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TMI Blog2010 (10) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 Act). The said benefit was given to the petitioners but thereafter the case was reopened under section 147 of the 1961 Act and the exemption granted was withdrawn. The petitioners aggrieved by the said assessment under section 147 of the 1961 Act filed an application under section 264 of the 1961 Act and by order dated 29th March, 2007 the application was rejected, hence the instant application has been filed. 2.2 Counsel for the petitioners has contended that section 10(10C) of the 1961 Act provides for exemption upto Rs. 5,00,000(five lacs) on sums received under a Scheme including Voluntary Retirement Scheme. Initially the Reserve Bank of India, the petitioners' employer, refused to grant exemption and several applications were filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to Explanation-1 to section 264 an order of rejection is not an order prejudicial to the assessee. "Prejudicial Order" came up for consideration in CIT v. Tribune Trust [1948] 16 ITR 214 (PC) and JACOB v. Addl. Dy. CAIT [1986] 158 ITR 596 (Ker.) (FB). The order passed by the Commissioner is not prejudicial to the petitioners as the assessment order has not been challenged by which the exemption-claim under section 10(10C) was disallowed. Therefore, even if the revisional order is set aside, the assessment order cannot be set aside. 4.2 The writ petition is bad for non-joinder of the employer, Reserve Bank of India. The Voluntary Retirement Scheme was floated by the Reserve Bank of India and the same is not in conformity with Rule 2BA o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vastava, CIT [2006] 286 ITR 863 (Bom.). 5.2 Explanation-I is applicable to section 264(7) and not to section 264. No affidavit-in-opposition has been filed, and the allegations are admitted by the respondents. The Reserve Bank of India need not be made a party as no relief is being claimed against the Reserve Bank of India and the money is to be repaid by the Income-tax Department. In Ground-'C' the petitioner has challenged the arbitrariness of the order dated 29th March, 2007. The word "agreed" mentioned in the assessment order cannot be taken as admission by the petitioner and admission of law is no admission as held in Uptron India Ltd. v. Shammi Bhan [1998] 6 SCC 538. The decision reported in 161 ITR 214 (sic) and JACOB's case (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered the submissions of the parties for the assessment year 2004-2005 an exemption was claimed by the petitioner under section 10(10C) of the 1961 Act. Such exemption was initially allowed and a refund voucher issued. Subsequently, it was found that the petitioner's employer RBI had deducted tax at source and disallowed the exemption on the ground that its scheme was not as per the provisions of Rule 2BA of the Income-tax Rules, 1962. On the said basis proceedings under section 147 of the 1961 Act was initiated and an order passed on 30-2-2005. A revision was filed by the assessee under section 264 and the same was rejected by the Commissioner on 29-3-2007. The said order dated 29-3-2007 has been challenged in this writ petitioner. One o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able in view of Ramswarup Bhawsinka' s case (supra), but for no pleading of prejudice this application cannot be entertained. 7.5 [2005] 2 CLJ 80 is distinguishable on facts as therein on the principles of violation of natural justice the Court had interfered. In the instant case there is no violation of natural justice. 7.6 There is no dispute with the principles laid down in SAIL DSP VR Employees Association (supra) and Nagesh Devidas Kulkarni' s case (supra) but as the order dated 29-3-2007 is one under section 264 and in the absence of pleadings of prejudice will not apply to the facts of the case. 7.7 With no copy of the scheme annexed to the petition or placed before Court the terms of the scheme could not be considered or a findin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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