ITO, Bijapur V. Sri. Vijendra G. Patil, Muddebihal

ITA 478/BANG/2011

• Counselvise Citation: 47821114 RSA 2011
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 30-01-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 25-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSAN THOMAS JOSE JT
• Keywords: Retrospective amendment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SMT. P. MADHAVI DEVI, JUDICIAL MEMBER ITA NOS. A.Y. APPELLANT VS. RESPONDENT 476/BANG/2011 2008-09 THE INCOME TAX OFFICER, WARD 1, BIJAPUR. SHRI NIJAMUDDIN J. NAGARBOUDI, KAMAN KHANA BAZAR, J M ROAD, BIJAPUR. PAN: ABEPN 2363G 478/BANG/2011 2008-09 THE INCOME TAX OFFICER, WARD 2, BIJAPUR. SHRI VIJENDRA G. PATIL, SAPTAGIRI, NEAR RAGHAVENDRA TEMPLE, MUDDEBIHAL, BIJAPUR DIST. PAN: ADHPP 0889L 491/BANG/2011 2008-09 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, BIJAPUR. SHRI VIJAYENDRA K. KARJOL, SOLAPUR ROAD, BIJAPUR. PAN: ABDPK 9259M APPELLANTS BY : SMT. SUSAN THOMAS JOSE, JT.CIT(DR) RESPONDENTS BY : NONE DATE OF HEARING : 30.01.2012 DATE OF PRONOUNCEMENT : 30.01.2012 ITA NOS.476, 478 & 491/BANG/11 PAGE 2 OF 4 O R D E R PER N.K. SAINI, ACCOUNTANT MEMBER THESE THREE APPEALS BY THE REVENUE ARE DIRECTED AG AINST THE SEPARATE ORDERS DATED 14.02.2011 IN THE CASE OF SHR I NIZAMUDDIN AND EACH DATED 18.02.2011 IN THE CASE OF SHRI VIJENDRA G. PA TIL AND SHRI VIJAYENDRA K. KARJOL OF THE CIT(APPEALS), BELGAUM FOR THE ASSE SSMENT YEAR 2008-09. SINCE THESE APPEALS WERE HEARD TOGETHER, SO THESE A RE DISPOSED OF BY THIS CONSOLIDATED ORDER. 2. IN ALL THESE APPEALS, THE REVENUE HAS RAISED THE FOLLOWING COMMON GROUNDS: 1. THE CIT(A) ERRED IN IGNORING E-CIRCULAR ON EXIT OPITION SCHEME ISSUED BY THE STATE BANK OF INDIA, CORPORATE CENTRE, MUMBAI. AS PER PARA 10 OF THE SAID CIRCULA R IT IS CLEARLY MENTIONED THAT NO EXEMPTION OF EX-GRATIA FROM INCOM E TAX U/S 10(10C) OF THE I.T. ACT, 1961, IS INTENDED IN THAT SCHEME. 2. THE CIT(A) ERRED IN PRESUMING THAT REQUIREMENTS OF RULE 2BA OF I.T. RULES, 1962 HAVE BEEN MET. 3. THE CIT(A) ERRED IN ALLOWING THE APPEAL IGNORING BOARDS INSTRUCTION NO.200/34/2009-ITA.I DATED 6-10-2009 WH EREIN IT IS MENTIONED THAT THE STATE BANK OF PATIALA AND STATE BANK OF INDIA ARE OFFERING EXIT OPTION SCHEMES TO EMPLOYEES OF VARIOUS GRADES IN THE MANAGEMENT OF BANK. THESE SCH EMES CLEARLY LAY OUT THAT THEY ARE NOT ELIGIBLE FOR DEDU CTION UNDER SECTION 10(10C) OF THE INCOME TAX ACT, 1961. SOME EMPLOYEES WHO HAVE AVAILED OF THESE SCHEMES ARE NEV ERTHELESS CLAIMING EXEMPTION OF THE BENEFITS RECEIVED FROM TH E SUCH SCHEMES U/S. 10(10C). 3. DURING THE COURSE OF HEARING, NONE APPEARED ON B EHALF OF THE ASSESSEES. AT THE VERY OUTSET, IT WAS NOTICED THAT THE TAX EFFECT IN EACH OF DEPARTMENTAL APPEAL IS LESS THAN THE AMOUNT PRESCRI BED BY THE CBDT FOR ITA NOS.476, 478 & 491/BANG/11 PAGE 3 OF 4 NOT FILING THE APPEAL, AND SO THE DEPARTMENT SHOULD NOT HAVE FILED THIS APPEAL IN VIEW OF THE INSTRUCTIONS ISSUED BY THE CB DT. 4. THE LD. DR, HOWEVER, STATED THAT THE ISSUE AGITA TED BY THE DEPARTMENT SHOULD BE DECIDED ON MERITS. 5. AFTER CONSIDERING THE SUBMISSIONS OF THE LD. DR AND THE MATERIAL AVAILABLE ON RECORD, IT IS NOTICED THAT SECTION 268 A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 1. 4.99. THE PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSUE ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME-TAX AUTH ORITIES, FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PU RPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR REFE RENCE BY ANY INCOME-TAX AUTHORITY UNDER THE PROVISIONS OF THIS C HAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTION S OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), AN INCOME- TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFEREN CE ON ANY ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHALL NOT PRECLUDE SUCH AUTHORITY FROM FILING AN APPEAL OR AP PLICATION FOR REFERENCE ON THE SAME ISSUE IN THE CASE OF - (A) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR, OR (B) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR. (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION FOR REFERENCE HAS BEEN FILED BY AN INCOME-TAX AUTHORITY PURSUANT TO THE ORDERS OR INSTRUCTIONS OR DIRECTIONS ISSUED UND ER SUB-SECTION (1), IT SHALL NOT LAWFUL FOR AN ASSESSEE, BEING A P ARTY IN ANY APPEAL OR REFERENCE, TO CONTEND THAT THE INCOME-TAX AUTHOR ITY HAS ACQUIESCED IN THE DECISION ON THE DISPUTED ISSUE BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENCE IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH APPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUC TIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1) AND THE CIR CUMSTANCES UNDER WHICH SUCH APPEAL OR APPLICATION FOR REFERENC E WAS FILED NOT FILED IN RESPECT OF ANY CASE. ITA NOS.476, 478 & 491/BANG/11 PAGE 4 OF 4 (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH HA S BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN A PPEAL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE B EEN ISSUED UNDER SUB-SECTION (1) AND THE PROVISIONS OF SUB-SEC TIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY. 6. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTIO NS OR DIRECTIONS ISSUED TO OTHER INCOME-TAX AUTHORITIES ARE BINDING ON THOSE A UTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL IN VI EW OF THE ABOVE MENTIONED PROVISIONS OF SECTION 268A, SINCE THE TAX EFFECT IN EACH OF THE INSTANT CASES IS LESS THAN THE AMOUNT PRESCRIBED BY THE CBDT FOR NOT FILING THE APPEAL, SO THESE APPEALS ARE DISMISSED. 7. IN THE RESULT, ALL THE APPEALS BY THE DEPARTMENT ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF JANUARY, 2012. SD/- SD/- ( SMT. P. MADHAVI DEVI ) ( N.K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 30 TH JANUARY, 2012. DS/- COPY TO: 1. APPELLANTS 2. RESPONDENTS 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.