I-T - Whether an employer is competent to determine the allowances, which are exempt from tax - NO: Allahabad HC

ALLAHABAD, SEPT 24, 2013: THE issues before the Bench are - Whether perquisites are excluded from purview of Sec 10(14); Whether conveyance or additional conveyance allowance is covered by the expression 'perquisite' and the same is taxable and Whether an employer is competent to determine the allowances, which are exempt from tax. And the verdict goes against the assessees.
Facts of the case
Assessees, Development Officers, are employees of LIC of India. They were informed by their employer that TDS was to be deducted on conveyance or additonal conveyance allowance to be paid to them. Protesting the same the assessees went in writ. Before the Bench, the counsel for the assessees submitted that the additional conveyance allowance did not come within the meaning of Section 10(14)(i) of the Income Tax Act, under which the impugned demand notices had been issued by the Revenue. The counsel also submitted that Section 10 (14) was applicable only in respect of a perquisite which had not been included or clarified in Section 17 (2) of the Income Tax Act and further the value of perquisite had been defined in Rule 3 of the Income Tax Rules. It was further submitted that each Field Officer uses the vehicle "wholly and exclusively" for the official purpose and charges the allowance for which certificate was produced by the employee which on
verification by the employer, the said allowance was reimbursed and as such the same was exemped as it was not covered under Section 10 (14)(i) of the Act or the Rule 3 regarding the valuation of the perquisite. Thus, the additional conveyance allowance which was being paid for procuring the business for the LIC was exempted. It was contended that no Act or Rules provided that the Assessing Officer shall have any jurisdiction to review the decision of the LIC authorities or to scrutinize it. Once satisfaction was recorded by the officers of the LIC, nothing in the Act or the Rules framed thereunder; or even in the circular issued by the CBDT, even remotely empowers the Assessing Officer to sit in appeal over the assessment made by the Senior Officers of the LIC, which needless to say was the subjective satisfaction of the high ranking officers made on objective material. The sufficiency of material cannot be looked into by the Assessing Officer.
The counsel for the assessee argued that the issue was squarely covered by the decision of the High Court, Rajasthan in the case of LIC of India Vs. Union of India, decided on 22.01.2003, which was upheld by the Apex Court vide order dated 09.02.2007, while dismissing SLP filed by the Department. The Rajasthan HC had the Revenue not to insist upon the LIC to deduct the income tax at source in respect of conveyance and additional conveyance allowance, paid by it to development officers. The Assessing Officer was directed to pass the fresh order in accordance with law laid down in that case. The Counsel pleaded that similar direction may kindly be issued to the LIC, not to deduct the tax at source as the conveyance/additional conveyance allowance was not subjected to tax.
On the other hand, the counsel for the department raised the preliminary objection aboutlocus standi of the assessee to challenge the notice issued to LIC under Section 201 of the Income Tax Act. He also submitted that it was always open for each of the Development Officers to approach the authority concerned and claim refund in accordance with Section 237 of the Income Tax Act, 1961, in as much it also included tax paid on behalf of 'any person' on the ground that the deductions being made by the LIC in respect of Additional Conveyance Allowance was not taxable at all; and therefore, the instant writ petition was misconceived.
The counsel also submitted that so called 'utilization certificate' given by the employer was nothing but only a subjective estimate of the amount that might have been forwarded by the development officers pertaining to the business brought by them. From a bare perusal of the circular dated 24.04.2004, it was clear that Additional Conveyance Allowance was nothing but additional remuneration being paid to the Development Officers pertaining to their performance. There was no element of reimbursement. The Assessing Officer had rightly asked the proof of having incurred the expenditure, but the same was never produced by the Development Officers. According to the counsel, the conveyance/additional conveyance allowance was an allowance and covered by Section 17(2) Explanation 3 of the Act.
The Counsel for the LIC also justified the impugned order passed by the Senior Divisional Manager. He submitted that the LIC was deducting the tax as per the provisions of the Income Tax Act.
Having heard the parties, the Bench held that,
++ it appears that the Development Officers are salaried persons. For getting the business, they were paid conveyance/additional conveyance allowances and also incentive bonus. It may be mentioned that the various kind of special allowance has been prescribed under Section 10 (14) of the Act and also under Rule 2 BB of the Income Tax Rules. According to Rule 2BB (10), transport allowance granting to an employee to meet the expenditure for the purpose of commuting between the place of his residence and the place of his duty, is prescribed @ Rs.800 per month. The Rule 3 of the Income Tax Rules prescribed the value of the perquisite. Table II of Rule 3 prescribed the value of the perquisite pertaining to the motor car owned or hired and used by the employee for personal/official or wholly official purpose. It is prescribed that the value of the perquisite shall be the amount calculated in respect of only one car. Further, it is prescribed that the employer
has to maintain detail of the journey undertaken for the official purpose which may include the date of journey, destination, mileage and amount of the expenditure incurred thereon. The employer shall give a certificate to this effect that the expenditure was incurred wholly and exclusively for the purpose of the official duty;
++ it may be mentioned that "Perquisite" is excluded from the purview of Section 10(14). 'Perquisite' is defined under Section 17(2) of the Act. The conveyance/additional conveyance allowance is covered by the word "perquisite" and the same is taxable.
++ compartmentalization of income under various heads and computation of the taxable portion strictly in accordance with the formula of deductions, rebates and allowances are to be done only as per the scheme provided under the Act. As held by the Apex Court, the Income-tax Act, 1961 is a self contained code and taxability of the receipt of any amount or allowance has to be determined on the basis of the meaning given to the words or phrases given in the Act. Thus, the Apex Court do not agree with the view taken by the High Court of Gujarat in CIT Vs. Kiranbhai's case, 235 ITR 635. The same does not lay down the correct principle of law;
++ by considering the totality of the facts and circumstances of the case, it appears that in the instant case, the employer has issued the certificate pertaining to the conveyance allowance/additional conveyance allowance used exclusively and wholly for the official purpose i.e. the procurement of business. The said certificate is issued by the employer after verifying the data. When it is so, then there is no reason for the Assessing Officer to reject the said certificate specially when the LIC is a statutory body and no private interest is involved. The LIC is not competent to determine the allowances which are exempted from the tax. This task will have to be performed by the Assessing Officer;
++ thus, in view of the provisions of Income Tax Act, 1961 and its interpretation it is clear that the conveyance/additional conveyance allowance, and incentive bonus is taxable being perquisite as per the ratio laid down in the case of T.K. Girarajan Vs. CIT (2013-TIOL-37-SC-IT)and, therefore, the members of the petitioner federation are at liberty to lodge a claim for deduction or refund before the Assessing Officer after substantiating their claims;
++ accordingly, the letter dated 07.04.2004 has rightly been issued by the Senior Divisional Manager, LIC for deducting the Tax at source from the amount paid pertaining to the conveyance/additional conveyance allowances incurred in the performance of duty as Development Officers for generating the business being a permissible deduction as the same is exigible to tax. The members of the petitioner's association being salaried persons on furnishing their return of income return is assessed by the assessing authority and it is only after due assessment he entitled for refund of the amount, if any, deducted by the employers conveyance allowance.