SHRI RAJESH SHANTARAM CHAVAN,MUMBAI vs. ACIT CIR -34(2), MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL “H” BENCH, MUMBAI BEFORE SHRI AMARJIT SINGH, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER ITA.NO. 1841/MUM/2021 (A.Y: 2017-18) Shri Rajesh Shantaram Chavan v. ACIT – Circle–34(2) Room No. 301, Kaveri Apartment Room No. 820, 8th Floor Ganesh Wadi, Sector-01 Kautilya Bhavan, C-41 to C-43 Plot-559A, Shiravane Gaon G-Block, Bandra Kurla Complex Nerul, Navi Mumbai – 400706 Bandra(E), Mumbai - 400051 PAN: ANUPC5932E (Appellant) (Respondent) Assessee by : Shri Jitendra Jain & Shri Ravikant S. Pathak Department by : Bharti Singh

Date of Hearing : 07.04.2022 Date of Pronouncement : 22.04.2022

O R D E R PER S. RIFAUR RAHMAN (AM)

2 ITA.NO. 1841/MUM/2021 (A.Y: 2017-18) Shri Rajesh Shantaram Chavan 2. Brief facts of the case are, assessee e-filed his return of income on 01.08.2017 declaring total income of ₹.61,13,070/- the return was processed u/s.143(1) of Income-tax Act, 1961 (in short “Act”) and thereafter the case was selected for scrutiny. The notices u/s. 143(2) and 142(1) were issued and served on the assessee along with the questioners. In response assessee made the submissions electronically and after considering the submissions Assessing Officer observed that the case has been selected for limited scrutiny and examine the issue “Relief u/s. 89”. The relevant information as submitted by the assessee are, assessee has submitted Form 10E in support of his claim after relief u/s.89(1) along with the copy of Form -16 issued by employer M/s.Century Textiles and Industries Limited. The background of the issue is M/s.Century Textiles and Industries Limited was incurring heavy losses and shut down its Worli Textile Mill Unit in 2008. Around 6300 of its 6600 Mill workers opted for the voluntary retirement scheme, however, 275 workers had opposed for closure of the Mill. Assessee is one of the 275 employees who did not opt for voluntary retirement scheme declared by the company on 13.11.2006. The company in its application to the Labour Commissioner inter-alia offered to pay an ex-gratia amount of compensation to each of the 275 employees provided they accept the

3 ITA.NO. 1841/MUM/2021 (A.Y: 2017-18) Shri Rajesh Shantaram Chavan closure and termination of their services without agitating the issue or obstructing the development of the entire Mill land. The company offered to earmark a piece of land admeasuring 1.08 acres out of the total Mill land which would not be developed or otherwise dealt with till the entire amount of all the employees have been paid.

4 ITA.NO. 1841/MUM/2021 (A.Y: 2017-18) Shri Rajesh Shantaram Chavan specified above. As per the terms of agreement dated 22/2/2010 between the Company and the individual workers, it was specifically agreed that each of the 275 ex-workmen would be paid an ex-gratia amount per month on the condition that they would not obstruct the development of the entire Mill land (except 1.08 acres of land). By the agreement, the ex-worker accepted the closure of the Mill and also accepted their consequent termination of service and also agreed that they be treated as left employment and has having given up their right of employment. Clause 7 of the agreement also specified that any time in the future, if the Second party, ie, the individual worker, decided to accept a lump sum amount in lieu of the amount agreed to be paid, then both parties would be free to settle the same mutually. The Company entered into a Supplementary Agreement dated 25/11/2016 individually with the ex-workers with the aim of settling the matter forever whereby, each exworker agreed to accept a lump sum amount in lieu of the remaining years of service up to 63 years of age. As per the terms of the agreement, the assessee has agreed to fore-go all rights, title or interest in the earmarked land of 1.08 acres and the Company shall continue to be the absolute owner of the earmarked land. The Company also confirmed that the one time lump sum ex-gratia amount was towards full and final

5 ITA.NO. 1841/MUM/2021 (A.Y: 2017-18) Shri Rajesh Shantaram Chavan settlement and no claim would lie against any remuneration, compensation, ex-gratia or any other benefits.

6 ITA.NO. 1841/MUM/2021 (A.Y: 2017-18) Shri Rajesh Shantaram Chavan Company. As per the computation chart, for F.Y. 2016-17, the assessee received monthly payment as per the terms of agreement dated 26.02.2010. For the month of November 2016, a total amount of ₹.59,61,483/- is shown. The chart also gives a year-wise break-up of the computation of the lumpsum amount, on the basis of amount payable to the assessee from F.Y 2016-17 till F.Y 2036-37, when he attains 63 years of age.

7 ITA.NO. 1841/MUM/2021 (A.Y: 2017-18) Shri Rajesh Shantaram Chavan 7. The Assessing Officer observed that as per Rule 21A the mode of computation of relief u/s. 89(1) are different in terms of “salary in advance” or as “compensation of termination of employment” would determine whether the mode of computation of relief u/s. 89(1) falls under sub rule (2) or sub rule (4) of rule 21(A) of the I.T. Rules 1962.

8 ITA.NO. 1841/MUM/2021 (A.Y: 2017-18) Shri Rajesh Shantaram Chavan 10. In response assessee submissions as under: - “10. The assessee in his reply has claimed that vide supplementary agreement dated 25/11/2016, the employee agreed for lump sum ex-gratia amount of Rs.42,66,844/-. The Company has computed the total dues payable by the Company to the assessee till he attains 63 years of age to be Rs.59,61,483/-. The company has paid the ‘one time lump-sum ex-gratia amount’ of Rs.42,66,844/- after deducting income tax of Rs.16,94,639/- as per the provisions of Section 192 of the Income Tax Act, 1961. The Company in the said agreement has explained that the one time lump sum ex-gratia amount is deemed ‘salary’ paid to an exemployee in advance within the meaning of the provisions of the Income Tax Act, 1961, it has therefore, deducted tax at source in accordance with the relevant provisions of the Income tax Act, 1961. 10.1 According to the assessee, the amount is advance salary for the period 2017-18 to 2036-37, till the employee attained 63 years of age. The assessee also submits that even though the assessee vide agreement dated 22/2/2010 agreed to termination of employment, it was subject to him receiving compensation by way of salary plus DA upto the age of 63 years, The amount paid represents salary received for future years in advance. As the entire salary for future years has been received in the current year, it has been offered to tax. If the amount had been received in installments every year, he would have offered the same to tax in those respective years. Relief u/s 89(1) has been claimed for relief on account of the substantial tax burden due to the entire amount received in the current financial year.”

9 ITA.NO. 1841/MUM/2021 (A.Y: 2017-18) Shri Rajesh Shantaram Chavan employer at or in connection with the termination of his employment or the modification of the terms and, conditions relating thereto;... Thus, by virtue of section 17(3)(i), any compensation due to or received by an assessee from his employer or former employer at or in connection with the termination of his employment or modifications of terms of employment is taxable as profits in lieu of salary. 13. The Company, in the clarification issued in response to notice u/s 133(6) has confirmed that the assessee is an ex-worker and that the payment made to him is a one-time lump sum ex-gratia amount. The terms of the Agreement dated 22/2/2010 are unambiguous regarding termination of service of the ex-worker and also clarify that the ex-worker has left employment and given up his right of employment. Vide Clause 4 of the Supplementary Agreement dated 25/11/2016 also, the Company has declared that the ex-gratia payment is towards full and final settlement with the ex-employee and no claim of the ex-worker would lie against the company towards any remuneration, compensation, ex-gratia and any other benefits. The services of the ex-workers stood terminated, effectively, as on 12/1/2008 with the closure of the Company. 14. In the circumstances, the ex-gratia payment received by the assessee is of the nature of compensation on termination of employment received from a former employer falling within the purview of clause (i) of Section 17(3) of the I.T.Act, 1961. Accordingly, relief u/s 89(1), in the case of the assessee is to be computed as per the provisions of Sub Rule (4) of Rule 21A and not under Sub-rule (2) of Rule 21A of the I.T.Rules, 1962 as computed by the assessee. Accordingly, the relief u/s 89(1) admissible in the case of the assessee is re-computed as Rs.305397.”

10 ITA.NO. 1841/MUM/2021 (A.Y: 2017-18) Shri Rajesh Shantaram Chavan remuneration, compensation, ex-gratia and any other benefits. Thus, the services of the ex-workers stood terminated with the closure of the Company since 12-01-2008. In these circumstances the ex-gratia payments received by the appellant is in the nature of compensation on termination of employment and accordingly relief under section 89(1) shall be computed as per the provision of Rule 21A sub-rule (4) of the Income tax Rules, 1962. 5.2 The appellant has placed his reliance on the assessment order in the case of other workers of the company, but on perusal of assessment order it is not clear whether in these cases relief u/s 89(1) under which Rule has been calculated. It is also not clear how/what claim has been made by the persons. In these cases, nothing has been discussed in the assessment order in respect of claim u/s 89(1) of the Act.”

11 ITA.NO. 1841/MUM/2021 (A.Y: 2017-18) Shri Rajesh Shantaram Chavan 14. Ld. AR of the assessee brought to our notice facts of the case in detail and submitted that the amount received by the assessee is whether it falls under salary received in advance or compensation for termination. He brought to our notice Page No. 27 to 736 of the Paper Book to submit that several other employees who also claimed the similar claim u/s. 89 of the Act and in those cases the revenue has accepted that the compensation received by the respective individual are in the form of salary received in advance. He submitted that the case of the assessee is exactly similar to the above cases and revenue cannot take different views on the exactly similar issue. Further he brought to our notice the agreement between the individuals and the company. In this regard he relied on the case law filed before Ld.CIT(A) and further relied on two case law which are reproduced below: - a) V.D. Talwar v. CIT [1963] 49 ITR 122 (SC). b) Patil Vijaykumar v. CIT in writ petition nos. 4916 to 4936 of 1984 dated 10.08.1984.

He submitted that the above said case law are exactly similar to the facts of the assessee’s case.

12 ITA.NO. 1841/MUM/2021 (A.Y: 2017-18) Shri Rajesh Shantaram Chavan issued by the company. It clearly indicates that it is only a compensation not advance salary, in this regard she relied on the finding of the Ld.CIT(A) and brought to our notice Para No 5.1 of the order of the Ld.CIT(A).

13 ITA.NO. 1841/MUM/2021 (A.Y: 2017-18) Shri Rajesh Shantaram Chavan after deducting the TDS as per the provision u/s. 192 of the Act. We observe from the record that company in the supplementary agreement has explained that the one time lumpsum ex-gratia amount is salary paid to the ex-employee in advance and accordingly, it has deducted tax at source in accordance with the provisions of the I.T. Act.

14 ITA.NO. 1841/MUM/2021 (A.Y: 2017-18) Shri Rajesh Shantaram Chavan 19. As brought to our notice by the counsel for the assessee the case of V.D. Talwar v. CIT (supra) the Hon'ble Supreme Court held as under: - “Learned counsel for the appellant has then relied on Duff (H. M. Inspector of Taxes) v. Barlow [1942] 10 ITR (Suppl.) 157. That was also a case where the parties agreed that the arrangement arrived at between them should subsist up to 1945 though no exact percentage of the remuneration payable was fixed. The arrangement however was brought to an end prematurely in November 1937 and in consideration of his premature termination some remuneration was paid for services up to November, 1937 and a sum of pound 4,000 was paid as compensation for the loss of the employee's right to future remuneration under the earlier agreement of 1935. In these circumstances it was held that the sum of pound 94,000 was received by the respondent of that case not under the contract of employment nor as remuneration for services rendered or to be rendered but as compensation for giving up a right to remuneration. We are unable to see how that decision is of any help to the appellant in the present case. It seems clear to us that in the present case the appellant has surrendered no rights under the contract; what has been paid to him has been paid under the terms of contract and as salary which he would have earned if twelve months' notice had been given to him. As no notice was given he was treated as though he was in service and entitled to salary for twelve months and that was what was paid to him. It is difficult to see how such payment can be treated as compensation for loss of office. The present case is similar to the two cases of Henry v. Arthur Foster and Henry v. Joseph Foster [1932] 16 Tax Cas. 605 and Henry’s Case (supra) and different from the case of Hunter v. Dewhurst (supra). In the first two cases the respondents were directors of a limited company. They had no written contracts of services with the company but Article 109 of the company's articles provided that in the event of any director who held office for not less than five years, dying or resigning or ceasing to hold office for any cause other than misconduct, bankruptcy, lunacy or incompetence, the company should pay to him or his representatives by way of compensation for loss of office a sum equal to the total remuneration received by him in the preceding five years. The respondents resigned office as director in these two cases and received from the company as "compensation" a payment calculated in accordance with Article 109. It was held by the Court of Appeal that the payment constituted a profit of the office of Director and was properly assessable to income-tax. Lord Hanworth, M. R. said at page 629 :

15 ITA.NO. 1841/MUM/2021 (A.Y: 2017-18) Shri Rajesh Shantaram Chavan "Now it is argued that those sums which became payable under the terms recorded in article 109 were compensation for the loss of office. Is that the substance of the matter? When a man has died he is not compensated for the loss of his life if he resigns voluntarily', why should he be paid compensation for the loss of his office? It would seem as if those words were put in in view of the possibility thereunder of escaping the charge to tax ; but, as I have said, we, have got to look at the substance of the matter, and the substance of this payment is this : It is contemplated as a part of the remuneration of the Director payable to him, and estimated according to his service during a certain time, and in addition to the amount paid to him under clause 104, there shall be estimated a sum which is to fall to be paid to him under clause 109." Lawrence L. J. said at page 632 : "'In my judgment, the determining factor in the present case is that the payment to the Respondent whatever the parties may have chosen to call it was a payment which the company had contracted to make to him as part of his remuneration for his services as a director. It is true that payment of this part of his remuneration was deferred until his death or retirement or cesser of office, and that in the articles it is called "compensation for loss of office." It is, however, a sum agreed to be paid in consideration of the Respondent accepting and serving in the office of Director, and consequently is a sum paid byway of remuneration for his services as Director." It seems to us that the same principle should apply in the present case. What has been paid to the appellant is his salary in lieu of notice. If that is the true position then the amount paid is taxable under s.7 of the Indian Income- tax Act, 1922. It is not compensation for loss of employment within the meaning of Explanation 2 thereto.”

16 ITA.NO. 1841/MUM/2021 (A.Y: 2017-18) Shri Rajesh Shantaram Chavan of the assessee u/s. 89 r.w. Rule 21A of I.T. Rules. Accordingly, the appeal filed by the assessee is allowed.

Order pronounced in the open court on 22.04.2022

Sd/- Sd/- (AMARJIT SINGH) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 22/04/2022 Giridhar, Sr.PS

Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER

(Asstt. Registrar) ITAT, Mum