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Shri N.A.L. Periyakarupan, C/o Shri S. Sridhar, Advocate Versus The Deputy Commissioner of Income Tax, Circle – I, Cuddalore

2016 (9) TMI 1212 - ITAT CHENNAI

Fresh claim of exemption by way of application u/s 154 - Claim of exemption under Section 10(10C) - Held that:- In this case, admittedly, revised return was not filed by the assessee. The fact remains that what was received by the assessee is retirement benefit consequent to Early Retirement Option Scheme, 2003 implemented by ICICI Bank. Therefore, the assessee is eligible for exemption under Section 89(1) and 10(10C) of the Act. The Apex Court in the case of National Thermal Power Co. Ltd. (199 .....

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, the same is set aside. The Assessing Officer shall examine the claim on merit and thereafter decide the issue in accordance with after giving a reasonable opportunity to the assessee. - Decided in favour of assessee - ITA No.508/Mds/2016 - Dated:- 18-8-2016 - SHRI N.R.S. GANESAN, JUDICIAL MEMBER For The Appellant : Shri S. Sridhar, Advocate For The Respondent : Sh. P. Radhakrishnan, JCIT ORDER This appeal of the assessee is directed against the order of the Commissioner of Income Tax (Appeals) .....

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s processed under Section 143(1) of the Act and, in fact, the Assessing Officer accepted the claim of the assessee under Section 89(1) of the Act. Subsequently, the assessee filed a petition under Section 154 of the Act on 05.02.2008 claiming exemption under Section 10(10C) of the Act, which was omitted to be claimed, while filing the return of income. Since the assessee made a fresh claim in the application made under Section 154 of the Act, the Assessing Officer rejected the same. The assessee .....

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not make a new claim without filing a revised return. The CIT(Appeals) further found that since the claim of exemption under Section 10(10C) of the Act was not claimed in the return filed, the same cannot be raised by way of petition under Section 154 of the Act. 3. According to the Ld. counsel, the claim of the assessee for exemption under Section 10(10C) of the Act is not in dispute. Merely because the retired employee by mistake omitted to claim exemption under Section 10(10C) of the Act, the .....

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filed under Section 264 of the Act. Having found that the appeal is maintainable before him after condoning the delay, the CIT(Appeals) cannot take a technical plea that the same was not raised in the return of income. According to the Ld. counsel, of course, the provisions of Section 154 of the Act can be invoked to rectify the error which is apparent on the face of record. The fact remains that the assessee received retirement benefit and eligible for exemption under Section 89(1) and 10(10C) .....

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or the assessee submitted that the Apex Court has clearly found that the power of this Tribunal is to entertain the additional ground is not impugned. Therefore, according to the Ld. counsel, this Tribunal can very well examine the claim made by the assessee under Section 10(10C) of the Act. If the Tribunal feels that the claim has to be first examined by the Assessing Officer, the Ld.counsel submitted that he has no objection in remitting back the matter to the file of the Assessing Officer. 5. .....

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wever, the assessee filed appeal before the CIT(Appeals) after eight years. The CIT(Appeals) condoned the delay and also found that the appeal is maintainable even though the Administrative Commissioner rejected the appeal filed under Section 264 of the Act. On a query from the Bench - whether the Revenue has challenged the order of the CIT(Appeals) for condoning the delay of eight years and the finding of the CIT(Appeals) that the appeal is maintainable even after the rejection of application f .....

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resh claim by way of application under Section 154 of the Act. In other words, according to the Ld. D.R., the assessee cannot claim exemption under Section 10(10C) of the Act by way of petition under Section 154 of the Act. 6. I have considered the rival submissions on either side and perused the relevant material available on record. Admittedly, the assessee filed return of income claiming deduction under Section 89(1) of the Act in respect of the retirement benefit received from ICICI Bank on .....

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e intimation issued under Section 143(1) was rejected. Subsequently, the assessee filed an appeal against the intimation issued under Section 143(1) of the Act before the CIT(Appeals). The CIT(Appeals) in his order clarified that the appeal was filed against the intimation issued under Section 143(1) of the Act and not against the order passed by the Assessing Officer under Section 154 of the Act. The delay of 8 years was condoned by the CIT(Appeals). The CIT(Appeals) has also found that the app .....

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f the Act was not made by the assessee in the return of income, therefore, the assessee cannot make the claim by way of petition. At the best, the assessee can claim by way of a revised return. In this case, admittedly, revised return was not filed by the assessee. The fact remains that what was received by the assessee is retirement benefit consequent to Early Retirement Option Scheme, 2003 implemented by ICICI Bank. Therefore, the assessee is eligible for exemption under Section 89(1) and 10(1 .....

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rt found that the assessee can very well bring to the notice of the Assessing Officer in case an income which is otherwise chargeable to tax was included in the total income. The Apex Court observed as follows:- ……if the assessee has, by mistake or inadvertence or on account of ignorance, included in his income any amount which is exempted from payment of income-tax, or is not income within the contemplation of law, he may likewise bring this to the notice of the assessing authorit .....

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