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TMI Blog2009 (7) TMI 1255X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 25 years of full-time regular service in the Bank and have also completed 50 years of age. Only an employee who has completed 25 years of service and 50 years of age as on 1st August 2003 (for convenience), will be eligible to apply for retirement under the Scheme. (c) The Scheme will be available to an employee entirely at his/her option/discretion. The employees in the Bank's service would be fully entitled to continue in service, with all benefits for which they are eligible, if they decide not to opt for this facility. The eligible employees should apply in the prescribed application form. (e) On acceptance of an employee's application by the Bank, his/her date of relieving from service, will be decided by the Bank in keeping with administrative exigencies/convenience and advised in writing. Once an employee's application under OERS has been accepted, the option will be irrevocable. (g) Income Tax shall be deducted at source on the entire amount payable as Ex-gratia. (j) As retirement under OERS is optional, it shall not be negotiable and shall not be deemed or construed as a subject matter of right or contract of service. It will not be a sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whichever is less. 6. Income Tax Liability: Income Tax, if any, on the amount of Ex- gratia, will have to be borne entirely by the employees concerned. The Ex-gratia amount will be payable in one lump sum subject to recovery of Income Tax, which is to be borne entirely by the employee. 7. Retirement benefits: In addition to the Ex-gratia amount payable, employees who are granted early retirement under the Scheme will be eligible for retirement benefits viz. PF, Pension, Gratuity, Encashment of Ordinary Leave and Bonus under Guarantee Fund as per normal rules applicable in that respect. 8. Weightage of service for Pension: Addition of service up to five years in the qualifying service for Pension, if admissible under the provisions of RBI Pension Regulation, 1990, will not be available for calculation of amount of Ex-gratia payable. 10. Vacation of Bank's residential accommodation: An employee who is in occupation of residential accommodation provided by the Bank, will be permitted to retain the Bank's/leased flat beyond the date of retirement under the Scheme for a maximum period of 3 months, recovery of rent being made at normal rate for the first 2 mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y State of States, as the Central Government may, by notification in the Official Gazette, specify in this behalf; or (viii) such institute or management as the Central Government may, by notification in the Official Gazette, specify in this behalf, at the time of his voluntary retirement or termination of his service, in accordance with any scheme or schemes or 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 lakhs 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 including inter alia criteria of economic viability as may be prescribed: Provided further that where exemption has been allowed to an employee under this clause for any assessment year, no exemption thereunder shall be allowed to him in relation to any other assessment year; In terms of Clause (g) of the OERS extracted hereinabove, the Reserve Bank of India had reserved upon it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome Tax Act provisionally attaching the refund vouchers/cheques. The petitioners wrote letters dated 5th January, 2005 and 10 th January, 2005, through their Advocate, to the Assessing Officer, requesting that the returns already filed by the petitioners be treated as returns filed in pursuance of the notices under Section 148 of the Income Tax Act. By several letters addressed to the respective petitioners the Assessing Officer intimated to the petitioners the reasons under Section 148(2) of the Income Tax Act for initiating proceedings under Section 147 of the Income Tax Act, 1961 for assessment and/or re-assessment of income that had allegedly escaped attention. The reasons disclosed to the various petitioners were identical and are as follows: It appears from the return for the assessment year 2004-05 that the assessee had claimed exemption under Section 10(10C) of the Income Tax Act, 1961 to the tune of ₹ 5,00,000/-. The return was processed under Section 143(1) on 23r d August, 2004 in which the claim of such exemption under Section 10(10C) was allowed. Refund to the tune of ₹ 1,53,905/- was raised and the refund voucher is also granted to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing requirements, namely:-- (i) it applies to an employee who has completed 10 years of service or completed 40 years of age; (ii) it applies to all employees (by whatever name called) including workers and executives of a company or of an authority or of a co- operative society, as the case may be, excepting directors of a company or of a co-operative society; (iii) the scheme of voluntary retirement or voluntary 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 completed year of service or salary at the time of retirement multiplied by the balance months of service left before the date of his retirement on superannuation: Provided that requirement of (i) above would not be applicable in case of amount received by an emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osite decision of the Income Tax Appellate Tribunal in the appeals being ITA No.471/MDs/06, ITA No.472/MDs/06, ITA No.501/MDs/06 and ITA No.518/MDs/06. The order of the learned Tribunal is extracted hereinbelow: It may not be out of place to mention that the Calcutta High Court while dealing with the Writ Petition in 4957/W/04 in its operative para has expressed the following view: Prima facie, it appears that money received on account of voluntary retirement upto to the sum of ₹ 5 lakhs was not taxable. The Reserve Bank of India, it appears, was conscious of the legal position and that is why it went in for advice in the matter. The correctness of the advice rendered to them, however, appears to be doubtful. This court, however, does not pass any opinion with regard thereto This will answer whether the opinion expressed by the Chartered Accountant on the issue will make the sums in question taxable. Neither the opinion of the Chartered Accountants nor the views of the RBI will finally determine the fate of exemption that is claimed u/s 10 (10C) but the satisfaction of the conditions or guidelines laid down by the I.T. Rules, 1961. A plain reading of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 10(10C), the requisites of Rule 2BA are to be complied. The OERS applied to all employees who had completed twenty five years of service, which is, over ten years, and had attained fifty years of age, that is, over forty years. The OERS is apparently designed to reduce the overall employee strength and, therefore, conforms to Rule 2BA (iii). This is clarified by Circular No.1 dated 11th August, 2003 of RBI. The OERS also does not contravene Rule 2BA (iv), whereunder the vacancy caused by the employee opting for OERS is not to be filled up. The OERS does not contemplate filling up of the vacancies caused by reason of exercise of option to retire under the OERS. Moreover, reservation of a right to make appointments at some future point of time, should the need arise, cannot amount to contravention of Rule 2BA (iv). In any case, there was an order of the Commissioner of Income Tax (Appeals) in favour of some employees covered by the same OERS. The Appeal therefrom had been rejected since the revenue involved did not exceed ₹ 2 lakhs. Moreover, the Income Tax Appellate Tribunal had, in the Appeal referred to above, clearly held, in no uncertain terms that Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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