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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 ..... nt of arrear of leave encashment received from the State Government after retirement by restricting the exemption claimed u/s 10(10AA)(i) of the Act. 6. That Commissioner of Income Tax (Appeals), Hisar has not issued notice before hearing of appeal, which is illegal. Hence order of the Commissioner of Income Tax (Appeals) and order of the Assessing Officer, must be quashed. 2. Ground nos. 1 to 3 were not pressed so these grounds are dismissed as not pressed. 3. The appeal filed by the assessee is belated by 217 days and the assessee filed an application dated 03.10.2016 for condonation of delay stating therein as under: "The appellate Order from the Commissioner of Income Tax (Appeals), Hisar was received on 11-01-2016. The appeal in this case was required to be filed by 10- 03-2016. The same is being done today. There is delay of 207 days in so doing. The reason for the delay is that due to the serious illness i.e. Cancer to my wife Sudesh Kumari and I was disturbed and busy in treatment of my wife. Hence, matter could not be attended. The second reason for the delay is that the impugned order of fhe Ld. CIT(A) was passed even without serving the mandatory notice for hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also received a sum of Rs. 1,94,770/- on account of arrears of leave encashment which was claimed as exempt u/s 10(10AA)(i) of the Act. 8. The AO did not allow the claim of the assessee by observing as under: "In view of the finding given in the foregoing paras, the employee of the CCS HAU cannot be termed as Govt employee as neither they are under the control of Haryana Govt. nor their pay is debited to the consolidated funds of the state. Application of CSR Vol. II does not confer vice-versa status as Govt. employee under any rule/authority as claimed by the assessee .Hence, it is clear that university employees are covered u/s 10(10)(iii) of the Income-tax Act, 1961 because neither sec. 10(10)(ii) applies as they are not receiving gratuity under the payment of gratuity Act, 1972 nor from the gratuity funds mentioned u/s 10(10)(i) of the Act. In view of these facts, the exemption allowable to the assessee in respect of gratuity and leave encashment is only Rs. 3,50,000/- and Rs. 3,00,000/- respectively which has already been claimed/allowed. Thus, the claim of the assessee for exemption of gratuity received in arrear of Rs. 6,50,000/- and arrear of leave encashment of Rs. 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may be, the Central Civil Services (Pension) Rules, 1972, or under any similar scheme applicable to the members of the civil services of the Union or holders of posts connected with defence or of civil posts under the Union (such members or holders being persons not governed by the said Rules) or to the members of the all-India services or to the members of the civil services of a State or holders of civil posts under a State or to the employees of a local authority or any payment of retiring gratuity received under the Pension Code or Regulations applicable to the members of the defence services ; (ii)..... (iii) any other gratuity received by an employee on his retirement or on his becoming incapacitated prior to such retirement or on termination of his employment, or any gratuity received by his widow, children or dependants on his death, to the extent it does not, in either case, exceed one-half month's salary for each year of completed service, calculated on the basis of the average salary for the ten months immediately preceding the month in which any such event occurs, subject to such limit as the Central Government may, by notification in the Official Gazette, spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per book is copy of the assessee's Pension Payment Order, which depicts the assessee's designation as Sr. Scientist, Department of Plant Breeding. On the 'Pensioner's Portion' of this document, there is a reference to Rule 10, 11 and note thereunder of Civil Services Rules (CSR) V.II. As the assessee's pension has been computed under Civil Services Rule, it goes to show that the assessee was holding a 'civil post' at the time of his retirement. No other contrary material has been placed on record by the ld. DR to show that the assessee was holding a post other than civil post. 7. The second requirement is that such civil post must be under a State. Page 20 of the paper book is a copy of Haryana and Punjab Agricultural University Act, 1970, which was passed by the Parliament and received the assent of the President on 2nd April, 1970. Under this Act of Parliament, two independent agricultural universities in place of the hitherto Punjab Agricultural University, were established. Section 5 of this Act sets out the name of CCSU as the agricultural university to function within the territories of State of Haryana. This proves that the CCSU was established by an Act of Parliament. Pag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of exemption in respect of the arrears of leave encashment received during the year. 10. I have heard the rival submissions and perused the relevant material on record. The ld. AR submitted that there is not much difference in the language of section 10(10)(i) and 10(10AA)(i) and the view taken in respect of arrears of gratuity u/s 10(10) should be followed for arrears of leave encashment u/s 10(10AA). The ld. DR supported this proposition. As both the sides are consensus ad idem on the position that the view taken in the context of section 10(10) as applicable to leave gratuity be followed here in the context of section 10(10AA) in the context of leave encashment, I am desisting from independently examining the later provision. In view of the fact that I have held the assessee to be entitled to exemption u/s 10(10)(i) in respect of arrears of gratuity, following the same, I extend the benefit of exemption u/s 10(10AA)(i) in respect of arrears of leave encashment. This ground is allowed." 8. Since the facts of the assessee's case are identical to the facts involved in the aforesaid referred to case of Sh. Ram Kanwar Rana. So, respectfully following the order dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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