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TMI Blog2018 (7) TMI 1731X X X X Extracts X X X X X X X X Extracts X X X X ..... es, the order refusing to refund the excess tax paid by the assessee is not sustainable. Accordingly, the impugned order passed by the first respondent in C.No.407/01/CIT-I/2009-10, dated 18.02.2011, is set aside and the respondents are directed to refund the excess amount, which the petitioner is entitled to, as per Section 10(10C) of the Income Tax Act, 1961. - W.P (MD) No. 10602 of 2011 - - - Dated:- 5-6-2018 - MR. M. GOVINDARAJ, J. For The Petitioner : Mr. N. Mohideen Basha For The Respondents : Mrs. S. Srimathy ORDER Challenging the order passed by the first respondent in C.No. 407/01/CIT-I/2009-10, dated 18.02.2011, in and by which, the claim of the petitioner for exemption under Section 10(10C) of the Income Tax Act, has been rejected, the petitioner is before this Court. 2. According to the petitioner, he is an employee of ICICI Bank. He opted for Early Retirement Optional Scheme. Originally, the petitioner/assessee filed her return of income for the assessment year 2004-05 on 03.12.2004 admitting a total income of ₹ 10,19,201/- and it was processed under Section 143(1) of the Income Tax Act on 21.02.2005. Thereafter, she filed a revised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gement as the Central Government may, by notification in the Official Gazette, specify in this behalf, On his voluntary retirement or termination of his service, in accordance with any scheme or schemes of 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 lakh 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: Provided also that where any relief has been allowed to an assessee under section 89 for any assessment year in respect of any amount received or receivable on his voluntary retirement or termination of service or voluntary separation, no exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( 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 employee of a public sector company under the scheme of voluntary separation framed by such public sector company. 5. According to the Rule, any Scheme shall be in conformity with Rule 2BA of the Income Tax Rules, 1962. 6. According to the Income Tax Department, Voluntary Retirement Scheme issued by the ICICI Bank is not in conformity with the Rules. Therefore, the employees are not entitled to any exemption under Section 10(10C) of the Income Tax Act, 1961 (hereinafter referred to as the Act ). 7. The said Voluntary Retirement Scheme was put to judicial scrutiny in view of Rule 2BA of the Income Tax Rules, 1962. There were different views by various High Courts. Ultimately, in the judgment of Commissioner of Income Tax vs. Koodathil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2004-2005. As per Section 10(10C) of the Act, the individual is entitled to exemption upto ₹ 5,00,000/-. The Hon'ble Supreme Court as well as Bombay High Court have categorically held that the employees are eligible for exemption under Section 10(10C) of the Act. Rule 2BA of the Income Tax Rules, 1962, cannot exceed the provisions of the Act. Therefore, the impugned order passed by the first respondent is per se illegal and is not sustainable any further. 11. As discussed above, the matter has attained finality in Commissioner of Income Tax vs. Koodathil Kallyatan Ambujakshan (2008) 219 CTR (Bom) 80 and the same stands confirmed by the Hon'ble Supreme Court in Chandra Ranganathan Ors. vs. Commissioner of Income Tax, Chennai, dated 2 1.10.2009, in Civil Appeal Nos.6997 - 7002 of 2009 . Thereafter, the Special Leave Petitions filed in respect of orders of the Division Bench of this Court in S.L.P.Nos.5281 - 5339/2014, etc., batch were dismissed by the Hon'ble Supreme Court leaving the question of law kept open, by an order dated 08.10.2014 and again, in Civil Appeal Nos.8908 of 2013, etc., batch, except Civil Appeal Nos.51 of 2010 and 4411 of 2010, all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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