Income Tax Appellate Tribunal - Ahmedabad
Thakorbhai Meghjibhai Patel, Navsari vs Department Of Income Tax on 5 September, 2014
IN THE INCOME TAX APPELLATE TRIBUNAL
"B" BENCH, AHMEDABAD
BEFORE SHRI MUKUL Kr. SHRAWAT, JUDICIAL MEMBER AND
SHRI N.S. SAINI, ACCOUNTANT MEMBER
ITA No.2045/Ahd/2011
A.Y.2008-09
ITO, Ward-4, Navsari. Vs Shri Thakorbhai
Meghjibhai Patel
Shivamnagar Society,
Samroli, Ta. Chikhli,
Dist. Navsari.
PAN: ADIPP 4881F
(Appellant) (Respondent)
Revenue by : Shri V.K. Singh, Sr.D.R.,
Assessee(s) by : Shri Parimal Sinh. B.
Parmar, AR
सुनवाई कȧ तारȣख/
/ Date of Hearing : 01/09/2014
घोषणा कȧ तारȣख /Date of Pronouncement: 5/09/2014
आदे श/O R D E R
PER SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER
This is an Appeal filed by the Revenue arising from the order of the ld. CIT(Appeals)-Valsad, dated 21/06/2011. The main ground raised is as under:
"1.On the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in deleting the addition of Rs.5,00,000/- made on account of ex- gratia amount received by the assessee."
2. Facts in brief as mentioned in the corresponding assessment order passed u/s.143(3) dated 26.10.2010 were that the assessee had retired from the service of State Bank of India on 12th of July, 2007 under Exit Option (VRS) Scheme. In the computation of Income, the assessee had claimed deduction of Rs.5 lacs u/s.10(10C) of IT Act. As per AO, the said ex gratia payment received under "Exit Option Scheme" of State ITA No.2045/Ahd/2011 ITO Ward-4, Navsari Vs. Shri Thakorbhai Meghjibhai Patel For A.Y. 2008-09 -2- Bank of India did not qualify for the benefit of exemption u/s. 10(10C) of IT Act. A show cause was issued and informed that the ex gratia payment received under VRS is eligible for exemption u/s.10(10C) of the Act only if that scheme of voluntary retirement fulfilled the condition as laid down in Rule 2BA of IT Act. The AO has also referred a CBDT Circular No.CIR.DO/P&HRD/11/05-06 dated 7.5.2005 according to which the Exit Option Scheme of the Bank did not fulfill the condition as laid down in Rule 2BA sub clauses (iii) (iv) (v). However, the assessee has informed that in view of the following precedents the claim is admissible.
"For the above mentioned contention, your assessee would like to rely upon plethora of legal decisions as listed below.
(i).CIT vs. Rabindranath Lal (2009) 18 DTR (Raj) 100, wherein it is concluded that the assessee is entitled to relief u/s.89 in respect of ex-gratia payment received under the VRS over &. above the exemption provided in Sec.10(10C).
(ii) CIT vs. Nagesh Devidas Kulkarni & Sons(2007) 291 ITR 407 (Bom.), where in it has been concluded that any amount received by the assessee on account of Voluntary Retirement, though as ex-gratia pjayment, is "profit in lieu of salary" covered u/s.173(3) and therefore, assessee is entitled to exemption u/s,10(10C) and also relief u/s.89(1) in respect of amount received in excess of Rs.5,00,000/- on account of voluntary retirement. (Hi) Vaishali A. Shelar & Ors. Vs.ACIT & Ors(2007) 109 TTJ(Mum) 607; (2008) 113 ITD 1, wherein it has been decided assessee an employee of RBI, getting in addition to other retirement benefits under OERS, an ex-gratia payment of Rs.9,64,924/- was, entitled to exemption u/s.10(10C) in respect of an amount of Rs.5 lacs and the balance was eligible for relief u/s.89.
(iv) ACIT vs. C.L. Bugari(2006) 99 TTJ (Jp.) 185, wherein the case was concluded with the judgment that ex-gratia payments received on Voluntary Retirement is profit in lieu of salary u/s.17(3) and therefore, eligible for relief u/s.89, apartfrom exemption u/s.10(10C); issue being debatable one, AO was not justified in passing order u/s.154 for withdrawing relief u/s.89(1).
(v) Surindra Singh vs. ITO(2005) 2 SOT 775 (Delhi), wherein the Delhi High Court concluded that assessee received a sum of Rs.7,79,850/- as ex-gratia payment under VRS is eligible to relief u/s.89(1) as reduced by exemption u/s.10(10C)."
3. AO has also informed that the Bank vide letter dated 8th January, 2008 had accordingly stated that Exit Option Scheme was not eligible for ITA No.2045/Ahd/2011 ITO Ward-4, Navsari Vs. Shri Thakorbhai Meghjibhai Patel For A.Y. 2008-09 -3- benefit under Section 10(10C) of the Act. On the basis of those reasons, the benefit of Section 10(10C) was not granted to the assessee. Being aggrieved, the matter was carried before the First Appellate Authority.
4. After hearing the submissions of the assessee, learned CIT(A) has also claimed in the following manner:
"I have considered the contentions raised by the AR of the appellant in his submission as well as by the Assessing Officer in the assessment order. I found the arguments advanced by the AR of the appellant are justified in terms of nature of amount received by the appellant and considering the decision of the Hon.'ble Supreme Court in the case of Chandra Ranganathan & Ors v/s. CIT 326 ITR 49(SC), the retiring employees of the Reserve Bank of India opting for Optional Early Retirement Scheme are eligible for exemption from income-tax u/s. 10(10C) of the Act. Thus, the appellant succeeds in this ground of appeal."
5. From the side of the Revenue, learned Sr.D.R., Sri V.K. Singh appeared and informed at the outset that the case law relied upon by learned CIT(A) was not applicable on the facts as also the scheme under which the said payment was granted to the assessee. He has also mentioned that there was a Board Circular dated 6.10.2009 which was not considered by learned CIT(A); hence, the relief was wrongly granted. He has quoted paragraph 13 of the statement of facts as under:
"13. Therefore, in light of the above I am of the view that the decision of Ld.CIT(A),Valsad is not acceptable in principle. Tax effect involved is Rs.1,50,896/-. Though the tax effect is below Rs. 2 lakh, but, as per CBDT's instruction no. 5/2008, Para No.8(b) dated 15.05.2008 wherein it is mentioned that adverse judgment relating to the Board's order / notifications / instructions / circulars has been held to be illegal or ultra vires, then the decision of the appellate authority has to be challenged irrespective of the tax effect. The Id. CIT(A), Valsad has given the decision against the Board's Instructions No. F.No.200/34/2009-ITA.I dated 06.10.2009 and also the Chief C.I.T. Ahmedabad's letter No.CC/ABD /HQ/TECH/Exemption/ 10(10C)/2008- 09 dtd.03.07.2009. Thus, the Id.CIT(A) has erred in giving relief on wrong footing. Therefore, ld.CIT(A)'s view in this regard is not acceptable."ITA No.2045/Ahd/2011
ITO Ward-4, Navsari Vs. Shri Thakorbhai Meghjibhai Patel For A.Y. 2008-09 -4-
6. On the other hand, from the side of the respondent-assessee, learned AR, Mr. Parimal Sinh B. Parmar appeared and pleaded that the issue of ex gratia payment received from State Bank of India is squarely covered by several decisions of Hon'ble ITAT Ahmedabad. In support an order was referred as under.
ITAT 'B' Bench Ahmedabad in the case of Shri Jitendra Vitthaldas Anarkat Vs. ITO, Ward-3, Anand in ITA No.977/Ahd/2010, A.Y. 2007-08) order dated 27.07.2012 wherein the Respected Co- ordinate Bench has held as under:
6. We have heard both the sides. It has come to our notice that in respect of the said Scheme of the State Bank of India, a view has been taken by a Respected Coordinate Bench "C" in the case of ITO Vs. Shri Nalin Natwarlal Shah, bearing ITA No.l22/Ahd/2010 for A.Y.2007-08 vide order dated 29.6.12, wherein it was held as under:-
"3. Brief facts of the case are that assessee is an employee of S.B.I. He opted voluntarily retirement from SBI under exit option scheme of SBI on 01.05.2006. The assessee claimed exemption of Rs.5,00,000/- u/s 10(10C) of the Act. The A.O. was of the view that this exemption u/s 10(10C) was available only if the scheme of voluntary retirement is in accordance with the requirement laid down in Rule 2BA of Income Tax Act, 1962. Since, according to him the exit option scheme of SBI did not satisfy the guidelines laid down in Rule 2BA of Income Tax Rule, exemption u/s 10(10C) of the Act was not available to the assessee, therefore, this amount of Rs.5,00,000/- claimed as exemption by the assessee was added back to the total income of the assessee. Assessee went in appeal before Id. CIT(A) who, after taking into consideration the submission of the assessee, which were duly recorded by him in his appellate order, deleted the addition made by the A.O. of Rs.5,00,000/-. Further aggrieved, now Revenue is in appeal before us.
4. At the time of hearing both the parties agreed that the assessee is now covered by the decision of this Tribunal in the case of ITO vs. Shri Kanaiyalal Vadilal in ITA No.3276/Ahd/2009 wherein following was held:-
"7. I have heard the rival submissions and perused the orders of the lower authorities and the materials available on record. In the instant case the assessee took voluntary retirement from services with State Bank of India and was paid ex-gratia of Rs.3,44,037/-which was claimed deduction u/s IO(10C) of the Act relying on the decision of the ITA No.2045/Ahd/2011 ITO Ward-4, Navsari Vs. Shri Thakorbhai Meghjibhai Patel For A.Y. 2008-09 -5- Hon'ble Bombay High Court in the case of CIT vs. Nagesh Devidas Kurkarni 291 ITR 407 (Bom) and CIT vs. Koodathi Kaliyatan Ambujaksan 219 CTR 80, decision of Hon'ble Madras High Court in the case of CIT vs. G V Venugopal 273 ITR 307 (Mad), CIT vs. 5 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 Prabhu 279 ITR 402 and Kera/a High Court in the case of State Bank of Travancore vs. CBDT 282 ITR 587. The Learned Assessing Officer disallowed the deduction to the assessee observing that a/I the decisions relied upon by the assessee are of non-jurisdictional High Courts and there is no direct judgment of Hon'ble 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 Vciuigopal 273 ITR 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 language of statute, he has to be granted both those benefits. The second proviso to s. 10(10C) only refers to exemption claimed in any other assessment year. It is well settled that every assessment year is a self-contained unit. The assessment year in question in the present case is 2001-02 and the exemption claimed is in respect of this assessment year, a/though the exempt/on granted under s. 89(1) has been spread over several assessment 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 out 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 prohibition to the twin benefits in respect of the amount received under the voluntary retirement scheme. The word ' salary ' as defined in s. 17 includes any profit in lieu of salary, which has been defined in s. 17(3) to include any amount of compensation due or received by the assessee from his employer or former employer in connection with the termination of his employment. Hence, payment under the voluntary retirement scheme is covered by the word ' 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 well-settled that if two reasonable interpretations of taxing statutes are possible, the one in favour of the assessee should be accepted. -- CIT vs. Naga Hills Tea Co. Ltd. 1973 CTR (SC) 329: AIR 1973 SC 2524 applied."
8. Further, in my considered opinion, if there is a decision on an issue of any High Court and there is no contrary decision of any other High Court, then in absence of the same, even if there is no decision on the issue of the jurisdictional High Court, the decision rendered by the other High Courts should be respectfully followed by the courts below the High Court.
ITA No.2045/Ahd/2011ITO Ward-4, Navsari Vs. Shri Thakorbhai Meghjibhai Patel For A.Y. 2008-09 -6- Therefore, following the decision of Hon'ble Madras High Court, I do not find any good reason to interfere with the order of the Learned Commissioner of Income-tax (Appeals). It is confirmed and the ground of appeal of the Revenue is dismissed."
5. In view of the above, the appeal filed by the Revenue is dismissed."
7. Since in respect of that very Scheme of SBI, a view has been taken by the Respected Coordinate Bench holding that the exemption as prescribed u/s.10(10C) is admissible, as also following the legal proposition laid down in the precedents cited by Id. AR, we hereby hold that in identical manner, this assessee is also entitled for the exemption as prescribed under law. Therefore, ground is allowed."
7. Having heard the submissions of both the sides, we are of the conscientious view that although the issue of Exit Option Scheme of SBI was considered by the Tribunal Ahmedabad (supra) but one has to examine the scheme under question under which this assessee has opted the VRS in the light of decision cited. There is one more fact brought to our notice that one of the Board's instruction dated 6.10.2009 were not considered by learned CIT(A). Therefore, one has to examine the VRS under which the assessee was granted the ex gratia payment whether in any manner discussed in the said CBDT instruction dated 6.10.2009. For these two reasons, we deem it proper to restore this issue back to the file of learned CIT(A) with the direction that the issue is required to be re- adjudicated in the light of the order of Hon'ble ITAT 'B' Bench Ahmedabad or any other order of the Tribunal as also the CBDT instructions. Since, the issue has been restored; hence, the ground raised by the Revenue may be treated as allowed but for statistical purpose only.
8. In the result, Revenue's Appeal is allowed for statistical purpose only.
Sd/- Sd/-
(N.S. SAINI) (MUKUL Kr. SHRAWAT)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 05/09/2014
Prabhat Kr. Kesarwani, Sr. P.S.
ITA No.2045/Ahd/2011
ITO Ward-4, Navsari Vs. Shri Thakorbhai Meghjibhai Patel For A.Y. 2008-09 -7- आदे श कȧ ूितिलǒप अमेǒषत/Copy षत of the Order forwarded to :
1. अपीलाथȸ / The Appellant
2. ू×यथȸ / The Respondent.
3. संबंिधत आयकर आयुƠ / Concerned CIT
4. आयकर आयुƠ(अपील) / The CIT(A)-III, Ahmedabad
5. ǒवभागीय ूितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड[ फाईल / Guard file.
आदे शानुसार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt.Registrar) उप/ आयकर अपीलीय अिधकरण, अिधकरण, अहमदाबाद / ITAT, Ahmedabad