PRBHAKAR MHATRE,THANE vs. ITO WD 3(1), THANE

Assessee repented by : Sh. Paresh Shah AR Revenue represented by : Sh. B.S. Bist Sr DR Date of hearing: 28/07/2016 Date of Pronouncement: 05/08/2016 ORDER PER BENCH 1. All these appeals are filed by assessee(s) against the order of Commissioner of Income Tax Appeals-2, Thane dated 30th October 2015 for assessment year 2010- 11. In all appeals common grounds of appeal are raised by all the assessee and the order of first appellate authority are also common thus all appeals were heard together and being decided by common order.

2. In all appeals the assessee / appellants raised the grounds of appeals that they were not allowed to avail the benefit of section 89(1) of the Act in alternative to the relief of section 10(10C) of the Act before the assessing officer.

3. Ld. AR of the assessee/ appellants argued that the additional ground of appeal may be admitted and matter may be restored to the lower authorities for consideration of the relief as provided under section 89(1) of the Act. Ld DR for the revenue has no objection if the additional ground of appeal is admitted.

4. We have considered the rival contention of the parties. We admit the additional grounds of appeal of the all the appellants urged before us regarding the alternative claim under section 89 of the Act. We notice that the proviso section 89 of the Act prohibits relief under section 89 of the Act, if assessee had claimed the exemption under section 10(10C). The corollary is that the assessee can claim relief under section 89 of the Act, if exemption under section 10(10 C) is not ITA No 5845,47,48,5856 to 5859/M/2015 ---AY 2010-11 And to5824/M/2015& ITA No. 17 to 17 &27/M/2016 claimed. In the instant case, no doubt, these assessees have claimed exemption under section 10(10 C) and hence they are barred from claiming relief under section 89 of the Act. However, if the relief allowable under section 89 is more beneficial to the assessee than the benefit available by claiming exemption under section 10(10 C), in our view, the Act does not came in the way of the assessee in making alternative claim. We notice that CBDT has instructed its official, vide circular No.14(XL-39) dated 11.04.1955 to appraise the assessee about the benefits available to the assessees. Accordingly we find merit in the alternative contention of the assessee.

5. Accordingly we restore all the appeals /matter to the file of assessing officer to consider the case of all the appellants either under section 10(10C) or section 89 whichever is more beneficial to the appellants.

Order announced in open court on 5th day of August 2016.