ITO, New Delhi V. Yash Pal Mehta, New Delhi

MA 408/DEL/2017

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2966 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 1 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-09-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 16-06-2022
• Assessment Year: 2008-2009
• Appeal Filed On: 06-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Assessee Lawyers: NAVEEN GUPTA
• Keywords: Tax effect; Tax effect
• Section: 147; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH ‘SMC’ : NEW DELHI) SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER and SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER MA No.408/Del/2017 (in ITA No.1722/Del./2016) (ASSESSMENT YEAR : 2008-09) ITO, Ward 67 (3), vs. Shri Yash Pal Mehta, New Delhi. 1/45, Sunder Vihar, New Delhi. (PAN : AAAPM0238N) (APPELLANT) (RESPONDENT) ASSESSEE BY : Shri Naveen Gupta, Advocate REVENUE BY : Ms. Anupama Singla, Sr. DR Date of Hearing : 17.06.2022 Date of Order : 05.09.2022 ORDER PER SHAMIM YAHYA, ACCOUNTANT MEMBER : By way of this misc. application, Revenue seeks recall of order under section 254 (2) of the Income-tax Act, 1961 (for short ‘the Act’) of the Tribunal in the case of ITO vs. Yash Pal Mehta in ITA No.1722/Del/2016 for AY 2008-09 order dated 19.09.2016. 2. We have heard both the parties and perused the record. 3. In the order, ITAT held that the said appeal by the Revenue was not maintainable as tax effect was below the limit fixed by CBDT for MA NO.408/Del/2017 2 fixing the appeal before the ITAT. Now, the Revenue submits that the said appeal fell in exceptional clause 8 (b) of the Circular No.21/2015, hence ITAT erred in treating the appeal liable to be held not maintainable due to tax effect. The Revenue’s plea reads as under :- “ In the context of issue under reference, it is further submitted that the Hon'ble Bombay High Court in the case of SBI Exit Officers Associations, Mumbai vs. CBOT in W.P. No.1718/2011 dated 17.08.2012, after hearing both the parties, had held as below:- "We are of the opinion that the statements are correctly made. The circular does not prohibit the authorities from discharging their function under the Act. We do not consider it proper to issues to such direction are selves. The CBDT is requested to consider the matter and issue such instructions as it thinks fit and proper. The writ petition is accordingly disposed of by accepting the above statement made on behalf of the respondents. It is clarified that the authorities shall decide the question of exemption under section 10 (10C) without being influenced by the impugned circular dated 6th October, 2009 in any manner whatsoever. They shall decide the question in accordance with law including under the provisions of the Act, the Rules and legal principles. The authorities shall not take any further steps including under section 147 and 154 on the basis of the said circular alone." As can be seen from above, the Hon'ble High Court has left the issue of granting exemptions to SBI employees opting for VRS, open ended. Hence, the Ld. CIT(A) has wrongly relied on this case as well as various other case laws discussed in the aforesaid Note in granting relief to the assessee. It is also worthwhile to submit that the CBDT has already been requested for issuance of such instructions as it thinks fit and proper in the matter. The appropriate instructions are yet to be issued on this issue from the CBDT. This Miscellaneous Application is, therefore, being filed for kind consideration by the Hon'ble Bench of ITAT on the following grounds: i) The Hon'ble ITAT, while adjudicating the case has not considered the fact that the relief allowed by the Ld. CIT(A) to the assessee is against CBDT's Instruction dated 06.10.2009 which clearly MA NO.408/Del/2017 3 qualifies this case to fall under the realm of exceptional clause 8(b) of CBDT's circular 21/2015 dated 10.12.2015. ii) The Hon'ble ITAT has not considered the submission made in the detailed note by the Revenue filed alongwith the necessary documents at the time of filing of appeal relating to the exceptional clause 8(b) of CBDT's circular 21/2015 dated 10.12.2015. iii) The ITAT may kindly recall order dated 19.9.2016 in view of CBDT's recent circular no. 21/2015 dated 10.12.2015 in supersession of order No. 5/2014 dated 10.7.2014 In view of the foregoing, it is, therefore, requested that the order dated 19/09/2016 of the Hon'ble ITAT may kindly be recalled and the assessment order made by the Assessing Officer on the issue of disallowance u/s 10(10C) of the I.T Act, 1961 may kindly be confirmed in light of the exceptional clause 8(b) of CBDT's Circular 21/2015 dated 10.12.2015, Provisions of section 10(10C) of the I.T Act, 1961 and the CBDT's Instruction in F.No. 200/34/2009-ITA-1 dated 06.10.2009.” 4. We find that clause 8 (b) of the said circular provides :- “8. Adverse judgments relating to the following issues should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above or there is no tax effect: ....... (b) Where Board’s order, Notification, Instruction or Circular has been held to be illegal or ultra vires,” 5. Ld. CIT (A) in this case has decided the issue as under :- “3.1. I have considered the rival submissions and perused the material available on record. The assessee was a bank employee and claimed exemption of Rs.5,00,000/- u/s 10(10C) of the Act. The Assessing Officer following circular issued from DIT (ITA. 1) CBDT, New Delhi vide Letter F.No.200/34/2009-ITA.I dated 06/10/2009 held that the ex gratia payment will be added to the income of the employee and thus, made the addition. I note that this issue is already settled by various judicial pronouncements in favor of the assessee . Without adverting further and respectfully following the decision cited above and the decision of the jurisdictional ITAT in the ease Sri Lila Dhar Pandey vs [2014(8) TMI 792 - ITAT Delhi] it is held that the assessee entitled to exemption u/s 10(10C) of the Act. Accordingly, the AO is directed to allow exemption Rs.5,00,000/- u/s 10(10C) of the Income Tax Act, 1961. The appellant will get necessary relief accordingly.” MA NO.408/Del/2017 4 6. Thus, from the above, it is clear that ld. CIT(A) has followed orders of Hon’ble High Court and Tribunal. This is quite in accordance with the cannons of judicial discipline. Hence no fault can be attributed to ld. CIT (A)’s order. Further reading of the above order of the ld. CIT(A) makes it clear that there is no issue of any Board order, notification, instruction or circular having been held to be illegal or ultra vires by the ld. CIT(A). Hence, we do not find any merit in this misc. application filed by the Revenue and the same is accordingly dismissed. Order pronounced in the open court on this 5 th day of September, 2022. Sd/- sd/- (CHALLA NAGENDRA PRASAD) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated the 5 th day of September, 2022 TS Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT(A) 5.CIT(ITAT), New Delhi. AR, ITAT NEW DELHI.