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Income Tax Appellate Tribunal, NAGPUR “SMC” BENCH : NAGPUR
Before: SHRI SATBEER SINGH GODARA & SHRI DR. DIPAK P. RIPOTE
[THROUGH VIRTUAL HEARING AT PUNE] BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND SHRI DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER I.T.A.No.168/NAG./2023 Assessment Year 2018-2019 Shri Subhash Yadaorao Chimurkar, Plot No.18 And The Income Tax Officer, 25, Panjra, Post Koradi, Ward-5(3), BSNL Bldg., vs. Kamptee, Nagpur–441 111. Seminary Hill s, Nagpur. Maharashtra. Maharashtra. PAN ABDPC4045M (Appellant) (Respondent) -None- For Assessee : For Revenue : Shri Abhay Y Marathe, Sr.DR Date of Hearing : 28.03.2024 Date of Pronouncement : 24.04.2024 ORDER PER SATBEER SINGH GODARA, J.M. : This assessee’s appeal for assessment year 2018-2019, arises against the National Faceless Appeal Centre [in short the “NFAC”] Delhi’s Din and Order No. ITBA/NFAC/S/250/2022- 23/1051390640(1), dated 27.03.2023, involving proceedings u/s. 143(3) of the Income Tax Act, 1961 (in short “the Act”).
Case called twice. None appears at assessee’s behest. He is accordingly proceeded ex-parte, after hearing the Learned DR.
It transpires at the outset that in the instant appeal the assessee has raised sole substantive issue - entitlement of his claim of sec.10(10AA) exemption of leave encashment which has been 2 ITA.No.168/NAG./2023 denied in both the lower proceedings for the sole reason that his employer i.e., the Maharashtra State Power Generation Co. Ltd., “MSPGCL”, is not a State Government. We find that this tribunal in recent common order dated 19.04.2024 in ITA.Nos.375/NAG./ 2022, ITA.Nos.10, 118 & 389/NAG./2023 has decided the very issue against the department as under :
3. There is hardly any dispute between the parties that the assessee had joined the erstwhile Maharashtra State Electricity Board, [in different capacities], way back in 1980’s. They have admittedly superannuated in the impugned assessment years herein. They have received their impugned retiral benefits i.e., gratuity(ies) and leave encashment(s) involving varying sums. These four assessees claimed exemption(s) u/sec. 10(10A) and u/sec.10(10AA) regarding the same. Needless to say, the learned lower authorities are of the view that since these assessees’ have superannuated from the Maharashtra State Power Generation Company i.e., “MSPGC and Maharashtra State Electricity Distribution Company i.e., “MSEDC”; as the case may be; they are not entitled for the impugned exemption(s) beyond the statutory limit applicable to the employees other than those Central Government and State Government(s). Their identical stand in otherwords is that foregoing employer entities carrying-out their respective activities in power generation; transmission and distribution sectors etc. could not be treated as a “State Government” entitling the appellants-assessees herein to claim the impugned exemption(s).
3 ITA.No.168/NAG./2023 This leaves all these assessees aggrieved.
4. Learned DR quotes Kamal Kumar Kalia vs. Union of India [2019] 111 taxmann.com 409 (Del.) that even the foregoing employees entities are treated as “PSUs”; they are still not a “State Government” u/sec.10(10A)(i) as well as u/sec.10(10AA)(i); as the case may be.
I have given my thoughtful consideration to the vehement rival stands. The undisputed fact herein is that these four assessees’ had joined the then Maharashtra State Electricity Board in regular employment in different pay-scales. All of them admittedly ended-up retiring from the re-designated power company(ies); be it distribution or generation or transmission of electricity; constituted under the provisions of the newly introduced “The Electricity Act, 2003” by the Parliament of India. The Revenue’s endeavor herein is that be it Maharashtra State Electricity Board or the newly re-designated company(ies), these assessees’ could not be treated as having an employer-employee relationship with the Maharashtra State Government so as to be eligible for the impugned sec.10(10A) and sec.10(10AA) exemption(s).
I find no merit in the Revenue’s foregoing vehement stand. This is for the precise reason that so far as the assessees’ claim of having employer-employee relationship with the Maharashtra State Government since having employed with the then Maharashtra State Electricity Board is concerned, hon’ble Madras high court’s in Dr. P. Balasubramanian vs. Chief Commissioner of Income Tax (TDS) [2022] 142 taxmann.com 25 (Madras) has settled the issue that an 4 ITA.No.168/NAG./2023 employee working in establishments constituted under a State Act is indeed entitled for sec.10(10AA) benefits as under :
5 ITA.No.168/NAG./2023 6 ITA.No.168/NAG./2023 7 ITA.No.168/NAG./2023 8 ITA.No.168/NAG./2023 9 ITA.No.168/NAG./2023
Honb’le high court has distinguished “Kamal Kumar kalia” (supra) in para-21 to hold that the university employee(s) therein are duly covered by sec.10(10AA) since the same had been set-up under a “State Act” and the service conditions had also been framed by the State.
It would indeed be relevant at this stage to reproduce the relevant amendments in the Electricity Act, 2003 regarding vesting of the erstwhile “State Electricity Board” along with all of the latter’s assets, liabilities as well as staff (including officers and employees) of the latter, in the “State Government”, in sections 131-133 as follows :
10 ITA.No.168/NAG./2023
“Section 131. (Vesting of property of Board in State Government): (1) With effect from the date on which a transfer scheme, prepared by the State Government to give effect to the objects and purposes of this Act, is published or such further date as may be stipulated by the State Government (hereafter in this Part referred to as the effective date), any property, interest in property, rights and liabilities which immediately before the effective date belonged to the State Electricity Board (hereinafter referred to as the Board) shall vest in the State Government on such terms as may be agreed between tire State Government and the Board. (2) Any property, interest in property, rights and liabilities vested in the State Government under sub-section (1) shall be re-vested by the State Government in a Government company or in a company or companies, in accordance with the transfer scheme so published along with such ether property, interest in property, rights and liabilities of the State Government as may be stipulated in such scheme, on such terms and conditions as may be agreed between the State Government and such company or companies being State Transmission Utility or generating company or transmission licensee or distribution licensee, as the case may be: Provided that the transfer value of any assets transferred hereunder shall be determined, as far as may be, based on the revenue potential of such assets at such terms and conditions
11 ITA.No.168/NAG./2023 as may be agreed between the State Government and the State Transmission Utility or generating company or transmission licensee or distribution licensee, as the case may be. (3) Notwithstanding anything contained in this section, where,- (a) the transfer scheme involves the transfer of any property or rights to any person or undertaking not wholly owned by the State Government, the scheme shall give effect to the transfer only for fair value to be paid by the transferee to the State Government; (b) a transaction of any description is effected in pursuance of a transfer scheme, it shall be binding on all persons including third parties and even if such persons or third parties have not consented to it. (4) The State Government may, after consulting the Government company or company or companies being State Transmission Utility or generating company or transmission licensee or distribution licensee, referred to in sub-section (2) (hereinafter referred to as the transferor), require such transferor to draw up a transfer scheme to vest in a transferee being any other generating companv or transmission licensee or distribution licensee, the property, interest in property, rights and liabilities which have been vested in the transferor under this section, and publish such scheme as statutory transfer scheme under this Act.
12 ITA.No.168/NAG./2023 (5) A transfer scheme under this section may- (a) provide for the formation of subsidiaries, joint venture companies or other schemes of division, amalgamation, merger, reconstruction or arrangements which shall promote the profitability and viability of the resulting entity, ensure economic efficiency, encourage competition and protect consumer interests; (b) define the property, interest in property, rights and liabilities to be allocated - (i) by specifying or describing the property, rights and liabilities in question; or (ii) by referring to all the property, interest in property, rights and liabilities comprised in a described part of the transferor's undertaking; or (iii) partly in one way and partly in the other; (c) provide that any rights or liabilities stipulated or described in the scheme shall be enforceable by or against the transferor or the transferee; (d) impose on the transferor an obligation to enter into such written agreements with or execute such other instruments in favour of any other subsequent transferee as may be stipulated in the scheme; (e) mention the functions and duties of the transferee;
13 ITA.No.168/NAG./2023 (f) make such supplemental, incidental and consequential provisions as the transferor considers appropriate including provision stipulating the order as taking effect; and (g) provide that the transfer shall be provisional for a stipulated period.
(6) All debts and obligations incurred, all contracts entered into and all matters and things engaged to be done by the Board, with the Board or for the Board, or the State Transmission Utility or generating company or transmission licensee or distribution licensee, before a transfer scheme becomes effective shall, to the extent specified in the relevant transfer scheme, be deemed to have been incurred, entered into or done by the Board, with the Board or for the State Government or the transferee and all suits or other legal proceedings instituted by or against the Board or transferor, as the case may be, may be continued or instituted by or against the State Government or concerned transferee, as the case may be.
(7) The Board shall cease to be charged with and shall not perform the functions and duties with regard to transfers made on and after the effective date.
14 ITA.No.168/NAG./2023 Explanation.- For the purpose of this Part, -
(a) Government company" means a Government Company formed and registered under the Companies Act, 1956. (b) company" means a company to be formed and registered under the Companies Act, 1956 to undertake generation or transmission or distribution in accordance with the scheme under this Part. Section 132. (Use of proceeds of sale or transfer of Board, etc.): In the event that a Board or any utility owned or controlled by the Appropriate Government is sold or transferred in any manner to a person who is not owned or controlled by the Appropriate Government, the proceeds from such sale or transfer shall be utilised in priority to all other dues in the following order, namely (a) dues (including retirement benefits due) to the officers and employees of such Board or utility, who have been affected by the aforesaid sale or transfer; (b) payment of debt or other liabilities of the transferor as may be required by the existing loan covenants.
“Section 133. (Provisions relating to officers and employees): — (1) The State Government may, by a transfer scheme, provide for the transfer of the officers and employees to the transferee on the vesting of properties, rights and liabilities in such transferee as provided under section 131.
15 ITA.No.168/NAG./2023 2) Upon such transfer under the transfer scheme, the personnel shall hold office or service under the transferee on such terms and conditions as may be determined in accordance with the transfer scheme: Provided that such terms and conditions on the transfer shall not in any way be less favourable than those which would have been applicable to them if there had been no such transfer under the transfer scheme: Provided further that the transfer can be provisional for a stipulated period. Explanation. - For the purposes of this section and the transfer scheme, the expression "officers and employees" shall mean all officers and employees who on the date specified in the scheme are the officers and employees of the Board or transferor, as the case may be.”
The Revenue could hardly dispute that going by a conjoint reading of section(s) 131 r.w.s. 133 hereinabove, the services of all officers and employees of the erstwhile “MSEB” first stood “vested” in the “State Government” of Maharashtra on “Reorganization of the Board”, followed by the transfer to various “transferee” entities in generation, transmission and distribution company(ies) (supra). The same appears to be the most clinching fact herein since all these assessees had been assigned to their respective new employers’ after getting protection of their service conditions in light of sec.133(2) read with “Proviso” and “Explanation” thereto. Needless to state,
16 ITA.No.168/NAG./2023 these four assessees have also undergone the very reorganization finally culminating in their respective superannuation(s). It is thus concluded that not only these four assessees have to be held entitled for sec.10(10A) and sec.10(AA) as employees of “MSEB” but also they have to held eligible for the impugned exemptions in the newly set-up transferee entities (once their services vested in the State Government); which in turn, carried “grand-fathering” clause in sec.133 of the Electricity Act. The necessary corollary thereof is that these four assessees have to be invariably treated as employees of a “State Government” duly eligible for sec.10(10A) and sec.10(10AA) benefits; as the case may be. These four assessees identical sole substantive ground is accepted in very terms. Necessary computation shall follow as per law. Ordered accordingly.”
We adopt the foregoing detailed discussion mutatis mutandis to accept the assessee’s instant secs.10(10AA) exemption claim in very terms. The Revenue’s vehement arguments on the impugned disallowance(s) stand rejected therefore.
This assessee’s appeal is allowed in above terms.
Order pronounced in the open Court on 24.04.2024.