GIRISH P. CHAUDHARI, MUMBAI V. ITO 28(2), MUMBAI

ITA 365/MUM/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3524 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 12-11-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 14-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VISHWAS JADHAV
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEORE SHRI G.S.PANNU, ACCOUNTANT MEMBER ITA NO. 365/MUM/2015 (ASSESSMENT YEAR : 2008-09) GIRISH P. CHAUDHARI, FLAT NO.6, 1 ST FLOOR, TRINITY BLDG., SAI BABA NAGAR, BORIVALI (W), MUMBAI 92 PAN: AAIPC 7101R ... APPELLANT VS. THE INCOME TAX OFFICER 28(2), MUMBAI. .... RESPONDENT APPELLANT BY : SHRI ANIL SATHE RESPONDENT BY : SHRI VISHWAS JADHAV DATE OF HEARING : 08/12/2015 DATE OF PRONOUNCEMENT : 29/02/2016 ORDER PER G.S. PANNU,AM: THE CAPTIONED APPEAL IS PREFERRED BY THE ASSESSEE AND IS DIRECTED AGAINST THE IMPUGNED ORDER DATED 01/10/2014 OF CIT(A)-28, MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 2008-09, WHICH IN TURN HAS ARISEN FROM AN ORDER PASSED BY THE ASSESSING OFFICER DATED 15/02/2014 UNDER SECTION 154 OF THE INCOME TAX ACT, 1961( IN S HORT THE ACT). 2. IN THIS APPEAL, ALTHOUGH THE ASSESSEE HAS RAISED MULTIPLE GROUNDS OF APPEAL, BUT THE SOLITARY DISPUTE RELATES TO THE CLAIM OF EXEMPTION OF RS.4,16,156/- UNDER SECTION 10(10C) OF THE ACT. 2 ITA NO. 365/MUM/2015 (ASSESSMENT YEAR : 2008-09) 3. IN BRIEF, THE RELEVANT FACTS ARE THAT THE APPELL ANT IS AN INDIVIDUAL, WHO AVAILED THE VOLUNTARY RETIREMENT SCHEME (VRS) O FFERED BY HIS EMPLOYER I.E. STATE BANK OF INDIA DURING THE PREVIO US YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. THE ASSES SEE FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2008-09 ON 16/07/2008 SHOWING A TOTAL INCOME OF RS.5,15,130/- AND CLAIMED REFUND OF THE C REDIT OF TDS OF RS.60,125/-. WHEN THE RETURN WAS PROCESSED UNDER S ECTION 143(1) OF THE ACT , THE CREDIT FOR THE TDS FOR RS.60,125/- WA S NOT ALLOWED AND INSTEAD TAX DEMAND WAS DETERMINED AT RS.1,20,161/ -. THE ASSESSEE APPLIED FOR A RECTIFICATION UNDER SECTION 154 ON T WO COUNTS, FIRSTLY, FOR NON-GRANT OF CREDIT OF TDS FOR RS.60,125/-; AND, SE CONDLY, FOR THE CLAIM OF EXEMPTION UNDER SECTION 10(10C) OF THE ACT FOR R S.4,16,156/- ON ACCOUNT OF AN AMOUNT RECEIVED AS VRS FROM THE EMPLO YER I.E. STATE BANK OF INDIA. WHILE THE PLEA OF CREDIT FOR TDS WA S GRANTED BUT THE CLAIM FOR EXEMPTION UNDER SECTION 10(10C) OF THE AC T WAS DENIED ON THE GROUND THAT IT WAS NOT ORIGINALLY CLAIMED IN TH E RETURN OF INCOME FILED. THE SAID ACTION OF THE ASSESSING OFFICER HA S FURTHER BEEN AFFIRMED BY THE CIT(APPEALS). 4. BEFORE ME, THE LD. REPRESENTATIVE FOR THE ASSESS EE SUBMITTED THAT IT WAS AN INADVERTENT MISTAKE THAT THE CLAIM O F EXEMPTION UNDER SECTION 10(10C) OF THE ACT OF RS.4,16,156/- WAS NOT DEPICTED IN THE RETURN OF INCOME IN AS MUCH AS THE TAX LIABILITY WA S OTHERWISE COMPUTED AFTER CONSIDERING SUCH EXEMPTION. IT WAS POINTED O UT THAT THE TDS CERTIFICATE ISSUE BY THE EMPLOYER OF THE ASSESSEE C LEARLY EVIDENCED SUCH 3 ITA NO. 365/MUM/2015 (ASSESSMENT YEAR : 2008-09) A CLAIM AND IN ANY CASE THE CLAIM OF THE ASSESSEE U NDER SECTION 10(10C) OF THE ACT ON MERITS IS UNASSAILABLE. 5. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATI VE FOR THE REVENUE REITERATED THE STAND OF THE LOWER AUTHORITI ES BY POINTING OUT THAT THE IMPUGNED CLAIM WAS NOT MADE IN THE RETURN OF INCOME. 6. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION S. HERE IS A CASE WHERE THE REVENUE DOES NOT DISPUTE THE MERIT OF ASS ESSEES CLAIM FOR EXEMPTION UNDER SECTION 10(10C) OF THE ACT OF RS.4, 16,156/- REPRESENTING THE AMOUNT RECEIVED AS PER VRS FROM H IS EX-EMPLOYER I.E. STATE BANK OF INDIA. THE CLAIM HAS BEEN DENIED MER ELY FOR THE REASON THAT IT WAS NOT PROPERLY CLAIMED IN THE RETURN OF I NCOME. OSTENSIBLY, THE MISTAKE IN NOT STAKING SUCH A CLAIM FORMALLY IN THE RETURN OF INCOME IS TO BE VIEWED AS AN OVER-SIGHT OR AN INADVERTENT MISTAKE CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. QUITE C LEARLY, WHEN THE ASSESSEE STAKED A CLAIM FOR REFUND OF THE TDS OF RS .60,125/- IN HIS RETURN OF INCOME, IT REFLECTED A TOTAL INCOME AFTER THE CLAIM OF THE EXEMPTION UNDER SECTION 10(10C) OF THE ACT . OTHER WISE, THE INCOME FORMALLY STATED IN THE RETURN OF INCOME WAS RS.5,1 5,130/- AND CERTAINLY THIS WOULD NOT MERIT ANY REFUND, WHICH WAS OTHERWIS E CLAIMED BY THE ASSESSEE. THE REFUND CLAIMED IN THE RETURN WAS BAS ED ON REDUCTION IN THE TAXABLE INCOME ON ACCOUNT OF EXEMPTION UNDER SE CTION 10(10C) OF THE ACT OF RS.4,16,156/-. THIS WOULD HAVE IMPLIED T HE FINAL TAXABLE INCOME AT RS.98,974/-, WHICH WOULD CORRESPOND TO AS SESSEES CLAIM OF SEEKING REFUND OF THE TDS IN THE RETURN OF INCOME. IN MY VIEW, THE 4 ITA NO. 365/MUM/2015 (ASSESSMENT YEAR : 2008-09) ASSESSING OFFICER HAS DENIED ASSESSEES CLAIM ON AN OVER-TECHNICAL GROUND, WHICH IS UNTENABLE. SUBSTANTIVELY SPEAKING , THERE IS NO DISPUTE TO THE ENTITLEMENT OF THE ASSESSEE FOR EXEMPTION U NDER SECTION 10(10C) OF THE ACT ON THE AMOUNT RECEIVED UNDER VRS FROM H IS EX-EMPLOYER I.E. STATE BANK OF INDIA. THUS, I SET ASIDE THE ORDER O F THE CIT(APPEALS) AND DIRECT THE ASSESSING OFFICER TO ALLOW THE EXEMPTIO N TO THE ASSESSEE UNDER SECTION 10(10C) OF RS.4,16,156/- AS PER LAW. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 29/02/2016. SD/- (G.S. PANNU) ACCOUN TANT MEMBER MUMBAI, DATED 29/02/2016 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI VM , SR. PS