Shri Punambhai Mathurbhai Makwana, Anand V. The Income tax Officer,Ward-4, Anand

ITA 705/AHD/2010

• Counselvise Citation: 70520514 RSA 2010
• Duration Of Justice: 2 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-05-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 05-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHYAM PRASADSR D R
• Assessee Lawyers: VIVEK N CHAVDA

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , .. , '# ' $ BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ./ I.T.A. NO.705/AHD/2010 ( & ' & ' & ' & ' / / / / ASSESSMENT YEAR : 2007-08) PUNAMBHAI MATHURBHAI MAKWANA OPP.TALAV, AT.VASAD TA & DI.ANAND & & & & / VS. THE INCOME TAX OFFICER WARD-4 ANAND ( '# ./)* ./ PAN/GIR NO. : ADLMN5233D ( (+ / // / APPELLANT ) .. ( ,-(+/ RESPONDENT ) (+ . '/ APPELLANT BY : SHRI VIVEK N.CHAVDA, A.R. ,-(+ / . ' / RESPONDENT BY : SHRI SHYAM PRASAD,SR.D.R. &0 / #/ // / DATE OF HEARING : 21/5/12 12' / # / DATE OF PRONOUNCEMENT : 25/5/12 '3/ O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE W HICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-IV, BARODA DATED 29.12.2009 PASSED FOR A.Y. 2007-08 AND THE GROUND RAISED READS AS UNDER: 1. LND A.O. ERRED BOTH IN LAW AND ON FACTS IN HOL DING THAT YOUR APPELLANT IS NOT ENTITLED TO CLAIM EXEMPTION U/S.10 (10C) FOR THE EX-GRATIA RECEIPT OF RS.5,00,000/- ON ACCOUNT OF VO LUNTARY RETIREMENT SCHEME (EXIT OPTION SCHEME) OFFERED BY T HE EMPLOYER AND THUS ERRED IN MAKING AN ADDITIONAL OF RS.5,00,0 00/- TO THE TOTAL INCOME OF YOUR APPELLANT. ITA NO .705/AHD/2010 PUNAMBHAI MATHURBHAI MAKWANA VS. ITO ASST.YEAR - 2007-08 - 2 - 2. AN ADJOURNMENT APPLICATION WAS MOVED, HOWEVER, T HE SAME WAS WITHDRAWN ON THE DATE OF HEARING AND LD.AR HAS STAT ED THAT THE ISSUE INVOLVED IS COVERED BY FEW ORDERS OF THE ITAT. 3. THIS IS AN APPEAL OF AN INDIVIDUAL AND AS PER AN ASSESSMENT ORDER PASSED U/S.143(3) DATED 18/06/2009 THE ASSESSEE HAS CLAIMED A DEDUCTION U/S.10(10C) FOR THE AMOUNT UNDER EXIT OPTION SCHEME OF STATE BANK OF INDIA. THIS ISSUE NOW STOOD COVERED BY SO MANY DECISIONS OF THE TRIBUNAL IN RESPECT OF THE SAID SCHEME OF THE STATE BANK OF INDIA. OUR ATTENTION WAS DRAWN ON A DECISION OF ITAT A BENCH AHMEDABAD PRONOUNCED IN THE CASE OF SMT.SHAKUNTLABEN NAGINKUM AR SHAH VS. ITO IN ITA NO.537/AHD/2010 FOR A.Y. 2007-08 DATED 31/0 8/2010, WHEREIN VIDE PARAGRAPH NO.3, THE TRIBUNAL HAS HELD AS UNDER :- 3. NOW BEFORE US, AN ORDER OF THE RESPECTED CO-ORD INATE 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 VO LUNTARY 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 ITA NO .705/AHD/2010 PUNAMBHAI MATHURBHAI MAKWANA VS. ITO ASST.YEAR - 2007-08 - 3 - 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 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 COURTS RELIED UPON BY THE ASSESSEE, ALLOWED THE DED UCTION TO THE ASSESSEE. I FIND THAT THE HON'BLE MADRAS HIGH C OURT 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 PLAIN LANGUAGE OF STATUTE, HE HAS TO BE GRANTED BOTH THOS E BENEFITS. THE SECOND PROVISO TO S. 10(10C) ONLY REF ERS TO EXEMPTION CLAIMED IN ANY OTHER ASSESSMENT YEAR. IT IS WELL SETTLED THAT EVERY ASSESSMENT YEAR IS A SELF-CONTAI NED UNIT. THE ASSESSMENT YEAR IN QUESTION IN THE PRESENT CASE IS 2001-02 AND THE EXEMPTION CLAIMED IS IN RESPECT OF THIS ASSESSMENT YEAR, ALTHOUGH THE EXEMPTION GRANTED UND ER S. 89(1) HAS BEEN SPREAD OVER SEVERAL ASSESSMENT YEARS . THE MERE FACT THAT THE RELIEF HAS BEEN SPREAD OVER SEVE RAL YEARS, DOES NOT MEAN THAT THE RELIEF IS NOT IN RESP ECT OF A PARTICULAR ASSESSMENT YEAR. THE TRIBUNAL HAS RIGHTL Y POINTED OUT THAT IN THE IT ACT, THERE ARE SEVERAL P ROVISIONS GRANTING TWIN OR DOUBLE BENEFITS, WHILE IN OTHER PROVISIONS, TWIN OR DOUBLE BENEFITS HAVE BEEN SPECI FICALLY PROHIBITED. THERE IS NO PROHIBITION TO THE TWIN BEN EFITS IN RESPECT OF THE AMOUNT RECEIVED UNDER THE VOLUNTARY RETIREMENT SCHEME. THE WORD SALARY AS DEFINED I N S. 17 INCLUDES ANY PROFIT IN LIEU OF SALARY, WHICH HAS BE EN DEFINED IN S. 17(3) TO INCLUDE ANY AMOUNT OF COMPEN SATION DUE OR RECEIVED BY THE ASSESSEE FROM HIS EMPLOYER O R 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. 1 7. 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 INTERPRET ATIONS 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 CONTRARY DECISION OF ITA NO .705/AHD/2010 PUNAMBHAI MATHURBHAI MAKWANA VS. ITO ASST.YEAR - 2007-08 - 4 - ANY OTHER HIGH COURT, THEN IN ABSENCE OF THE SAME, EVEN IF THERE IS NO DECISION ON THE ISSUE OF THE JURISDICTIONAL HIGH COURT, THE DECISION RENDERED BY THE OTHER HIGH COURTS SHOULD B E RESPECTFULLY FOLLOWED BY THE COURTS BELOW THE HIGH COURT. THEREF ORE, FOLLOWING THE DECISION OF HON'BLE MADRAS HIGH COURT, I DO NOT FIND ANY GOOD REASON TO INTERFERE WITH THE ORDER OF THE LEARNED C OMMISSIONER OF INCOME-TAX (APPEALS). IT IS CONFIRMED AND THE GROUN D OF APPEAL OF THE REVENUE IS DISMISSED. 9 IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMI SSED. 4. ONCE IN RESPECT OF THE SAID SCHEME OF SBI, A VIE W HAS BEEN TAKEN BY CO-ORDINATE BENCH, THEREFORE RESPECTFULLY FOLLOW ING THE VIEW ALREADY TAKEN, WE HEREBY DIRECT TO ALLOW THE CLAIM. GROUND IS ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. SD/- SD/- ( .. ) ( ) '# ( T.R. MEENA ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL ME MBER AHMEDABAD; DATED 25/ 5 /2012 ..&, .&../ T.C. NAIR, SR. PS '3 / ,4 5'4' '3 / ,4 5'4' '3 / ,4 5'4' '3 / ,4 5'4'/ COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT. 3. 6 / CONCERNED CIT 4. 6() / THE CIT(A)-IV, BARODA 5. 49: ,& , , / DR, ITAT, AHMEDABAD 6. :; <0 / GUARD FILE. '3& '3& '3& '3& / BY ORDER, -4 , //TRUE COPY// = == =/ // / ) ) ) ) ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD