Shri Bharatkumar Manishankar Oza, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-4(3), RAJKOT-GUJARAT

ITA 496/RJT/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2264 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 20-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C S ANJARIA
• Assessee Lawyers: HARISH RANPURA
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE: S H RI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER [CONDUCTED THROUGH E - COURT AT AHMEDABAD] SHRI BHARATKUMAR MANISHK UMAR OZA, RAIL NAGAR - 1, BLOCK NO . 76, STRE ET NO . 8, OPP. SAINTH MAHADEV MANDIR, RAJKOT - 360001 PAN: AACP09124B (APPELLANT) VS THE ITO, WARD - 4(3), RAJKOT (RESPONDENT) REVENUE BY : S H RI C.S. ANJARIA , D . R. ASSESSEE BY: S H RI HARISH RANPURA , A.R. DATE OF HEARING : 03 - 12 - 2 015 DATE OF PRONOUNCEMENT : 23 - 02 - 2 016 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THIS ASSESSEE'S APPEAL FOR A.Y. 2008 - 09, ARISES FROM ORDER OF THE CIT(A) - III, RAJKOT DATED 18 - 05 - 2012 I N APPEAL NO. CIT(A) - III /0128/10 - 11, IN PROCEEDINGS UNDER SECTION 147 R.W.S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT 'THE ACT'. I T A NO . 496 / RJT /20 14 A SSESSMENT YEAR 200 8 - 09 I.T.A NO. 496 /RJT /20 1 4 A.Y. 2008 - 09 PAGE NO SHRI BHARATKUMAR MANISHANKAR OZA VS. ITO 2 2. A PERUSAL OF THE INSTANT CASE FILE REVEALS THAT THE SAME SUFFERS FROM 765 DAYS' DELAY IN FILLING. THE ASSESSEE HAS FILED A CONDONATION PETITION/AFFIDAVIT DATED 19 - 08 - 2014 INTER ALIA PLEADING THAT THE ASSESSING OFFICER FRAMED THE IMPUGNED ASSESSMENT ON 1 3 - 12 - 2010 DISALLOWING HIS CLAIM OF SECTION 10(10C) DEDUCTION OF RS. 5 LAC. THE CIT(A) UPHELD ASSESSING OFFICER'S ACTION ON 18 - 05 - 2012 VIDE LOWER APPELLATE ORDER. THE ASSESSEE'S CASE IS THAT HE CAME TO KNOW ABOUT THE SAME ONLY ON RECEIPT OF SECTION 271(1)(C ) PENALTY ORDER DATED 18 - 03 - 2014 PENALIZING HIM FOR RS. 1,50,000 / - SERVED ON 26 - 03 - 2014. THE ASSESSEE FURTHER STATES THAT HE CONTACTED HIS AUTHORIZED REPRESENTATIVE WHO OBTAINED THE NECESSARY QUANTUM ORDER ONLY ON 14 - 08 - 2014. HIS CASE IS THAT ALL THESE REA SONS RESULTED IN FILING OF THE INSTANT APPEAL ON 20 - 08 - 2014 AFTER DELAY OF 765 DAYS WHICH IS NEITHER INTENTIONAL NOR DELIBERATE. HE ACCORDINGLY PRAYS FOR ITS CONDONATION. 3. THE REVENUE STRONGLY OBJECT TO CONDONATION OF THE INSTANT DELAY IN FILING BY SUBMITTING THAT THE ASSESSEE HAS BEEN MORE THAN NEGLIGENT IN NOT KEEPING TRACK OF QUANTUM PROCEEDINGS AS DECIDED BY THE CIT(A). HOWEVER, IT FAILS TO PROVE SERVICE OF THE LOWER APPELLATE ORDER UNDER CHALLENGE TO THE ASSESSEE IN THE COURSE OF HEARING BY WAY OF PLACING ANY DOCUMENTARY EVIDENCE ON RECORD. WE ARE OF THE VIEW IN THESE FACTS AND CIRCUMSTANCES THAT THE REVENUE AUTHORITIES HAVE NOT SERVED/INTIMATED THE ASSESSEE ABOUT THE PASSING OF THE IMPUGNED ORDER. WE HOLD THE SAME TO BE A SUFFICIENT CAUSE FOR CONDONING THE IMPUGNED DELAY OF 765 DAYS IN FILING. THE SAME STANDS CONDONED. WE COME TO FACTS OF THE CASE ON MERITS HEREUNDER. I.T.A NO. 496 /RJT /20 1 4 A.Y. 2008 - 09 PAGE NO SHRI BHARATKUMAR MANISHANKAR OZA VS. ITO 3 4. THE ASSESSEE IS AN EX - EMPLOYEE OF STATE BANK OF INDIA. HE OPTED FOR AN EXIT OPTION SCHEME FLOATED BY HIS EMPLOYER ON 29 - 04 - 2005. THE ASSESSEE OPTED FOR THE SAME. HE RECEIVED EX - GRATIA PAYMENT OF RS. 8,04,880/ - . HE WOULD CLAIM SECTION 10(10C) BENEFIT OF RS. 5 LACS ARISING THEREFROM. THE ASSESSING OFFICER WAS OF THE VIEW THAT THIS EXIT OPTION SCHEME DID NOT CONFIRM TO RULE 2BA OF THE INCOME TAX RULES FOR THE REASON THAT THE VERY CLAIM TO DISALLOW IN CONNECTED CASES WHEREIN IT WAS FOUND THAT THERE WAS NO REDUCTION IN THE NUMBER OF EMPLOYEES OVERALL STRENGTH . THE ASSESSING OFFICER ACCORDINGLY REOPENED SUMMARY ASSESSMENT FRAMED IN ASSESSEE CASE AND MADE THE IMPUGNED DISALLOWANCE OF SECTION 10(10C) OF RS. 5 LACS DEDUCTION IN HIS REASSESSMENT ORDER DATED 13 - 12 - 2012. 5. THE CIT(A) AFFIRMS ASSESSING OFFICER'S ACTI ON. THIS LEAVES THE ASSESSEE AGGRIEVED. 6. WE HAVE HEARD RIVAL CONTENTIONS. THERE IS NO DISPUTE THAT THE ASSESSEE HAS OPTED FOR HIS EMPLOYER'S BANK EXIT OPTION SCHEME AND RAISED THE IMPUGNED DEDUCTION CLAIM U/S. 10(10C) OF THE ACT AMOUNTING TO RS. 5 LACS A S DISALLOWED BY BOTH THE LOWER AUTHORITIES BY HOLDING THAT THE OVERALL VACANCY STRENGTH HAS NOT COME DOWN. BOTH PARTIES REITERATE THEIR RESPECTIVE STANDS IN THE COURSE OF HEARING. WE FIND THAT A CO - ORDINATE BENCH OF THE TRIBUNAL IN ITA 497/RJT/2014 SHRI HA RILAL SHANKARLAL RAWAL VS. ITO DECIDED ON 27 - 10 - 2015 DEALS WITH THE VERY ISSUE IN CASE OF THE SAME EXIT OPTION SCHEME AS UNDER: - I.T.A NO. 496 /RJT /20 1 4 A.Y. 2008 - 09 PAGE NO SHRI BHARATKUMAR MANISHANKAR OZA VS. ITO 4 '7. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AND GONE THROUGH THE RECORD CAREFULLY. THE ISSUE IN DISPUTE IS COVERED BY THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KOODATHIL KALLYATAN AMBUJAKSHAN (SUPRA). THE LEARNED FIRST APPELLATE AUTHORITY HAS CREATED DISTINCTION WITH REGARD TO THE FACTS NARRATED IN THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT VIS - A - VIS THE FACTS IN THE CASE OF THE ASSESSEE. THE BASIC REASON ASSIGNED BY THE LEARNED CIT(A) IS THAT NO POST WAS ABOLISHED FROM WHERE EMPLOYEES RETIRED UNDER EXIT OPTION SCHEME OF STATE BANK OF INDIA. THIS CONCLUSION HAS BEEN DRAWN ON THE STRENGTH OF THE FOLLOW ING DETAILS COLLECTED FROM THE ORDER OF THE CIT(A) - VI, BARODA IN THE CASE OF SHRI SURESH KANTILAL DOSHI FOR ASSESSMENT YEAR 2006 - 07. THESE DETAILS READ AS UNDER - TOTAL NUMBER OF EMPLOYEES IN THE ELIGIBLE CADRES AS ON 31.03.2005 60266 TOTAL NUMBER OF EMPLOY EES RELEASED UNDER THE SSEOS IN FY 2005 - 06 1669 TOTAL NUMBER OF EMPLOYEES RELEASED UNDER THE SSEOS IN FY 2006 - 07 4353 TOTAL NUMBER OF EMPLOYEES RELEASED UNDER THE SSEOS IN FY 2007 - 08 274 TOTAL NUMBER OF EMPLOYEES IN THE ELIGIBLE CADRES AS ON 31.03.2007 555 99 TOTAL NUMBER OF EMPLOYEES IN THE ELIGIBLE CADRES AS ON 31.03.2008 57765 TOTAL NUMBER OF POSTS ABOLISHED IN THE IMPLEMENTATION OF THE SCHEME NIL 9. ON DUE CONSIDERATION OF THE ABOVE, WE ARE OF THE VIEW THAT INSTEAD OF REFERRING THESE BASIC DETAILS, THE L EARNED REVENUE AUTHORITIES OUGHT TO HAVE CALLED FOR THE SCHEME FORMULATED BY THE STATE BANK OF INDIA ITSELF. THE REVENUE AUTHORITIES FURTHER OUGHT TO HAVE FIND - OUT WHETHER THE BENEFIT HAS BEEN DENIED TO OTHER SIMILARLY SITUATED EMPLOYEES OF SBI. IT IS ALSO PERTINENT TO MENTION HERE THAT THE BANK HAS NOT FILLED - UP THE POST UP TO 31.03.2008 OUT OF TOTAL NUMBER OF EMPLOYEES ELIGIBLE IN THE CADRES ON 31.03.2005. IN OTHER WORDS, CADRES STRENGTH OUT OF WHICH EMPLOYEES COULD OPT FOR EXIT WAS 60,266 AND AS ON 31.03 .2008 THIS STRENGTH IS 57,765. MEANING THEREBY EVEN IF THE BANK HAS NOT INFORMED THE CIT(A) - VI, BARODA I.T.A NO. 496 /RJT /20 1 4 A.Y. 2008 - 09 PAGE NO SHRI BHARATKUMAR MANISHANKAR OZA VS. ITO 5 ABOUT THE SPECIFIC ABOLISHMENT OF POST OF EMPLOYEE, NO RECRUITMENT HAS BEEN MADE. THE CADRE STRENGTH IS ON THE REDUCTION TREND. SIMILAR IS THE FACTS IN TH E JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT. THERE ALSO THE HON'BLE COURT HAS DRAWN INFERENCE FROM THE AVAILABLE MATERIAL. THE SCHEME APPEARS TO HAVE BEEN SILENT ON THIS ISSU E IN THAT JUDGMENT ALSO. THE IT AT, RAJKOT BENCH IN THE CASE OF DILIPSINH J. BHATT I (SUPRA) HAS CONSIDERED THE CIRCULAR OF CBDT AND JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT WHILE ALLOWING THE BENEFIT U/S 10(10C) TO THE EMPLOYEES OF STATE BANK OF SAURASHTRA. TAKING INTO CONSIDERATION OF THESE DETAILS, WE ALLOW THE APPEAL OF THE ASSESSEE AND DELETE THE DISALLOWANCE OF EXEMPTION CLAIMED U/S 10(10C). LEARNED ASSESSING OFFICER IS DIRECTED TO GIVE EXEMPTION U/S 10(10C) TO THE ASSESSEE.' IT IS TO BE SEEN THAT THE CIT(A) AT PAGE NO. 6 OF THE LOWER APPELLATE ORDER UPHOLDS ASSESSING OFFICER'S ACT ION BY PLACING RELIANCE ON THE SAME VERY TABULATION AS GIVEN IN TRIBUNAL'S ORDER. WE DRAW SUPPORT FROM ID. CO - ORDINATE BENCH REASONING THAT THE REVENUE OUGHT TO HAVE CALLED FOR SCHEME DETAILS FROM THE EMPLOYER BANK INSTEAD OF REFERRING TO THE ABOVE STATED BASIC DETAILS. WE ACCEPT ASSESSEE'S ARGUMENT IN THESE FACTS AND CIRCUMSTANCES. HIS DEDUCTION CLAIM OF RS. 5 LACS U/S. 10(10C) SUCCEEDS. 7. THIS ASSESSEE'S APPEAL IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OUR T ON 23 - 02 - 201 6 SD/ - SD/ - ( P RAMOD KUMAR ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 23 /02 /2016 AK I.T.A NO. 496 /RJT /20 1 4 A.Y. 2008 - 09 PAGE NO SHRI BHARATKUMAR MANISHANKAR OZA VS. ITO 6 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, RAJKOT