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TMI Blog2012 (11) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... . Appellant by: Shri K.P. Bajaj Respondent by: Shri Akhilesh Gupta ORDER PER T.R. SOOD, A.M In this appeal the assessee has raised the following ground: That on facts and circumstances of the case, the ld. CIT(A) was not justified in upholding the disallowance of exemption u/s 10(10C) of the Income-tax Act. 2. The appeal has been filed late by 541 days. The assessee has filed an application for condonation of delay which is duly supported by the affidavit. The ld. counsel of the assessee referred to the application and pointed out that originally the assessee has filed return declaring income of Rs. 13,10,521/- on which total tax due including interest was Rs. 80,950/-. Later on this return was revised declaring total income of Rs. 8,10,521/- after claming deduction u/s 10(10C) amounting to Rs. 5.00 lakhs and total tax remained only at Rs. 50,369/-. However, the Assessing Officer did not allow the deduction u/s 10(10C) of the Act. Accordingly rectification application was moved for allowing deduction u/s 10(10C). The rectification application was rejected vide Rectification order dated 16.2.2010 on which tax due was determined at Rs. 80,954/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Opt ion Scheme does not satisfy the conditions laid under section 10(10C) read with rule 2BA which is incorrect and as such the exempt ion withdrawn and upheld is wholly unwarranted. 3. That the order of the ld. CIT(A) is erroneous, arbitrary, opposed to law and facts of the case and is, thus untenable. 3. The facts of the case in brief are that the assessee Bikram Jit Passi filed return of income, on 11.08.2008 for the assessment year 2008-09. During the course of assessment proceedings, the AO noted that the assessee had claimed exemption u/s 10(10C) of the Act amounting to Rs.5,00,000/-. The AO disallowed the claim of the assessee's as not being eligible for exempt ion u/s 10(10C) of the Act. 4. The CIT(A) upheld the order of the AO. The relevant findings of the CIT(A) are as under : Keeping in view the clear conditions in the scheme regarding filling up of vacancies caused by the release of officers and the confirmation by the Bank at point No.10 above that the scheme does not comply with section 10(10C) of the IT Act and is not approved by Income Tax Department conditions No. (iii) (iv) of Rule 2BA are violated. Therefore, the scheme is not eligible for exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... option. If Assessing Officer had any doubt about the scheme he could have enquired from the employer. So far as the assessee employee is concerned, he cannot be penalized and tax will be levied on him on the assumption that the scheme framed by employer is not in accordance with rule 2BA. In any case, the judgment of Third Member in Dy.CIT v. Krishna Gopal Saha (supra) is clearly applicable and we do not find any reason to take a different view. For the sake of convenience we refer to following para from the Third Member judgment in Dy. CIT v. Krishna Gopal Sahas case (supra) as under : 5. At the time of hearing before me, none appeared on behalf of the assessee- respondent . I have, therefore, heard the learned department Representative and perused the material placed before me. I find that the issue has been considered by the Hon'ble jurisdictional High Court in the case of SAIL DSP VR Employees Association 1998 v. Union of India (supra) in which their Lordships held as under : section 10(10C) of the Income Tax Act , 1961, uses the expression any amount received by an employee . At the time of his voluntary retirement in accordance with any scheme or schemes of voluntary retire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to deduction under section 10(10C) has deducted tax at source on the amount paid on voluntary retirement . The facts being identical, the above decision of Hon'ble jurisdictional High Court would be squarely applicable to the case under appeal before the Tribunal. 6. Similarly, Hon'ble Bombay High Court in the case of CIT v. Nagesh Devidas Kulkarni (supra) held as under : The assessee is entitled to the exempt ion under section 10(10C) of the Act and also rebate under section 89 of the Act in respect of the amount received in excess of Rs.5,00,000 on account of voluntary retirement . Thus their Lordships have held that the assessee, who opts for voluntary retirement , is not only entitled to exemption under section 10(10C) but also rebate under section 89 of the Income Tax Act . Similar view is taken by the Hon'ble Karnataka High Court in the case of CIT v. P. Surendra Prabhu (supra) wherein their Lordships held as under : That the assessee, employee of the respondent bank was not only entitled to the benefit of exemption under section 10(10C) of the Act to the extent prescribed in the provision itself but for any amount over and above the prescribed limit ; under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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