2012 (12) TMI 804 - AT - Income Tax

Visa Charges and Others Whether liable to FBT Held that -The incurring of visa charges may result in tour and travel of employees but the objective and purpose of incurring these and other related expenditure is for the carrying on of business outside India. Further, visa charges are a statutory payment. It is a legitimate business expenditure incurred by the assessee and is neither paid to the employees as a consideration for employment, nor are they incurred for the benefit of the employees of the assessee company. As decided in M/s. Toyota Kirloskar Motor P. Ltd. Vs. Addl. CIT (LTU), Bangalore 2012 (6) TMI 484 - ITAT, BANGALORE legitimate business expenditure which does not result in any benefit to employees is not liable to FBT - Thus the findings of CIT(A) in concluding that the expenses under the head Visa Charges and Others are not liable for FBT are correct - in favour of assessee.

Summary

Issues Involved:
1. Whether expenses under the head "Visa Charges and Others" are liable for Fringe Benefit Tax (FBT) under section 115WB(2)(F) of the Income Tax Act, 1961.

Detailed Analysis:

1. Nature of Expenses and Applicability of FBT:
The primary issue revolves around whether the expenses incurred under the head "Visa Charges and Others" should be considered as part of "conveyance, tour and travel (including foreign travel)" and thus be liable for FBT under section 115WB(2)(F).

Revenue's Argument:
- The Assessing Officer (AO) argued that the expenses debited under "Visa Charges and Others" are inherently linked to foreign travel, making them liable for FBT.
- It was contended that work permits and business visas are procedural necessities for foreign travel.
- The AO emphasized that section 115WB(2)(F) does not differentiate between short-term and long-term foreign travel, implying that all visa-related expenses should be taxed as fringe benefits.

Assessee's Argument:
- The assessee contended that these expenses were business-related and did not provide any benefit to employees.
- It was argued that the expenditure was aimed at enabling employees to work abroad for business purposes, not for personal travel or enjoyment.
- The assessee further argued that such expenses are statutory payments necessary for business operations and should not be considered as fringe benefits.

2. CIT(A)'s Findings:
The Commissioner of Income Tax (Appeals) [CIT(A)] accepted the assessee's arguments and concluded:
- The expenditure on visa charges and related items does not confer any benefit to employees in the form of foreign travel or tour.
- The expenses were incurred to facilitate business operations abroad and were not recurring in nature.
- The CIT(A) emphasized that the primary purpose of these expenses was to make employees legally eligible to work abroad, which is a business necessity and not a fringe benefit.

3. Revenue's Appeal to ITAT:
The Revenue appealed against the CIT(A)'s decision, arguing that:
- The expenses on visa charges are an indispensable part of foreign travel and thus fall under section 115WB(2)(F).
- The deeming provisions of section 115WB(2) make these expenses liable for FBT irrespective of whether they result in any benefit to employees.

4. ITAT's Judgment:
The Income Tax Appellate Tribunal (ITAT) upheld the CIT(A)'s decision, providing a detailed analysis:
- The ITAT noted that the expenses under "Visa Charges and Others" were legitimate business expenditures incurred for statutory purposes, necessary for employees to work abroad.
- It was highlighted that these expenses were not paid to employees nor incurred for their benefit, but were statutory payments to third parties.
- The ITAT referred to the decision in M/s. Toyota Kirloskar Motor P. Ltd. Vs. Addl. CIT, where it was held that legitimate business expenses not resulting in any benefit to employees are not liable for FBT.
- The ITAT concluded that the deeming fiction under section 115WB(2) applies only to expenditures resulting in collective enjoyment of benefits by employees, which was not the case here.

Conclusion:
The ITAT confirmed the CIT(A)'s order, ruling that the expenses under "Visa Charges and Others" are not liable for FBT. The appeal by the Revenue was dismissed, reinforcing that legitimate business expenditures, especially statutory payments necessary for business operations, do not constitute fringe benefits. The judgment emphasized the legislative intent behind FBT provisions, focusing on collective benefits to employees rather than essential business expenses.