Shri N.Gnanasambandam, Vellore V. ITO, Vellore

MA 4/CHNY/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 5345 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 13-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SRINIVAS
• Assessee Lawyers: V S JAYAKUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHENNAI BENCH C : CHENNAI [BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI ABRAHAM P GEORGE, ACCOUNTANT MEMBER] M.P. 4/MDS/2011 & I.T.A.NO.329/MDS/2007 ASSESSMENT YEAR : 2004-05 SHRI N.GNANASAMBANDAM NO.104, NETAJI ROAD SHENBAKKAM VELLORE VS THE ITO WARD I(5) VELLORE [PAN - AAMPG2349G] (PETITIONER/APPELLANT) (RESPONDENT) PETITIONER/APPELLANT BY : SHRI V.S.JAYAKUMAR RESPONDENT BY : SHRI B. SRINIVAS O R D E R PER HARI OM MARATHA, JUDICIAL MEMBER: THIS MISCELLANEOUS PETITION U/S 254 OF THE I.T.ACT WAS FILED BY THE PETITIONER/ASSESSEE SEEKING RECALL OF THE TRIBU NAL ORDER DATED 13.6.2008 PASSED IN I.T.A.NO.329/MDS/2007, FOR ASSE SSMENT YEAR 2004-05. 2. THE APPELLANT WAS AN EMPLOYEE OF ICICI BANK AND HAD RECEIVED A SUM OF ` 21,18,101/- ON HIS VOLUNTARY RETIREMENT UNDER EARLY RETIREMENT OPTION(ERO) SCHEME FLOATED BY THE BANK. THE MP 4/11 ITA 329/07 :- 2 -: APPELLANT HAS CLAIMED EXEMPTION OF ` 5 LAKHS U/S 10(10C) OF THE ACT IN RESPECT OF ERO APART FROM THE CLAIM U/S 89(1) OF T HE ACT IN RESPECT OF THE BALANCE AMOUNT. THE ASSESSING OFFICER HAD DISA LLOWED THE CLAIM OF THE ASSESSEE U/S 10(10C). THE LD. CIT(A) HAS CONFI RMED THIS DISALLOWANCE, SO ALSO THE TRIBUNAL VIDE ITS ORDER D ATED 13.6.2008. 3. SUBSEQUENTLY, THE HON'BLE SUPREME COURT IN THE CASE OF CHANDRA RANGANATHAN VS CIT, 326 ITR 49, HAS HELD THAT SUCH ASSESSEES ARE ELIGIBLE FOR EXEMPTION CLAIMED U/S 10(10C). IN THE LIGHT OF THIS HON'BLE SUPREME COURTS DECISION, THE EARLIER ORDER OF THE TRIBUNAL WHICH WAS BASED ON HON'BLE JURISDICTIONAL HIGH COURTS DECISI ON RENDERED IN THE CASE OF CIT VS THIRUNAVUKKARASU, 218 CTR(MAD)61, WAS SOUGHT TO BE RECALLED THROUGH THIS MISCELLANEOUS PETITION FILED U/S 254(2) OF THE ACT. THIS BENCH HAS BEEN CONTINUOUSLY AND CONSISTENTLY F OLLOWING THE HON'BLE SUPREME COURTS DECISION AND/OR THE CLARIFI CATION ISSUED BY THE CBDT, IN THE LIGHT OF OTHER DECISIONS RENDERED BY D IFFERENT HIGH COURTS IN FAVOUR OF THE ASSESSEE THAT SUCH ASSESSEES ARE E NTITLED TO EXEMPTION U/S 10(10C) OF THE ACT. THEREFORE, IN THAT VIEW OF THE MATTER, WE RECALL THE TRIBUNAL ORDER DATED 13.6.2008 PASSED IN THIS CASE. 4. AT THE SAME TIME, IN ORDER TO AVOID FURTHER DELAY I N THE DISPOSAL OF THE APPEAL, THE BENCH WAS OF THE OPINION THAT TH E APPEAL SHOULD MP 4/11 ITA 329/07 :- 3 -: ALSO BE HEARD SIMULTANEOUSLY AS THE ISSUE INVOLVED IN THIS CASE STANDS SQUARELY COVERED BY HE HON'BLE APEX COURTS DECISIO N(SUPRA) AND NO FURTHER FACTS ARE REQUIRED TO BE BROUGHT ON RECORD. NONE OF THE PARTIES RAISED ANY OBJECTION IN THIS REGARD THAT IS WHY WE HEARD THE APPEAL AFRESH IN THE LIGHT OF THE HON'BLE SUPREME COURTS DECISION. THE FACTS OF THIS CASE ARE VERY CLEAR THAT THE ASSESSEE IS AN EX-EMPLOYEE OF ICICI BANK AND HAS CLAIMED EXEMPTION U/S 10(10C) FOR AN A MOUNT OF ` 5 LAKHS WHICH IS ALLOWABLE IN VIEW OF THE AFORESAID H ON'BLE SUPREME COURTS DECISION WHICH WAS RENDERED SUBSEQUENT TO T HE TRIBUNAL ORDER DATED 13.6.2008. ARTICLE 141 OF THE CONSTITUTION O F INDIA ORDAINS THAT ANY DECISION RENDERED BY THE HON'BLE APEX COURT TAN TAMOUNTS TO THE LAW FROM ITS VERY INCEPTION. SINCE THE HON'BLE S UPREME COURT HAS INTERPRETED SECTION 10(10C) IN THE MANNER THAT EVEN AFTER AVAILING EXEMPTION U/S 89(1), SUCH EMPLOYEES ARE ALSO ELIGIB LE FOR EXEMPTION U/S 10(10C) OF THE ACT , WE ARE LEFT WITH NO OPTION BUT TO APPLY THE LAW AS INTERPRETED BY THE HON'BLE SUPREME COURT. CONSEQ UENTLY, WE ALLOW THE APPEAL OF THE ASSESSEE AND DIRECT THE ASSESSING OFFICER TO GIVE DEDUCTION U/S 10(10C) OF THE ACT AS HAS BEEN CLAIM ED BY THE ASSESSEE IN THIS CASE. 5. IN THE RESULT, THE APPEAL AND THE MISCELLANEOUS PET ITION FILED BY ASSESSEE STAND ALLOWED. MP 4/11 ITA 329/07 :- 4 -: THE ORDER PRONOUNCED IN THE OPEN COURT ON 18.2.2011. SD/- SD/- (ABRAHAM P GEORGE) ACCOUNTANT MEMBER ( HARI OM MARATHA ) JUDICIAL MEMBER DATED: 18 TH FEBRUARY, 2011 RD COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR