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2016 (2) TMI 823 - ITAT KOLKATA

2016 (2) TMI 823 - ITAT KOLKATA - TMI - Rectification application u/s 154 to claim exemption - Entitlement to the benefit of deduction u/s.10(10C) - RBI employees retiring under OERS - Held 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. Koodathil Kaliyatan Ambujakshn (2008 (7) TMI 259 - BOMBAY HIGH COURT). In fact the .....

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ication 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 to A.Y.2004-05. 2. The assessee is an employee of Reserve Bank of India, (RBI) who o .....

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e of - (i) a public sector company; or (ii) any other company; or (iii) an authority established under a Central, State or Provincial Act; or (iv) a local authority; or, (v) a co-operative society; or (vi) a University established or incorporated by or under a Central, State or Provincial Act and an institution declared to be a University under section 3 of the University Grants Commission Act, 1956 (3 of 1956); or (vii) an Indian Institute of Technology within the meaning of clause (g) of secti .....

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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 (includi .....

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paration, no exemption under this clause shall be allowed to him in relation to such, or any other, assessment year. Under the first proviso to Sec.10(10C) of the Act, the Scheme has to satisfy the guidelines as may be prescribed. Rules have been framed and we are concerned with r. 2BA. The relevant portion of the rule reads as under : ".....at the time of his voluntary retirement or voluntary separation shall be exempt under cl. (10C) of s. 10 only if the scheme of voluntary retirement fra .....

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ary separation has been drawn to result in overall 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 .....

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evenue in the case of employees of RBI that benefit of deduction u/s.10(10C) of the Act cannot be allowed as the conditions prescribed in the Rules were not satisfied. The Assessee filed a return in response to the notice u/s.148 of the Act withdrawing the claim for deduction u/s.10(10C) of the Act made in the original return of income. The said return was accepted by the AO and an order u/s.148 read with Sec.143(3) of the Act was passed on 8.8.2006. Subsequently the Assessee noticed that his co .....

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olding that there was no apparent mistake in his order calling for rectification. On appeal by the Assessee, the CIT(A) by an order dated 16.12.2009 confirmed the order of the AO. An appeal against the aforesaid order of CIT(A) ought to have been filed within 60 days from the date 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 asse .....

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neurological and cardiological and found it difficult to move outside his residential flat. The assessee has only one married daughter, who was also suffering from depression due to marital problems and fully dependent on the assesse for her survival. In view of the aforesaid circumstances the assessee could not file the appeal by following up with the Authorised Representative. The assessee after realizing that similar claims made by his colleagues was accepted by the Tribunal and those colleag .....

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ore the Tribunal. 5. The Hon ble Supreme Court, in the case of Mst. Katiji (supra), has explained the principles that need to be kept in mind while considering an application for condonation of delay. The Hon ble Apex Court has emphasized that substantial justice should prevail over technical considerations. The Court has also explained that a litigant does not stand to benefit by lodging the appeal late. The Court has also explained that every day s delay must be explained does not mean that a .....

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87) 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. 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 .....

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