The ACIT, Circle-4, RAJKOT-GUJARAT V. Anilkumar Nilkanthray Buch, RAJKOT-GUJARAT

MA 1/RJT/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6476 (ITAT-RAJKOT)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 13-05-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 13-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: DM RINDANI
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) M.A. NO.01/RJT/2011 (ARISING OUT OF I.T.A. NO.824/RJT/2010) (ASSESSMENT YEAR 2007-08) ACIT, CIR.4 VS ANIL NILKANTHRAY BUCH RAJKOT OPP. SAI CHHAYA MILAN SOCIETY, GURU GOLWALKAR MARG OFF KALAWAD ROAD, RAJKOT-360 007 PAN : ABUPB3715A (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI AVINASH KUMAR RESPONDENT BY: SHRI DM RINDANI O R D E R PER N.R.S. GANESAN, JM THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS AP PLICATION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THE T RIBUNAL DATED 22-07-2010. 2. SHRI AVINASH KUMAR, THE LD.DR SUBMITTED THAT THI S TRIBUNAL IS NOT CORRECT IN HOLDING THAT THE ASSESSEE IS ENTITLED TO BENEFITS O F DEDUCTION U/S 10(10C) OF THE ACT IN RESPECT OF EX GRATIA PAYMENT RECEIVED AS PER EXIT OPTION SCHEME OF STATE BANK OF INDIA. THE LD. DR FURTHER SUBMITTED THAT T HIS TRIBUNAL HAS NOT CONSIDERED THE SUBSEQUENT CIRCULAR ISSUED BY CBDT DATED 06-10- 2009. 3. ON THE CONTRARY, SHRI DM RINDANI, THE LD.REPRESE NTATIVE FOR THE ASSESSEE SUBMITTED THAT THIS TRIBUNAL AFTER CONSIDERING THE RELEVANT STATUTORY PROVISION FOUND THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION U /S 10(10C) IN RESPECT OF EX GRATIA PAYMENT UNDER EXIT OPTION SCHEME OF STATE BA NK OF INDIA ON VOLUNTARY RETIREMENT. THIS TRIBUNAL HAS ALSO FOUND THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S 89(I) OF THE ACT OVER AND ABOVE THE E XEMPTION LIMIT OF RS,.5 LAKHS MA NO.01/RJT/2011 2 PROVIDED IN SECTION 10(10C). THEREFORE, THERE IS N O ERROR IN THE ORDER OF THIS TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND HAVE ALSO PERUSED THE MATERIAL PLACED BEFORE US. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS IN THE MISCELLANEOUS PETITION: 1. THE HONBLE ITAT HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSESSEE IS ENTITLED TO BENEFITS OF DEDUCT ION UNDER SECTION 10(10C) OF THE ACT IN RESPECT OF EX-GRATIA PAYMENTS RECEIVED AS PER THE EXIT OPTION SCHEME OF SBI. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE HONBLE ITAT OUGHT TO HAVE UPHELD THE ORDER OF THE LD.CIT(A). 3. IT IS, THEREFORE, PRAYED THAT THE IMPUGNED ORDER BE SET ASIDE AND THAT OF THE ASSESSING OFFICER AND THE LD.CIT(A) BE RESTORED. SECTION 254(2) PROVIDES FOR RECTIFICATION OF AN ERR OR WHICH IS ON THE FACE OF THE RECORD. THIS BENCH OF THE TRIBUNAL CANNOT SIT ON T HE DECISION OF THE EARLIER BENCH AS AN APPELLATE AUTHORITY. IN OTHER WORDS, THIS TR IBUNAL CANNOT SAY THAT THE EARLIER BENCH COMMITTED AN ERROR IN HOLDING THAT THE ASSESS EE IS ENTITLED FOR BENEFIT OF DEDUCTION. THEREFORE, THE GROUNDS OF MISCELLANEOUS APPLICATION AS RAISED BY THE REVENUE ARE BEYOND THE JURISDICTION OF THIS BENCH O F THE TRIBUNAL U/S 254(2) OF THE ACT. THE OTHER CONTENTION OF THE LD.DR THAT THE SU BSEQUENT CIRCULAR OF THE CBDT WAS NOT CONSIDERED ALSO IS DEVOID OF MERIT. THIS T RIBUNAL EXAMINED THE PROVISIONS OF SECTION 10(10C) AND FOUND THAT THE AS SESSEE IS ENTITLED FOR EXEMPTION. WE ARE NOT JUSTIFYING THE CORRECTNESS O F THE DECISION TAKEN BY THE EARLIER BENCH. WHAT WE ARE TRYING TO SAY IS THIS B ENCH OF THIS TRIBUNAL CANNOT SIT ON APPEAL AGAINST THE DECISION OF THE EARLIER BENCH . THE SCOPE OF SECTION 254(2) IS RESTRICTED ONLY TO RECTIFY AN ERROR WHICH IS APP ARENT ON THE FACE OF THE RECORDS. SINCE NO ERROR APPARENT ON RECORD IS BROUGHT TO THE NOTICE OF THE BENCH AND THE EARLIER BENCH HAS CONSIDERED THE PROVISIONS OF THE INCOME-TAX ACT AND DECIDED MA NO.01/RJT/2011 3 THE ISSUE, WE DO NOT FIND ANY MERIT IN THE APPLICAT ION FILED BY THE REVENUE. ACCORDINGLY THE MISCELLANEOUS APPLICATION OF THE RE VENUE IS DISMISSED AS DEVOID OF MERIT. ORDER PRONOUNCED IN THE OPEN COURT ON 27-05-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT, DT : 27 TH MAY, 2011 PK/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A)-III RAJKOT 4. THE CIT, CENTAL-II, RAJKOT 5. THE DR, I.T.A.T., RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT