The ITO, Ward-15(4),, Ahmedabad v. Shri Vinubhai Adiram Patel, Ahmedabad

ITA 2001/AHD/2010 | 2008-2009
Pronouncement Date: 13-01-2011 | Result: Dismissed

Appeal Details

RSA Number 200120514 RSA 2010
Bench Ahmedabad
Appeal Number ITA 2001/AHD/2010
Duration Of Justice 7 month(s) 4 day(s)
Appellant The ITO, Ward-15(4),, Ahmedabad
Respondent Shri Vinubhai Adiram Patel, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 13-01-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 13-01-2011
Assessment Year 2008-2009
Appeal Filed On 08-06-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD A BENCH (BEFORE S/SHRI MAHAVIR SINGH JUDICIAL MEMBER AND D.C. AGRAWAL ACOUNTANT MEMBER) ITA NO.2001/AHD/2010 [ASSTT. YEAR : 2008-2009] DICTATED ON: 07-01-2011 ITO WARD-15(4) AHMEDABAD. VS. SHRI VINUBHAI ADITRAM PATEL 63 SURYODAYA BUNGALOWS THALTEJ AHMEDABD. (APPELLANT) (RESPONDENT) REVENUE BY : SMT. SUMIT KAUR ASSESSEE BY : NONE (WRITTEN SUBMISSIONS) O R D E R PER D.C. AGRAWAL ACCOUNTANT MEMBER : THIS APPEAL IS BY THE REVENUE DIRECTED AGAINST THE ORDER OF THE CIT(A)-XX I DATED 29-3-2010 RISING OUT OF THE ORDER OF THE ASSESSING OFFICER PASSED UN DER SECTION 143(3) R.W.S. 147 OF THE I.T. ACT 1961. 2. IN THE GROUNDS OF APPEAL THE REVENUE HAS RAISED THE FOLLOWING EFFECTIVE GROUND: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.5 00 000/- U/S.10(10C() OF THE IT AC T RELYING UPON THE DECISIONS OF THE ITAT OF MUMBAI AND AHMEDABAD AS CI TED BY THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A N EMPLOYEE OF STATE BANK OF INDIA. HE OPTED FOR EARLY RETIREMENT ON 30-4-20 07 AND CLAIMED EXEMPTION UNDER SECTION 10(10C) OF THE ACT FOR A SUM OF RS.5 00 000/-. THE AO THOUGHT THAT THE EXEMPTION UNDER SECTION 10(10C) IS NOT AVA ILABLE TO THE ASSESSEE. HE REOPENED HIS ASSESSMENT UNDER SECTION 148. IN THE REASSESSMENT PROCEEDINGS THE EXEMPTION WAS DENIED. IT WAS CHALLENGED BEFORE THE CIT(A) WHO BY ITA NO.2001/AHD/2010 -2- FOLLOWING THE DECISION OF THE TRIBUNAL ON SIMILAR I SSUE ALLOWED THE CLAIM OF THE ASSESSEE AS UNDER: 5. I HAVE CONSIDERED THE FACTS OF THE CASE ASSESS ING OFFICERS FINDINGS AND OBSERVATIONS IN THE ASSESSMENT ORDER A ND DETAILED SUBMISSION MADE BY THE APPELLANT ALONG WITH VARIOUS DECISIONS OF ITATS HIGH COURTS AND APEX COURT. THE INCOME-TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A IN THE CASE OF SMT. J AYA NARAYANAN AND OTHERS VS. ACIT CIR.15 AHMEDABAD IN ITA NO.12 09/AHD/2007 AND OTHER HAS PASSED ORDER IN FAVOUR OF THE APPELLANT A LLOWING THE CLAIM OF EXEMPTION U/S.10(10C) OF THE ACT. I HAVE GONE THRO UGH THE ORDER OF THE AO AND THE ORDER OF THE HONBLE INCOME-TAX APPELLAT E TRIBUNAL AHMEDABAD BENCH A WITH REGARD TO THE CLAIM OF EXE MPTION U/S.10(10C) OF THE ACT. THE ITAT HAS OBSERVED AS U NDER: XXXXXX 6. IN THE CASE OF THE APPELLANT THE FACTS ARE IDEN TICAL I RESPECTFULLY FOLLOW THE DECISION OF THE HONBLE ITAT AHMEDABAD A BENCH AND GRANT THE RELIEF TO THE APPELLANT WITH A DIRECTION TO THE AO TO ALLOW THE EXEMPTION U/S.10(10C) OF THE ACT FOR RS.5 00 000/-. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL PLACED BEFORE US. IN OUR CONSIDERED VIEW THE ISSUE IS COVERED B Y VARIOUS DECISIONS OF THE TRIBUNAL AS UNDER: I) ITO VS. SHRI KANAIYALAL VADILAL BHAVSAR ITA NO.3276/AHD/2009 II) SMT.SHAKUNTLABEN N. SHAH L/RS. OF LATE NAGINBHAI B . SHAH ITA NO.537/AHD/2010 III) SHRI MADHUSUDNA JETHIGIRI GOWSAMI ITA NO.171/AHD/2 010 IN THE CASE OF SHRI KANAIYALAL VADILAL BHAVSAR (SUP RA) THE TRIBUNAL HAS OBSERVED AS UNDER: 7. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. IN THE INSTANT CASE THE ASSESSEE TOOK VOLUNTARY RETIREMENT FROM SE RVICES WITH STATE BANK OF INDIA AND WAS PAID EX-GRATIA OF RS.3 44 037 /- WHICH WAS CLAIMED DEDUCTION U/S L0( 10C) OF THE ACT RELYING O N THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. NA GESH DEVIDAS KURKARNI 291 ITR 407 (BOM) AND CIT VS. KOODATHI KAL IYATAN ITA NO.2001/AHD/2010 -3- AMBUJAKSAN 219 CTR 80 DECISION OF HON'BLE MADRAS H IGH COURT IN THE CASE OF CIT VS. G V VENUGOPAL 273 ITR 307 (M AD) C IT VS. S SUNDER & OTHERS 284 ITR 687 CIT VS. J RAMAMANI 286 ITR 616 AND CIT VS. M ABDULKARIM 311 ITR 162 AND HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT & OTHERS VS. P SURENDRA PRABH 279 ITR 402 AND KERALA HIGH COURT IN THE CASE OF STATE BANK OF TRAVANCORE VS. CBDT 282 ITR 587. THE LEARNED ASSESSING OFFICER DISALLOWED THE D EDUCTION TO THE ASSESSEE OBSERVING THAT ALL THE DECISIONS RELIED UP ON BY THE ASSESSEE ARE OF NON-JURISDICTIONAL HIGH COURTS AND THERE IS NO D IRECT JUDGMENT OF HONBLE GUJARAT HIGH COURT. IN APPEAL THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) FOLLOWING THE DECISIONS OF THE HIGH COURTS RELIED UPON BY THE ASSESSEE ALLOWED THE DEDUCTION TO THE ASSESSEE. I FIND THAT THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS . G V VENUGOPAL 273 ITN 307 HELD AS UNDER: 'NOTIONS OF EQUITY DO NOT APPLY IN TAXING STATUTES. HENCE IF THE ASSESSEE IS ENTITLED TO TWO BENEFITS ON THE PLAIN L ANGUAGE OF STATUTE HE HAS TO BE GRANTED BOTH THOSE BENEFITS. THE SECOND PROVISO TO S. 10(1OC) ONLY REFERS TO EXEMPTION CLAI MED IN ANY OTHER ASSESSMENT YEAR. IT IS WELL SETTLED THAT EVER Y ASSESSMENT YEAR IS A SELF-CONTAINED UNIT. THE ASSESSMENT YEAR IN QUESTION IN THE PRESENT CASE IS 2001-02 AND THE EXEMPTION CLAIM ED IS IN RESPECT OF THIS ASSESSMENT YEAR ALTHOUGH THE EXEMP TION GRANTED UNDER S. 89(1) HAS BEEN SPREAD OVER SEVERAL ASSESSM ENT YEARS. THE MERE FACT THAT THE RELIEF HAS BEEN SPREAD OVER SEVERAL YEARS DOES NOT MEAN THAT THE RELIEF IS NOT IN RESPECT OF A PARTICULAR ASSESSMENT YEAR. THE TRIBUNAL HAS RIGHTLY POINTED O UT THAT IN THE IT ACT THERE ARE SEVERAL PROVISIONS GRANTING TWIN OR DOUBLE BENEFITS WHILE IN OTHER PROVISIONS TWIN OR DOUBLE BENEFITS HAVE BEEN SPECIFICALLY PROHIBITED. THERE IS NO PROHIBITI ON TO THE TWIN BENEFITS IN RESPECT OF THE AMOUNT RECEIVED UNDER TH E VOLUNTARY RETIREMENT SCHEME. THE WORD 'SALARY' AS DEFINED IN S. 17 INCLUDES ANY PROFIT IN LIEU OF SALARY WHICH HAS BEEN DEFINE D IN S. 17(3) TO INCLUDE ANY AMOUNT OF COMPENSATION DUE OR RECEIVED BY THE ASSESSEE FROM HIS EMPLOYER OR FORMER EMPLOYER IN CO NNECTION WITH THE TERMINATION OF HIS EMPLOYMENT. HENCE PAYM ENT UNDER THE VOLUNTARY RETIREMENT SCHEME IS COVERED BY THE W ORD ' SALARY' WHICH HAS BEEN GIVEN A VERY WIDE DEFINITION IN S. 17. SINCE THE ASSESSEE IS COVERED BY S. 89 HE WILL GET BOTH THE BENEFITS WHICH HE HAS CLAIMED FOR. APART FROM THE ABOVE IT IS WEL L-SETTLED THAT IF TWO REASONABLE INTERPRETATIONS OF TAXING STATUTES A RE POSSIBLE THE ONE IN FAVOUR OF THE ASSESSEE SHOULD BE ACCEPTE D.CIT VS. NAGA HILLS TEA CO. LTD. 1973 CTR (SC) 329 AIR 1973 SC 2524 APPLIED.' ITA NO.2001/AHD/2010 -4- 8. FURTHER IN MY CONSIDERED OPINION IF THERE IS A DECISION ON AN ISSUE OF ANY HIGH COURT AND THERE IS NO CONTRARY DE CISION OF ANY OTHER HIGH COURT THEN IN ABSENCE OF THE SAME EVEN IF TH ERE IS NO DECISION ON THE ISSUE OF THE JURISDICTIONAL HIGH COURT THE DEC ISION RENDERED BY THE OTHER HIGH COURTS SHOULD BE RESPECTFULLY FOLLOWED B Y THE COURTS BELOW THE HIGH COURT. THEREFORE FOLLOWING THE DECISION O F HON'BLE MADRAS HIGH COURT I DO NOT FIND ANY GOOD REASON TO INTERF ERE WITH THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS). I T IS CONFIRMED AND THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. FOLLOWING THE ABOVE DECISION OF THE TRIBUNAL WE DE CIDE THE ISSUE IN FAVOUR OF THE ASSESSEE AND DISMISS THE GROUND RAISED BY THE R EVENUE. 5. IN RESULT REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 13 TH JANUARY 2011 SD/- SD/- (MAHAVIR SINGH) JUDICIAL MEMBER (D.C. AGRAWAL) ACCOUNTANT MEMBER PLACE : AHMEDABAD DATE : 13-01-2011 COPY OF THE ORDER FORWARDED TO: 1) : ASSESSEE 2) : DEPARTMENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR ITAT. BY ORDER DR/AR ITAT AHMEDABAD