Income Tax Appellate Tribunal - Ahmedabad
Rasna Ltd.,, Ahmedabad vs Assessee on 2 May, 2013
ITA No.817/Ahd/2013
Assessment year:2007-08
Page 1 of 8
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD B BENCH, AHMEDABAD
[Coram : Shri Pramod Kumar A.M. and Shri Kul Bharat J.M.]
ITA No. 817/Ahd / 2013
Assessment year: 2007-08
Rasna Private Limited ....................Appellant
Rasna House, Opp Sears Tower
Gulbai Tekra, Pachwanti
Ahmadabad 380 006
[PAN : AABCR5577P]
Vs.
Deputy Commissioner of Income Tax
Circle 5, Ahmedabad ..............Respondent
Appearances:
P F Jain, for the appellant
Y P Verma, for the respondent
Date of concluding the hearing : May 2, 2013
Date of pronouncement of this order : May 10, 2013
O R D E R
Per Pramod Kumar :
1. By way of this appeal, the assessee appellant has challenged correctness of the order dated 26 t h February 2013, passed by the learned CIT(A), in the matter of assessment under Section 115WE(3) of the Income Tax Act, 1961 for the assessment year 2007-08.
2. Grievance raised by the assessee are as follows :
1. The learned CIT(A) has erred in law and on facts in upholding the reopening of FBT return filed by the assessee, ITA No.817/Ahd/2013 Assessment year:2007-08 Page 2 of 8 without appreciating the facts that full details duly declared were already on record.
2. That learned CIT(A) has erred in law and on facts in upholding the further levy of FBT, claimed not to be liable, on value of fringe benefits of Rs 8,67,771, being 20% of travel allowance of Rs 43,38,856.
3. On the facts, the reopening of FBT return filed ought to have been held as bad in law and no further levy of FBT on travel allowance ought to have been sustained.
3. The relevant material facts are like this. The assessee had declared value of fringe benefits at Rs 36,90,753 vide FBT return dated 31.10.2007. While original assessment of the assessee was completed under section 143(3) on 16th December 2009, the assessment of fringe benefits was not made. In the audit report, the auditor had inter alia reported that (a) the expenses to the tune of Rs 43,38,856 out of travel expenses were not considered liable to FBT on the ground that it being a daily allowance given to employees for travelling was exempt under section 10(14) of the Act; and that (b) the medical reimbursement expenses below Rs.
15,000 given to the employees and aggregating to Rs 10,28,999 was not considered liable to FBT on the ground that it was exempt under section 17(2)(v) of the Act. On these facts, and having reproduced the observations of the auditor, the Assessing Officer reopened the FBT assessment, for the following reasons:-
A: Daily allowance given to the employees for travelling expenses was exempt in the hands of the assessee by virtue of section 10(14) of the Act. The provisions of Section 10(14) donot extend to employers and their liability to FBT. Further, as per clarification issued by the CBDT in circular No. 8 dated 29.8.2005, per diem allowance is paid for the purpose of hotel, boarding and lodging facilities, and it would fall within the scope of Section 115WB(2)(G) of the Act (vide answer to question no. 79 on page 44 of the circular). Accordingly, the daily allowance of Rs 43,38,856 was covered by Section 1115WB of the Act, ITA No.817/Ahd/2013 Assessment year:2007-08 Page 3 of 8 and FBT was payable @ 20% of the sum which works out to Rs 8,67,771 ( i.e. 20% of Rs 43,38,856).
B: Medical Expenses upto Rs 15,000 were exempted by virtue of proviso
(v) below Section 17[2)(vi) in the hands of the employees for the purpose of computing income from 'salary'. FBT tax was charged on the employer and exemption given in proviso to Section 17(2) was not extended to employers and their liability to FBT. By virtue of provisions of Section 115WB(3), 20% of expenses incurred on reimbursement of medical expenses by the employers was liable to FBT i.e. Rs 2,05,800, being 20% of Rs 10,73,571.
4. In the assessment, so reopened, the Assessing Officer brought the above two expenses, incurred by the assessee, to FBT. The reasoning adopted for this action was mainly the guidance by the CBDT, vide circular no. 8 dated 29th August 2005, as also a decision of the coordinate bench in the case of Kingfisher Training & Aviation Services Ltd Vs ACIT (41 SOT 279). Aggrieved, assessee carried the matter in appeal but without complete success. While learned CIT(A) deleted the addition in respect of medical reimbursement and observed that perquisites in respect of which tax is paid or payable by the employees cannot be liable to tax under the fringe benefit taxation scheme. However, as regards the addition in respect of estimated portion of travel expenses of Rs 43,38,856 which relates to the diem allowance, computed at one third of the total travelling expenses, learned C1T(A) was of the view that "this contention of the assessee (i.e. dally allowance to the extent of Rs 43,38,856 were incurred by the assessee towards travel expenses) is not supported by clinching evidences, and, therefore, I am inclined to agree with the contentions of the Assessing Officer" and that "the AO has rightly placed reliance on CBDT circular no. 8 dated 29.8.2005 wherein it is interpreted that per diem allowance paid for the purpose of use of hotel, boarding and lodging facilities, would fall within the scope of section 115WB(2)(G) of the Income Tax Act". The assessee is not satisfied by the addition so sustained by the CIT(A) and is in appeal before us.
5. We have heard the rival contentions, perused the material on record and duly considered factual matrix of the case in the light of the applicable legal position.
6. The provisions of reopening of assessment, for the purpose of bring fringe benefits escaping assessment, i.e. Sections 115 WG and 115 WH are broadly in ITA No.817/Ahd/2013 Assessment year:2007-08 Page 4 of 8 pari materia with the provisions of Sections 147 and 148. For ready reference, provisions of these sections are reproduced below:
Fringe benefits escaping assessment.
115WG. If the Assessing Officer has reason to believe that any fringe benefits chargeable to tax have escaped assessment for any assessment year, he may, subject to the provisions of sections 115WH, 150 and 153, assess or reassess such fringe benefits and also any other fringe benefits chargeable to tax which have escaped assessment and which come to his notice subsequently in the course of the proceedings under this section, for the assessment year concerned (hereafter referred to as the relevant assessment year).
Explanation.--For the purposes of this section, the following shall also be deemed to be cases where fringe benefits chargeable to tax have escaped assessment, namely:--
(a) where no return of fringe benefits has been furnished by the assessee;
(b) where a return of fringe benefits has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the value of fringe benefits in the return;
(c) where an assessment has been made, but the fringe benefits chargeable to tax have been under-assessed.
Issue of notice where fringe benefits have escaped assessment. 115WH. (1) Before making the assessment or reassessment under section 115WG, the Assessing Officer shall serve on the assessee a notice requiring him to furnish within such period as may be specified in the notice, a return of the fringe benefits in respect of which he is assessable under this Chapter during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed, and the provisions of this Chapter shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 115WD.
(2) The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so.
ITA No.817/Ahd/2013
Assessment year:2007-08 Page 5 of 8 (3) No notice under sub-section [1) shall be issued for the relevant assessment year after the expiry of six years from the end of the relevant assessment year. Explanation.--In determining fringe benefits chargeable to tax which have escaped assessment for the purposes of this sub-section, the provisions of the Explanation to section 115WG shall apply as they apply for the purposes of that section.
(4) In a case where an assessment under sub-section (3) of section 115WE or section 115WG has been made for the relevant assessment year, no notice shall be issued under sub-section (1) by an Assessing Officer, after the expiry of four years from the end of the relevant assessment year, unless the Chief Commissioner or Commissioner is satisfied, on the reasons recorded by the Assessing Officer, that it is a fit case for the issue of such notice.
7. As the provisions of Section 115 WG and 115 WH are broadly in pari materia with the provisions of Sections 147 and 148, the principles laid down by Hon'ble Courts above in the context of latter will be equally applicable for the former as well. It is in this backdrop that we need to take a look at some of the judicial precedents laying down fundamental principles with regard to reasons recorded for reopening of assessment proceedings. Hon'ble Bombay High Court, in the case of Hindustan Lever Ltd vs RB Wadkar [ 268 ITR 332), has, inter alia, observed that ".......... It is needless to mention that the reasons are required to be read as they were recorded by the AO. No substitution or deletion is permissible. No additions can be made to those reasons. No inference can be allowed to be drawn on the basis of reasons not recorded. It is for the AO to disclose and open his mind through the reasons recorded by him. He has to speak through the reasons." Their Lordships added that "The reasons recorded should be self explanatory and should not keep the assessee guessing for reasons. Reasons provide link between conclusion and the evidence....". Hon'ble Supreme Court, in the case of CIT Vs Kelvinator of India Ltd (320 ITR ITA No.817/Ahd/2013 Assessment year:2007-08 Page 6 of 8
561), has observed that "reasons must have a live link with formation of belief". Hon'ble Bombay High Court, in the case of Prashat S Joshi Vs Income Tax Officer (324 ITR 154), has observed that that "the reasons which are recorded by the Assessing Officer are the only reasons which can be considered when formation of belief is impugned". It is thus clear that validity of any reassessment proceedings, including reassessment proceedings for fringe benefits tax, is to be examined only in the light of the reasons actually recorded by the Assessing Officer for such a reopening of assessment.
8. Out of two reasons recorded for reopening the fringe benefit assessment, one of the reasons, (i.e. reason B with respect to reimbursement of medical expenses upto Rs 15,000), has been held to be incorrect by the CIT(A) and revenue is not in appeal against the same. In any case, there are number of coordinate bench decisions, in favour of the assessee, on this point, and, therefore, it cannot be open to hold that the reopening of assessment for this reason was sustainable in law.
9. As regards the other reason for reopening the fringe benefit assessment [i.e. reason A - "Daily allowance given to the employees for travelling expenses was exempt in the hands of the assessee by virtue of section 10(14) of the Act. The provisions of Section 10(14) donot extend to employers and their liability to FBT"), it is important to bear in mind the fact that the sole reason for treating the daily allowance as subject to FBT is that even though this allowance was "exempt in the hands of the assessee (i.e. employee) by virtue of section 10(14)", this exemption did not extend to the employers for FBT purposes. This is an incorrect approach. Once the fact of allowance being daily allowance is not in dispute, which is in addition to boarding and lodging expenses, it cannot be said that a fixed daily allowance to meet other expenses will be covered by fringe benefit tax. In the reasons recorded, quantum of expenditure has not been an issue - as ITA No.817/Ahd/2013 Assessment year:2007-08 Page 7 of 8 was questioned by learned Commissioner (Appeals); the objection was confined to taxability of daily allowance. It was also not an issue that the expenses with respect to boarding and lodging etc, as stated by the assessee, are covered by two third of expenses which the assessee has suo motu offered for fringe benefit tax. It is also important to bear in mind the fact that all daily allowances, by virtue of insertion of Section 2 (24](iiia) vide Direct Tax (Amendment) Act 1989, are included in income of the assessee in the first place, and the exemption is then confined to the expenses actually incurred by the assessee. Section 2 (24)(iiia) provides that income includes " any special allowance or benefit, other than perquisite included under sub-clause (Hi), specifically granted to the assessee to meet expenses wholly, necessarily and exclusively for the performance of the duties of an office or employment of profit". In other words, a daily allowance on tour is also part of income under section 2(24)(iiia), and, therefore, taxable in the hands of the assessee in principle. It is well settle that an amount taxable in the hands of the employee cannot be subject to fringe benefit tax, and the CIT(AJ himself has accepted the said position in the impugned order. Learned ClT(A)'s factual observation that "there is nothing to indicate that these expenses were incurred to discharge of duty" and that "these expenses were incurred as daily allowance and not for actual duty movement" infact goes on to support taxability of allowance in the hands of the assessee. Either way, this daily allowance cannot be subject to fringe benefit tax in the light of reasons recorded. If it is an amount actually spent, it is not on hotel and food expenses which are covered by two third of expenses - a fact not disputed in the reasons recorded. If it is an amount not spent by the employee, it is an income taxable in the hands of the employee. As regards reference to the CBDT circular in the reasons recorded, it is only elementary that the circulars issued by the CBDT are not binding on the assessee, and, therefore, the legal position set out in the CBDT ITA No.817/Ahd/2013 Assessment year:2007-08 Page 8 of 8 circular per se cannot be a valid reason for reopening any assessment. In view of these discussions, we hold that the reasons recorded for reopening the assessment were incorrect and unsustainable in law.
10. In view of the above discussions, as also bearing in mind entirety of the case, we uphold assessee's grievance against re-opening of fringe benefit tax assessment. The reasons recorded by the Assessing Officer are not sustainable in law, and on the facts of this case. As we have quashed the reassessment itself, we see no need to address ourselves to the merits of the case. That aspect of the matter is academic now.
11. In the result, the appeal is allowed in the terms indicated above. Pronounced in the open court today on 10th day of May, 2013.
Sd/- Sd/-
(Kul Bharat ) (Pramod Kumar)
Judicial Member Accountant Member
Ahmedabad: 10 th day of May 2013.
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Income Tax Appellate Tribunal
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