The ACIT,Valsad Circle, Valsad V. Shri Amratbhai M.Patel, Valsad

ITA 2803/AHD/2010

• Counselvise Citation: 280320514 RSA 2010
• Duration Of Justice: 2 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 24-09-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 04-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MATHEWS
• Keywords: Salary income; Tax effect

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BENCH, AHMEDABAD .., ! '#$ '#$ '#$ '#$ % &', ! BEFORE SHRI B.P.JAIN,ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER $./ I.T.A. NO.2803/AHD/2010 ( ) #*) ) #*) ) #*) ) #*) / / / / ASSESSMENT YEAR : 2007-08) THE ASSTT.CIT VALSAD CIRCLE VALSAD / VS. SHRI AMRATBHAI M.PATEL AMIRAJ SOCIETY THITHAL ROAD VALSAD !+ $./, $./ PAN/GIR NO. : AFGPP 8633K ( +- / // / APPELLANT ) .. ( ./+- / RESPONDENT ) AND CO NO.319/AHD/2010 A.Y. 2007-08 (IN ITA NO.283/AHD/2010) REVENUE BY : SHRI K.C. MATHEWS, SR.D.R. ASSESSEE BY : -NONE- %#0 1 ' / / / / DATE OF HEARING : 24/ 09 /2013 23* 1 ' / DATE OF PRONOUNCEMENT : 27/09/2013 4 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-VALSAD, (CIT(A) FOR SHORT) DATED 23/07/2010 PERTAINING TO ASSESSMENT YEAR (AY) 2007-08 AND THE ASSESSEE IS IN CROSS-OBJECTION THEREOF. THE REVENU E HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD.CIT(A) VALSAD HAS ERRED IN DELETING THE ADDITION OF RS.5,0 0,000/- MADE ON ITA NO.2803/AHD/2010(REVENU E)& CO NO.319/AHD/2010(ASSESSEE) THE ASST.CIT VS. SHRI AMRATBHAI M.PATEL ASST.YEAR 2007-08 - 2 - ACCOUNT OF DISALLOWANCE OF CLAIM OF EXEMPTION U/S.1 0(10C) OF THE I.T. ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) ERRED IN HOLDING THAT THE ASSESSEE IS ENT ITLED TO DEDUCTION UNDER SECTION 10(10C), WHEN THE SCHEME UNDER WHICH THE AMOUNT WAS PAID DOES NOT FULFILL THE CRITERIA PRESCRIBED U NDER RULE 2BA OF THE INCOME TAX RULES. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) ERRED IN HOLDING THAT THE ASSESSEE IS ENT ITLED FOR DEDUCTION U/S.10(10C), IN VIEW OF THE BOARDS CIRCU LAR NO.640 DTD. 26.11.1192 AND THE HONBLE MADRAS HIGH COURTS JUDG MENT DELIVERED IN THE CASE OF COMMISSIONER OF INCOME-TAX VS. M.CHELLADURAI (2009) 176 TAXMAN 31 (MAD). 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) OUGHT TO HAVE UPHELD THE ADDITION MADE BY THE A.O. 5. IT IS PRAYED THAT THE ORDER OF THE CIT(A) MAY BE SE T ASIDE AND THAT THE ORDER OF THE ACIT MAY BE RESTORED. 6. THE APPELLANT CRAVES TO ADD, MODIFY OR ALTER ANY GR OUNDS DURING THE COURSE OF APPELLATE PROCEEDINGS. 2. BRIEFLY STATED FACTS ARE RECORDED BY THE LD.CIT (A) IN HIS ORDER VIDE PARAGRAPH NO.3 ARE REPRODUCED BELOW:- 3. THE APPELLANT DERIVED SALARY INCOME AND ALSO R ECEIVED VOLUNTARY RETIREMENT BENEFIT FROM HER EMPLOYER. TH E AO OBSERVED THAT THE APPELLANT HAS CLAIMED EXEMPTION U /S.10(10C) OF RS.5,00,000/- OF EX-GRATIA AMOUNT RECEIVED BY HER O N VOLUNTARY RETIREMENT BUT ON PLAIN READING OF THE SECTION THE SCHEME UNDER WHICH THE APPELLANT HAD OPTED VOLUNTARY RETIREMENT IS EXIT OPTION SCHEME, WHICH IN THE OPINION OF THE AO IS NOT ELIGI BLE FOR THE BENEFIT U/S.10(10C) AS PER THE SCHEME FRAMED BY THE BANK. WHILE PASSING THE ASSESSMENT ORDER, THE AO MADE AN ADDITI ON OF RS.5,000,000/- BY REJECTING THE APPELLANTS CLAIM U /S.10(10C) OF THE ACT. 2.1. THE ASSESSEE FEELING AGGRIEVED BY THE ORDER OF THE AO WENT IN APPEAL BEFORE THE LD.CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS AND RELYING UPON THE VARIOUS DECISIONS RENDERED BY THE HONBLE CO-ORDINATE ITA NO.2803/AHD/2010(REVENU E)& CO NO.319/AHD/2010(ASSESSEE) THE ASST.CIT VS. SHRI AMRATBHAI M.PATEL ASST.YEAR 2007-08 - 3 - BENCHES AS ALSO THE JUDGEMENT OF HONBLE BOMBAY HI GH COURT RENDERED IN THE CASE OF CIT VS. NAGESH DEVIDAS KULKARNI & OR S. REPORTED AT (2007) 210 CTR 471 (BOM), PARTLY ALLOWED THE APPEA L OF THE ASSESSEE. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE, HOWEVER A LETTER DATED 21 ST SEPTEMBER-2013 HAS BEEN PLACED ON RECORD REQUESTIN G THE APPEAL TO BE DISMISSED ON ACCOUNT OF LAW TAX EFFECT. 4. THE LD.SR.DR SUBMITTED THAT AS PER EMPLOYER OF T HE ASSESSEE, NAMELY SBI, NO EXEMPTION U/S.10(10C) OF THE ACT WA S GIVEN SINCE THIS SCHEME DOES NOT COMPLY WITH THE PROVISIONS OF SECTI ON 10(10C) OF THE ACT, 1961. 5. WE HAVE HEARD THE LD.SR.DR, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. IN THE INSTANT CASE, WE FIND THAT AN IDENTICAL ISSUE HAS BEEN DECIDED BY THIS TRIBUNAL (ITAT BENCH D AHMEDABAD) IN ITA NOS.2785 /AHD/2010 & OTHERS FOR AY 2007-08 RENDERED IN THE CASE OF DCIT VS. NAGINBHAI RAVIYABHAI PATEL & OTHERS, DATED 30/04/2013, WHERE IN THE APPEALS FILED BY THE REVENUE HAVE BEEN DISMISSED FOLLOWING THE DE CISIONS OF THE HONBLE COORDINATE BENCHES OF THIS TRIBUNAL. SINCE THERE IS NO CHANGE IN FACTS AND CIRCUMSTANCES AND ALSO NO CONTRARY DEC ISION HAS BEEN PLACED ON RECORD BY THE REVENUE EXCEPT THE DECISION OF HON BLE HIGH COURT OF MADRAS RENDERED IN THE CASE OF CIT VS. M.CHELLADURA I REPORTED AT (2009) 317 ITR 370 (MAD.). THE SAID DECISION OF THE HON BLE HIGH COURT OF MADRAS HAS BEEN REVERSED BY THE HONBLE APEX COURT. UNDER THESE FACTS, ITA NO.2803/AHD/2010(REVENU E)& CO NO.319/AHD/2010(ASSESSEE) THE ASST.CIT VS. SHRI AMRATBHAI M.PATEL ASST.YEAR 2007-08 - 4 - WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD .CIT(A), THE SAME IS HEREBY UPHELD. AS A RESULT, APPEAL OF THE REVENUE IS DISMISSED. 6. NOW, WE TAKE UP THE CROSS-OBJECTION NO.319/AHD/2 010 FILED BY THE ASSESSEE AND THE FOLLOWING GROUND HAS BEEN TAKEN BY THE ASSESSEE:- 1. IN THE FACT AND CIRCUMSTANCES OF THE CASE THE R ELIEF U/S.89 AS CLAIMED BY THE RESPONDENT BEFORE C.I.T.(APPEALS) MA Y BE GRANTED, IF THE DEPARTMENTAL APPEAL BEFORE HONORABLE I.T.A.T . IS ALLOWED . 7. IN THE CO, THE ASSESSEE HAS RAISED THE CONTENTIO N TO ALLOW RELIEF U/S.89 OF THE ACT, IF IT IS HELD THAT THE ASSESSEE IS NOT ENTITLED DEDUCTION U/S.10(10C) OF THE ACT. SINCE WE HAVE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE ON THE FIRST ASPECT REGARDING AVAILABILITY OF DEDUCTION U/S.10(10C) OF THE ACT, THE CONTENTION RAISED BY TH E ASSESSEE IN THIS CROSS- OBJECTION HAS NOW BECOME INFRUCTUOUS AND, THEREFORE , REJECTED ACCORDINGLY. IN THE RESULT, CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED. 8. IN THE COMBINED RESULT, THE APPEAL OF THE REVENU E AND CROSS OBJECTION FILED BY THE ASSESSEE BOTH ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE SD/- SD/- ( .. ) (% &') ! ! ( B.P. JAIN ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 27/ 09 /2013 7.., #.../ T.C. NAIR, SR. PS ITA NO.2803/AHD/2010(REVENU E)& CO NO.319/AHD/2010(ASSESSEE) THE ASST.CIT VS. SHRI AMRATBHAI M.PATEL ASST.YEAR 2007-08 - 5 - 4 1 .'8 98*' 4 1 .'8 98*' 4 1 .'8 98*' 4 1 .'8 98*'/ COPY OF THE ORDER FORWARDED TO : 1. +- / THE APPELLANT 2. ./+- / THE RESPONDENT. 3. $$ ' %: / CONCERNED CIT 4. %:() / THE CIT(A)-VALSAD 5. 8#&; .' , , / DR, ITAT, AHMEDABAD 6. ;) <0 / GUARD FILE. 4% 4% 4% 4% / BY ORDER, /8' .' //TRUE COPY// = == =/ // / $ $ $ $ ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 25.9.13(DICTATION-PAD 7 PAG ES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25.9.13 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 D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.27.9.13 7. SDATE ON WHICH THE FILE GOES TO THE BENCH CLERK 27.9.13 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER