DURESH SHARMA,HISAR vs. ITO, HISAR

PER R.K. PANDA, A.M:

This appeal filed by the assessee is directed against the order dated 17 March, 2016 of the CIT(A) , Faridabad relating to assessment year 2010-11. 2. Although a number of grounds have been raised by the assessee they all relate to the order of the CIT(A) in confirming the action of the AO in making addition of Rs. 6,50,000/- on account of gratuity and addition of Rs. 1,10,731/- on account of encashment of leave salary. 3. Facts of the case in brief are that the assessee is an individual and was an employee of the Chaudhary Charan Singh Haryana Agriculture University, Hisar, ( in brief CCS HAU, Hisar). He filed his return of income on

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17th February, 2011, declaring total income of Rs. 54,162/-. During the course of assessment proceedings, the AO observed from the computation of total income that assessee has received arrears of gratuity at Rs. 6,50,000/- which he has claimed as exempt u/s 10(10)(i) of the IT Act. 3. According to the AO, from the note it has been observed that the assessee has claimed excess gratuity of Rs. 6,50,000/- exempt u/s 10(10)(i) of the Income-tax Act, 1961 by treating himself as Govt. employee. However, as per the provisions of section 10(10)(iii) and section 10(10AA) (ii) of the income-tax Act, 1961, the assessee is entitled for claim of gratuity only upto the limits specified in these section because the employees of the university are not Govt. Employees. Rejecting the various explanation given by the assessee the AO held that the employees of the CCSHAU can not 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. According to him, 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 3.5 lacs and Rs. 3,00,000/- respectively which has already been claimed/allowed. The AO held that the claim of the assessee for exemption of gratuity received in arrear of Rs. 6,50,000/- and arrear of leave encashment of Rs. 1,10,731/- is not in order and therefore he added back the same to the income of the assessee. 4. In appeal the ld. CIT(A) uphold the action of AO. Aggrieved with such order of CIT(A) the assessee is in appeal before Tribunal.

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7.1. I find identical issue had come up before the Tribunal in the case of Ram Kanwar Rana where the Tribunal deleted both the additions. So far as the amount of arrear gratuity to the extent of Rs.6,50,000/- is concerned, I find the Tribunal deleted the addition by observing 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 right perspective, it will be apposite to set out the relevant parts of section 10, as under :- `(10) (i) any death-cum-retirement gratuity received under the revised Pension Rules of the Central Government or, as the case 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 ITA No.1307/Del/2016 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, specify in this behalf having regard to the limit applicable in this behalf to the employees of that Government : ..... Provided further that where any such gratuity or gratuities was or were received in any one or more earlier previous years also and the whole or any

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part of the amount of such gratuity or gratuities was not included in the total income of the assessee of such previous year or years, the amount exempt from income-tax under this clause shall not exceed the limit so specified as reduced by the amount or, as the case may be, the aggregate amount not included in the total income of any such previous year or years.' 5. A careful perusal of the above provision indicates that if a case falls under clause (i) of section 10(10), the entire amount of death-cum- retirement gratuity becomes exempt. Au contraire, if a case falls under sub-clause (iii) of section 10(10), then, the exemption is limited to the amount as the Central Government may notify in official gazette. It is an accepted position that the Notification u/s 10(10)(iii) issued on ITA No.1307/Del/2016 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 be holding a civil post. The assessee was appointed as a Research Assistant in December, ITA No.1307/Del/2016 1971, who eventually rose to the post of Head of Department, Plant Breeding Department at the time of his retirement. Page 32 of the paper 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,

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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 ITA No.1307/Del/2016 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. Page 29 of the paper book is a document which shows that the assessee is a State University covered under University Grants Commission (UGC). It is undisputed that the entire funding of the CCSU is done by the State Government. Page 25 is a copy of Notification issued by the Haryana Government increasing the maximum limit of death-cum-retirement gratuity at Rs.10 lac, under which the assessee has received the arrears of retirement gratuity under this scheme only. The above facts amply demonstrate that CCSU is covered under the expression 'State.' This is further corroborated from Article 12 of the Constitution of India which states that: 'In this part, unless the context otherwise requires, 'the State' includes the Government and Parliament of India and the Government and the legislature of each of the States either local or other authorities within the territory of India or under the control of the Government of India.' The expression 'other authorities' has been interpreted in Umesh v. Singh A 1967 Pat. 3(9) F.B. as including: 'a Board, a University, the ITA No.1307/Del/2016 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) ofsection 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 assessee claimed exemption u/s 10(10AA)(i) which was ITA No.1307/Del/2016 refused by the AO by holding the case to be covered under sub-clause

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(ii) of section 10(10AA). The ld. CIT(A) affirmed the view taken by the AO on this point, thereby denying the benefit of exemption in respect of the arrears of leave encashment received during the year.” 8. So far as the arrear of leave salary is concerned, I find the Tribunal deleted the addition by observing as under : “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 ITA No.1307/Del/2016 exemption u/s 10(10AA)(i) in respect of arrears of leave encashment. This ground is allowed.” 9. I find the tribunal in the case of Dr. S.B.Kalidhar (supra) has also taken similar view. The ld. DR could not bring any material so as to take a different view than the view taken by the Tribunal in the cases cited (supra). I, therefore, set aside the order of the CIT(A) and direct the AO to allow the claim of the assessee on account of arrear gratuity and leave encashment. 10. Ld. Counsel for the assessee did not press ground no. 2 which relates to the validity of the reassessment proceedings. Accordingly the same is dismissed as not pressed.

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Sd/- [R.K. PANDA] Accountant Member DATED: 16 .6.2017 *Binita* Copy forwarded to:- 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT

Assistant Registrar

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Date Initial 1. Draft dictated on 14/06/2017 2. Draft placed before author 15/06/2017 3. Draft proposed & placed before the second member 4. Draft discussed/approved by Second Member. 5. Approved Draft comes to the Sr.PS/PS 6. Kept for pronouncement on 7. File sent to the Bench Clerk 8. Date on which file goes to the AR 9. Date on which file goes to the Head Clerk. 10. Date of dispatch of Order.

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