Smt. Shakuntlaben Naginkumar Shah, Nadiad V. The Income tax Officer,Ward-4, Anand

ITA 537/AHD/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0013 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 30-08-2010
• Assessment Year: 2007-2008
• Appeal Filed On: 17-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA
• Assessee Lawyers: VIVEK N CHAVDA
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI D.C. AGRAWAL, ACCOUNTANT MEMBER DATE OF HEARING : 30/08/2010 DRAFTED ON: 3 0/08/2010 ITA NO.537/AHD/2010 ASSESSMENT YEAR : 2007-08 SMT. SHAKUNTLABEN NAGINKUMAR SHAH L/H. OF LATE SHRI NAGINBHAI B.SHAH A/201, YASH APTS., VANIA VAD, COLLEGE NADIAD VS. THE ITO WARD-4 ANAND PAN/GIR NO. : AJHPS 7844 L ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI VIVEK N.CHAVDA, A.R. RESPONDENT BY: SHRI R.K.DHANESTA, D.R. O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE WH ICH HAS EMANATED FROM THE ORDER OF THE LEARNED CIT(APPEALS) -IV, BARODA DATED 24/12/2009 AND THE EFFECTIVE GROUNDS ARE GROUND NO S.1.1 & 2.2; REPRODUCED BELOW:- 1.1. THE ORDER PASSED U/S.250 BY CIT(A)-IV, BARODA ON 24.12.2009 FOR A.Y. 2007-08 CONFIRMING THE REJECTIO N OF THE EXEMPTION U/S.10(10C) IS WHOLLY ILLEGAL, UNLAWFUL A ND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 2.2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CA SE AS WELL AS IN LAW, THE LD. CIT(A) OUGHT NOT TO HAVE UPHELD THAT T HE APPELLANT DID ITA NO.537/AHD/ 2010 SMT.SHAKUNTLALBEN NAGINKUMAR SHAH VS. ITO ASST.YEAR 2007-08 - 2 - NOT COMPLY WITH THE CONDITIONS OF SECTION 10(10C) O F THE ACT AND AS SUCH EX-GRATIA OF RS.1,98,650/- PAID UNDER EXIT OPT ION WAS NOT EXEMPT. 2. VIDE AN ORDER U/S.143(3) OF THE I.T. ACT, 1961 D ATED 28/07/2009 THE APPELLANTS CLAIM OF EXEMPTION U/S.10(10C) OF T HE I.T. ACT, 1961 OF RS.1,98,650/- AN AMOUNT RECEIVED AS EXIT OPTION SCHEME OF STATE BANK OF INDIA WAS DISALLOWED. THE MATTER WAS CARR IED BEFORE THE FIRST APPELLATE AUTHORITY, WHO HAS AFFIRMED THE ACTION OF THE ASSESSING OFFICER. 3. NOW BEFORE US, AN ORDER OF THE RESPECTED CO-ORDI NATE BENCH SMC AHMEDABAD IN THE CASE OF SHRI KANAIYALAL VAD ILAL BHAVSAR BEARING ITA NO.3276/AHD/2009 FOR ASSESSMENT YEAR 20 07-08 DATED 29/01/2010 HAS BEEN PLACED ON RECORD, WHEREIN VIDE PARAGRAPH NO.7 AN ORDER OF THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. G.V. VENUGOPAL REPORTED AS 273 ITR 307 HAS BEEN FOLLOWED AND THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE AS FOLLOWS:- 7. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS A VAILABLE ON RECORD. IN THE INSTANT CASE THE ASSESSEE TOOK VOLUN TARY RETIREMENT FROM SERVICES WITH STATE BANK OF INDIA A ND WAS PAID EX-GRATIA OF RS.3,44,037/- WHICH WAS CLAIMED D EDUCTION U/S 10(10C) OF THE ACT RELYING ON THE DECISION OF T HE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. NAGESH DEV IDAS KURKARNI 291 ITR 407 (BOM) AND CIT VS. KOODATHI KAL IYATAN AMBUJAKSAN 219 CTR 80, DECISION OF HON'BLE MADRAS H IGH COURT IN THE CASE OF CIT VS. G V VENUGOPAL 273 ITR 307 (M AD), CIT VS. S SUNDER & OTHERS 284 ITR 687, CIT VS. J RAMAMANI 286 ITR 616 AND CIT VS. M ABDULKARIM 311 I TR 162 AND HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT & OTHERS VS. P SURENDRA PRABHU 279 ITR 402 AND KERALA HIGH COURT IN THE CASE OF STATE BANK OF TRAVANCORE VS. C BDT 282 ITA NO.537/AHD/ 2010 SMT.SHAKUNTLALBEN NAGINKUMAR SHAH VS. ITO ASST.YEAR 2007-08 - 3 - ITR 587. THE LEARNED ASSESSING OFFICER DISALLOWED T HE DEDUCTION TO THE ASSESSEE OBSERVING THAT ALL THE DE CISIONS RELIED UPON BY THE ASSESSEE ARE OF NON-JURISDICTION AL HIGH COURTS AND THERE IS NO DIRECT JUDGMENT OF HON'BLE G UJARAT HIGH COURT. IN APPEAL, THE LEARNED COMMISSIONER OF INCOME- TAX (APPEALS) FOLLOWING THE DECISIONS OF THE HIGH C OURTS RELIED UPON BY THE ASSESSEE, ALLOWED THE DEDUCTION TO THE ASSESSEE. I FIND THAT THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. G V VENUGOPAL 273 ITR 307 HELD AS UNDER: NOTIONS OF EQUITY DO NOT APPLY IN TAXING STATUTES. HENCE, IF THE ASSESSEE IS ENTITLED TO TWO BENEFITS ON THE PLA IN LANGUAGE OF STATUTE, HE HAS TO BE GRANTED BOTH THOSE BENEFIT S. THE SECOND PROVISO TO S. 10(10C) ONLY REFERS TO EXEMPTI ON CLAIMED IN ANY OTHER ASSESSMENT YEAR. IT IS WELL SE TTLED THAT EVERY ASSESSMENT YEAR IS A SELF-CONTAINED UNIT. THE ASSESSMENT YEAR IN QUESTION IN THE PRESENT CASE IS 2001-02 AND THE EXEMPTION CLAIMED IS IN RESPECT OF THIS ASS ESSMENT YEAR, ALTHOUGH THE EXEMPTION GRANTED UNDER S. 89(1) HAS BEEN SPREAD OVER SEVERAL ASSESSMENT YEARS. THE MERE FACT THAT THE RELIEF HAS BEEN SPREAD OVER SEVERAL YEARS, DOES NOT MEAN THAT THE RELIEF IS NOT IN RESPECT OF A PARTICU LAR ASSESSMENT YEAR. THE TRIBUNAL HAS RIGHTLY POINTED O UT THAT IN THE IT ACT, THERE ARE SEVERAL PROVISIONS GRANTIN G TWIN OR DOUBLE BENEFITS, WHILE IN OTHER PROVISIONS, TWIN OR DOUBLE BENEFITS HAVE BEEN SPECIFICALLY PROHIBITED. THERE I S NO PROHIBITION TO THE TWIN BENEFITS IN RESPECT OF THE AMOUNT RECEIVED UNDER THE VOLUNTARY RETIREMENT SCHEME. THE WORD SALARY AS DEFINED IN S. 17 INCLUDES ANY PROFIT IN LIEU OF SALARY, WHICH HAS BEEN DEFINED IN S. 17(3) TO INCLU DE ANY AMOUNT OF COMPENSATION DUE OR RECEIVED BY THE ASSES SEE FROM HIS EMPLOYER OR FORMER EMPLOYER IN CONNECTION WITH THE TERMINATION OF HIS EMPLOYMENT. HENCE, PAYMENT UNDER THE VOLUNTARY RETIREMENT SCHEME IS COVERED BY THE WORD SALARY , WHICH HAS BEEN GIVEN A VERY WIDE DEFINITION IN S. 17. SINCE THE ASSESSEE IS COVERED BY S. 89, HE WILL GET BOTH THE BENEFITS, WHICH HE HAS CLAIMED FOR. APART FROM THE ABOVE, IT IS WELL-SETTLED THAT IF TWO REASONABLE INTERPRETATI ONS OF TAXING STATUTES ARE POSSIBLE, THE ONE IN FAVOUR OF THE ASSESSEE SHOULD BE ACCEPTED.CIT VS. NAGA HILLS TEA CO. LTD. 1973 CTR (SC) 329 : AIR 1973 SC 2524 APPLIED. 8. FURTHER, IN MY CONSIDERED OPINION, IF THERE IS A DECISION ON AN ISSUE OF ANY HIGH COURT AND THERE IS NO CONTR ARY DECISION OF ANY OTHER HIGH COURT, THEN IN ABSENCE O F THE SAME, EVEN IF THERE IS NO DECISION ON THE ISSUE OF THE JU RISDICTIONAL ITA NO.537/AHD/ 2010 SMT.SHAKUNTLALBEN NAGINKUMAR SHAH VS. ITO ASST.YEAR 2007-08 - 4 - HIGH COURT, THE DECISION RENDERED BY THE OTHER HIGH COURTS SHOULD BE RESPECTFULLY FOLLOWED BY THE COURTS BELOW THE HIGH COURT. THEREFORE, FOLLOWING THE DECISION OF HON'BLE MADRAS HIGH COURT, I DO NOT FIND ANY GOOD REASON TO INTERF ERE WITH THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS). IT IS CONFIRMED AND THE GROUND OF APPEAL OF THE REV ENUE IS DISMISSED. 9 IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMI SSED. 4. ONCE THE SAID SCHEME OF STATE BANK OF INDIA HAS BEEN CONSIDERED BY THE RESPECTED CO-ORDINATE BENCHSMC (SUPRA) AND THE FACTS OF THE PRESENT APPEAL APPEARED TO BE IDENTICAL, THEREFORE, FOLLOWING THE SAID DECISION AS REPRODUCED ABOVE, WE HEREBY DIRECT TO A LLOW THE CLAIM. RESULTANTLY, GROUNDS OF THE ASSESSEE ARE ALLOWED. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 31/08/2010. SD/- SD/- ( D.C. AGRAWAL) ( MUKUL KR. SH RAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBE R AHMEDABAD; DATED 31 / 08 /2010 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE D EPARTMENT. 3. THE CIT CONCERNED. 4. THE LD. CIT (APPEALS)-IV, BARODA 5. THE DR, AHMEDABAD BENCH. 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD