TMI Blog2016 (2) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, we hold that the claim for deduction u/s.10(10C) of the Act has to be allowed to the Assessee. The fact that the Assessee voluntarily offered the sum in question to tax cannot be the basis to sustain the levy of tax. Therefore hold that there was a mistake apparent on the face of the record and the application u/s.154 of the Act filed by the Assessee ought to be allowed. Thus direct the AO to allow deduction accordingly. - Decided in favour of assessee - ITA No.2198/Kol/2014 - - - Dated:- 9-12-2015 - Shri N.V.Vasudevan, JM For The Appellant : Shri Manoj Tiwari, FCA For The Respondent : Shri Sudipta Guha, JCIT ORDER This is an appeal by the assessee against the order dated 16.12.2009 of CIT(A)-XIV, Kolkata relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nagement as the Central Government may, by notification in the Official Gazette, specify in this behalf, on his voluntary retirement or termination of his service, in accordance with any scheme or schemes of voluntary retirement or in the case of a public sector company referred to in sub-clause (i), a scheme of voluntary separation, to the extent such amount does not exceed five lakh rupees : Provided that the schemes of the said companies or authorities, or societies or Universities or the Institutes referred to in sub-clauses (vii) and (viii) as the case may be, governing the payment of such amount are framed in accordance with such guidelines (including, inter alia, criteria of economic viability) as may be prescribed : Prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rall reduction in the existing strength of the employees; (iv) the vacancy caused by the voluntary retirement or voluntary separation is not to be filled up; (v) the retiring employee of a company shall not be employed in another company or concern belonging to the same management; (vi) the amount receivable on account of voluntary retirement or voluntary separation of the employee does not exceed the amount equivalent to three months salary for each completed year of service or salary at the time of retirement multiplied by the balance months of service left before the date of his retirement on superannuation. The Assessee claimed exemption of ₹ 5,00,000/- u/s 10(10C) of the Act. The return filed by the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of receipt of the said order. The appeal before Tribunal was however filed after a delay of 1737 days. The reasons for the delay in filing appeal by the Assessee are dealt with in the subsequent paragraphs. 3. The assessee has filed an affidavit explaining the reasons for the delay in filing the appeal. I have perused the said affidavit in which the delay has been explained as follows: The assessee had entrusted his tax case to one Mr.Mr.Naresh Sarkar and later to Shri Shyamal Sen for filing of appeal before ITAT against the order of CIT(A). Because of callousness and lack of commitment of the aforesaid two persons the appeal could not be filed by the assessee. The assessee also suffered health problems both neurological and cardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h should be taken. The doctrine must be applied in a rational common sense and pragmatic manner. In the case of Vedabai Alias Vaijayantabai Baburao Patil Vs. Shantaram Baburao Patil others 253 ITR 798(SC), the Hon ble Supreme Court in the matter of codonation of delay substantial justice is of prime importance. Similar were the ruling of the Hon ble Supreme Court in the case of N.Balakrishanan Vs. M.Krishnamurthy 1998 (7) SCC 123 (SC) and Shankararo Vs. Chandrasenkunwar (1987) suppl.SCC 338 (SC). 6. I find that the issue whether deduction u/s.10(10C) of the Act should be allowed to RBI employees retiring under OERS is no longer res integra and has been concluded in several decisions including the decision in the case of CIT Vs. Koodath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been concluded in several decisions including the decision in the case of CIT Vs. Koodathil Kaliyatan Ambujakshn (2008) 219 CTR (Bom) 80. In fact the CBDT in Instruction dated 8.5.2009 has accepted this decision and opined that employees of RBI who accepted OERS would be entitled to the benefit of Sec.10(10C) of the Act. In view of the above, we hold that the claim for deduction u/s.10(10C) of the Act has to be allowed to the Assessee. The fact that the Assessee voluntarily offered the sum in question to tax cannot be the basis to sustain the levy of tax. I therefore hold that there was a mistake apparent on the face of the record and the application u/s.154 of the Act filed by the Assessee ought to be allowed. I direct the AO to allow de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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