ITO, BIKANER V. Shri Devendra Kumar Jain, BIKANER

ITA 285/JODH/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7803 (ITAT-JODHPUR)
• Duration Of Justice: 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 02-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Section: 143(3); 10

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 284 /JODH/201 4 (A.Y. 200 7 - 08 ) IT O , WARD - 1 (3) , VS. SHRI GOPAL DAS SONGARA , BIKANER . 3 - D - 31 , JNV COLONY, BIKANER. PAN NO. ABNPS 3334 D (APPELLANT) (RESPONDENT) ITA NO. 285 /JODH/201 4 (A.Y. 200 7 - 08 ) ITO, WARD - 1(3), VS. SHRI DEVENDRA KUMAR JAIN , BIKANER. KARNANI MOHALLA , NEW LANE, GANGASHAHAR, BIKANER. PAN NO. AB KPJ 6585 E (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NONE DEPARTMENT BY : SHRI N.A. JOSHI - D.R. DATE OF HEARING : 05 / 0 8 /201 4 . DATE OF PRONOUNCEMENT : 06 /0 8 /201 4 . O R D E R PER N.K. SAINI, A.M 2 THESE TWO APPEALS BY THE DEPARTMENT ARE DIRECTED AGAINST THE SEPARATE ORDERS EACH DATED 20/02/2014 OF L D . CIT(A), BIKANER . SINC E , THE ISSUE INVOLVED IS COMMON IN BOTH THESE APPEALS WHICH WERE HEARD TOGETHER, SO , THESE ARE BEING DISPOSED OFF BY THIS CONSO LIDATED ORDER FOR THE SAKE OF CONVENIENCE . 2 THE ONLY GROUND RAISED IN THIS APPEAL READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING ADDITION OF RS. 5,00,000/ - MADE ON ACCOUNT OF DISALLOWANCE EXEMPTION CLAIMED U/S. 10(10C) OF THE I.T. ACT, 1961. 3. D U RING THE COURSE OF HEARING, NOBODY WAS PRESENT ON BEHALF OF ASSESSEE S NEITHER ANY ADJOURNMENT WAS SOUGHT, WE THEREFORE, PROCEEDED TO DECIDE THESE APPEALS EXPARTE QUA THE ASSESSEES AFTER HEARING THE LEARNED D.R. ON MERITS. 4. FACTS RELATING TO THIS CASE, IN BRIEF, ARE THAT THE ASSESSEE S ARE THE RETIRED BANK EMPLOYEE S , WHO TOOK VRS AND AT THE TIME OF FINALIZING THE ASSESSMENT, CLAIM OF RS. 5,00,000/ - MADE BY E A CH OF THE ASSESSEE U/S. 10(10C) OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) WAS DISALLOWED BY THE ASSESSING OFFIC ER. 3 5 . BEING AGGRIEVED, ASSESSEE S CARRIED THE MATTER TO THE LD. CIT(A), WHO DELETED THE ADDITION BY OBSERVING AS UNDER: - I HAVE CONSIDERED THE FACTS OF THE CASE AND THE SUBMISSIONS MADE. IN THE CASE OF JAYANT BHALCHANDRA RUKADIKAR VS. DEPARTMENT OF INCOME TAX (ITAT PUNE), ITA NO. 1046/PN/2011 DECIDED ON 30.08.2012 WHEREIN IT WAS HELD THAT AFTER GOING THROUGH THE ABOVE SUBMISSIONS AND MATERIAL ON RECORD, WE ARE NOT INCLINED TO INTERFERE WITH THE DECISION OF THE CIT(A) WHIC H IS FORTIFIED BY THE JURISDICTIONAL HIGH COURT DECISION IN KOODATHIL KALLYATAN AMBUJAKSHAN (SUPRA), WHEREIN CLAIM OF SIMILAR EXEMPTION U/S. 10 (10C) OF THE ACT WAS ALLOWED. ACCORDINGLY, THE CIT(A) WAS JUSTIFIED IN HOLDING THAT EMPLOYEE OPTED FOR EXIT OPTIO N SCHEME PROVIDED BY STATE BANK OF INDIA AND STATE BANK O F PATIALA AND OTHER ASSOCIATED B ANKS ARE ELIGIBLE FOR EXEMPTION U / S .10(10C) OF THE ACT. WE UPHOLD THE SAME. IN THE CASE OF VASANT N PHALSAMKAR, MUMBAI VS. ITO WARD 26(1) (2), MUMBAI ( ITAT MUMBAI), ITA NO. 3120 /MUM/2012 DECIDED ON 10.08.2012 WHEREIN IT WAS HELD THAT AT THE TIME OF HEARING BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS CITED VARIOUS DECISIONS OF THE TRIBUNAL WHEREIN A SIMILAR ISSUE RELATING TO THE ASSESSEE'S CLAIM FOR EXEMPTION U / S .10(10C) HAS BEEN CONSIDERED AND DECIDED ON MERIT IN FAVOUR OF THE ASSESSEE.' IN ONE OF SUCH DECISIONS RENDERED IN THE CASE OF PANDYA VINOD C HANDRA BHOGILAL VS. ITO 45 DTR 105, AHEMADABAD BENCH OF THE ITAT HELD THAT CLAIM FOR EXEMPTION U / S . 10(10C) CANNOT 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 MEMBER DECISION OF THE KOLKATA BENCH OF THE ITAT IN THE CASE OF DY. CIT V. KRISHNA GOPALSAHA 29 DTR 385 WHEREIN IT WAS HELD THAT THE ASSESSEE, WHO HAD EXERCISED THE OPTION FOR RETIREMENT UNDER THE SCHEME FLOATED BY THE EMPLOYER BANK AND HAD RECEIVED THE COMPENSATION FROM THE EMPLOYER 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. COUNSEL FOR THE ASSESSEE DECIDING THE SIMILAR ISSUE RELATING TO EXEMPTION U / S . 10(10C) IN FAVOUR OF THE ASSESSEE CLEARLY SH OWS 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. CIT, IN OUR OPINION, WAS NOT JUSTIFIED IN TREATING THE SAID ASSESSMENTS AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE RELYING ON THE 4 DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF SBI EXIT OPTEES (SUPRA) WHEREIN NO DECISION WAS RENDERED AS TO THE ADMISSIBILITY OF THE CLAIM OF THE PETITIONERS ON MERIT AS AGREED BY THE LD. CI T 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). IN JAVERILALDALICHANDCHHAJED VS. DEPARTMENT OF INCOME TAX (ITAT PUNE BENCH B, PUNE), ITA NO. 326/PN/2010 DECIDED ON 08.11.2011 WHEREIN IT WAS HELD THAT THE ASSESSEE AN EMPLOYEE OF STATE BANK OF INDIA HAD CLAIMED EXEMPTION U/S. 10(10C) OF THE ACT IN RESPECT OF THE EX - GRATIA AMOUNT RECEIVED ON HIS VOLUNTARY RETIREMENT UNDER THE 'EXIT OPTION SCHEME' . THE A.O UNDER THE ASSESSMENT FRAMED U/S. 143(3) R.W.S. 147 OF THE ACT DISALLOWED THE CLAIM ON THE BASIS THAT THE STATE BANK OF INDIA HAS CLEARLY MENTIONED IN EXIT SCHEME THAT EMPLOYEES WILL NOT GET EXEMPTION U/S. 10(10C) OF THE ACT. THE LD. CIT (A) HAS A LLOWED THE CLAIMED EXEMPTION FOLLOWING THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF MR. VILAS SUDAM SAVANT IN ITA NO. 6016/M/07, ORDER DATED 6.10.2008. IN THAT CASE, UNDER SIMILAR FACTS AND CIRCUMSTANCES, IT WAS HELD THAT EMPLOYEES WHO T OOK THE VOLUNTARY RETIREMENT UNDER THE EXIT OPTION SCHEME DATED 29.4.2005 ANNOUNCED BY THE STATE BANK OF INDIA ARE ELIGIBLE FOR EXEMPTION U/S. 10(10C) OF THE ACT. IN THIS REGARD, MUMBAI BENCH OF THE TRIBUNAL HAS FOLLOWED THE DECISION OF HON'BLE JURISDICTIO NAL MUMBAI HIGH COURT IN THE CASE OF CIT VS. KOODATHILKALLYATAN IN INCOME TAX APPEAL NO. 53 OF 2008. THE TRIBUNAL HAS ALSO FOLLOWED ITS EARLIER DECISION IN THE CASE OF VAISALI A. SHELAR&ORS. VS. ACIT, 109 TTJ (MUM) 607. SINCE NO CONTRARY DECISION OF APPELLATE AUTHORITY HAS BEEN CITED BY THE DEPARTMENT BEFORE US, WE DO NOT FIND INFIRMITY IN THE FIRST APPELLATE ORDER ON THE ISSUE. THE SAME IS UPHELD. THE GROUNDS ARE THUS REJECTED.' KEEPING IN VIEW THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE AND THE VARIOUS JUDGEMENTS FILED BY THE A/R, I HOLD THAT THE DISALLOWING EXEMPTION U/S 10(10C) MADE BY THE AO IS NOT JUSTIFIED. THE APPELLANT SUCCEEDS ON THIS GROUND. NOW THE DEPARTMENT IS IN APPEAL. 6 . LEARNED D.R. SUPPORTED THE ORDER OF THE ASSESSING OFFICER, BUT COULD NOT REBUT THE AFORESAID FINDINGS GIVEN BY THE LD. CIT(A) . 5 7 . AFTER CONSIDERING THE SUBMISSIONS OF THE LEARNED D.R. AND THE MATERIAL ON RECORD , IT IS NOTICED THAT THE LD. CIT(A) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER BY FOLLOWING VARIOUS DECISIONS GIVEN BY THE DIFFERENT BENCHES OF THE ITAT AS WELL AS HON'BLE MUMBAI HIGH COURT, WE THEREFORE, DO NOT SEE ANY INFIRMITY IN THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND ACCORDINGLY DO NOT SEE ANY MERIT IN THESE APPEALS OF THE DEPARTMENT 8 . IN THE RESULT, APPEAL S OF THE DEPARTMENT ARE DISMISSED . ( ORDER PRONOUNCED IN THE COURT ON 06 TH AUGUST , 201 4) . SD/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 06 TH AUGUST , 201 4 . VR/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R SR. PRIVATE SECRETARY , ITAT, JODHPUR .