Madan Lal Sharma, Una V. ACIT, Palampur

ITA 1245/CHANDI/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6989 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 03-01-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 01-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Assessee Lawyers: R R THAKUR
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NO. 1245/CHD/2016 ASSESSMENT YEAR: 2007-08 SHRI MADAN LAL SHARMA, VS. THE ACIT, S/O SHRI MILKHI RAM, PALAMPUR, VPO MAIRI, TEH-AMB, DISTT. KANGRA DISTT. UNA (HP). (H.P.) PAN NO. ACSPS3800J (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.R.THAKUR RESPONDENT BY : SHRI S.K.MITTAL, SR.DR DATE OF HEARING : 07.06.2017 DATE OF PRONOUNCEMENT : 11.08.2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASS AILING THE CORRECTNESS OF THE ORDER DATED 30.09.2016 OF CIT(A) PALAMP UR PERTAINING TO 2007-08 ASSESSMENT YEAR. THE SHORT ISSUE ARISING IN THE PRESENT APPEAL PERTAINS TO THE CLAIM OF EXEMPTION U/S 10(10C) OF INC OME TAX ACT,1961. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSE E TOOK VOLUNTARY RETIREMENT ON 30.04.2006 UNDER THE EXIT OPTION SCHEME O F STATE BANK OF PATIALA WITH THE HEAD OFFICE, PATIALA (PUNJAB). THE ASSESSEE IN ADDITION TO PENSION AND TAXABLE GRATUITY, RECEIVED EX-GRATIA AMOUNT O F RS. 6,29,807/-. THE BANK DEDUCTED TDS ON THE WHOLE AMOUNT AND THE AS SESSEE FILED HIS RETURN WITHOUT CLAIMING EXEMPTION U/S 10(10C) OF THE ACT. THE SAID RETURN WAS PROCESSED U/S 143(1) OF THE ACT. IT IS AN AD MITTED FACT THAT THE ASSESSEE FILED HIS RETURN ON 23.07.2007 DECLARING TOTAL TAXA BLE INCOME OF RS. 7,92,925/- WITH ITO, UNA. THE RETURN WAS LATER ON TRAN SFERRED TO ACIT, PALAMPUR . HOWEVER, THEREAFTER ON BECOMING AWARE OF THE FACT THAT HE WAS ENTITLED TO EXEMPTION U/S 10(10C) AS SIMILAR RELIEF HAD BEEN GRANTED TO VARIOUS EMPLOYEES OF THE SAID BANK, THE ASSE SSEE CLAIMED THE SAME BY WAY OF AN APPLICATION U/S 154. THE AO REJECTE D THE APPLICATION ON THE GROUNDS THAT HE DID NOT CLAIM EXEMPTION U/S 10(1 0C) OF THE ACT IN HIS RETURN. THE ASSESSEE CHALLENGED THE DECISION B EFORE THE ITA 1245/CHD/2016 A.Y. 2007-08 PAGE 2 OF 3 CIT(A) RELYING UPON THE FOLLOWING DECISIONS : A) SH. BLKRAM JIT PASSI, 84 KARAN PURI AMBALA CANTT. V S. DCIT AMBALA CANTT ORDER DATED 09-11-2011. B) TRIPTA PURI,# 7-A PURL CLINIC, LEHAL PATIALA VS. IN COME TAX OFFICER WARD-6, PATIALA. C) SMT. SARITA ZAKHML, 52 KANERIAN STREET, LEHAL PATIA LA VS. ITO,WARD-6, PATIALA. 3. HOWEVER, THE RELIEF WAS DENIED ON THE GROUNDS THAT IT WAS A MISTAKE OF THE ASSESSEE AND NOT A TECHNICAL MISTAKE. 4. THE LD. AR, APART FROM RELYING UPON THE ORDERS OF THE ITAT WHEREIN THE FACTS AND CIRCUMSTANCES WERE STATED TO BE IDENTICAL, ALSO PLACED RELIANCE UPON S.R.KOSHTI VS CIT 276 ITR 165 (GUJ) FOR THE PROPOSI TION THAT THE AUTHORITIES UNDER THE INCOME TAX ACT,1961 ARE UNDER AN OBLIGATION TO ACT IN ACCORDANCE WITH LAW AND CONSEQUENTLY THE DENIAL OF RE LIEF BEING CONTRARY TO SETTLED LAW MAY NOT BE UPHELD. 5. THE LD. SR.DR RELIED UPON THE ORDERS OF TAX AUTHORITIES. 6. I HAVE HEARD SUBMISSIONS AND PERUSED THE MATERIAL AV AILABLE ON RECORD. ON CONSIDERATION OF THE ORDERS OF ITAT AND THE PROPOSITION OF LAW AS LAID DOWN BY THE HON'BLE GUJRAT HIGH COURT IN THE CAS E OF S.R.KOSHTI (SUPRA), I FIND THAT THOUGH THE SAID DECISION HAS BEEN REND ERED IN THE CONTEXT OF SECTION 263 OF INCOME TAX ACT, HOWEVER, THE P ROPOSITION OF LAW LAID DOWN BY THEIR LORDSHIPS WOULD FULLY APPLY TO THE FACTS OF THE PRESENT CASE ALSO. THERE CAN BE NO TWO OPINIONS ON THE PROPOSIT ION OF LAW THAT TAX CAN BE COLLECTED ONLY AS PROVIDED UNDER THE ACT AND IF A N ASSESSEE UNDER A MISTAKE, MISCONCEPTION OR ON NOT BEING PROPERLY INSTRUCT ED IS OVER- ASSESSED, THE AUTHORITIES, UNDER THE ACT ARE REQUIRED TO ASSESS HIM AND ENSURE THAT ONLY LEGITIMATE TAXES DUE ARE COLLECTED. IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE IS IN A POSITION TO SHOW THAT HE HAS BEEN OVER- ASSESSED UNDER THE PROVISIONS OF THE ACT. IT IS NOT EV EN THE CASE OF THE TAX AUTHORITIES THAT THE RELIEF CLAIMED WAS CONTRARY TO LAW. T HE CASE OF THE REVENUE IS THAT THE ORDER DATED 09.11.2011 IN THE CASE OF SHRI BIKRAM JIT PASSI, 84 KARAN PURI, AMBALA CANTT. VS DCIT AMBALA CANTT. IN ITA 925/CHD/2011 ASSESSEE HAD CLAIMED EXEMPTION. SIMILAR WAS T HE CASE IN ITA 1103/CHD/2016 ORDER DATED 26.03.2012 IN TRIPTA PURI S CASE. ACCORDINGLY, FOR THE REASONS GIVEN HEREINABOVE CONSIDERING THE CONSISTENT ORDERS OF ITAT, IT IS NOTED EXEMPTION, HAD IT BEEN CLAIMED IS ALLOWABLE TO THE ASSESSEE. WHEN THE SAME IS READ ALONGWITH THE POS ITION OF LAW AS LAID DOWN BY THE HON'BLE GUJRAT HIGH COURT, THE CLAIM HAVING B EEN MADE BEFORE THE TAX AUTHORITIES HAS TO BE ALLOWED. THE FACTUAL REALITY THAT THE ITA 1245/CHD/2016 A.Y. 2007-08 PAGE 3 OF 3 TAX PAYER HAS NO EXPOSURE OF THE INCOME TAX LAWS AND DID NOT HAVE THE BENEFIT OF ADEQUATE LEGAL ADVICE IS A FACT ON RECORD. THE PRESENT CASE IS A PRIME EXAMPLE THAT TECHNICALITIES AND PROCEDURES SHOULD NO T STAND AS OBSTACLES TO JUSTICE DELIVERY AS IT CANNOT BE IGNORED THAT THE TAX A UTHORITIES ARE EXPECTED TO KNOW THE LAW AND THE COLLECTION OF TAX IN THE PECULIAR FACTS OF THE PRESENT CASE ADMITTEDLY IS CONTRARY TO LAW. ACCO RDINGLY, THE APPEAL IS ALLOWED AND THE AO IS DIRECTED TO GRANT NECESSARY RELIEF. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH AUGUST,2017. SD/- (DIVA SINGH) JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.