Shri Dashrathbhai .Parmar, Ahmedabad V. The ACIT.,Circle-15, Ahmedabad

ITA 2640/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6396 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 02-06-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 24-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Keywords: Condonation of delay

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE S/SHRI M. K. SHRAWAT, JM AND D.C.AGRAWAL, AM DASHRATHBHAI K. PARMAR, 311, GANGA RACHNA APARTMENT, NR. RBI STAFF QUARTERS, SUBHASH BRIDGE, AHMEDABAD. VS. ASSTT. CIT, CIRCLE-15, AHMEDABAD. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- NONE (WRITTEN SUBMISSIONS) RESPONDENT BY:- SHRI B. L. YADAV, SR.DR O R D E R PER D.C. AGRAWAL, ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE RAISING FO LLOWING GROUNDS :- 1) THAT THE IMPUGNED ORDER DATED 09-02-2007 IS ILLE GAL, BAD IN LAW AND VOID ABINITIO AND REQUIRES TO BE SET ASIDE. 2) THAT THE LEARNED CIT(A) ERRED IN JAW AND ON FACTS O F THE CASE IN HOLDING THAT THE 'OPTIONAL EARLY RETIREMENT SCHEME (GERS)' HAS NOT FULFILLED CLAU SES (III) AND (IV) OF RULE 2BA AND HENCE IT IS NOT A VRS SCHEME FOR PROVISIONS OF SECTION 10(10C)TO BE APPLICABLE. 3) THAT THE LEARNED CIT(A) FAILED TO APPRECIATE THE FACT THAT THE ASSESSING OFFICER GROSSLY ERRED IN LAW AND ON FACTS OF THE CASE IN NOT EXERCI SING HIS POWERS UNDER THE LAW AND ILLEGALLY SURRENDERED HIS DISCRETION AND JURISDICTION TO THE INSTR UCTION OF THE GENERAL MANAGER, RESERVE BANK OF INDIA, AHMEDABAD AS CONVEYED IN LETTER NO. EST. .AH NO. 3130/OERS/2Q04-05 DATED 05-03-2005. 4) THE FINDINGS OF LEARNED CIT(A) THAT THE ASSESSING OFF ICER ANALYSED THE FACTS OF THE CASE AND APPLIED THE PROVISIONS OF THE ACT U/S. 10(1OC) R. W.. RULE 2BA THEREOF ARE NOT CORRECT AND CONTRARY TO THE FACTS ON RECORD. 5) THAT THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE DISALLOWANCE OF EXEMPTION OF RS. 5,00,000/-U/S. 10(10C) OF THE INCOME-TAX ACT, 1961 W AS IN VIOLATION OF ARTICLE 14 OF THE CONSTITUTION OF INDIA. ITA NO.2640/AHD/2009 ASST. YEAR 2004-05 ITA NO.2640/AHD/2009 ASST. YEAR 2004-05 2 6) THE APPELLANT THEREFORE HUMBLY PRAYS BEFORE THIS H ON'BLE TRIBUNAL TO ALLOW THIS APPEAL AND BE FURTHER PLEASED TO ALLOW EXEMPTION OF RS. 5,00,000/ - U/S, 10(10C) OF INCOME-TAX ACT, 1961. THUS THE ONLY ISSUE INVOLVED IN THIS APPEAL IS THAT WHETHER ASSESSEE CAN GET EXEMPTION U/S 10(10C) OF THE ACT. 2. THE APPEAL FILED BY THE ASSESSEE IS LATE BY 897 DAYS. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY A CCORDING TO WHICH HE WAS UNDER CHRONIC ANXIETY ASSOCIATED WITH DEPRESSIO N AND A MEDICAL CERTIFICATE WAS ALSO ENCLOSED. 3. CONSIDERING THAT THE ISSUE IS NOW SETTLED BY THE DECISION OF HON. SUPREME COURT, WE CONSIDER IT PROPER TO CONDONE THE DELAY FOR IMPARTING SUBSTANTIAL JUSTICE AND ACCORDINGLY THE DELAY IS CO NDONED. 4. THE FACTS ARE THAT ASSESSEE IS AN EX-EMPLOYEE OF RBI AND HAS RETIRED UNDER THE OPTIONAL EARLY RETIREMENT SCHEME (OERS). HE HAS RECEIVED A TOTAL EX-GRATIA PAYMENT OF RS.16,43,121/ - AND CLAIMED EXEMPTION OF RS.5,00,000/- U/S 10(10C) ON THE GROUN D THAT OERS SCHEME UNDER WHICH HE RETIRED IS A V.R.S. SCHEME. H IS CLAIM WAS NOT ACCEPTED BY THE AO AS WELL AS THE LD. CIT(A). A WR ITTEN REPLY WAS FILED BY THE ASSESSEE IN RESPECT OF HIS CLAIM OF EXEMPTIO N THAT HIS CASE IS COVERED BY THE DECISION OF HON. SUPREME COURT IN TH E CASE OF CHANDRA RANGANATHAN & ORS. VS. CIT (2010) 235 CTR (SC) 365 WHEREIN IT WAS HELD THAT RETIRING EMPLOYEES OF RBI WOULD ALSO BE E LIGIBLE FOR EXEMPTION ITA NO.2640/AHD/2009 ASST. YEAR 2004-05 3 U/S 10(10C) TO WHICH ALSO CBDT VIDE ITS LETTER DATE D 8.5.2009 AGREE TO ALLOW EXEMPTION U/S 10(10C). 5. THE LD. DR ON THE OTHER HAND, SUPPORTED THE ORDE RS OF AUTHORITIES BELOW. 6. AFTER CONSIDERING THE APPLICATION OF THE ASSESSE E AND ARGUMENTS OF LD. DR, WE ALLOW THE CLAIM OF THE ASSESSEE FOLLOWIN G THE DECISION OF HON. SUPREME COURT IN THE CASE CHANDRA RANGANATHAN & ORS . VS. CIT (2010) 326 ITR 49 (SC) WHEREIN IT IS HELD THAT AMOUNT RECE IVED BY RETIRING EMPLOYEES OF RBI BENEFIT FOR OERS ARE ELIGIBLE FOR EXEMPTION U/S 10(10C). THUS IN VIEW OF THE ABOVE DECISION OF HON. SUPREME COURT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER WAS PRONOUNCED IN OPEN COURT ON 17/06/2011. SD/- SD/- (M. K. SHRAWAT) (D.C. AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMB ER AHMEDABAD, DATED : 17.6.2011. MAHATA/- ITA NO.2640/AHD/2009 ASST. YEAR 2004-05 4 COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD 1.DATE OF DICTATION 2/6/2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 8/6/2011 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..