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TMI Blog2020 (5) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... engaged another advocate who prepared the appeal papers by the end of July. Due to natural calamities in August, there was communication gap between the assessee and the advocate. Finally, the appeal was filed on 19/09/2018. The assessee submitted that due to aforesaid reasons, there was delay of 88 days in filing the appeal. The assessee submitted that there are no wilful latches or negligence in not filing the appeal within the statutory time limit and the delay was occurred due to genuine, compelling, bonafide and legitimate reasons. Thus, it was prayed that the delay in filing the appeal may be condoned otherwise the assessee would be put to irreparable loss and injury, 2.1 The Ld. DR present was duly heard. 2.2 I have gone through the condonation petition and the reasons stated in the affidavit for belatedly filing of the appeal. The delay in filing of the appeal cannot be attributable to any latches on the part of the assessee, hence, I condone the delay of 88 days and proceed to dispose off the appeal on merits. 3. The solitary issue that is raised is whether the CIT(A) is justified in confirming the action of the Assessing Officer in disallowing the claim of deduction u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with the conditions formulated under Rule 2BA of the I.T. Rules 1962. In this connection it is worthwhile to note that voluntary retirement scheme is designed in broader sense considering the various aspects mentioned in Rule 2BA and it cannot be equated to any other retirement scheme even though the employee is opting the retirement voluntarily. In addition to the above, in the certificate issued by State Bank of India attached with the return of income in respect of the Exit Option Scheme it is clearly mentioned that the amount of ex-gratia will be added to the income of the employee for the year and income-tax recovered at the applicable rate at source. SBI has also deducted the tax at source including this ex-gratia granted to the employee at the time of retirement. In the certificate also the retirement scheme is mentioned as Exit Option Scheme and there is no reference at the point regarding the eligibility of the conditions prescribed in Rule 2BA of the I.T.Rules 1962 which stipulates the eligibility criteria for exemption u/s 10(10C)." "7. During the course of assessment proceedings the assessee failed to furnish any details or the working in respect of relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n & Others v. CIT (326 ITR 49) (SC) (ii) CIT vs. Koodathil Kallyatan Ambujakshan (2009) (309 ITR 113) (Bom.) (iii) CIT & Another vs. Appasaheb Baburao Lambe (2015) (370 ITR 499) (Kar.) 6.1 The Ld. DR on the other hand strongly supported the orders of the Income Tax authorities. 7. I have heard the rival submissions and perused the record. The solitary issue for my consideration is whether CIT(A) is justified in confirming the action of the AO in denying the benefit of claim of deduction u/s. 10(10C) of the I.T. Act. The relevant section, namely, section 10(10C) of the I.T. Act reads as follows: "10. Incomes not included in total income - In computing the total income of a previous year of any person, any income falling within any of the following clauses shall not be included-..... (10C) any amount received by an employee of - (i) a public sector company; or (ii) any other company; or (iii) an authority established under a Central State or Provincial Act; or (iv) a local authority; or (v) a co-operative society; or (vi) a University established or incorporated by or under a Central, State or Provincial Act and an institution declared to be a University under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Technology within the meaning of clause (g) of section 3 of the Institute of Technology Act, 1961 (59 of 1961); or (viii) such institute of management as the Central Government may, by notification in the Official Gazette, specify in this behalf, at the time of his voluntary retirement or voluntary separation shall be exempt under clause (10C) of section 10 only if the scheme of voluntary retirement framed by the aforesaid company or authority; or co-operative society or University or institute, as the case may be, or if the scheme of voluntary separation framed by a public sector company is in accordance with the following 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 voluntary reti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in 139 ITD 526 had held that compliance of Rule 2BA is mandatory for availing the benefit of exemption u/s. 10(10C) of the I.T. Act. The above order of the Tribunal was confirmed by the Hon'ble High Court of Karnataka (reported in 356 ITR 468). In the instant case, the assessee has failed to produce certificate from the employer (SBI) stating that the 'exit option scheme' is eligible for benefit of exemption u/s. 10(10C) of the I.T. Act and is in accordance with the guidelines formulated in Rule 2BA of the I.T. Rules. On the contrary, the certificate issued by the State Bank of India (employer of the assessee) along with the return of income in respect of the above scheme has clearly mentioned that the amount of ex gratia would be added to the total income of the employee for the year and income tax would be recovered at the applicable rate at source. The employer-Bank (SBI) has also deducted tax at source including the ex gratia granted to the employee at the time of retirement. In the certificate also, the retirement scheme is mentioned as 'exit option scheme' and there is no reference regarding fulfilment of conditions prescribed under Rule 2BA of the I.T. Rules, 1962 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As regards the judgment of the Bombay High Court in the case of CIT vs. Koodathil Kallyatan Ambujakshan (309 ITR 113) (Bom.) is concerned, the voluntary retirement scheme was floated by RBI. The scheme of voluntary retirement floated by RBI was recognized by CBDT and this fact was noted by Hon'ble Apex Court in the case of Chandra Ranganathan & Others (supra). 7.6 The judgment of the Hon'ble Karnataka High Court in the case of CIT & Another vs. Appasaheb Baburao Lambe (supra) relied on by the Ld. AR is also distinguishable on facts. In the case considered by the Hon'ble Karnataka High Court, the Hon'ble Court confirmed the factual finding of the ITAT that all the conditions under Rule 2BA of the I.T. Rules, 1962 have been cumulatively satisfied. On the contrary in the instant case employer has deducted tax at source u/s. 192 of the I.T. Act on ex-gratia amount received and the employer has not vouched that the conditions mentioned under Rule 2BA has been cumulatively satisfied. 8. For aforesaid reasons, I am of the view that the assessee is not entitled to the benefit of exemption u/s.10(10C) of the I.T. Act. It is ordered accordingly. 9. In the result, the appeal of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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