The ITO, Ward 2(4), RAJKOT-GUJARAT V. Shri Yusufbhai R Gaziyani, GONDAL

MA 59/RJT/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6480 (ITAT-RAJKOT)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 01-04-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 11-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: J C RANPURA

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.59/RJT/2010 (ARISING OUT OF I.T.A. NO.659/RJT/2010) (ASSESSMENT YEAR 2006-07) THE ITO, WD.4(2) VS SHRI YUSUFBHAI R GAZIYANI RAJKOT MADINA MANZIL LALA PAREKH STREET MOTI BAZAR, GANDAL PAN : ACFPG4073J (APPLICANT) (RESPONDENT) APPLICANT BY : AVINASH KUMAR RESPONDENT BY : SHRI JC RANPURA O R D E R PER AL GEHLOT, AM THIS MISCELLANEOUS APPLICATION FILED BY THE REVENU E ARISES OUT OF THE ORDER DATED 11-06-2010 PASSED BY TRIBUNAL IN ITA NO.659/R JT/2010 FOR THE ASSESSMENT YEAR 2006-07. 2. THE REVENUE SUBMITS THAT THE TRIBUNAL HAS PASSED THE ORDER RELYING UPON THE CIRCULAR ISSUED BY THE CBDT VIDE F.NO.173(1)/32 /2009-ITA-1 DATED 08-05- 2009. IT IS FURTHER SUBMITTED THAT THE SAID CBDT C IRCULAR WAS ISSUED IN RESPECT OF RBI EMPLOYEES ONLY WHEREAS THE ASSESSEE IS NOT THE EMPLOYEE OF RBI. IN FACT, THE CBDT HAS EXAMINED THE EXIT OPTION SCHEME OF SBI AND ISSUED CIRCULAR NO.F.NO.200/34/2009-ITA-1 DATED 06 TH OCTOBER, 2009 CLARIFYING THAT BENEFIT ISSUED AS PER THE EXIT OPTION SCHEME OF STATE BANK OF INDIA, STATE BANK OF PATIALIA AND OTHER ASSOCIATE BANKS WAS NOT ELIGIBL E FOR EXEMPTION U/S 10(10C) OF THE ACT. SINCE THE ITAT HAS NOT CONSIDERED THE CIR CULAR OF THE CBDT DATED 06- 10-2009 THE SAME AMOUNTS TO MISTAKE APPARENT ON REC ORD. MA NO.59/RJT/2010 2 3. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES, RECORD PERUSED. UNDER SECTION 254(2) OF THE I.T. ACT, 1961, THE APP ELLATE TRIBUNAL MAY, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RE CORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPTED POSITION THAT THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIOSN OF THE INCOME-T AX ACT, 1961. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY ANY MIST AKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER O F AMENDING ITS ORDER. THE EXTENT OF THIS POWER OF RECTIFICATION WAS CONSIDERE D BY THE SUPREME COURT AS FAR BACK AS IN 1971 IN THE CASE OF T.S. BALARAM, ITO V. VOLKART BROTHERS (1971) 82 ITR 50. THE SUPREME COURT HELD AS BELOW (HEAD NOTE ): A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOU S AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTAB LISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHIC H THERE MAY BE A CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM THE REC ORD. THIS VIEW OF THE SUPREME COURT HAS HELD THE FIELD F OR A LONG TIME, AND HAS BEEN FOLLOWED BY OTHER HIGH COURT. THUS, FOR EXAMPLE, I N THE CASE OF V.P. MINOCHA, ITO V. ITAT (1977) 106 ITR 691, THE GUJARAT HIGH CO URT RELYING UPON BALARAMS CASE (1971) 82 ITR 50 (SC), SAID THAT A DECISION GI VEN BY THE TRIBUNAL ON A DEBATABLE POINT OF LAW CANNOT BE SUBSEQUENTLY CONSI DERED AS SHOWING ANY MISTAKE APPARENT FROM THE RECORD WHICH THE TRIBUNAL COULD CONSEQUENTLY RECTIFY. SIMILARLY, THE MADRAS HIGH COURT IN THE CASE OF CIT Y V. R. CHELLADURAI (1`979) 118 ITR 108, SAID THAT THE TRIBHUNALS POWER UNDER SECTION 254(2) IS NOT TO REVIEW ITS EARLIER ORDER BUT ONLY TO AMEND IT WITH A VIEW TO RECTIFYING ANY ERROR APPARENT FROM THE RECORD. 4. IN THE LIGHT OF THE ABOVE DISCUSSION, WE WOULD C ONSIDER THE FACTS OF THE CASE UNDER CONSIDERATION. THE ITAT HAS DECIDED THE ISSUE BY FOLLOWING THE JUDGMENT OF THE MADRAS HIGH COURT IN THE CASE OF SA RANAYAKI KANNAN VS ACIT MA NO.59/RJT/2010 3 (2010) 38 DTR (MAD) 24 WHEREIN THE CIRCULAR DATED 0 8 TH MAY, 2009 ISSUED BY THE CBDT HAS BEEN CONSIDERED. THE FINDING OF THE ITAT IS REPRODUCED BELOW: 5.0 WE HAVE HEARD THE RIVAL CONTENTIONS. WE FIND THAT HONBLE MADRAS HIGH COURT HAS RECENTLY DECIDED IDENTICAL IS SUE IN THE CASE OF SARANAYAKI KANNAN VS. CIT(2010) 38 DTR (MAD) 24. RELEVANT PORTION OF THE SAID JUDGMENT IS REPRODUCED HEREUNDE R: 3. THE LEARNED COUNSEL FOR THE ASSESSEE AS WELL AS THE REVENUE SUBMITTED THAT THE ISSUE IS NOW SQUARELY CO VERED BY THE JUDGMENT OF THE SUPREME COURT MADE IN CIVIL APPEAL NOS.6997 TO 7002 OF 2009 (CHANDRA RANGANATHAN & ORS VS. CIT] DT . 21 ST OCT., 2009. IT HAS ALSO TAKEN NOTE OF THE CIRCULAR ISSUE D BY THE CBDT. IN THE SAID JUDGMENT THE SUPREME COURT HAS OBSERVED AS FOLLOWS: DURING THE COURSE OF HEARING OF THESE APPEALS, IT WAS BROUGHT TO OUR NOTICE THAT BY THE SUBSEQUENT LETTER DT. 8 TH MAY, 2009, ISSUED BY THE CBDT. IT WAS INDICATED THAT THE MATTER HAD BEE N REVIEWED ON THE BASIS OF THE JUDGMENT OF THE BOMBAY HIGH COURT DT 4 TH JULY, 2008 IN THE CASE OF CIT VS KOODATHIL KALLYATAN AMBU JAKSHAN (2008) 219 CTR (BOM) 80 : (2008) 12 DTR (BOM) 138 AND IT W AS HELD THAT AMOUNTS RECEIVED BY RETIRING EMPLOYEES OF THE RBI W OULD BE ELIGIBLE FOR EXEMPTION UNDER THE AFORESAID PROVISIO NS OF THE IT ACT. ON BEHALF OF THE UNION OF INDIA AND THE CIT, THE RE SPONDENT HEREIN, IT WAS SUBMITTED THAT IN VIEW OF THE SAID CIRCULAR, THE RESPONDENT WOULD ALLOW THE BENEFIT OF DEDUCTION TO THE APPELLA NTS UNDER S. 10(10C) OF THE IT ACT 1961 AS FAR AS THE RETIRED EM PLOYEES OF THE RBI ARE CONCERNED. 4. THE CIRCULAR OF THE CBDT READS AS FOLLOWS: IT HAS NOW BEEN BROUGHT TO THE NOTICE OF THE BOARD THAT THE HONBLE HIGH COURT OF BOMBAY VIDE ITS ORDER DT. 4 TH JULY 2008 IN THE CASE OF CIT VS. KOODATHIL KALLYATAN AMBUJAKSHAN (2008) 219 CTR (BOM) 80 : (2008) 12 DTR (BOM) 138 HAS HELD THAT OERS OF FRBI SATISFIES ALL THE CONDITIONS OF R.2BA AND AMOUNTS R ECEIVED BY RETIRING EMPLOYEES THEREUNDER WERE ELIGIBLE FOR EXE MPTION UNDER S. 10(10C). THAT JUDGMENT HAS BECOME FINAL. 5. THUS LOOKING TO THE FACTS AND CIRCUMSTANCES OF T HE CASE AND IN VIEW OF THE ABOVE DECISIONS AND CBDT CIRCULAR WE HOLD THAT THE ASSESSEE IS ENTITLED TO THE BENEFIT OF DEDUCTION UN DER S. 10(10C) OF THE IT ACT. THIS GROUND OF THE ASSESSEE IS ALLOWED . MA NO.59/RJT/2010 4 5. IN THE CASE UNDER CONSIDERATION THE ADMITTED FAC TS ARE THAT THE ITAT HAS DECIDED THE ISSUE ON MERIT CONSIDERING THE JUDGMENT OF BOMBAY HIGH COURT IN THE CASE OF CIT VS KOODATHIL KALLYATAN AMBUJAKSHAN 12 D TR (BOM) 138; CBDT CIRCULAR DATED 08 TH MAY, 2009 AND THE JUDGMENT OF THE MADRAS HIGH COUR T IN THE CASE OF SARANAYAKI KANNAN VS ACIT (2010) 38 DTR (MA D) 24. IN EFFECT, THE ITAT HAS FOLLOWED THE JUDGMENT OF THE MADRAS HIGH C OURT BY OBSERVING THAT THE MADRAS HIGH COURT HAS RECENTLY DECIDED IDENTICAL IS SUE IN THE CASE OF SARANAYAKI KANNAN VS ACIT )2010) 38 DTR (MAD) 24. IT IS ALSO AN ADMITTED FACT THAT THE SO- CALLED CBDT CIRCULAR DATED 06-10-2009 WAS NOT POINT ED OUT TO THE BENCH WHILE DECIDING THE APPEAL. 6. AS PER THE ABOVE DISCUSSION, THE SO-CALLED MISTA KE POINTED OUT IN MISCELLANEOUS APPLICATION BY THE REVENUE CANNOT BE SAID TO BE A MISTAKE APPARENT ON RECORD. A MISTAKE APPARENT ON RECORD M UST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTAB LISHED BY A LONG DRAWN PROCESS OF REASONING AND POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. A DECISION OF A DEBATABLE POINT OF LAW I S NOT A MISTAKE APPARENT FROM RECORD. WE, THEREFORE, FIND THAT THE SO-CALLED MIS TAKE POINTED OUT BY THE REVENUE IS NOT A MISTAKE WHICH IS RECTIFIABLE U/S 254(2) OF THE I.T ACT. THEREFORE, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 13-05-2011. SD/- SD/- (N.R.S. GANESAN) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT, DT : 13 TH MAY, 2011 PK/- COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT(A)-III, RAJKOT BY ORDER 4. THE CIT-II, RAJKOT 5. THE DR (TRUE COPY) ASSTT.REGISTRAR, ITAT, RAJKOT