S Subhramanyam Subudhi, Bhubaneswar V. ACIT, Bhubaneswar

ITA 290/CTK/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4282 (ITAT-CUTTACK)
• Duration Of Justice: 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 14-12-2009
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: B S SUBUDHI
• Keywords: Opportunity of being heard
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE HONBLE SHRI D.K.TYAGI, JUDICIAL MEMBER. /AND HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER . / I.TA.NO . 290/CTK/2009 / ASSESSMENT YEAR 2006 - 07 S.SUBHRAMANYAM SUBUDHI, M - 77 PHASE II, HOUSING BOARD COLONY, BHIMATANGI,BHUBANESWAR 751 002. PAN - ABSPS 9698 D - - - VERSUS - . ASST. CO MMISSIONER OF INCOME - TAX, CIRCLE 2(2), BHUBANESWAR. / A PPELLANT RESPONDENT FOR THE APPELLANT : SHRI B.S.SUBUDHI, AR FOR THE RESPONDENT : SHRI S.C.MOHANTY, DR / ORDER SHRI K.K.GUPTA, ACCOUNTANT MEMBER . THE ASSESSEE IS AGITATING THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) WHO CONFIRMED THE ACTION OF THE ASSESSING OFFICER IN REFUSING TO GRANT EXEMPTION U/S.10(10C) OF THE INCOME - TAX ACT,1961 ON THE BASIS OF ASSESSEE BEING AN EMPLOYEE OF THE STATE BANK OF INDIA HAD OPTED FOR VRS. 2. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND FROM THE APPEAL MEMO THAT THE EXEMPTION WAS DISALLOWED IN T HE INTIMATION U/S.143(1) OF THE ACT WHICH WAS SOUGHT TO BE RECTIFIED BY A PETITION U/S.154 BY THE ASSESSEE. THE SAME WAS REJECTED BY THE ASSESSING OFFICER BY HOLDING THAT THE PROVISIONS OF SECTION 10(10C) WERE NOT APPLICABLE TO THE ASSESSEES CASE. THE LEA RNED COUNSEL BEFORE US SUBMITTED THAT THE ASSESSING OFFICER IN REJECTING THE PETITION HAS GONE BEYOND THE JURISDICTION OF THE SAID SECTION IN SO FAR AS HE TRIED TO CONSIDER APPLICABILITY OF A PARTICULAR PROVISION WHERE TWO VIEWS ARE POSSIBLE APART FROM APP ARENT MISTAKE TO BE RECTIFIED. 3. AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY WHO CONSIDERED THE CASE OF THE APPELLANT IN DETAIL TO THE EXTENT OF CONSIDERING THE PROVISO I.TA.NO . 290/CTK /2009 2 TO THE SAID SECTION WHETHER APPLICABLE TO THE ASSESSEE S PECIFICALLY RULE 2BA. ON CONFIRMING HIS OPINION THE LEARNED CIT (A) DISMISSED THE APPEAL WHEN THE LEARNED COUNSEL FOR THE ASSESSEE HAD SUBMITTED A PAPER BOOK WHICH ENTIRELY RELATES TO THE FACT THAT THE ASSESSEE BEING AN EMPLOYEE OF THE STATE BANK OF INDIA W AS NOT COVERED BY FIRST PROVISO TO SAID SECTION. FURTHER MORE HE SUBMITTED THAT APPLICATION OF RULE 2BA STANDS COVERED BY A PLETHORA OF DECISIONS OF TRIBUNAL WHICH ARE PLACED IN THE PB. HE POINTED OUT THAT PETTY ISSUE TO BE CONSIDERED U/S.154 HAS BECOME A DEBATABLE ISSUE ON THE FINDINGS OTHERWISE EXEMPTED NOTED IN THE RETURN WERE AVAILABLE IN THE FORM OF INTIMATION U/S.143(1). 4. THE LEARNED DR HAS NOT OPPOSED TO THE PRAYER OF THE LEARNED COUNSEL THAT IF THE MATTER IS RESTORED TO THE ASSESSING OFFICER FOR C ONSIDERATION IN THE LIGHT OF FURTHER MATERIAL AS HAS BEEN BROUGHT ON RECORD BEFORE THE CIT (A) AND THE TRIBUNAL. 5. IN THE INTEREST OF JUSTICE, WE ARE INCLINED TO HOLD THAT RECTIFICATION WAS TO BE CARRIED OUT IN THE LIGHT OF PLETHORA OF DECISIONS ON THE ISS UE SPECIFICALLY FOR THE EMPLOYEES OF STATE BANK OF INDIA AND RESERVE BANK OF INDIA THEREFORE WAS TO BE SUBSTANTIATED OR DISTINGUISHED BY THE AUTHORITIES BELOW IN THE LIGHT OF THEIR OBSERVATION OTHERWISE. THE ISSUE IS THEREFORE RESTORED TO THE FILE OF THE A SSESSING OFFICER FOR CONSIDERATION AFRESH AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS CONSIDERED AS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 30.07.2010 S D/ - S D/ - ( ), D.K.TYAGI JUDICIAL MEMBER (K.K.GUPTA), ACCOUNTANT MEMBER. DATE: 30.07.2010 ( /) H.K.PADHEE SENIOR.PRIVATE SECRETARY. I.TA.NO . 290/CTK /2009 3 - COPY OF THE ORDER FORWARDED TO : / THE APPELLANT : S.SUBHRAMANYAM SUBUDHI, M - 77 PHASE II, HOUSING BOARD COLONY, BHIMATAN GI,BHUBANESWAR 751 002. / THE RESPONDENT : ASST. COMMISSIONER OF INCOME - TAX, CIRCLE 2(2), BHUBANESWAR THE CIT, THE CIT(A), DR, CUTTACK BENCH GUARD FILE TRUE COPY , BY ORDER , [ ] SENIOR PRIVATE SECRETARY