9911796707
TMI Blog2012 (11) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... ad case and the decision in the same will be applicable for all other appeals as well. 2. By way of this appeal, the assessee-appellant has challenged correctness of learned Commissioner of Income Tax (Appeal)'s order dated 12th August, 2011 in the matter of order under section 154 w.r.s. 143(3) for the assessment year 2004-05 on the following grounds :- "(1) That on facts as well as on law, the order passed by the ld. CIT(A) is perverse, biased, arbitrary and liable to the quashed. (2) That, on facts as well as on law, the ld. CIT(A) has failed to appreciate that non-consideration of the decision of the jurisdictional High Court on identical issue gives rise to a mistake apparent from the record within the meaning of the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quested the assessee to grant deduction under section 10(10C) for an amount of Rs. 5,00,000/-. This claim of the assessee was said to be supported by Hon'ble Jurisdictional High Court's judgment in the case of SAIL DSP VR Employees' Association, 1998 v. Union of India [2003] 262 ITR 638. Even though the said judgment was passed on 12.02.2003, it appears somehow the judgment escaped the attention of the assessee as also the Assessing Officer. In substance, the prayer of the assessee was that, in conformity with the correct legal position and as held by the Hon'ble Kolkata High Court in the case of SAIL DSP V.R. Employees' Association, 1998 (supra), the deduction under section 10(10C) for an amount of Rs. 5,00,000/- be all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the finding that the scheme for Voluntary Retirement floated by SAIL confirmed to Rule 2BA. The Hon'ble High Court also gave the finding that nowhere there was any provision in the scheme which could be said to be in conflict with the retirements of Rule 2BA. However, in the present case, the issue relates to the Voluntary Retirement Scheme floated by the Hongkong and Sanghai Banking Corporation Limited, and the Assessing Officer gave the finding in the assessment order that the scheme was not in conformity with Rule 2BA of Income Tax Rules, 1962. Hence, there is no error apparent from the records in the order passed by the Assessing Officer. Hence this ground is also dismissed". The assessee is aggrieved and is in appeal before us. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of section 10(10C) are to be "interpreted in a manner beneficial to the optee for retirement, if there is any ambiguity". In view of this binding legal position, it is clear that on the point of ambiguity, if any, an interpretation in favour of the assessee is to be adopted. That is how, according to Hon'ble jurisdictional High Court, section 10(10C) is to be interpreted. 8. Let us now take note of a Third Member decision of this very Tribunal in the case of Dy. CIT v. Krishna Gopal Saha [2009] 121 ITD 368 (Kol.) wherein the assessee was a former employee of Standard Chartered Bank and admittedly the voluntary retirement scheme offered by the SCB was not in conformity with Rule 2BA of the Income Tax Rules (as noted in paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is clearly a mistake apparent on record. That is precisely what has happened in this case. The Assessing Officer disregarded Hon'ble jurisdictional High Court in the case of SAIL DSP VR Employees' Association, 1998 (supra), on the ground that this issue has already been decided in assessment order and, therefore, it cannot be reconsidered, even in the light of Hon'ble jurisdictional High Court's decision. learned CIT(A), on the other hand, referred to an aspect of the said decision. In our considered view, what ought to have been examined by the Assessing Officer was whether, in the light of the principles laid down by Hon'ble jurisdictional High Court, the interpretation canvassed by the assessee could be accepted as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
