ITO, Wd.-3(3), Latur V. Shri Kulkarni Prabhakar Manikrao, Latur

ITA 1239/PUN/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9933 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 29-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K K OJHA
• Keywords: Tax effect

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 SR. NO. ITA NO. ASST. YEAR APPELLANT RESPONDENT/ PAN NO. 1. 1224/PN/2011 2007-08 INCOME TAX OFFICER, WARD 2(2), JEEVAN SUMAN, 2 ND FLOOR, LIC BUILDING, N-5, CIDCO, AURANGABAD 431 003. SHAMSUNDER K. KULKARNI, 53, NEW SBH COLONY, JYOTINAGAR, AURANGABAD PAN NO.ACNPK 6243J 2. 1227/PN/2011 2007-08 -DO- WAGHCHURE BHIMRAO DHARMAJI, B-2, CANNOUGHT GARDEN, MEGH MALHAR, CIDCO, AURANGABAD PAN NO.AAEPW 5533A 3. 1231/PN/2011 2007-08 -DO- POPATLAL K. MUTHA, 3 RADHA NAVAL APPTT. JADHAV MANDI, AURANGABAD. PAN NO. ABRPM 2154K 4. 1233/PN/2011 2008-09 -DO- PREMCHAND HIRALAL TULLE, PLOT NO.48, SECTION C, N-4, CIDCO, AURANGABAD. PAN NO.AARPT 5274C 5. 1237/PN/2011 2007-08 -DO- DHUNDIRAJ D. ADIVEREKAR, 8 ARCHANA APPTT. CHETAN NAGAR, AURANGABAD. PAN NO. ACVPA 9056D 6. 1239/PN/2011 2007-08 ITO WARD 3(3), LATUR KULKAR NI PRABHAKAR MANIKRAO 7 SBH COLONY, AMBAJOGAI ROAD, LATUR PAN NO. ACGPK 3064L APPELLANT BY : SRI K.K. OJHA DEPARTMENT BY : SRI MANDAR VAIDYA DATE OF HEARING : 10-10-2012 DATE OF PRONOUNCEMENT : 16 -10-2012 ORDER PER BENCH : THE ABOVE SIX APPEALS FILED BY THE REVENUE ARE DIRE CTED AGAINST THE SEPARATE ORDERS DATED 18-07-2011 OF THE CIT(A)-AURANGABAD. SINCE IDENTICAL GROUNDS HAVE BEEN TAKEN BY THE REVENUE IN ALL THESE APPEALS, THE REFORE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2 ITA NO. 1224/PN/2011 (SRI SHAMSUNDER K. KULKARNI) ( A.Y.2007-08) : 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 SCHEME ANNOUNCED BY THE BANK AND RECEIVED VRS COMPENSATION. HE FILED HIS O RIGINAL RETURN OF INCOME ON 16-03-2009 DECLARING TAXABLE INCOME OF RS.1,38,065/ - AFTER CLAIMING EXEMPTION OF RS.3,91,378/- U/S.10(10C) OF THE INCOME TAX ACT. T HE AO IN THE ORDER PASSED U/S. 143(3)/148 DISALLOWED SUCH CLAIM ON THE GROUND THAT AS PER THE COPY OF THE EXIT OPTION SCHEME OF EMPLOYEES OF STATE BANK OF PATIALA AND STATE BANK OF INDIA, THEY ARE NOT ELIGIBLE FOR EXEMPTION U/S.10(10C) OF THE ACT. HE FURTHER NOTED THAT IN ORDER TO AVAIL EXEMPTION U/S.10(10C) THE FIRST PROV ISO THEREOF LAYS DOWN THAT THE SCHEME SHOULD BE FRAMED IN ACCORDANCE WITH THE INCO ME TAX RULES, 1962 AND ONE OF THE REQUIREMENT AS PER RULE 2BA IS TO BE FULFILL ED. HE ALSO REFERRED TO THE CBDT CIRCULAR BEARING NO.200/34/2009-ITA-I DATED 06 -10-2009. DISTINGUISHING THE VARIOUS DECISIONS CITED BEFORE HIM AND REJECTIN G THE SUBMISSIONS OF THE ASSESSEE THE AO DISALLOWED THE CLAIM OF EXEMPTION MADE U/S.1 0(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. 3 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. 4. AFTER HEARING BOTH THE SIDES WE FIND IDENTICAL I SSUE HAD COME UP BEFORE THE TRIBUNAL IN THE CASE OF ITO WARD-2, RATNAGIRI VS. D ATTATRAYA DHUNDIRA MARATHE VIDE ITA NO.1095/PN/2011 ORDER DATED 05-09-2012. W E FIND THE TRIBUNAL DISMISSED THE APPEAL FILED BY THE REVENUE BY HOLDIN G 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. 4 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 IN THE CASE CITED (SUPRA), THEREFORE, WE F IND NO INFIRMITY IN THE ORDER OF THE CIT(A) ALLOWING THE CLAIM OF EXEMPTION U/S.10(1 0C) OF THE INCOME TAX ACT. ACCORDINGLY THE SAME IS UPHELD. GROUNDS RAISED BY THE REVENUE ARE THEREFORE DISMISSED. ITA NO. 1227/PN/2011 (SRI W AGHCHURE BHIMRAO DHARMAJI) (A.Y.2007-08) : ITA NO. 1231/PN/2011 (SRI POPATLAL K. MUTHA) (A.Y.2 007-08) : ITA NO. 1233/PN/2011 (SRI PREMCHAND HIRALAL TULLE) (A.Y.2008-09) : ITA NO. 1237/PN/2011 (SRI DHUNDIRAJ D. ADIVEREKAR) (A.Y.2007-08) : ITA NO. 1239/PN/2011 (SRI KULKARNI PRABHAKAR MANIKR AO) (A.Y.2007-08) : 6. AFTER HEARING BOTH THE SIDES, WE FIND THE GROUND S RAISED BY THE REVENUE IN THE ABOVE APPEALS ARE IDENTICAL TO THE GROUNDS RAISED B Y THE REVENUE IN ITA NO.1224/PN/2011. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUNDS RAISED BY THE REVENUE HAVE BEEN DISMISSED. FOLLOWING THE SAM E RATIO, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 7. IN THE RESULT, ALL THE SIX APPEALS FILED BY THE REVENUE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 16 TH DAY OF OCTOBER 2012 SD/- SD/- (R.K.PANDA) (SHAILEND RA KUMAR YADAV) ACCOUNTANT MEMBER JUDIC IAL MEMBER 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