ITO, CHENNAI V. Shri K.Ramamurthy, CHENNAI

MA 184/CHNY/2010

• Counselvise Citation: [2011] 111 COUNSELVISE.COM (IT) 0358 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-02-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 22-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 254(2)

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL: C - BENCH:CHEN NAI (BEFORE SHRI ABRAHAM P. GEORGE. ACCOUNTANT M EMBER AND SHRI GEORGE MATHAN, JUDICIAL MEM BER) MA NO.184/MDS/10 IN ITA NO.272/MDS/09 ASSESSMENT YEAR 2004-05 THE ITO, SAL. WARD III(3) CHENNAI (APPLICANT) VS. SHRI K.RAMAMURTHY, OLD NO.109, NEW NO.34/8, EAST VANNIAR ST., BEST MAMASIVAYAM FLATS, K.K.NAGAR WEST, PAN AAEPR7381P (RESPONDENT) APPELLANT BY RESPONDENTS BY: SHRI TAPAS KUMAR DUTTA,CIT(DR) SHRI PHILIP GEORGE ORDER PER SHRI ABRAHAM P.GEORGE, A.M: IN THIS MISC. PETITION FILED BY THE REVENUE, ITS G RIEVANCE IS THAT THE TRIBUNAL HAD RELIED ON THE DECISION OF HONBLE APEX COURT IN THE CASE OF CHANDRA RANGANATHAN & ORS. V. CIT (CA NOS.6997-7002 OF 2009 DATED MA 184/MDS /10 2 21-10-2009) WHILE HOLDING THAT ASSESSEE WAS TO BE G IVEN DEDUCTION UNDER SEC. 10(10C) OF THE INCOME-TAX ACT, 1961 (THE ACT FOR SHORT) FOR THE COMPENSATION RECEIVED BY IT UNDER THE OPTIONAL EARL Y RETIREMENT SCHEME (IN SHORT OERS). AS PER THE REVENUE, ASSESSEE HA D RETIRED FROM ICICI BANK AND NOT FROM RESERVE BANK OF INDIA AND THE DEC ISION OF HONBLE APEX COURT IN THE CASE OF CHANDRA RANGANATHAN & IRS, (S UPRA) WAS OF EMPLOYEES RETIRING FROM RESERVE BANK OF INDIA. AS P ER THE REVENUE, DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN CI T VS. M.CHELLADURAI & ORS. (317 ITR 370) WAS APPLICABLE FOR PERSONS RETIR ING FROM ICICI BANK AND THEREFORE, THERE WAS A MISTAKE IN THE ORDER OF THIS TRIBUNAL REQUIRING RECTIFICATION UNDER SEC. 254(2) OF THE ACT. 2. WE HAVE PERUSED THE RECORDS AND HEARD BOTH THE P ARTIES. NO DOUBT THE TRIBUNAL DID MENTION AT PARA-4 OF ITS ORDER THA T THE ASSESSEE HAD RETIRED FROM RESERVE BANK OF INDIA UNDER OERS SCHEME. TRIBU NAL HAD RELIED ON THE ORDER OF THE CIT(A), WHO, WHILE DISMISSING THE APPEAL OF THE ASSESSEE, HAD SPECIFICALLY MENTIONED THAT THE ASSESSEE WAS AN EMPLOYEE OF RESERVE BANK OF INDIA. HOWEVER, NOW WE FIND THAT THE ASSESS EE WAS AN EMPLOYEE OF ICICI. HENCE THE ORDER DATED 26-05-2010 OF THE T RIBUNAL IS RECALLED AND READJUDICATED. MA 184/MDS /10 3 3. AS MENTIONED ABOVE, ASSESSEE HERE HAD TAKEN OERS FROM ICICI BANK. AS PER THE REVENUE SEC. 10(10C) OF THE ACT DE DUCTION WILL NOT BE AVAILABLE TO THE ASSESSEE ON THE BENEFITS HE RECEIV ED ON OPTING FOR OERS ON ACCOUNT OF THE DECISION OF THE HON. JURISDICTION AL HIGH COURT IN THE CASE OF M.CHELLADURAI & ORS. (SUPRA). NEVERTHELESS, IN O UR OPINION, THE DECISION OF HONBLE APEX COURT IN CHANDRA RENVGANATHAN & ORS . (SUPRA) HAS TO BE APPLIED FOR EMPLOYEES RETIRING FROM ICICI BANK ALSO . THE REASON FOR TAKING SUCH A VIEW IS THAT HON.JURISDICTIONAL HIGH COURT I N N.CHELLADURAI & ORS. CASE (SUPRA) WAS CONSIDERING SEVEN TAX CASE APPEALS OF DIFFERENT ASSESSES TOGETHER, SUCH APPEALS BEING NUMBERED AS 1 01, 419, 22, 425,1360,1353 AND 1397 OF 2007. OF THESE, TAX CASE APPEALS NO.101,419,22,425 & 1360 OF 2007 RELATED TO EMPLOYE ES OF ICICI BANK, WHEREAS TAX CASE APPEAL NOS.1353 AND 1397 OF 2007 R ELATED TO EMPLOYEES OF RBI. AFTER CONSIDERING THE SCHEMES OF THE RESPECTIVE BANKS AT PARAS 17 TO 21 OF ITS ORDER, HON. JURISDICTIONA L HIGH COURT HELD THAT THERE WERE DIFFERENCES BETWEEN THE BANK OERS AND TH E GUIDELINES LAID DOWN IN RULE 2BA OF THE I.T. RULES AND THEREFORE, E XGRATIA PAID UNDER SUCH SCHEME DID NOT QUALIFY FOR EXEMPTION UNDER SEC. 10( 10C) OF THE ACT. HOWEVER, THE MATTER WAS CARRIED IN APPEAL TO THE HO NBLE SUPREME COURT BY THE ASSESSEES WHO HAD TAKEN VOLUNTARY RETIREMENT FROM RBI ( I.E. THE RESPONDENTS IN TCA NOS.1353 & 1397 OF 2007 BEFORE T HE JURISDICTIONAL HIGH COURT) AND IN ITS DECISION DATED 21-01-2009 CA PTIONED AS CHANDRA MA 184/MDS /10 4 RANGANATHAN & ORS. V. CIT (326 ITR 49), HONBLE APE X COURT HELD THAT CBDT BY ITS LETTER DATED 08-05-2009 HAD INDICATED O F A REVIEW THAT WAS DONE ON THE BASIS OF THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KOODATHIL KALLYATAN AMBUJAKSHAN (30 9 ITR 113), WHEREIN IT WAS HELD THAT EMPLOYEES RETIRING FROM RBI WOULD BE ELIGIBLE FOR EXEMPTION UNDER SEC. 10(10C) OF THE ACT. APPEALS OF THE ASSE SSES WERE THUS ALLOWED BY THE HONBLE APEX COURT. AS AFORESAID, THE APPEAL BEFORE THE HONBLE APEX COURT AROSE OUT OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN N.CHELLADURAIS CASE (SUPRA) WHICH WENT AG AINST THE ASSESSEES CONCERNED. THE REASONING GIVEN BY HONBLE JURISDICT IONAL HIGH COURT FOR DECIDING AGAINST THE ASSESSEES FALLING IN THE SCHEM ES FOR BOTH ICICI BANK AND RBI, WAS THE VERY SAME. THEREFORE, THE REVERSAL OF THE SAID DECISION BY HONBLE APEX COURT IN THE CASE OF CHANDRA RANGAN ATHANS CASE (SUPRA) WOULD, IN OUR HUMBLE OPINION, OPERATE MUTATIS MUTAN DIS TO ICICI BANK EMPLOYEES ALSO. IN THIS VIEW OF THE MATTER, WE ARE OF THE OPINION THAT THE EMPLOYEES OF ICICI BANK WHO HAD TAKEN VOLUNTARY RET IREMENT UNDER THE OERS OF THE SAID BANK WERE ALSO ELIGIBLE FOR CLAIMI NG EXEMPTION UNDER SEC. 10(10C) OF THE ACT. SINCE THERE HAS BEEN A MI STAKE IN THE ORDER OF THE TRIBUNAL IN MENTIONING THE ASSESSEE TO BE AN EMPLOY EE OF RBI, WHEREAS HE WAS AN EMPLOYEE OF ICICI BANK, WE RECALL ORDER O F THIS TRIBUNAL IN THIS REGARD. NEVERTHELESS APPEAL AFTER RECALL IS TREATED AS DISMISSED FOR REASONS CITED ABOVE. MA 184/MDS /10 5 4. RESULTANTLY, MISC. PETITION FILED BY REVENUE IS ALLOWED. ORDER DATED 26-05-2010 OF THE TRIBUNAL IS RECALLED, READJUDICAT ED AND SUCH APPEAL DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 04 - 02-2011. SD/- SD/- (GEORGE MATHAN) JUDICIAL MEMBER (ABRAHAM P.GEORGE) ACCOUNTANT MEMBER CHENNAI: 10TH FEBRUARY, 2011. NBR CC: ASSESSEE/ ASSESSING OFFICER/ CIT(A)/ CIT/ D .R/ GUARD FILE. IN THE INCOME TAX APPELLATE TRIBUNAL BENCH C CHENNAI (BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER) .. M.A. NO. 184/MDS/2010 (IN I.T.A. NO. 272/MDS/2009) ASSESSMENT YEAR : 2004-05 THE INCOME TAX OFFICER, SALARY WARD III(3), CHENNAI 600 034. V. SHRI K. RAMAMURTHY, OLD NO.109, NEW NO.34/8, EAST VANNIAR STREET, BEST NAMASIVAYAM FLATS, K.K. NAGAR WEST, CHENNAI 600 078. PAN : AAEPR7381P MA 184/MDS /10 6 (PETITIONER) (RESPONDENT) CORRIGENDUM IN THE ORDER DATED 10.2.2011 IN M.A. NO. 184/MDS/2 010 IN I.T.A. NO. 272/MDS/2009, LAST SENTENCE OF PARA 3 WHICH APP EARS AS NEVERTHELESS APPEAL AFTER RECALL IS TREATED AS DISM ISSED FOR REASONS CITED ABOVE SHOULD BE READ AS - NEVERTHELESS APPEAL AFTER RECALL IS TREATED AS ALLOWED IN SO FAR AS THE CLAIM OF THE ASSESSEES EXEMPTION UNDER SECTION 10(10C) OF THE ACT FOR COMPENSATION RECEIVED UNDER OPTIONAL EARLY RETIREMENT SCHEME FOR REASONS CITED ABOVE. 2. SIMILARLY, PARA 4 OF THE SAID ORDER WHICH READS AS RESULTANTLY, MISC. PETITION FILED BY REVENUE IS ALLOWED. ORDER D ATED 26.05.2010 OF THE TRIBUNAL IS RECALLED, READJUDICATED AND SUCH APPEAL DISMISSED. SHOULD BE READ AS - 4. RESULTANTLY, MISC. PETITION FILED BY REVENUE IS ALLOWED. ORDER DATED 26.05.2010 OF THE TRIBUNAL IS RECALLED, READJUDICATED AND SUCH APPEAL ALLOWED PRO TANTO. MA 184/MDS /10 7 SD/- SD/- (GEORGE MATHAN) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 10 TH JUNE, 2011. KRI. COPY TO: (1) PETITIONER (2) RESPONDENT (3) CIT(A) (4) CIT (5) D.R. (6) GUARD FILE