Sri R Venkateswara Rao, Visakhapatnam V. The ITO Ward-2(3) Visakhapatnam, Visakhapatnam

ITA 273/VIZ/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56882 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-12-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 09-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D KOMALI KRISHNA
• Assessee Lawyers: N O N E
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

ITA NO.273/VIZAG/2011 R. VENKATESWARA RAO, VSKP PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI D MANMOHAN, VICE PRESIDENT AND SHRI BR BASKARAN, ACCOUNTANT MEMBER ITA NO.273/VIZAG/2011 ASSESSMENT YEAR: 2007-08 SHRI R. VENKATESWARA RAO VISAKHAPATNAM ITO WARD-2(3), SALARY CIRCLE VISAKHAPATNAM (APPELLANT) PAN NO: ADUPR 9206L VS. (RESPONDENT) APPELLANT BY: N O N E RESPONDENT BY: SMT. D. KOMALI KRISHNA, CIT(DR) DATE OF HEARING: 14.12.2011 DATE OF PRONOUNCEMENT: 26.12.2011 ORDER PER SHRI B. R. BASKARAN, ACCOUNTANT MEMBER: THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 12.05.2011 PASSED BY LEARNED CIT(A), VISAKHAPATNAM AND IT RELATES TO THE ASSESSMENT YEAR 2007-08. NONE APPEARED ON BEHALF O F THE ASSESSEE AND HENCE WE PROCEED TO DISPOSE THE APPEAL EX-PARTE, QU A THE ASSESSEE. 2. THE SOLITARY ISSUE URGED IN THIS APPEAL IS ABOUT THE ELIGIBILITY OF THE ASSESSEE TO CLAIM EXEMPTION UNDER SECTION 10(10C) O F THE INCOME TAX ACT. 3. THE FACTS RELATING TO THE SAME ARE STATED IN BRIEF. THE ASSESSEE RECEIVED A SUM OF RS.5.00 LAKHS ON HIS VOLUNTARY RE TIREMENT UNDER EXIT OPTION SCHEME FRAMED BY STATE BANK OF INDIA. HE CL AIMED EXEMPTION UNDER SECTION 10(10C) OF THE ACT ON THE SAME, WHICH WAS D ENIED BY THE ASSESSING OFFICER, AS HE WAS OF THE VIEW THAT THE EXIT OPTION SCHEME FRAMED BY STATE BANK OF INDIA DOES NOT COMPLY WITH THE PROVISIONS O F SEC. 10(10C) OF THE ITA NO.273/VIZAG/2011 R. VENKATESWARA RAO, VSKP PAGE 2 OF 3 ACT READ WITH RULE 2BA OF IT RULES. THE LEARNED CI T(A) ALSO CONFIRMED THE ORDER OF THE ASSESSING OFFICER AND HENCE THE ASSESS EE IS IN APPEAL BEFORE US. 4. THE LEARNED D.R SUBMITTED THAT THE TRIBUNAL HAS ALREADY CONSIDERED AN IDENTICAL ISSUE AND HAS SET ASIDE THE MATTER TO THE FILE OF LEARNED CIT(A), VIDE ITS ORDER DATED 09-9-2011, IN THE CASE OF T. S OMASEKAR RAO IN ITA NO.249/VIZAG/2011. 5. WE HAVE GONE THROUGH THE ORDER OF THE TRIBUN AL REFERRED IN THE PRECEDING PARAGRAPH AND NOTICE THAT THE ASSESSEE TH EREIN HAD FILED CERTAIN ADDITIONAL EVIDENCES BEFORE THE TRIBUNAL IN SUPPORT OF HIS CONTENTIONS THAT THE PROVISIONS OF SEC. 10(10C) ARE APPLICABLE TO TH E EXIT OPTION SCHEME FRAMED BY STATE BANK OF INDIA. ACCORDINGLY, THE TR IBUNAL HAS RESTORED THE ISSUE TO THE FILE OF LEARNED CIT(A) FOR CONSIDERATI ON OF THE SAME AFRESH. THE RELEVANT OBSERVATIONS MADE BY THE TRIBUNAL ARE EXTRACTED BELOW:- 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. WE NOTICE THAT THE LEARNED CIT(A) HAS CONFIRMED THE ORDER OF THE ASSESSING OFFICER, INTER ALIA, ON THE GROUND TH AT THE EXIT OPTION SCHEME OF STATE BANK OF INDIA DID NOT COMPLY WITH THE CLAUSE (IV) OF RULE 2BA, EXTRACTED ABOVE. BEFORE US , THE ASSESSEE HAS FILED CERTAIN ADDITIONAL EVIDENCES TO PROVE THAT THE VACANCIES CAUSED BY THE EXIT SCHEME HAVE NOT BEEN F ILLED UP. THE LEARNED A.R INVITED OUR ATTENTION TO THE DECISI ON OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KOODATHIL KALLYATAN AMBUJAKSHAN (2009)(309 ITR 113) AND SUBMITTED THAT THE SIMILAR DETAILS WERE TAKEN INTO CONSIDERATION WHILE DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE. ACCORDINGLY, WE A RE OF THE VIEW THAT THE ADDITIONAL EVIDENCES FURNISHED BEFORE US M AY BE EXAMINED BY LEARNED CIT(A) VIS--VIS CLAUSE (IV) OF RULE 2BA. ACCORDINGLY WE SET ASIDE THE ORDER OF LEARNED CIT(A ) AND RESTORE THE ISSUE TO HIS FILE FOR ADJUDICATING THE ISSUE AFRESH IN ACCORDANCE WITH THE LAW, AFTER AFFORDING NECESSARY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SINCE THE ISSUE URGED IN THE PRESENT APPEAL IS IDEN TICAL IN NATURE, WE DEEM IT PROPER TO SET ASIDE THIS ISSUE TO THE FILE OF LE ARNED CIT (A) IN THE INSTANT CASE ALSO IN ORDER TO ENABLE HIM TO TAKE A COMMON V IEW OF THE MATTER. ITA NO.273/VIZAG/2011 R. VENKATESWARA RAO, VSKP PAGE 3 OF 3 NEEDLESS TO MENTION, THE ASSESSEE SHOULD BE GIVEN N ECESSARY OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED ACCORDINGLY ON 26.12.2011. SD/- SD/- (D MANMOHAN) (B R BASKARAN) VICE PRESIDENT ACCOUNTANT M EMBER VG/SPS VISAKHAPATNAM, DATE: 26 TH DECEMBER, 2011 COPY TO 1 SHRI R. VENKATESWARA RAO, 18-74-37, KOTHASALIPETA , MAHARANIPETA, VISAKHAPATNAM 2 ITO WARD-2(3), VISAKHAPATNAM 3 4. THE CIT VISAKHAPATNAM THE CIT(A), VISAKHAPATNAM 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM