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2016 (6) TMI 929 - AT - Income TaxRectification of mistake - benefit of exemption u/s. 10(10C) denied - non-consideration of the judgment of Hon’ble Calcutta High Court and the Third Member decision - Held that:- We find that the Third Member decision of this Tribunal in the case of Krishnagopal Saha, [2009 (7) TMI 173 - ITAT CALCUTTA-B ] had held that in respect of an assessee who was a former employee of Standard Chartered Bank were admittedly voluntary retirement scheme offered by Standard Chartered Bank was not in conformity with Rule 2BA of the Rules held that assessee was eligible for exemption u/s. 10(10C) of the Act to the extent of ₹ 5 lacs. We also find that the Hon’ble Supreme Court in the case of Saurashtra Kutch Stock Exchange Ltd., [2008 (9) TMI 11 - SUPREME COURT ] had held that non-consideration of a judgment of a jurisdictional High Court is also a mistake apparent on record, which can be rectified u/s. 154 of the Act. We hold that the provisions contained in the Rules cannot override the provisions contained in the Act. Rule is only a subordinate piece of legislation. The Act specifically provides for granting exemption u/s. 10(10C) of the Act to the extent of ₹ 5 lacs and applying the ‘purposive test’ of those provisions, we hold that the assessee should be given the benefit of exemption u/s. 10(10C) of the Act to the extent of ₹ 5 lacs. Hence, non-consideration of the judgment of Hon’ble Calcutta High Court in SAIL DSP VR. EMPLOYEES ASSOCIATION 1998 Vs. UNION OF INDIA & OTHERS (2003 (2) TMI 46 - CALCUTTA High Court ) and the Third Member decision of this Tribunal by the Ld. CIT(A) and also by the Ld. AO automatically results in mistake apparent on record, which ought to have been rectified u/s. 154 of the Act by the Ld. AO and the Ld. CIT(A). Hence, we have no hesitation in allowing the ground raised by the assessee. The aforesaid decision will apply in all the other appeals of the assessee.- Decided in favour of assessee
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