2009 (12) TMI 581 - AT - Income Tax

Deduction of tax at source - Perquisite u/s 17(2)(ii) - rental perquisite u/s 17(2)(ii) - accommodation provided by bank - Explanation 1 to S.17(2)(ii) was inserted by the Finance Act, 2007 with retrospective effect whereby the value of the residential accommodation provided by the assessee-bank to its employees by recovering lesser amount of rent than the lease rent paid to the lessor of the premises, amounts to perquisite and the employer is made liable to deduct tax on the perquisite value thereof Held that assessee could not be held to be in default for non-deduction of tax at source on the perquisite value of the residential accommodation provided at a lesser figure of rent than actually paid by the assessee to the lessor of the premises due to retrospective amendment - assessee employer is not hit by the retrospective insertion of Explanation (I) to S.17(2) thereof in the absence of any such extension of retrospective effect either in S.192 or S.201 of the Act as per the decision of the Hon ble Privy Counsel in the case of Delhi Cloth & General Mills Co. Ltd. - The issue in favour of the assessee .

Summary

Issues:
1. Whether the assessee is liable for deduction of tax at source on the perquisite value of residential accommodation provided to its employees.
2. Whether the amendment in law with retrospective effect from 1.4.2002 holds the assessee as 'in default' for non-deduction of tax at source.
3. Whether the quantification of perquisite value, short deduction of tax, and interest under section 201(1A) is justified.
4. Whether the quantification of short fall in tax at a flat rate of 30% is erroneous, arbitrary, and untenable.

Issue 1:
The assessee contended that there was no default in deducting tax at source from salaries paid to employees. The CIT(A) upheld the order of the DCIT(TDS) regarding concessional rental perquisite under section 17(2)(ii) of the Income-tax Act, 1961. The assessee argued that no concessional rental perquisite existed as standard rent was deducted from employees' salaries for leased accommodations. The appellant acted in accordance with prevailing laws and High Court decisions. The appellant maintained that no default occurred based on the law in force at that time.

Issue 2:
The retrospective amendment in law with effect from 1.4.2002 inserted Explanation 1 to section 17(2)(ii), making the employer liable to deduct tax on the perquisite value of residential accommodation provided to employees. The Tribunal noted that when TDS was to be effected, there was no such provision in the statute book. The Tribunal referred to the decision of the Nagpur Bench in a similar case involving Canara Bank, where it was held that the employer was not in default due to the retrospective insertion of Explanation 1 to section 17(2) without an extension of retrospective effect in relevant sections. Consequently, the issue was decided in favor of the assessee.

Issue 3:
The quantification of perquisite value, short deduction of tax, and interest under section 201(1A) was challenged by the assessee. It was argued that the quantification was uncalled for, and the method of calculating the shortfall in tax at a flat rate of 30% was deemed erroneous, arbitrary, and untenable. The Tribunal did not find the quantification justified and ruled in favor of the assessee on this issue.

Issue 4:
The assessee's argument regarding the quantification of short fall in tax at a flat rate of 30% was supported by the Tribunal. The Tribunal found the quantification erroneous, arbitrary, and untenable. Consequently, the grounds of appeal of the assessee were allowed, and all four appeals were allowed in favor of the assessee.