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2015 (2) TMI 72 - HC - Income TaxPayment of uniform allowance etc. to the employees by the assessee - whether liable for FBT? - whether the payment of uniform allowance was nothing but additional salary paid in the form of an allowance within the meaning of section 17(1)(iv) attracting the TDS provisions of section 192 of the IT Act ? - Held that - The respondent is a Government undertaking, operating all over India, and there is nothing on record that this issue had arisen in any State other then the State of Gujarat. In that view of the matter, it is required to be looked very seriously inasmuch as the benefits which are conferred to the other employees of the respondent-company throughout the country are accepted by the Revenue as benefit deductible and has not been considered as part of salary. Since assessee was governed FBT provision and the applicability of provision for salary will not apply and contention raised by assessee is rightly accepted by the Tribunal. We have gone through the provisions of section 12H and benefits which are conferred under section 115WB(2)(E) of the Income Tax Act. While reading clause(E), the provisions of section 17(2)(vi) whether the payment made under FBT is excluded or not, in our view, it is excluded. - Decided in favour of the assessee
Issues Involved:
1. Whether the payment of uniform allowance to employees is liable for Fringe Benefit Tax (FBT) or should be treated as additional salary attracting the TDS provisions under Section 192 of the Income Tax Act. Detailed Analysis: 1. Common Question of Law: The primary issue raised by the revenue was whether the payment of uniform allowance to employees by the assessee is liable for FBT and not considered as additional salary under Section 17(1)(iv) attracting TDS provisions under Section 192 of the Income Tax Act. 2. Facts of the Case: The Assessing Officer (AO) found that the assessee did not deduct TDS from the payment/reimbursement of the uniform allowance, leading to an order under Section 201(1)/201(1A). The CIT (Appeals) ruled in favor of the assessee, and the Tribunal dismissed the revenue's appeal. Consequently, the revenue appealed to the High Court. 3. Reference to Previous Decision: The court referred to a similar case in Tax Appeal No.549 of 2013, where the same question was decided against the revenue and in favor of the assessee. 4. Survey and Verification: Surveys conducted at ONGC offices revealed that allowances like CMRE (Conveyance Maintenance Allowance) and uniform allowances were not included in Form 16 and no TDS was deducted. The employer claimed these were exempt under various provisions and subject to FBT. 5. Tribunal's Findings: The Tribunal held that FBT was payable on the expenditure for employees' welfare, including uniform allowances, and since FBT was paid, TDS was not required. The Tribunal referenced Section 17(2)(vi) and Section 115WB(2)(E) with explanations, concluding that such expenditures, being subject to FBT, are not considered perquisites under Section 17(2) and thus not part of the salary requiring TDS deduction. 6. CBDT Circular No. 8/2005: The court examined the CBDT Circular, which clarified that expenditures incurred for statutory obligations like providing uniforms are exempt from FBT to the extent they meet such obligations. 7. Legal Provisions: The court analyzed Section 10(14)(i), which excludes certain allowances from being considered perquisites if they are meant to meet expenses incurred in the performance of duties. The court also referenced Section 192, which obligates employers to deduct TDS on salary payments. 8. Supreme Court Judgment: The court considered the Supreme Court's decision in R & B Falcon (A) Pty. Ltd., which clarified the intention behind FBT to avoid double taxation and ensure equity by taxing benefits provided by employers without taxing employees directly. 9. Conclusion: The court concluded that since the employer paid FBT on the uniform allowance, it should not be considered part of the salary for TDS purposes. The Tribunal's decision was upheld, and the appeals were dismissed. The court did not examine whether the payment was exempt under Section 10(14). 10. Final Judgment: The appeals were dismissed, with the court affirming that the payment of uniform allowance, being subject to FBT, does not attract TDS provisions under Section 192. The question was answered in favor of the assessee and against the revenue.
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