K.Subbiah, CHENNAI V. ITO, Trichy

ITA 1582/CHNY/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68789 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 23-10-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 22-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T N BETGERI
• Assessee Lawyers: S KEERTHIRAJAN
• Keywords: Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL C BENCH, CHENNAI. BEFORE DR.O.K. NARAYANAN, VICE-PRESIDENT & SHRI V. DURGA RAO, JUDICIAL MEMBER ITA NO. 1582/MDS/2013 ASSESSMENT YEAR: 2004-05 SHRI K. SUBBIAH, 13, 1 ST MAIN ROAD, PLOT NO. 11 UPSTAIRS, NETHAJI COLONY, VELACHERY, CHENNAI 600 042. [PAN : AAKPS6029B] VS. THE INCOME TAX OFFICER, WARD II(2) TIRUCHIRAPALLI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S. KEERTHIRAJAN, C.A. RESPONDENT BY : SHRI T.N. BETGERI, JCIT DATE OF HEARING : 23.10.2013 DATE OF PRONOUNCEMENT : 23.10.2013 O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), TIRUCHIRA PPALLI DATED 19.10.2005 RELEVANT TO THE ASSESSMENT YEAR 2004-05. 2. THIS APPEAL WAS FOUND TO HAVE BEEN FILED LATE BY 91 MONTHS AND THE ASSESSEE FILED AN AFFIDAVIT FOR CONDONATION OF DELAY IN FILING THE APPEAL BY TAKING THE PLEA THAT THE ASSESSEE WAS UND ER MEDICAL TREATMENT AND DUE TO CHANGE OF CHARTERED ACCOUNTANT . THE ASSESSEE I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1582 1582 1582 1582/M/ /M/ /M/ /M/13 1313 13 2 HAS REQUESTED TO CONDONE THE DELAY AND ADMIT THE AP PEAL FOR HEARING AS THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE I N FILING OF THE APPEAL BEYOND STIPULATED TIME. 2.1 TO THIS PLEA OF THE CONDONATION OF DELAY, THE L D. DR DID NOT STRONGLY OBJECT. 2.2 WE HAVE HEARD BOTH SIDES AND CONSIDERED THE MAT ERIAL ON RECORD WITH REGARD TO LIMITATION ISSUE. THE ASSESSEE, IN H IS AFFIDAVIT, HAS SUBMITTED AS UNDER: 2. I AM THE APPELLANT IN THE ABOVE MENTIONED APPE AL PROCEEDINGS AND AM WELL AWARE OF THE FACTS OF THE CASE, AS SUCH COM PETENT TO SWEAR TO THIS AFFIDAVIT. 3. I STATE THAT THE APPEAL AGAINST THE ORDER OF TH E CIT (APPEALS) DATED 19.10.2005 OUGHT TO HAVE BEEN FILED WITHIN 60 DAYS FROM THE DATE OF RECEIPT AND HOWEVER THE SAID APPEAL WAS FILED BELATEDLY BY 91 MONTHS. I STATE THAT THE SAID DELAY IN FILING THE APPEAL FOR THE ABOVE MENTI ONED ASSESSMENT YEAR IS BEYOND THE CONTROL OF THE PETITIONER J APPELLANT AN D HENCE THE DELAY IN FILING THE APPEAL IS NEITHER WILFUL NOR DELIBERATE BUT DUE TO CIRCUMSTANCES HEREIN AFTER NARRATED. 4. I STATE THAT THE IMPUGNED ORDER WAS HANDED OVER TO THE CHARTERED ACCOUNTANT MR.SRIVATSAN, CHARTERED ACCOUNTANT FOR T AKING FURTHER ACTION AND HOWEVER ON HEARING THE INFORMATION ON THE ACCEPTANC E OF THE CLAIM U/S 10(10C) OF THE ACT IN OTHER CASES CONSEQUENT TO THE RENDERING OF DECISIONS INCLUDING THE APEX COURT, I APPROACHED MY CHARTERED ACCOUNTANT TO ASCERTAIN THE FATE OF THE IMPUGNED ORDER. I STATE T HAT THERE WAS NO ACTION TAKEN BY THE CHARTERED ACCOUNTANT MR. SRIVATSAN , C HARTERED ACCOUNTANT AND THERE WAS NO PENDING PROCEEDINGS AGAINST THE SAID I MPUGNED ORDER INASMUCH AS THERE WAS NO APPEAL PREFERRED BY HIM. ACCORDINGL Y, I CHANGED THE CHARTERED ACCOUNTANT AND THE NEW AUTHORIZED REPRESE NTATIVE SHRI S. KEERTHIRAJAN, CHARTERED ACCOUNTANT TOOK STEPS IN FI LING THE BELATED APPEAL BEFORE THE BENCH FOR SEEKING THE APPROPRIATE RELIEF BASED ON THE JUDICIAL I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1582 1582 1582 1582/M/ /M/ /M/ /M/13 1313 13 3 PRECEDENTS IN RELATION TO THE EXIGIBILITY OF THE DE DUCTION/EXEMPTION U/S.10(10C) OF THE ACT. 5. I STATE THAT THE DELAY IN CHANGING THE CHARTERE D ACCOUNTANT AND FURTHER DELAY IN FILING THE APPEAL BEFORE THE BENCH THROUGH HIM WAS CONSEQUENT TO THE PERSISTENT ILL-HEALTH DUE TO MULT IPLE MEDICAL REASONS/ COMPLICATIONS FACED BY ME AND I STATE THAT THE MEDI CAL REASONS WOULD CONSTITUTE REASONABLE CAUSE FOR CONDONING THE DELAY IN FILING THE APPEAL BEFORE THIS HON'BLE BENCH. 6. I STATE THAT THE DELAY IN REPRESENTING THE APPE ALS BY 91 MONTHS IN THE REGISTRY OF THIS HON'BLE COURT IS NEITHER DELIBERAT E NOR WILFUL BUT DUE TO CIRCUMSTANCES AFORE-STATED AND I FURTHER STATE THAT THE PETITIONER WOULD BE PUT TO UNDUE HARDSHIP AND SUFFER GRAVE INJUSTICE IF THE DELAY OF 91 MONTHS, IS NOT CONDONED AND HOWEVER, IF THE PETITION IS ALLOWED NO PREJUDICE WILL BE CAUSED TO THE RESPONDENT. 7. I SUBMIT THAT UNDER THESE CIRCUMSTANCES THE PETI TIONER HUMBLY PRAYS THAT THIS HON'BLE BENCH MAY GRACIOUSLY BE PLEASED TO CON DONE THE DELAY OF 91MONTHS IN FILING THE APPEAL IN THE REGISTRY AND P ASS SUCH FURTHER ORDER OR ORDERS AS THIS HON'BLE BENCH MAY DEEM FIT AND RENDE R JUSTICE. 2.3 WE ARE SATISFIED THAT THE ASSESSEE WAS PREVENTE D BY SUFFICIENT CAUSE FROM NOT FILING THE APPEAL WITHIN THE STIPULA TED TIME AS HE WAS NOT KEEPING WELL AND HE HAS SUPPORTED SUCH SUBMISSI ON WITH THE AFFIDAVIT. AS SUCH, WHILE ACCEPTING THE PLEA OF THE ASSESSEE, WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE W AS AN EMPLOYEE OF ICICI BANK AND SOUGHT EARLY RETIREMENT UNDER THE SC HEME FRAMED BY THE ICICI BANK UNDER THE CAPTION EARLY RETIREMENT OPTION 2003. IN PURSUANCE TO EXERCISING OF THIS OPTION, THE EMPLOYE E RECEIVED A PACKAGE FROM THE BANK UNDER VARIOUS HEADS AND CLAIM ED DEDUCTION I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1582 1582 1582 1582/M/ /M/ /M/ /M/13 1313 13 4 UNDER SECTION 10(10C) TO THE EXTENT OF ` . 5.00 LAKHS AND RELIEF UNDER SECTION 89(1) OF THE ACT ON THE AMOUNT EXCEEDING ` . 5.00 LAKHS. THE ASSESSING OFFICER HAS ALLOWED THE RELIEF UNDER SECT ION 89(1) BUT DENIED THE CLAIM OF THE ASSESSEE UNDER SECTION 10(10C) OF THE ACT. 4. ON APPEAL, THE LD. CIT(APPEALS) CONFIRMED THE O RDER OF THE ASSESSING OFFICER ON THE GROUND THAT THE EARLY RETI REMENT OPTION SCHEME OF ICICI BANK WAS NOT IN ACCORDANCE WITH GUI DELINES OF RULE 2BA READ WITH SECTION 10(10C) OF THE ACT. 5. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE IS NOW COVERED IN FAVOUR OF THE ASSE SSEE BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CHANDRA RANGANATHAN & ORS VS. CIT [326 ITR 49] AND BY THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF K.R. ALAGAPPAN AND OTHERS VS. ACIT [2011] 332 ITR 517. THE LD. COUNSEL ALSO SUBMITTED THAT TH E TRIBUNAL CONSISTENTLY ALLOWING THE SAID DEDUCTION UNDER SECT ION 10(10C) IN THE HANDS OF THE EMPLOYEES, WHO OPTED FOR RETIREMENT EI THER UNDER VRS OR ERO SCHEME. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1582 1582 1582 1582/M/ /M/ /M/ /M/13 1313 13 5 7. ON THE OTHER HAND, THE LD. DR HAS FAIRLY ACCEPT ED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE. 8. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIAL ON RECORD AND ALSO GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE FIND THAT THIS ISSUE HAS BEEN FINALLY DECIDED IN FAVOUR OF THE ASS ESSEE BY THE HONBLE SUPREME COURT IN THE CASE OF CHANDRA RANGANATHAN & ORS VS. CIT [SUPRA] AND THE HONBLE MADRAS HIGH COURT IN THE CA SE OF K.R. ALAGAPPAN AND OTHERS VS. ACIT [SUPRA] BY FOLLOWING THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CHANDRA RANGAN ATHAN V. CIT (SUPRA) HAS HELD THAT THE ASSESSEE IS ENTITLED TO C LAIM EXEMPTION UNDER SECTION 10(10C) OF THE ACT. THE CHENNAI BENCH OF TH E TRIBUNAL HAS ALSO IN VARIOUS CASES FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH DECIDED THE APPEALS IN FAVOUR O F THE ASSESSEE. THE REVENUE HAS NOT BEEN ABLE TO DISTINGUISH THE FACTS OF THE INSTANT CASE VIS--VIS THE CASE LAW CITED ABOVE. RESPECTFULLY F OLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT, WE, SET A SIDE THE ORDER OF LD. CIT(APPEALS) AND DIRECT THE ASSESSING OFFICER TO AL LOW DEDUCTION UNDER SECTION 10(10C) OF THE ACT AS CLAIMED BY THE ASSESS EE. THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1582 1582 1582 1582/M/ /M/ /M/ /M/13 1313 13 6 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE STAND S ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON WEDNESDAY, THE 23 RD OF OCTOBER, 2013 AT CHENNAI. SD/- SD/- (DR. O.K. NARAYANAN) VICE-PRESIDENT (V. DURGA RAO) JUDICIAL MEMBER CHENNAI, DATED, THE 23.10.2013 VM/- TO: THE ASSESSEE/A.O./CIT(A)/CIT/D.R.