TMI Blog2019 (2) TMI 2069X X X X Extracts X X X X X X X X Extracts X X X X ..... in MTNL as per section 10(10AA)(i) of the Act as applicable to Central Govt. because before that date he was employee of Govt. of India that the Central Government. The amount of leave encashment in respect of leave accrued after absorption in MTNL will be governed by the exemption as per section 10(10AA)(ii) of the Act. Facts are clearly in favour of assessee and for 263 days of leave as on the date of absorption was available to the assessee, which was earned and unutilized from Government service i.e. Central Government and will be governed by 10(10AA)(i) - The balance 37 days of leave earned is from MTNL and will be governed as per the provisions of section 10(10AA)(ii) of the Act. Accordingly,allow the appeal of the assessee and di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on advice of another Chartered Accountant. 3. I find that the CIT(A) passed the order on 25.10.2017, which was received by the assessee on 08.11.2017. The appeal before Tribunal was filed on 16.05.2018 and thereby there is a delay of 129 days. The assessee is retired pensioner from Department of Telecommunications (DOT) Government of India and a senior citizen. In this appeal only the issue was whether the assessee is entitled for exemption of leave encashment of the full amount or restricted to 3 lacs. The CIT(A) restricted the exemption at ₹ 3 lac and appeal of assessee was dismissed for which the CA of the assessee Mr. Srinivasraghavan Srivatsan advised him not to file any appeal. 4. I find that no malafide can be at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raph Department, Bombay Telephone Exchange vide appointment letter dated 24.04.1980. Subsequently, the Government of India had issued a declaration and order of appointment under rule 3 and 4 of the Central Civil Services (Temporary Service) Rules 1965 dated 22nd June 1983 to the effect that the appellant on being found suitable to be appointed in a quasipermanent capacity under the Government of India Department of Telecommunications in the post of Junior Engineer with effect from 22nd June 1983 and is appointed as Junior Engineer in a quasi-permanent capacity to the said post with effect from the said order vide letter dated 22nd June 1983. Subsequently, the government of India, Ministry of Communication and IT, Department of Telecommunic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice 263 No. of days of leave earned in MTNL service (1-2) 37 And also find that the Govt. of India, Ministry of Communication and IT, Department of Telecommunications vide reference No. DIR(Estt)/MTNL Absorption/TES Gr. B/Mumbai/03-04 dated 19.01.2004 has permanently absorbed the assessee in MTNL and the earned leave stand transferred to MTNL vide Para 6 and this is admitted as under: - 6. Leave:- The earned leave and Half Pay leave at the credit of Shri/Smt./Kumar Patel B B stands transferred to MTNL on the date of absorption as provided for under sub-rule 24(b) of Rule 37a of CCS (pension) Rules. 7. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O and CIT(A) in their orders). I find that the assessee has 263 days of earned leave as on the date of absorption from Government Services to MTNL and the balance 37 days is the leave earned from services with MTNL. 8. The AO, in view of the above facts has allowed the exemption under section 10(10AA)(ii) of the Act restricting the same at ₹ 3 lac by holding that that the assessee was not a Central Government or State Government employee and hence, he is entitled for exemption under section 10(10AA)(ii) of the Act at ₹ 3 lac. The CIT(A) also restricted the exemption under section 10(10AA)(ii) of the Act at ₹ 3 lac. Aggrieved, assessee is in second appeal before Tribunal. 9. I have heard the rival contentions and gone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that date he was employee of Govt. of India that the Central Government. The amount of leave encashment in respect of leave accrued after absorption in MTNL will be governed by the exemption as per section 10(10AA)(ii) of the Act. I find that the facts are clearly in favour of assessee and for 263 days of leave as on the date of absorption was available to the assessee, which was earned and unutilized from Government service i.e. Central Government and will be governed by 10(10AA)(i) of the Act. The balance 37 days of leave earned is from MTNL and will be governed as per the provisions of section 10(10AA)(ii) of the Act. Accordingly, I allow the appeal of the assessee and direct the AO to recompute the exemption proportionately as directed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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