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TMI Blog2017 (2) TMI 1517X X X X Extracts X X X X X X X X Extracts X X X X ..... examining the later provision. In view of the fact that held the assessee to be entitled to exemption u/s 10(10)(i) in respect of arrears of gratuity, following the same, extend the benefit of exemption u/s 10(10AA)(i) in respect of arrears of leave encashment. - Decided in favour of assessee. - ITA No. 5379/Del/2016 - - - Dated:- 23-2-2017 - N.K. SAINI, ACCOUNTANT MEMBER For the Appellant : Sh. V. Raja Kumar For the Respondent : Sh. Ramanjaneyulu, Sr. DR ORDER PER N.K. SAINI, A.M. : This is an appeal by the assessee against the order dated 23.12.2015 of CIT (A), Hisar. Following grounds have been raised in this appeal:- 1. Initiating proceedings u/s 147 of the Income Tax Act, 1961 and completing assessment u/s 147/143(3) of the Act at an income of Rs. 11, 36,480/- against the returned income in a sum of Rs. 2, 91,710/-. 2. Initiating proceedings u/s 147 of the Act on the basis of change of opinion without there being any reason to believe that income has escaped assessment. 3. Passing order u/s 147 of the Act without disposing of the objection to reopening by speaking order. 4. Making an addition of Rs. 6,50,000/- on account of arrear of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and plausible cause, the same may please be condoned and the appeal be taken on record for consideration and adjudication. 4. During the course of hearing, the learned counsel for the assessee reiterated the aforesaid contents of the application for delay of condonation. The learned DR in his rival submissions opposed the delay of condonation by stating that there is no valid reason for delay in filing the appeal. 5. I have considered the submissions of both the parties and gone through the material available on the record. In the present case, the main contention of the assessee for delay in filing the appeal was that his wife was suffering from cancer and he was busy in her treatment. The said contention was not rebutted. I, therefore, considering the above fact condone the delay and the appeal is admitted. 6. The main grievance of the assessee relates to the sustenance of addition on account of arrears of gratuity and the arrears of leave encashment received from the State Government after retirement. 7. The facts of the case in brief are that the assessee was an employee of the Chaudhary Charan Singh Haryana Agricultural University, Hisar and retired on 31.12.2006. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT Delhi Benches, SMC-II , New Delhi in ITA No. 3713/Del/2016 for the assessment year 2011-12 in the case of Dharam Jeet Dahiya Vs ITO, Ward-1, Hisar, wherein the relevant findings have been given in paras 7 8 of the order dated 26.10.2016 which read as under: 7. It is noticed that an identical issue relating to the gratuity, having similar facts has already been adjudicated by the ITAT Delhi Benches SMC-1 , New Delhi in ITA No. 1307/Del/2016 for the assessment year 2010-11 in the case of Ram Kanwar Rana Vs ITO, Ward-3, Hisar, wherein the relevant findings have been given in paras 4 to 10 of the order dated 16.06.2016 which read as under: 4. I have heard the rival submissions and perused the relevant material on record. The controversy in this appeal can be viewed separately in respect of receipt of gratuity amount and leave encashment. In so far as the addition on account of gratuity received by the assessee amounting to Rs.6,50,000/- is concerned, it is found that the case of the assessee is that this amount falls u/s 10(10)(i) of the Act. On the contrary, the Revenue has treated it as a case falling u/s 10(10)(iii). In order to appreciate the rival contentions in ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial gazette. It is an accepted position that the Notification u/s 10(10)(iii) issued on 24.5.2010 raised the ceiling of exemption from Rs.3,50,000/- to Rs.10 lac. Since the original amount was received by the assessee during the currency of an earlier year on his retirement, the exemption limit prevalent at that time at Rs.3,50,000/- was used by the assessee. It is nobody s case that the extended limit of exemption can be applied to the assessee, because of his retirement which took place much before the cut-off date. To be more specific, the question is as to whether the extant case falls under clause (i) or clause (iii) of section 10(10). If a case does not fall under clause (i), it will automatically go to clause (iii). On a specific query from the Bench, the ld. AR submitted that the case of the assessee should be considered under sub-clause (i) of section 10(10) as a holder of civil post under a State. In order to construe any person as a holder of civil post under a State, two requirements must be fulfilled viz., first that the employee should be holding a civil post and, second, such civil post must be under a State. 6. The first condition is that the employee should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpreted in Umesh v. Singh A 1967 Pat. 3(9) F.B. as including: a Board, a University, the Chief Justice of a High Court, having the power to issue rules, bylaws or regulations having the force of law. The above discussion manifests that CCSU is covered within the meaning of State . 8. As the assessee is found to be an employee holding a civil post under a State, in my considered opinion, the provisions of section 10(10)(i) are fully attracted in this case entitling him to exemption for the amount under consideration. Once a case falls under clause (i) of section 10(10), the same cannot be brought within the purview of clause (iii) of section 10(10). I, therefore, hold that the assessee is entitled to exemption u/s 10(10)(i) in respect of gratuity amount received in total upto Rs.10 lac, which covers a sum of Rs.6,50,000/- received during the year. Overturning the impugned order on this score, I allow exemption u/s 10(10)(i) to the arrears of gratuity received by the assessee at Rs.6,50,000/- during the instant year. 9. As regards the second amount of Rs.1,88,720/- received by the assessee during the year towards the arrears of leave encashment, it is noticed that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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