.06.2012 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER THIS IS REVENUES APPEAL AGAINST THE ORDER OF LD. C IT(A)-XXI, AHMEDABAD DATED 13.11.2009. 2. THE ONLY EFFECTIVE GROUND TAKEN BY THE REVENUE IS AS UNDER: THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DE LETING THE ADDITION OF RS.5,00,000/- U/S 10(10C) OF THE I.T. A CT, 1961. 3. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS AN EMPLOYEE OF S.B.I. HE OPTED VOLUNTARILY RETIREMENT FROM SBI UNDER EXIT OPTION SCHEME OF SBI ON 01.05.2006. THE ASSESSEE CLAIMED EXEMPTION OF RS.5 ,00,000/- U/S 10(10C) OF I.T.A. NO.122/AHD/2010 A. Y. 2007-08 2 THE ACT. THE A.O. WAS OF THE VIEW THAT THIS EXEMPT ION U/S 10(10C) WAS AVAILABLE ONLY IF THE SCHEME OF VOLUNTARY RETIREMEN T IS IN ACCORDANCE WITH THE REQUIREMENT LAID DOWN IN RULE 2BA OF INCOME TAX ACT , 1962. SINCE, ACCORDING TO HIM THE EXIT OPTION SCHEME OF SBI DID NOT SATISF Y THE GUIDELINES LAID DOWN IN RULE 2BA OF INCOME TAX RULE, EXEMPTION U/S 10(10C) OF THE ACT WAS NOT AVAILABLE TO THE ASSESSEE, THEREFORE, THIS AMOUNT O F RS.5,00,000/- CLAIMED AS EXEMPTION BY THE ASSESSEE WAS ADDED BACK TO THE TOT AL INCOME OF THE ASSESSEE. ASSESSEE WENT IN APPEAL BEFORE LD. CIT(A) WHO, AFTE R TAKING INTO CONSIDERATION THE SUBMISSION OF THE ASSESSEE, WHICH WERE DULY REC ORDED BY HIM IN HIS APPELLATE ORDER, DELETED THE ADDITION MADE BY THE A .O. OF RS.5,00,000/-. FURTHER AGGRIEVED, NOW REVENUE IS IN APPEAL BEFORE US. 4. AT THE TIME OF HEARING BOTH THE PARTIES AGREED THAT THE ASSESSEE IS NOW COVERED BY THE DECISION OF THIS TRIBUNAL IN THE CASE OF ITO VS. SHRI KANAIYALAL VADILAL IN ITA NO.3276/AHD/2009 WHEREIN FOLLOWING WAS HELD:- 7. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS A VAILABLE ON RECORD. IN THE INSTANT CASE THE ASSESSEE TOOK VOLUN TARY RETIREMENT FROM SERVICES WITH STATE BANK OF INDIA A ND WAS PAID EX-GRATIA OF RS.3,44,037/- WHICH WAS CLAIMED D EDUCTION U/S IO(10C) OF THE ACT RELYING ON THE DECISION OF T HE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. NAGESH DEV IDAS KURKARNI 291 ITR 407 (BOM) AND CIT VS. KOODATHI KAL IYATAN AMBUJAKSAN 219 CTR 80, DECISION OF HON'BLE MADRAS H IGH COURT IN THE CASE OF CIT VS. G V VENUGOPAL 273 ITR 307 (M AD), CIT VS. S SUNDER & OTHERS 284 ITR 687, CIT VS. J RAMAMANI 286 ITR 616 AND CIT VS. M ABDULKARIM 311 I TR 162 AND HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT & OTHERS VS. P SURENDRA PRABHU 279 ITR 402 AND KERALA HIGH COURT IN THE CASE OF STATE BANK OF TRAVANCORE VS. C BDT 282 ITR 587. THE LEARNED ASSESSING OFFICER DISALLOWED T HE DEDUCTION TO THE ASSESSEE OBSERVING THAT ALL THE DE CISIONS I.T.A. NO.122/AHD/2010 A. Y. 2007-08 3 RELIED UPON BY THE ASSESSEE ARE OF NON-JURISDICTION AL HIGH COURTS AND THERE IS NO DIRECT JUDGMENT OF HON'BLE G UJARAT HIGH COURT. IN APPEAL, THE LEARNED COMMISSIONER OF INCOME- TAX (APPEALS) FOLLOWING THE DECISIONS OF THE HIGH C OURTS RELIED UPON BY THE ASSESSEE ALLOWED THE DEDUCTION TO THE A SSESSEE. I FIND THAT THE HON'BLE MADRAS HIGH COURT IN THE CA SE OF CIT VS. G V VCIUIGOPAL 273 1TR 307 HELD AS UNDER: 'NOTIONS OF EQUITY DO NOT APPLY IN TAXING STATUTES . HENCE, IF THE ASSESSEE IS ENTITLED TO TWO BENEFITS ON THE PLAIN LANGUAGE OF STATUTE, HE HAS TO BE GRANTED BOTH THOS E BENEFITS. THE SECOND PROVISO TO S. 10(10C) ONLY REFERS TO EXE MPTION CLAIMED IN ANY OTHER ASSESSMENT YEAR. IT IS WELL SE TTLED THAT EVERY ASSESSMENT YEAR IS A SELF-CONTAINED UNIT. THE ASSESSMENT YEAR IN QUESTION IN THE PRESENT CASE IS 2001-02 AND THE EXEMPTION CLAIMED IS IN RESPECT OF THIS ASS ESSMENT YEAR, ALTHOUGH THE EXEMPTION GRANTED UNDER S. 89(1) HAS BEEN SPREAD OVER SEVERAL ASSESSMENT YEARS. THE MERE FACT THAT THE RELIEF HAS BEEN SPREAD OVER SEVERAL YEARS, DOES NOT MEAN THAT THE RELIEF IS NOT IN RESPECT OF A PARTICU LAR ASSESSMENT YEAR. THE TRIBUNAL HAS RIGHTLY POINTED O UT THAT IN THE IT ACT, THERE ARE SEVERAL PROVISIONS GRANTING T WIN OR DOUBLE BENEFITS, WHILE IN OTHER PROVISIONS, TWIN OR DOUBLE BENEFITS HAVE BEEN SPECIFICALLY PROHIBITED. THERE I S NO PROHIBITION TO THE TWIN BENEFITS IN RESPECT OF THE AMOUNT RECEIVED UNDER THE VOLUNTARY RETIREMENT SCHEME. THE WORD ' SALARY ' AS DEFINED IN S. 17 INCLUDES ANY PROFIT IN LIEU OF SALARY, WHICH HAS BEEN DEFINED IN S. 17(3) TO INCLUDE ANY A MOUNT OF COMPENSATION DUE OR RECEIVED BY THE ASSESSEE FROM H IS EMPLOYER OR FORMER EMPLOYER IN CONNECTION WITH THE TERMINATION OF HIS EMPLOYMENT. HENCE, PAYMENT UNDER THE VOLUNTARY RETIREMENT SCHEME IS COVERED BY THE WORD ' SALARY , WHICH HAS BEEN GIVEN A VERY WIDE DEFINITION IN S. 1 7. SINCE THE ASSESSEE IS COVERED BY S. 89, HE WILL GET BOTH THE BENEFITS, WHICH HE HAS CLAIMED FOR. APART FROM THE ABOVE, IT IS WELL- SETTLED THAT IF TWO REASONABLE INTERPRETATIONS OF T AXING STATUTES ARE POSSIBLE, THE ONE IN FAVOUR OF THE ASS ESSEE SHOULD BE ACCEPTED. CIT VS. NAGA HILLS TEA CO. LTD. 1973 CTR (SC) 329 : AIR 1973 SC 2524 APPLIED.' 8 FURTHER, IN MY CONSIDERED OPINION, IF THERE IS A DECISION ON AN ISSUE OF ANY HIGH COURT AND THERE IS NO CONTRARY DECISION OF ANY OTHER HIGH COURT, THEN IN ABSENCE OF THE SAME, EVEN IF THERE IS NO DECISION ON THE ISSUE OF THE JURISDICTIONAL HIGH COURT, THE DECISION RENDERED BY THE OTHER HIGH COURTS SHOULD BE RESPECTFULLY FOLLOWED BY THE COURTS BELOW THE HIGH COURT. THEREFORE, FOLLOWING THE DECI SION OF HON'BLE MADRAS HIGH COURT, I DO NOT FIND ANY GOOD R EASON TO INTERFERE WITH THE ORDER OF THE LEARNED COMMISSIONE R OF I.T.A. NO.122/AHD/2010 A. Y. 2007-08 4 INCOME-TAX (APPEALS). IT IS CONFIRMED AND THE GROU ND OF APPEAL OF THE REVENUE IS DISMISSED. 5. IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE R EVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 29.06.2012 SD/- SD/- (T.R. MEENA) (D.K. TYAGI) ACCOUNTANT MEMBER JUDICIAL 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/ , ) / ' * ! , '# +