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TMI Blog2023 (5) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Mahavir Singh Narwal vs. Union of India and another [ 2004 (5) TMI 622 - DELHI HIGH COURT ] has already examined Rule 173 of the Disability Pension which has not been amended till date. This writ petition is allowed and the amount of income tax paid by the petitioner for the relevant years be refunded to him alongwith interest @ 9% p.a. within a period of one month from the date of receipt of certified copy of this order alongwith costs of Rs.1 lac. Thereafter, compliance report of the order be sent to this Court by the concerned authority. If the payment is not made within the stipulated period then interest @ 18% p.a. from the date of entitlement till the amount actually paid to the petitioner shall be given as per the judgment passed in Madan Gopal Singh Nagi vs. Commissioner of Income Tax II [ 2019 (3) TMI 502 - MADHYA PRADESH HIGH COURT ] - HON'BLE MS. JUSTICE RITU BAHRI AND HON'BLE MRS. JUSTICE MANISHA BATRA Present: For the Petitioner : Mr. Navdeep Singh, Advocate. For the Respondent : Ms. Gauri Neo Rampal, Senior Standing Counsel. RITU BAHRI, J. 1. The petitioner is seeking quashing of the order dated 21.01.2021 (An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in Pradeep Mathur's case (supra). It is admitted in the reply that the petitioner had made his application 10 months before the issuance of Circular No. 13/2019 dated 24.06.2019. The orders of the Hon'ble Supreme Court have been placed on record as Annexures R-1 and R-2. 5. On 07.02.2023, a direction was given to the respondent to file an affidavit of the concerned officer as to why as per the Circular dated 02.07.2001 (Annexure P-4), when disability pension has become tax free then why tax is being charged from the petitioner on the arrears of disability pension which became due to him in the year 2018 with retrospective effect from 31.11.2008. However, no affidavit has been filed. 6. Learned counsel for the petitioner has referred to the judgment of Delhi High Court in Mahavir Singh Narwal vs. Union of India and another, 2004 SCC OnLine Del 348. In that case, the Delhi High Court was examining Rule 173 of the Disability Pension applicable to armed forces in Low Medical Category are to be treated as invalid from service for the purpose of disability pension. 7. Keeping in view the aforesaid judgment, the Disability Pension Rules would be applicable in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by such service. Moreover, keeping in view of the facts and circumstances of the case and further clarification by the Board in Circular No. 13/2019 dated 24.06.2019, assessee's pension element and disability element of pension is not exempted from Income Tax. Therefore, the condonation of delay in filing the return of income for the A.Y. 2017-18 is hereby rejected. 10. Thereafter, corrigendum dated 01.12.2021 has been passed on 01.12.2021 (Annexure P-14) that the assessment years be read as A.Y. 2010-11 to 2016-17 instead of A.Y. 2017-18 as mentioned in order dated 21.01.2021 (Annexure P-13). The impugned order dated 21.01.2021 (Annexure P-13) has been passed on the basis of Circular No. 13/2019 dated 24.06.2019 which is the subject matter of consideration before the Hon'ble Supreme Court and the Hon'ble Supreme Court vide order dated 30.08.2019 (Annexure R-1) directed the parties to maintain status quo. 11. The petitioner has also placed on record judgment passed by Madhya Pradesh High Court in W.P. No. 29017/2018 titled as Madan Gopal Singh Nagi vs. Commissioner of Income Tax II (2019) 419 ITR 413 (Annexure P-2) wherein the Madhya Pradesh High Court was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all maintain status quo in the matter. List on 18.10.2019. 15. Since the parties were directed to maintain status quo, which means that no recovery of income tax could be effected from the Army officer. Another aspect which required to be considered is that the Delhi High Court in Mahavir Singh Narwal vs. Union of India and another, 2004 SCC OnLine Del 348 has already examined Rule 173 of the Disability Pension which has not been amended till date. The relevant portion of that judgment is reproduced hereunder:- 6. On careful perusal of the aforesaid rule it is manifestly clear that invalidated from service is necessary condition for grant of disability pension. What has to be seen for entitlement for disability pension is whether an individual at the time of his release was in a low medical category than that in which he was recruited if it was so then such person will be treated as invalidated from service. It is the admitted case of the parties that at the time of recruitment the petitioner did not have any disability. It is also admitted case of the parties that the petitioner got disability on account of stress and strain of military service and his categor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated as cancelled. SD/- (P.N. Reddy) Varishth Civilian Staff Adhikari/SCS Shayak Adjutent General/AAG PS4 for Adjutant General. 7. The arguments advanced by the learned counsel for the respondents that these letters were not issued by the competent authority is not of any relevance for grant of disability pension. What is relevant is whether the mandate of Pension Regulation 173 read with Rules 1 and 2 of Appendix II has been taken into consideration or not. Merely because a person has attained discharge on compassionate ground although his disability has been acquired on account of stress and strain of military service will not be a ground to reject the claim of disability pension, it has been invalidated act in terms of Appendix II of Rule 173. We allow the writ petition and direct the respondent to grant disability pension to the petitioner on the basis of assessment of 30% disability as opined by the Release Medical Board in the year 1979 upto date. For future disability pension the respondent may conduct another medical board to assess the percentage of disability of the petitioner. Arrears of disability pension be paid to the petitioner within a per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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