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TMI Blog2010 (12) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... d they relate to the assessment year 2007-08. Since the issue urged in these appeals is identical in nature, they were heard together and are being disposed of by this common order. 2. These assessees are challenging the direction given by learned CIT to the Assessing Officer to revoke the exemption granted to them under section 10(10C) of the Act on the Ex-gratia amount received by them on Voluntary retirement. 3. The facts relating to the issue are stated in brief. All these assessees have retired from the State Bank of India under "Exit Option Scheme" (EOS) framed by the said Bank. These assessees claimed exemption under section 10(10C) of the Act on the ex-gratia amount received by them under the said scheme. Their respective return o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im of the assessee and hence the same cannot be termed as an erroneous order. In this regard the learned Authorised Representative relied upon the decision of ITAT Agra Bench in the case of Radhey Shyam Agarwal (HUF) vs. CIT (2010) 35 (III) ITCL. 392 (Agra-Trib), wherein it has been held as under: "When Assessing Officer had reopened the very same issue which was under revision and had examined all the details and after verifying and being satisfied, has taken a plausible view, his order cannot be treated as erroneous simply because in his order, he had not made elaborate discussion with reference to his satisfaction". He further submitted that the learned CIT has initiated the proceedings under section 263 of the Act on the basis of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Authorised Representative further submitted that the State Bank of India has modified the Exit option scheme, vide its circular dated 5th September, 2006 and on such modification the second and third conditions specified in Rule 2BA, which were stated by Learned CIT as not complied with, also becomes fulfilled. The Learned A.R pointed out that the learned CIT has failed to consider the circular dated 5-9-2006 of the State Bank of India referred (Supra). The learned Authorised Representative, by placing reliance on the decision of ITAT Ahmedabad in the case of Pandya Vinodchandra Bhogilal vs. Income Tax Officer (2010) 133 TTJ (Ahd) 253, submitted that the assessee cannot be penalized on the assumption that the scheme framed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income-tax Act, 1961 empowers the Commissioner to call for and examine the record of any proceedings under the Act and, if he considers that any order passed therein, by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, to pass an order upon hearing the assessee and after an enquiry as is necessary, enhancing or modifying the assessment or canceling the assessment and directing a fresh assessment. The key words that are used by section 263 are that the order must be considered by the Commissioner to be "erroneous in so far as it is prejudicial to the interests of the Revenue". This provision has been interpreted by the Supreme Court in several judgments to which it is now necessary to turn. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax Officer is unsustainable in law." The principle which has been laid down in Malabar Industrial Co. Ltd. [2000] 243 ITR 83 (SC) has been followed and explained in a subsequent judgment of the Supreme Court in CIT v. Max India Ltd. [2007] 295 ITR 282." 7. Coming to the facts of the case, we first notice that the Learned CIT has relied on the directives of CBDT issued in the letter dated 06-10-2009, which is apparently issued after the completion of the impugned assessment orders. Secondly, the Learned CIT has opined that the Exit Option Scheme does not fully comply with the rule 2BA of the Income tax Rules and accordingly held that the ex-gratia payment received under the said scheme will not be entitled to exemption under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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