T Hanumantha Rao, Vijayawada V. ACIT, Vijayawada

ITA 151/VIZ/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0125 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2001-2002
• Appeal Filed On: 18-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S SUNDAR SINGH
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM (SMC) BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.151/VIZAG/2009 ASSESSMENT YEAR : 2001-02 T. HANUMANTHA RAO, VIJAYAWADA ACIT, CIRCLE-1(1), VIJAYAWADA (APPELLANT) VS. (RESPONDENT) PAN NO.AASPT 3296R APPELLANT BY: SHRI D.L. NARASIMHA RAO, ADVOCATE RESPONDENT BY: SHRI D.S. SUNDAR SINGH, DR ORDER PER SHRI S.K. YADAV, JUDICIAL MEMBER:- THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST T HE ORDER OF THE CIT(A) ON VARIOUS GROUNDS WHICH ARE AS UNDER:- 1) THE ORDER OF THE CIT(A), VIJAYAWADA IN ITA NO.137/V JA/CIT(A)/V- 02-03 DT.27.02.2003 PASSED IN THE INSTANT CASE FOR THE ASST. YEAR 2001-02 IS ERRONEOUS BOTH IN LAW AND ON FACTS OF TH E CASE. 2) THAT THERE WAS A DELAY OF ABOUT 2.134 DAYS IN FILIN G THE APPEAL BEFORE THE HON'BLE ITAT AND IT IS PRAYED THAT THE S AME MAY BE CONDONED FOR VARIOUS REASONS INCORPORATED IN THE AC COMPANYING AFFIDAVIT MARKED AS ANNEXURE-A. 3) THE LEARNED CIT(A) ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER AND IN THE LIGHT OF THE JUDICIAL PRECEDENTS ALREADY EXISTING ON THE ISSUE IN FAVOUR OF THE APPELLANT, SHE OUGHT TO HAVE DIRECTED TO ALLOW RELIEF UNDER SEC.89(1) OF THE ACT. 4) THE CIT(A) SHOULD HAVE IDENTIFIED THAT SEC.10(10C) AND SEC.89(1) ARE MUTUALLY EXCLUSIVE SECTIONS WHICH ARE NOT TO BE READ TOGETHER AND HENCE THE RELIEF U/S 89(1) SHOULD HAVE BEEN ALL OWED DESPITE THE FACT THAT A RELIEF U/S 10(10C) WAS ALLOWED. 5) THE LEARNED CIT(A) SHOULD HAVE NOTICED THAT THE CLA RIFICATORY INSTRUCTIONS ISSUED BY THE CBDT ARE NOT BINDING AND CANNOT OVERTAKE THE JUDICIAL PRECEDENTS. 6) FOR THESE REASONS AND OTHER REASONS WHICH MAY BE AD VANCED, DURING THE COURSE OF HEARING IT IS PRAYED THAT THE RELIEF SOUGHT FOR MAY KINDLY BE ALLOWED. 2. THE ASSESSEE HAS ALSO MOVED AN APPLICATION FOR C ONDONATION OF DELAY OF 2134 DAYS ON THE GROUND THAT HE COULD NOT UNDERS TAND THE LEGAL COMPLICATIONS AS HE WAS NOT MUCH EDUCATED. HE JOIN ED AS GROUP-D SERVANT. AFTER RENDERING SERVICES AS JUNIOR CLERK, HE WAS RE TIRED FROM SERVICE 2 VOLUNTARILY. WHEN HE CAME TO KNOW ABOUT THE ORDER OF THE TRIBUNAL OF THIS BENCH ALLOWING A RELIEF IN SIMILAR TYPE OF CASES, H E PREFERRED AN APPEAL BEFORE THE TRIBUNAL. HE HAS ALSO CONTENDED THAT HIS ONLY D AUGHTER WHO WAS COMPLETING HER ENGINEERING DEGREE COMMITTED SUICIDE AT BANGALORE ON 13.8.2007 AND THIS CALAMITY CAUSED MENTAL DEPRESSIO N TO HIM AND HIS WIFE AND THAT THEY COULD NOT RECOUP THEIR HEALTH FOR A V ERY LONG PERIOD. IN SUPPORT OF HIS CONTENTIONS AN AFFIDAVIT OF THE ASSESSEE IS FILED AND FROM A CAREFUL PERUSAL OF THE SAME, WE FIND THAT THE ASSESSEE HAS A REASONABLE CAUSE FOR THE DELAY IN FILING OF THE APPEAL. WE ACCORDINGLY CONDO NE THE DELAY AND ADMIT THE APPEAL FOR HEARING. THE ASSESSEE HAS RAISED VARIOU S GROUNDS OF APPEAL BUT THEY ALL RELATE TO ONE COMMON GROUND WHETHER THE AS SESSEE IS ENTITLED TO CLAIM EXEMPTION U/S 10(10C) OF THE ACT IN ADDITION RELIEF U/S 89(1) OF THE ACT CAN ALSO BE GRANTED TO THE ASSESSEE. 3. THE ASSESSEE HAS TAKEN VOLUNTARY RETIREMENT AND FILED COMPENSATION PACKAGE ON WHICH EXEMPTION U/S 10(10C) OF INCOME TA X ACT TO THE EXTENT OF RS. 5 LAKHS WAS CLAIMED. OVER AND ABOVE THAT ASSES SEE HAS CLAIMED RELIEF U/S 89(1) OF THE ACT. THE LOWER AUTHORITIES HAVE NOT A CCEPTED THE CLAIM OF THE ASSESSEES. NOW THE ASSESSEE IS BEFORE US AND HE PL ACED THE RELIANCE UPON THE VARIOUS ORDERS OF THE TRIBUNAL AND JUDGEMENT OF MADRAS HIGH COURT IN THE CASE OF CIT VS. M. RAMAN 245 ITR 856 (MAD) & CIT VS . J. VISALAKSHI 206 ITR 531 (MAD). 4. THE LD. D.R. SIMPLY PLACED A RELIANCE UPON THE O RDER OF THE CIT(A). 5. HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CA REFUL PERUSAL OF THE RECORD, I FIND THAT THE IMPUGNED ISSUE IS SQUARELY COVERED BY THE AFORESAID JUDGEMENT OF MADRAS HIGH COURT AS WELL AS THE ORDER OF THE TRIBUNAL IN WHICH IT HAS BEEN HELD THAT SALARIED EMPLOYEES ON VOLUNTA RY RETIREMENT IS ENTITLED TO CLAIM THE EXEMPTION U/S 10(10C) OF THE ACT AND IN A DDITION THERETO CAN CLAIM RELIEF U/S 89(1) OF THE ACT. THIS ISSUE HAS BEEN A GAIN TAKEN BY THE KARNATAKA HIGH COURT IN ITA NO.572/2007 WHICH HAS BEEN APPROV ED BY THE APEX COURT AS A SLP FILED BY THE DEPARTMENT HAS BEEN DISMISSED . WE THEREFORE, FOLLOWING THE AFORESAID JUDGEMENT, DECIDE THIS ISSU E IN FAVOUR OF THE ASSESSEES AND DIRECT THE A.O. TO ALLOW THE RELIEF U /S 89(1) OF THE ACT. 3 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. PRONOUNCED IN THE OPEN COURT ON 12.08.2009 SD/- SD/- (SUNIL KUMAR YADAV) JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED 12 TH AUGUST, 2009 COPY TO 1 S. PULLA RAO, ADVOCATE, D.NO.39-2-24, PITCHAYYA S TREET, LABBIPET, VIJAYAWADA-520 010, KRISHNA DIST. 2 ACIT, CIRCLE-1(1), CENTRAL REVENUES BUILDING, M.G . ROAD, VIJAYAWADA. 3 THE CIT, VIJAYAWADA 4 THE CIT(A), VIJAYAWADA 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM