Shri Pradash Dattatray Dubey, Amaravati V. Inocme tax Office Ward -1, Nagpur

ITA 278/NAG/2013

• Counselvise Citation: 27823914 RSA 2013
• Duration Of Justice: 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 14-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K NATH
• Assessee Lawyers: SUNIL C MONE; RAM BONDE

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL-E-BENCH, N AGPUR ( ! ! ' ! /THROUGH VIDEO CONFERENCE AT MUMBAI) # # # # $ $$ $ % %% % . . , '& '& '& '& $ $$ $ '!() '!() '!() '!() , ! !! ! . . BEFORE S/SH.H.L.KARWA,PRESIDENT AN D RAJENDRA,ACCOUNTANT MEMBER ./ ITA NO.278/NAG/2013 # # # # *# *# *# *# / ASSESSMENT YEAR 2008-09 SHRI PRAKASH DATTATRAY DUBEY SIDDHI VINAYAK NAGAR, KATHORA ROAD, BEHIND ENGINEERING COLLEGE, AMARAVATI. PAN: AATPD7652A V/S. INCOME TAX OFFICER, WARD-1, NAGPUR. ( +, / APPELLANT) ( -.+, / RESPONDENT) ASSESSEE BY : RAM BONDE & SUNIL C. MONE REVENUE BY : K.K.NATH / 0 / DATE OF HEARING : 21- 01 -201 4 1* / 0 /DATE OF PRONOUNCEMENT : 06 - 0 2-201 4 , 1961 254(1) ! !! ! (/#/ (/#/ (/#/ (/#/ 2!3 2!3 2!3 2!3 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM- ! ! ! ! 24 24 24 24 , '!() '!() '!() '!() ! !! ! : CHALLENGING THE ORDER DATED 14.10.11 OF THE CIT-II, NAGPUR,ASSESSEE HAD FILED FOLLOWING GROUNDS OF APPEAL : 1.THE COMMISSIONER OF INCOME TAX (A) ERRED IN NOT A LLOWING THE EXEMPTION U/S 10(10C) DESPITE THE EXIT OPTION SCHEME DRAWN WITH A CLEAR OBJECTIVE OF REDUCTION OF MANPOWER AS STATED IN CLAUSE 1 OF THE SCHEME. 2.THE COMMISSIONER OF INCOME TAX (A) ERRED IN NOT A LLOWING THE EXEMPTION U/S 10(10C) DESPITE THE FINANCE MINISTRYS DECISION TO TERM THE EXIT OP TION SCHEME IS A VOLUNTARY RETIREMENT SCHEME WHILE DECIDING THE QUESTION OF SENIOR CITIZEN INTER EST SCHEME. 3.THE COMMISSIONER OF INCOME TAX (A) ERRED IN NOT A LLOWING THE EXEMPTION U/S 10(10C) DESPITE THE CBDTS CIRCULAR DATED 8TH MAY 2009 ACCEPTING THE BOMBAY HIGH COURT JUDGMENT. 4.THE COMMISSIONER OF INCOME TAX (A) ERRED IN NOT A LLOWING THE EXEMPTION U/S 10(10C) DESPITE THE SAID SUPREME COURT OF INDIA LAYING DOWN THE LAW IN THE DECISION DATED 21ST OCT 2009. 5.FURTHER THE ISSUE OF EXEMPTION U/S 10(10C) TO SBI EMPLOYEES IS ALREADY COVERED BY THE DECISION OF BOMBAY HIGH COURT REPORTED 2008 219 CTR 80 (BOM) .THIS IS HELD BY MUMBAI ITAT F BENCH VIDE ITS ORDER DT. 6.10.2009 AND ALSO BY CIT(A) I N AGPUR IN SPECIFIC CASES OF SBI EMPLOYEES . FURTHER CIT (A) NASHIK HAS ALSO VERY CLEARLY HELD T HAT THE SBI EXIT OPTION SCHEME IS COVERED BY THE BOMBAY HIGH COURT DECISION AS ABOVE AFTER DISCU SSING THE MATTER AT LENGTH. THE COMMISSIONER OF INCOME TAX (A) ERRED IN IGNORING THESE DECISIONS . 6.THE COMMISSIONER OF INCOME TAX (A) ERRED IN NOT A LLOWING THE CLAIM U/S 10(10C) OF THE ACT BY MERELY RELYING ON THE LETTER OF STATE BANK OF INDIA AND NOT APPLYING HIS OWN MIND. 7.THE SBI EXIT OPTEES SCHEME FOR AWARD STAFF NOWHER E STATES THE DENIAL OF EXEMPTION U/S 10(10C) AND HENCE FACTS ARE INCORRECTLY STATED WHILE PASSIN G THE ASSESSMENT ORDER. 8.THE COMMISSIONER OF INCOME TAX (A) ERRED IN NOT A LLOWING THE CLAIM U/S 10(10C) OF THE ACT BY NOT CONSIDERING THE RULE OF REVENUE WHEREIN INTERPR ETATION MORE FAVORABLE TO THE ASSESSEE SHOULD BE ALLOWED. 9.IN VIEW OF THE ABOVE GROUNDS OF APPEAL THE ASSESS EE IS ENTITLED TO RELIEF OF EXEMPTION U/S 10(10C) OF THE INCOME TAX ACT. 10.THE APPELLANT CRAVES LEAVE TO AMEND, ALTER, ADD ANY OTHER GROUNDS OF APPEAL. 2 ITA NO. 278/NAG/2013 SHRI PRAKASH DATTATRAY DUBEY 2. ASSESSEE,AN INDIVIDUAL,FILED HIS RETURN OF INCOME O N 30.7.08 DECLARING TOTAL INCOME AT RS.NIL. HE CLAIMED EXEMPTION U/S.10(10C)OF RS.3,94,510/-.AS SESSING OFFICER(AO)FINALISED THE ASSESSME- NT U/S.143(3)OF THE ACT ON 18.03.2010 DETERMINING T HE INCOME OF THE ASSESSEE AT RS.3,76,030/-. THOUGH THERE ARE TEN GROUNDS OF APPEAL,BUT THE EFFE CTIVE GROUND IS ABOUT DENIAL OF CLAIM MADE BY THE ASSESSEE U/S.10(10C)OF THE ACT.FACTS LEADING TO THE MATTER AS UNDER: DURING THE ASSESSMENT PROCEEDINGS AO FOUND THAT THE ASSESSEE WAS AN EX-SBI EMPLOYEE WHO RETIRED VOLUNTARILY UNDER SBI EXIT OPTION SCHEME.HE CALLED FOR THE EXPLANATION OF THE ASSESSEE IN THIS REGARD.AFTER CONSIDERING THE SUBMISSIONS OF TH E ASSESSEE,HE HELD THAT EXEMPTION U/S.10(10C) UNDER EXIT OPTION SCHEME WOULD NOT BE AVAILABLE F OR THE EMPLOYEES OF STATE BANK OF INDIA AS THE EXIT OPTION SCHEME OF THE STATE BANK OF INDIA HAD NOT COMPLIED WITH ALL THE SIX CONDITIONS AS LAID DOWN IN RULE 2BA OF INCOME-TAX RULES,1962(R ULES). 3. ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPEL LATE AUTHORITY(FAA).AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE ASSESSMENT ORDE R,SHE HELD THAT THE ASSESSEE HAD MADE A CLAIM U/S.10(10C) OF THE ACT,THAT HE HAD TO ADDUCE EVIDEN CES TO ESTABLISH THAT ALL CONDITIONS NECESSARY BEFORE CLAIMING THE DEDUCTION WERE SATISFIED,THAT N O SUCH EVIDENCES WERE PRODUCED BY THE HIM, THAT THE ASSESSEE HAD RELIED UPON THE REPLY RECEIVE D IN RESPONSE TO AN RTI APPLICATION.COMPARING THE CIRCULAR DATED 29.04.2005 AND 31.08.2007,FAA HE LD THAT STATE BANK OF INDIA (SBI) WAS A COMMERCIAL BANK WHICH HAD BEEN IN AN EXPANSION MODE ,THAT OF VOLUNTARY SCHEME (VRS) WAS INTRODUCED TO GIVE OPTION TO EXISTING EMPLOYEES WHO WERE NOT PROMOTED/SUPERSEDED,THAT THE EXIT OPTION WAS NEVER INTENDED TO REDUCE MANPOWER,THAT C ONDITIONS STIPULATED UNDER RULE 2B OF THE RULES WERE NOT FULFILLED BY THE EXIT OPTION SCHEME OF SBI.FINALLY, FAA REJECTED THE CLAIM MADE BY THE ASSESSEE. 4. BEFORE US,AUTHORISED REPRESENTATIVE(AR)SUBMITTED TH AT THE ASSESSEE HAD RECEIVED THE AMOUNT ON HIS VOLUNTARY RETIREMENT UNDER THE SBI EXIT OPTI ON SCHEME,THAT THERE WAS NO VIOLATION OF THE PROVISIONS OF RULE 2BA,AS ALLEGED BY THE AO AND TH E FAA.DEPARTMENTAL REPRESENTATIVE(DR) SUBMITTED THAT CONDITIONS LAID DOWN BY RULE 2BA OF THE RULES WERE NOT FULFILLED BY THE SBI,THAT THE ASSESSEE WAS NOT ENTITLED TO CLAIM BENEFIT OF S ECTION 10(10C)OF THE ACT. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE ASSESSEE WAS AN EMPLOYEE OF SBI AND HAD OPTED FOR V OLUNTARY RETIREMENT,THAT ON HIS VOLUNTARY RETIREMENT HE RECEIVED A SUM OF RS. 3.94 LAKHS,THAT CLAIM MADE HIM WAS REJECTED BY THE AO AND THE FAA.WE FIND THAT FAA HAS DECIDED THE ISSUE ON T HE BASIS OF THE FACTS THAT WERE TOTALLY IRRELEVANT. DOWNSIZING OF STAFF CANNOT BE THE PURPO SE OF ANY VRS.HERE,WE WOULD LIKE TO REFER TO THE JUDGMENT OF THE HONBLE CALCUTTA HIGH COURT DEL IVERED IN THE CASE OF SAIL DSP VR EMPLOYEES ASSOCIATION 1998 WHEREIN IT HAS BEEN HELD THAT SECTION 10(10C) WAS INSERTED IN ORDER TO MAKE VRS ATTRACTIVE SO AS TO REDUCE HUMAN COMPLE MENTS FOR SECURING ECONOMIC VIABILITY OF CERTAIN COMPANIES, THAT SAID PRINCIPLE WAS ELABORAT ED BY VARIOUS DEPARTMENTAL CIRCULARS AND EXPLANATORY STATEMENTS ISSUED FROM TIME TO TIME,THA T RULE 2BA OF THE INCOME-TAX RULES,1962,WAS AMENDED ON VARIOUS OCCASIONS FOR THAT PURPOSE,THAT ALL THE FACTORS SHOWED THAT PROVISION WERE INSERTED IN THE ACT TO MAKE VRS MORE ATTRACTIVE AND BENEFICIAL TO THE EMPLOYEE OPTING FOR VOLUNTARY RETIREMENT, THAT PROVISIONS HAD TO BE INT ERPRETED IN A MANNER BENEFICIAL TO THE OPTEE,IF THERE IS ANY AMBIGUITY. AS PER THE COURT,RULE 2BA P RESCRIBED THE MONETARY LIMIT.(262ITR638). WE FURTHER FIND THAT IN THE CASES OF Y.S.C.BABU & A .V.S. RAGHAVAN EMPLOYEES OF SYNDICATE BANK,HONBLE HIGH COURT OF AP HAD HELD THAT THEY WE RE ENTITLED TO CLAIM EXEMPTION U/S.10 (10C) OF THE ACT.SYNDICATE BANK IS ONE OF THE COMMERCIAL BANK LIKE THE SBI.THUS,THERE IS NO JUSTIFICA - TION FOR DIFFERENTIATING BETWEEN THE RBI AND A COMM ERCIAL BANK.WHAT IS TO BE SEEN IS WHETHER THE INTERPRETATION ADOPTED IS BENEFICIAL TO THE OPTEE O R NOT ? WE FURTHER FIND THAT A BENCH OF MUMBAI TRIBUNAL HAS ,IN THE CASES OF UMA SUBRAMANIAN & TWO OTHERS(ITA NOS.3120,3122 & 3468/MUM/ 2012),DEALT TH E ISSUE OF VRS OF THE SBI EMPLOYEES AND 3 ITA NO. 278/NAG/2013 SHRI PRAKASH DATTATRAY DUBEY APPLICABILITY OF THE PROVISIONS OF SECTION 10(10C) OF THE ACT.IN ITS ORDER DATED 10.08.2012, TRIBUNAL HAS HELD AS UNDER : 2.ALL THE THREE ASSESSEES IN THE PRESENT CASES ARE EX-EMPLOYEES OF THE STATE BANK OF INDIA (IN SHORT SBI). THEY OPTED FOR VOLUNTARY RETIREMENT SCHEME AS PER STAFF EXIT SCHEME OF THEIR EMPLOYER SBI AND IN THE RETURNS OF INCOME FILED FOR THE YEAR UND ER CONSIDERATION, EXEMPTION OF RS 5 LAKHS WAS CLAIMED BY THEM U/S.10(10C) OF THE INCOME-TAX ACT, 1961. IN THE ASSESSMENTS COMPLETED U/S.143(3), THE AO ALLOWED THE EXEMPTION CLAIMED BY THE ASSESSE ES U/S.10(10C) IN VIEW OF THE DECISION OF HON'BLE BOMBAY HIGH COURT IN WP NO.1051 OF 2010 IN THE CASE OF RAVIKANT G. SETH VS. CIT RENDERED VIDE ORDER DATED 23.08.2010. BY THE SAID O RDER, CIT-2, THANE WAS DIRECTED BY THE HON'BLE BOMBAY HIGH COURT TO CONSIDER WHETHER THE P ETITIONER WAS ENTITLED TO EXEMPTION U/S.10(10C) OF THE ACT AND THE RULES MADE UNDER THE INCOME-TAX RULES, 1962. AS PER THE DIRECTION OF HON'BLE BOMBAY HIGH COURT, THE LD. CIT-2, THANE PASSED AN ORDER U/S.264 ALLOWING THE CLAIM OF THE ASSESSEE NAMELY SHRI RAVI KANT SETH U/S.10(1 0C) OF THE ACT. 3.SUBSEQUENTLY, THE LD. CIT-26, MUMBAI CAME ACROSS THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF SBI EXIT OPTEES VS. UNION OF INDIA A ND OTHERS (WP NO.2129 OF 2007) WHEREIN THEIR LORDSHIPS HAD TAKEN NOTE OF REQUIREMENT OF RULE 2BA ACCORDING TO WHICH THE VACANCY CAUSED BY THE VOLUNTARY RETIREMENT WAS NOT TO BE FILLED-UP IN ORDER TO AVAIL THE BENEFIT OF SEC.10(10C). IT WAS ALSO NOTED THAT AS PER THE RELEVANT PROVISION OF CL AUSE 14 OF THE STAFF EXIT SCHEME OF SBI, THE EXIT OPTION WAS AIMED AT IMPROVING THE LEVEL OF MORAL IN THE BANK AND NOT AT RIGHTSIZING AND THE BANK WAS TO HAVE DISCRETION TO FILL- UP THE VACANCIES CA USED BY RELEASE OF OFFICERS UNDER THE EXIT OPTION. AFTER TAKING NOTE OF RULE 2BA AS WELL AS THE PROVIS IONS OF CLAUSE 14 OF STAFF EXIT SCHEME, THE HON'BLE BOMBAY HIGH COURT HELD THAT IF THE PETITION ERS WERE AGGRIEVED BY THE SAID CLAUSE OR THE RULE, IT WOULD BE OPEN TO THEM TO INDEPENDENTLY PUR SUE WHATEVER REMEDY THEY MAY HAVE AT LAW. ACCORDING TO THE LD. CIT, THE DECISION OF HON'BLE B OMBAY HIGH COURT IN THE CASE OF SBI EXIT OPTEES (SUPRA) WAS IN FAVOUR OF THE REVENUE AND THE ASSESSMENT ORDERS PASSED BY THE AO U/S.143(3) IN THE CASES OF THE ASSESSEES WERE ERRON EOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE INASMUCH AS DEDUCTION U/S.10(10C) AMOUNTING TO RS. 5 LAKHS WAS WRONGLY ALLOWED TO THEM. HE, THEREFORE, SET ASIDE THE SAID ORDERS WITH A DIRECTI ON TO THE AO TO FRAME THE SAME DE NOVO AFTER WITHDRAWING EXEMPTION OF RS.5 LAKHS GRANTED TO THE ASSESSEES U/S.10(10C) OF THE ACT AS THE REQUIREMENT OF RULE 2BA OF IT RULES WAS NOT SATISFI ED. AGGRIEVED BY THE ORDERS OF THE LD. CIT PASSED U/S.263 SETTING ASIDE AND REVISING THE ORDER S OF THE AO, THE ASSESSEES HAVE PREFERRED THESE APPEALS BEFORE THE TRIBUNAL. 4.WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. ALTHOUGH THE LD. DR HAS STRONGLY RELIED ON THE IMPU GNED ORDERS OF THE LD. CIT PASSED U/S.263 IN SUPPORT OF THE REVENUE'S CASES, IT IS OBSERVED THAT IN PARAGRAPH NO.5 OF THE SAID ORDERS, THE LD. CIT HIMSELF HAS STATED THAT NOTHING HAS BEEN DECIDED BY THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SBI EXIT OPTEES (SUPRA) AS TO THE ADMISSIBILITY OF THE CLAIM OF THE PETITIONER U/S.10(10C). WHAT THE HON'BLE BOMBAY HIGH COURT HELD WAS THAT THE CLAUSE 14 OF THE SBI EXIT SCHEME WAS NOT IN CONFORMITY WITH RULE 2BA OF THE INCOME-TAX RULES AN D IT WAS LEFT OPEN TO THE PETITIONER AGGRIEVED BY THE SAID CLAUSE OR THE RULE TO INDEPENDENTLY PUR SUE WHATEVER REMEDY THEY MAY HAVE AT LAW. 5. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L FOR THE ASSESSEE HAS CITED VARIOUS DECISIONS OF THE TRIBUNAL WHEREIN A SIMILAR ISSUE RELATING TO TH E ASSESSEE'S CLAIM FOR EXEMPTION U/S.10(10C) HAS BEEN CONSIDERED AND DECIDED ON MERIT IN FAVOUR OF T HE ASSESSEE. IN ONE OF SUCH DECISIONS RENDERED IN THE CASE OF PANDYA VINODCHANDRA BHOGILAL VS. ITO 45 DTR 105, AHEMADABAD BENCH OF THE ITAT HELD THAT CLAIM FOR EXEMPTION U/S.10(10C) CANN OT BE DENIED ON THE GROUND THAT THE SCHEME OF VOLUNTARY RETIREMENT FRAMED BY THE EMPLOYER IS NOT IN ACCORDANCE WITH THE RULE 2BA. FOR THIS CONCLUSION, THE AHMEDABAD BENCH RELIED ON THIRD MEM BER DECISION OF THE KOLKATA BENCH OF THE ITAT IN THE CASE OF DY. CIT V. KRISHNA GOPAL SAHA 2 9 DTR 385 WHEREIN IT WAS HELD THAT THE ASSESSEE, WHO HAD EXERCISED THE OPTION FOR RETIREME NT UNDER THE SCHEME FLOATED BY THE EMPLOYER BANK AND HAD RECEIVED THE COMPENSATION FROM THE EMP LOYER BANK, WAS ENTITLED TO EXEMPTION U/S.10(10C) EVEN THOUGH THE SAID SCHEME WAS NOT IN CONFORMITY WITH THE REQUIREMENT OF RULE 2BA. THESE DECISIONS OF THE TRIBUNAL CITED BY THE LD. CO UNSEL FOR THE ASSESSEE DECIDING THE SIMILAR ISSUE 4 ITA NO. 278/NAG/2013 SHRI PRAKASH DATTATRAY DUBEY RELATING TO EXEMPTION U/S.10(10C) IN FAVOUR OF THE ASSESSEE CLEARLY SHOWS THAT THE VIEW TAKEN BY THE AO WHILE ALLOWING THE CLAIM OF THE ASSESSEE FOR EXEMPTION U/S.10(10C) IN THE ASSESSMENTS FRAMED U/S.143(3) WAS A POSSIBLE VIEW AND THE LD. C IT, IN OUR OPINION, WAS NOT JUSTIFIED IN TREATING THE SAID ASSESSMENTS AS ERRONEOUS AND PREJUDICIAL T O THE INTEREST OF REVENUE RELYING ON THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF SBI EXI T OPTEES (SUPRA) WHEREIN NO DECISION WAS RENDERED AS TO THE ADMISSIBILITY OF THE CLAIM OF TH E PETITIONERS ON MERIT AS AGREED BY THE LD. CIT HIMSELF IN HIS IMPUGNED ORDER PASSED U/S.263. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDERS PASSED U/S.263 AND RESTORE THE ORDERS PASSED BY THE AO U/S.143(3). CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND RESPECTFULLY FOLLOWING THE ABOVE REFERRED ORDERS THE HONBLE COURTS AND THE COORDINATING BENC H,WE ARE OF THE OPINION THAT THE ASSESSEE WAS ENTITLED TO GET BENEFIT OF THE EXEMPTION PROVIDED U /S.10(10C) OF THE ACT.THEREFORE,REVERSING THE ORDER OF THE FAA WE DECIDED EFFECTIVE GROUND OF APP EAL IN FAVOUR OF THE ASSESSEE. AS A RESULT,APPEAL FILED BY THE A SSESSEE STANDS ALLOWED. 5 /6 #5/ 7 2 8 '9 ' / : . ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH FEBRUARY,2014. 2!3 1* ! ( 6 ;0 , 2014 . SD/- SD/- (H.L.KARWA/ % %% % . . ) ( '!() '!() '!() '!() / RAJENDRA) PRESIDENT/ '& ! ! ! ! 24 24 24 24 /ACCOUNTANT MEMBER / MUMBAI, 2 /DATE: 06.02.2014 SK 2!3 2!3 2!3 2!3 -/ -/ -/ -/ , 4. THE CONCERNED CIT / = > 5. DR ITAT,NAGPUR BENCH/ ? -/ , . . ( . - . 6. GUARD FILE/ # ; . . / -/ //TRUE COPY// 2!3 / BY ORDER, @ / ' DY./ASST. REGISTRAR , /ITAT, MUMBAI.