ITO, Wd.-2(2), Aurangabad V. Shri Durukkar V Vishvanath, Aurangabad

ITA 1229/PUN/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9930 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 28-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K OJHA
• Keywords: Tax effect; Revised return

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI R.K. PANDA ACCOUNTANT MEMBER ITA NO. 1229/PN/2011 (ASST.YEAR 2008-09) INCOME TAX OFFICER, WARD 2(2), JEEVAN SUMAN, 2 ND FLOOR, LIC BUILDING, N-5, CIDCO, AURANGABAD 431 003. .. APPELLANT VS. DURUKKAR V. VISHVANATH, 48-B, MAYANAGAR, N-2, CIDCO, AURANGABAD. .. RESPONDENT PAN NO. ACWPD 1920A ASSESSEE BY : NONE DEPARTMENT BY : SRI K.K. OJHA DATE OF HEARING : 10-10-2012 DATE OF PRONOUNCEMENT : 16-10-2012 ORDER PER BENCH : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 18-07- 2011 OF THE CIT(A)-AURANGABAD RELATING TO ASSESSMEN T YEAR 2008-09. SINCE NONE APPEARED ON BEHALF OF THE ASSESSEE THE APPEAL IS BE ING DECIDED ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LEARNED DR. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE, AN EMPLOYEE OF STATE BANK OF HYDERABAD OPTED FOR VRS AS PER THE EXIT OPTION S CHEME ANNOUNCED BY THE BANK AND RECEIVED VRS COMPENSATION. HE FILED HIS R ETURN OF INCOME ON 18-08- 2008 DECLARING TAXABLE INCOME OF RS.4,33,674/-. SU BSEQUENTLY HE FILED THE REVISED RETURN ON 27-01-2009 DECLARING TAXABLE INCOME AT RS .1,64,598/- AFTER CLAIMING DEDUCTION OF RS.2,69,036/- U/S.10(10C) OF THE INCOM E TAX ACT. THE AO DISALLOWED THE CLAIM OF EXEMPTION U/S.10(10C) ON TH E GROUND THAT AS PER THE EXIT OPTION SCHEME THE EMPLOYEES OF STATE BANK OF PATIAL A AND STATE BANK OF INDIA ARE NOT ELIGIBLE FOR EXEMPTION U/S.10(10C) OF THE ACT. HE FURTHER NOTED THAT IN ORDER TO 2 AVAIL EXEMPTION U/S.10(10C) THE FIRST PROVISO THERE BY LAYS DOWN THAT THE SCHEME SHOULD BE FRAMED IN ACCORDANCE WITH THE INCOME TAX RULES, 1962 AND ONE OF THE REQUIREMENT AS PER RULE 2BA IS TO BE FULFILLED. HE ALSO REFERRED TO THE CBDT CIRCULAR BEARING NO.200/34/2009-ITA-I DATED 06-10-2 009. DISTINGUISHING THE VARIOUS DECISIONS RELIED ON BY THE ASSESSEE THE AO REJECTED THE CLAIM OF DEDUCTION U/S.10(10C) OF THE INCOME TAX ACT. 3. IN APPEAL THE LEARNED CIT(A) ALLOWED THE CLAIM O F THE ASSESSEE BY FOLLOWING VARIOUS DECISIONS INCLUDING THE DECISION OF THE JUR ISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. KOODATHIL KALLYATAN AMBUJAKSHAN REPORTED IN 309 ITR 113 AND THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE C ASE OF ITO WARD-2(4) JALGAON VS. HARIBHAU SALI VIDE ITA NO. 1429/PN/2009 ORDER DATED 25-03-2011 FOR A.Y. 2007-08. 3.1 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REV ENUE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE HONBLE CIT(A), AURANGABAD, ERRED IN ALLOWING THE DEDUCTION U/S.10( 10C) OF THE I.T. ACT, 1961 IN RESPECT OF EX-GRATIA AMOUNT RECEIVED ON VRS BY THE EMPLOYEE S OF THE SBH 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, WHETHER THE HONBLE CIT(A), AURANGABAD, IS CORRECT IN ALLOWING THE DEDUCTION IN RESPECT OF RETIRMENT BENEFITS EVEN THOUGH THE CLAUSE 10 OF BANKS RETIREMENT SCHEME DO CUMENT ITSELF INDICATES THAT THE SCHEME IS NOT APPROVED AS PER THE PROVISIONS OF SEC TION 10(10C) OF THE I.T. ACT, 1961. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, WHETHER THE HONBLE CIT(A), AURANGABAD, IS CORRECT IN RELYING ON THE HIGH COURT DECISION IN THE CASE OF CIT VS. KOODATHIL KALLYATAN AMBUJAKSHAN (2008) 210 CTR 18 ( BOM.) WHICH CASE IS DECIDED ON 04-07-2008, WHEREAS THE BOARD HAS LATER ON SPECIFIC ALLY ISSUED THE NOTIFICATION DT. 06-10- 2009, SPECIFYING THAT THIS PARTICULAR SCHEME OF SBH IS NOT ELIGIBLE FOR DEDUCTION U/S.10(10C) OF THE I.T. ACT, 1961. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, WHETHER THE HONBLE CIT(A), AURANGABAD, IS CORRECT IN HOLDING THE ASSESSEE IS E NTITLED TO GET BENEFIT OF SECTION 10(10C) OF THE I.T. ACT, 1961 RELYING ON THE HIGH C OURT DECISION IN THE CASE OF CIT VS. KOODATHIL KALLYATAN AMBUJAKSHAN (2008) 219 CTR 18 ( BOM.) THOUGH THE SAID DECISION IS DT. 04-07-2008, WHEREAS THE SAID DECISION IS ONLY I N RESPECT OF THE RBI EMPLOYEES EXCLUSIVELY, WHERE THEIR RETIREMENT SCHEME WAS FOUN D TO BE APPROVED. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, WHETHER THE HONBLE CIT(A), AURANGABAD, MAY BE VACATED AND THAT OF THE AO BE RE STORED. 3 4. AFTER HEARING THE LEARNED DR AND ON PERUSAL OF O RDERS OF THE AO AND CIT(A) WE FIND IDENTICAL ISSUE HAD COME UP BEFORE THE TRIB UNAL IN THE CASE OF ITO WARD-2, RATNAGIRI VS. DATTATRAYA DHUNDIRA MARATHE VIDE ITA NO.1095/PN/2011 ORDER DATED 05-09-2012. WE FIND THE TRIBUNAL DISMISSED T HE APPEAL FILED BY THE REVENUE BY HOLDING AS UNDER: 6. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE VARIOUS DEC ISIONS CITED BEFORE US. ADMITTEDLY THE TAX EFFECT IN THE INSTANT CASE IS LESS THAN RS. 3 LAKHS. THEREFORE, IN VIEW OF THE VARIOUS DECISIONS OF THE COORDINATE BENCHES OF THE TRIBUNAL THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE AND HAS TO BE DISMISSED AS UNADMITTED. EVEN OTHERWISE ON MERIT ALSO THE ISSUE STANDS DECIDED AGAINST THE REVENUE AND IN FAV OUR OF THE ASSESSEE BY VARIOUS DECISIONS OF THE COORDINATE BENCHES OF THE TRIBUNAL . WE FIND IN THE CASE OF ITO VS. GANPATRAO PATIL (WHERE BOTH OF US ARE PARTIES) WE H AVE DISMISSED THE APPEAL FILED BY THE REVENUE BY HOLDING AS UNDER : 2. BRIEFLY STATED FACTS ARE AS UNDER. THE ASSESSE E WAS EMPLOYEE OF THE STATE BANK OF INDIA AND OPTED FOR VOLUNTARY RETIREMENT AS PER EXIT OPTION SCHEME (EOS) DECLARED BY THE BANK. IN THE RETURN OF INCOME FOR THE A.Y.2007- 08. THE ASSESSEE CLAIMED EXEMPTION U/S.10(10C) OF THE ACT IN RESPECT OF THE EX-GRATIA AMOUNT RECEIVED FROM THE BANK ON HIS VOLUNTARY RETIREMENT. THE SAID CLAIM OF EXEMPTION U/S.10(10C) WAS REJECTED BY THE AO FOLLOWING THE CBDT CIRCULAR F.NO.200/34/2009-ITA.I, DATED 08-10-2009. THE AO DENIED THE CLAIM OF THE ASSESSEE U/S.10(10C) OF THE ACT. THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BEFORE THE LD. CIT(A). THE LD. CI T(A) FOLLOWING THE DECISION IN THE CASE OF CIT VS. KOODATHIL KALLYATAN AMBUJAKSHAN, 219 CTR 80 (BOM.) ALLOWED THE CLAIM OF THE ASSESSEE. WE FURTHER FIND THAT THE ASSESSEES CASE IS ALSO SQUARELY COVERED BY THE DECISIONS OF THE COORDINATE BENCHES OF THE ITAT IN THE FOLLOWING CASES : 1. ITO VS. SHRI JAVERILAL DALICHAND CHHAJED, ITA NO . 326/PN/2010, DATED 08-11- 2011. 2. SHRI VENUGOPAL VS. KATTI, ITA NO. 4090/BANGALORE /2011 DATED 15-02-2012. 3. ITO VS. ROHIT KUMAR, ITA NO. 969/AHD/2010, DATED 05-05-2011, ITA A BENCH, AHMEDABAD. WE FIND NO REASON TO INTERFERE WITH THE ORDER OF TH E CIT(A). ACCORDINGLY, THE SAME IS CONFIRMED. 3. IN THE RESULT, REVENUES APPEAL IS DISMISSED. 7. SINCE THE LEARNED CIT(A) HAS FOLLOWED HIS DECISI ON IN THE CASE OF VIJAY GANPATRAO PATIL WHICH HAS BEEN UPHELD BY US, THEREFORE, WE FI ND NO INFIRMITY IN THE ORDER OF THE CIT(A) ALLOWING THE CLAIM OF THE ASSESSEE. ACCORDI NGLY, THE SAME IS UPHELD AND THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. 5. SINCE THE FACTS IN THE INSTANT CASE ARE IDENTICA L TO THE FACTS DECIDED BY THE TRIBUNAL CITED (SUPRA), THEREFORE, WE FIND NO INFIR MITY IN THE ORDER OF THE CIT(A) ALLOWING THE CLAIM OF EXEMPTION U/S.10(10C) OF THE INCOME TAX ACT. ACCORDINGLY THE SAME IS UPHELD. GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 4 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 16 TH DAY OF OCTOBER 2012 SD/- SD/- (R.K.PANDA) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL M EMBER PUNE DATED: THE 16 TH OCTOBER 2012 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A),AURANGABAD 4. THE D.R, B PUNE BENCH 5. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCHES, PUNE