Shri Kamat Deepak Vaman, Pune V. ITO, Pune

MA 11/PUN/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1013 (ITAT-PUNE)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 04-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M R
• Assessee Lawyers: JYOTI CHANDEKAR
• Keywords: Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER MA NO.09/PN/2013 (ARISING OUT OF ITA NO.12/PN/2012) (ASSESSMENT YEAR : 2007-08) SHRI JAGDISH RAGHUNATH EKTARE 7, RAMCHANDRAKRIPA TULSIBAUGWALE COLONY, SAHAKARNAGAR NO. 2, PUNE PAN : AAAPE7639P . APPELLANT VS. INCOME TAX OFFICER WARD 6 (4), PUNE . RESPONDENT MA NO.10/PN/2013 (ARISING OUT OF ITA NO.1278/PN/2011) (ASSESSMENT YEAR : 2007-08) SMT. LEENA DEEPAK JOSHI 2/109, MUKUNDNAGAR, PUNE 411 037 PAN : ACAPJ8207G . APPELLANT VS. INCOME TAX OFFICER WARD 6 (4), PUNE . RESPONDENT MA NO.11/PN/2013 (ARISING OUT OF ITA NO.1281/PN/2011) (ASSESSMENT YEAR : 2007-08) SHRI KAMAT DEEPAK VAMAN, A-601 SPRING FIELD CO-OP HSG SOCIETY, KOTHRUD, PUNE. PAN : ABFPK1737J . APPELLANT VS. INCOME TAX OFFICER WARD 6 (4), PUNE . RESPONDENT MA NO.12/PN/2013 (ARISING OUT OF ITA NO.29/PN/2012) (ASSESSMENT YEAR : 2008-09) SHRI AVINASH VASUDEO BADVE D-17 SHRIRAM HEIGHTS NEAR M.I.T. COLLEGE, KOTHRUD, PUNE. PAN : AFUPB0719C . APPELLANT VS. INCOME TAX OFFICER WARD 6 (4), PUNE . RESPONDENT MA NO.13/PN/2013 (ARISING OUT OF ITA NO.1498/PN/2011) (ASSESSMENT YEAR : 2006-07) SHRI PANDURANG D. DAREKAR, KUNDAN ESTATE, R H NO. 8, KATE VASTI, PIMPALE SAUDAGAR, PUNE 411 027. PAN : ADCPD9143J . APPELLANT VS. INCOME TAX OFFICER WARD 7 (2), PUNE . RESPONDENT MA NO.14/PN/2013 (ARISING OUT OF ITA NO.1283/PN/2011) (ASSESSMENT YEAR : 2007-08) SHRI KHANKAL UTTAM NIVRUTTI B-216 TULSINAGAR SOCIETY, BIBVEWADI, PUNE. PAN : ABBPK0956B . APPELLANT VS. INCOME TAX OFFICER WARD 6 (4), PUNE . RESPONDENT MA NO.15/PN/2013 (ARISING OUT OF ITA NO.1459/PN/2011) (ASSESSMENT YEAR : 2007-08) SHRI SHRIRAM R SHASTRI, F.NO. 16, IKRAM COMPLEX NO. 25/06, HINGANE (K), PUNE 411 051 PAN : ABZPS1028G . APPELLANT VS. INCOME TAX OFFICER WARD 7 (2), PUNE . RESPONDENT MA NO.16/PN/2013 (ARISING OUT OF ITA NO.13/PN/2012) (ASSESSMENT YEAR : 2008-09) SMT. MEDHORA HAVOVI CAWAS, 5/9 SADHU VASWANI KUNJ CHS LTD., 3-A WELLESLY ROAD, NEAR NEHRU MEMORIAL HALL, PUNE 411 001. PAN : ABDPM0814C . APPELLANT VS. INCOME TAX OFFICER WARD 6 (4), PUNE . RESPONDENT MA NO.17/PN/2013 (ARISING OUT OF ITA NO.1277/PN/2011) (ASSESSMENT YEAR : 2007-08) SHRI JOSHI ANILKUMAR BHASKARRAO, PLOT NO. 37/2, B-6 SBI NAGAR, CHS PASHAN, PUNE 411 008. PAN : AAXPJ1761E . APPELLANT VS. INCOME TAX OFFICER WARD 6 (4), PUNE . RESPONDENT MA NO.21/PN/2013 (ARISING OUT OF ITA NO.1348/PN/2011) (ASSESSMENT YEAR : 2008-09) SMT. VAIJU PRAKASH PANDIT, 8/132 HARU VITHAL APARTMENTS, SAHAKARNAGAR NO. 2, PUNE 411 009 PAN : AARPP7887R . APPELLANT VS. INCOME TAX OFFICER WARD 6 (4), PUNE . RESPONDENT MA NO.29/PN/2013 (ARISING OUT OF ITA NO.1282/PN/2011) (ASSESSMENT YEAR : 2007-08) SHRI VARTAK A NARAYAN FLAT NO. 5, S. NO. 128/2 YUVARAJ APARTMENTS, NAVKETAN SOCIETY, KOTHRUD, PUNE. PAN : AABPV9025F . APPELLANT VS. INCOME TAX OFFICER WARD 6 (4), PUNE . RESPONDENT APPELLANT BY : MR. M. K. KULKARNI & MS. JYOTI CHANDEKAR RESPONDENT BY : MR. S. K. SINGH, MS. ANN KAPTHUAMA, MS. SHAILJA RAI & MR. Y. K. BHASKAR ORDER PER G. S. PANNU, AM THE CAPTIONED MISCELLANEOUS APPLICATIONS HAVE BEE N PREFERRED BY THE ASSESSEE UNDER SECTION 254(2) OF THE INCOME TAX ACT , 1961 (IN SHORT THE ACT) SEEKING RECTIFICATION OF MISTAKE IN THE RESPE CTIVE ORDERS OF THE TRIBUNAL. THE CAPTIONED MISCELLANEOUS APPLICATIONS INVOLVE A COMMON POINT AND, THEREFORE, A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. MISCELLANEOUS APPLICATION NO. 09/PN/2013 (ITA NO .12/PN/2012 IN THE CASE OF SHRI JAGDISH RAGHUNATH EXTARE) WHICH ARISES FROM AN ORDER OF THE TRIBUNAL DATED 26.06.2012 IS TAKEN AS THE LEAD CASE . 3. IN BRIEF, THE FACTS ARE THAT ASSESSEE-PETITIONER WAS AN EMPLOYEE OF STATE BANK OF INDIA AND RECEIVED EX-GRATIA PAYMENT ON HIS VOLUNTARY RETIREMENT IN TERMS OF AN EXIT OPTION SCHEME (EOS) FLOATED BY S TATE BANK OF INDIA. IN RESPECT OF SUCH EX-GRATIA PAYMENT, ASSESSEE CLAIMED EXEMPTION OF RS.5,00,000/- IN TERMS OF SECTION 10(10C) OF THE AC T. ORIGINALLY, WHEN THE PLEA OF THE ASSESSEE WAS ADJUDICATED BY THE TRIBUNAL VID E ORDER DATED 26.06.2012 (SUPRA) THE MATTER WAS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO EXAMINE ASSESSEES CLAIM WITH REGARD T O THE COMPLIANCE WITH GUIDELINE NOS. (III) & (IV) OF RULE 2BA OF THE INCO ME TAX RULES, 1962 (IN SHORT THE RULES) KEEPING IN MIND THE JUDGEMENT OF THE H ONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. KOODATHIL KALLYATAN AM BUJAKSHAN 309 ITR 113 (BOM.), WHEREIN THE HONBLE BOMBAY HIGH COURT HAD C ONSIDERED A VOLUNTARY RETIREMENT SCHEME FLOATED BY RESERVE BANK OF INDIA FOR ITS EMPLOYEES. 4. BY WAY OF THE PRESENT PETITION, ASSESSEE HAS CON TENDED THAT THE ORDER OF THE TRIBUNAL BE MODIFIED INASMUCH AS THE APPEAL OF THE ASSESSEE BE ALLOWED INSTEAD OF REMANDING THE ISSUE TO THE ASSES SING OFFICER FOR RE- EXAMINATION. THE PETITIONER HAS CONTENDED THAT VOL UNTARY RETIREMENT SCHEME FLOATED BY THE STATE BANK OF INDIA HAS BEEN CONSIDERED BY THE TRIBUNAL IN THE CASE OF ONE SHRI JAVERILAL DALICHAN D CHHAJED IN ITA NO.326/PN/2010 DATED 08.11.2011 FOR ASSESSMENT YEAR 2007-08 AND ASSESSEES CLAIM FOR EXEMPTION UNDER SECTION 10(10C ) OF THE ACT WAS ALLOWED. APART THEREFROM, IT HAS ALSO BEEN CONTENDED THAT SU BSEQUENTLY THE PUNE BENCH OF THE TRIBUNAL IN THE FOLLOWING CASES HAS AL SO ALLOWED THE CLAIM OF EXEMPTION UNDER SECTION 10(10C) OF THE ACT WHERE IT PERTAINED TO EX-GRATIA PAYMENT RECEIVED BY THE EMPLOYEES IN TERMS OF VOLU NTARY RETIREMENT SCHEME FLOATED BY STATE BANK OF INDIA :- (I) SHRI VIJAY GANPATRAO PATIL VS. ITO, ITA NO. 1045/PN/2011 DATED 29.08.2012, AND (II) SHR I ANIL V. BARDE VS. ITO, ITA NO.1460/PN/2011 DATED 23.11.2012. 5. ON THE BASIS OF THE AFORESAID, LEARNED COUNSEL F OR THE ASSESSEE POINTED OUT THAT SINCE THE AFORESAID DECISIONS OF THE PUNE BENCH OF THE TRIBUNAL HAVE BEEN RENDERED IN SIMILAR CIRCUMSTANCES AND CLAIM OF EXEMPTION UNDER SECTION 10(10C) OF THE ACT STANDS ALLOWED, THEREFORE THE OR DER PASSED BY THE TRIBUNAL DATED 26.06.2012 (SUPRA) DIRECTING THE ASSESSING OF FICER TO EXAMINE THE ASSESSEES CLAIM WITH REGARD TO THE COMPLIANCE WITH GUIDELINE NOS. (III) & (IV) OF RULE 2BA OF THE RULES BE MODIFIED AND INSTEAD TH E CLAIM BE ALLOWED. ACCORDING TO THE LEARNED COUNSEL, THE PRAYER OF THE ASSESSEE IS WITHIN THE PURVIEW OF SECTION 254(2) OF THE ACT AND ACCORDINGL Y HE SOUGHT TO JUSTIFY THE PRESENT APPLICATIONS. 6. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE HAS NOT CONTESTED THE FACTUAL MATRIX BROUGHT OUT BY THE PET ITIONER BUT CONTENDED THAT THERE WAS NO APPARENT MISTAKE WITHIN THE MEANING OF SECTION 254(2) OF THE ACT IN THE ORDER OF THE TRIBUNAL DATED 26.06.2012 (SUPR A). 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. THE PRECEDENTS OF THE PUNE BENCH OF THE TRIBUNAL CITED ABOVE HAVE CON SIDERED THE CLAIM FOR EXEMPTION UNDER SECTION 10(10C) OF THE ACT IN CASES WHERE EX-GRATIA PAYMENTS HAVE BEEN RECEIVED IN TERMS OF THE VOLUNT ARY RETIREMENT SCHEME FLOATED BY THE STATE BANK OF INDIA. IN THE CASE OF THE ASSESSEE, AT THE TIME OF ORIGINAL ADJUDICATION, THE AFORESTATED PRECEDENTS W ERE NOT EITHER AVAILABLE OR WERE NOT BROUGHT TO THE NOTICE OF THE BENCH. NEVERT HELESS, IT IS ALSO PERTINENT TO OBSERVE THAT TRIBUNAL IN THE AFORESAID PRECEDENT S AND ALSO IN ITS ORDER DATED 26.06.2012 (SUPRA) IN THE ASSESSEES CASE HAS REFER RED TO AND RELIED UPON THE JUDGEMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF KOODATHIL KALLYATAN AMBUJAKSHAN (SUPARA). THEREFORE, IN-PRINC IPLE, THERE IS NO DIVERGENCE OF VIEWS. IN THE PRECEDENTS CITED ABOVE, THE TRIBUNAL ALLOWED THE CLAIM OF EXEMPTION UNDER SECTION 10(10C) OF THE ACT AFTER HAVING CONSIDERED THE FACTUAL MATRIX OF THE VOLUNTARY RETIREMENT SCH EME FLOATED BY THE STATE BANK OF INDIA. 8. CONSIDERING THE ENTIRETY OF CIRCUMSTANCES, IN OU R VIEW, IT WOULD MEET THE ENDS OF JUSTICE IF THE ORDER OF THE TRIBUNAL DATED 26.06.2012 (SUPRA) IS MODIFIED TO THE EXTENT OF DIRECTING THE ASSESSING OFFICER TO CONSIDER AND APPLY THE AFORESTATED PRECEDENTS OF THE TRIBUNAL WHILE IMPLEM ENTING THE ORDER OF THE TRIBUNAL DATED 26.06.2012 (SUPRA). 9. IN THE RESULT, THE MISCELLANEOUS APPLICATION NO. 09/PN/2013 IN THE CASE OF SHRI JAGDISH RAGHUNATH EKTARE FOR ASSESSMENT YEA R 2007-08 IS HEREBY ALLOWED AS ABOVE. 10. SINCE THE FACTS AND CIRCUMSTANCES IN ALL OTHER CAPTIONED MISCELLANEOUS APPLICATIONS STAND ON IDENTICAL FOOTING TO MA NO.9/ PN/2013 CONSIDERED ABOVE OUR DECISION IN MA NO.09/PN/2013 SHALL APPLY MUTATIS-MUTANDIS IN ALL OTHER CAPTIONED MISCELLANEOUS APPLICATIONS ACCORDINGLY. 11. RESULTANTLY, ALL THE CAPTIONED MISCELLANEOUS AP PLICATIONS FILED BY THE RESPECTIVE ASSESSEES ARE ALLOWED AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH SEPTEMBER, 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G . S. PANNU) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE, DATED: 05 TH SEPTEMBER, 2013 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-III, PUNE; 4) THE CIT-III, PUNE; 5) THE DR, B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE