2017 (4) TMI 109 - AT - Income Tax

Non-deduction of TDS u/s 192 - benefit of leave travel concession granted by the assessee bank to its employees - Held that - As decided in M/s State Bank of India Versus DCIT (TDS) , Kanpur 2016 (3) TMI 282 - ITAT LUCKNOW in the interim order, the Hon ble Madras High Court has permitted the bankers not to deduct TDS on or after 16.2.2015 on the amount paid/reimbursed to the employees of the bank in respect of LTC/HTC availed where the employee has visited a foreign city/country, irrespective of the fact whether the LFC bills were submitted and paid prior to 16.2.2015; meaning thereby this Circular was passed consequent to the interim order of the Hon ble Madras High Court. But in the present case, the journey was undertaken in the year 2012 and the bills were settled during that year; meaning thereby at the relevant point of time when the bills were settled, there was no order of the Hon ble Madras High Court and the assessee was under obligation to deduct TDS on the reimbursement of expenditure incurred by the assessee on foreign travel. In the light of these facts, we are of the considered opinion that the Revenue has rightly held the assessee to be in default, as the assessee has not deducted TDS intentionally on the reimbursement of expenditure incurred on LTC/LFC. Moreover, the ld. CIT(A) has directed the Assessing Officer to recalculate the liability of TDS at 10%. In view thereof, we reject the claim of the assessee of exemption under section 10(5) of the Act. - Decided against assessee

Summary

Issues Involved:

1. Legality of the CIT's order.
2. Non-deduction of TDS on Leave Travel Concession (LTC) payments.
3. Applicability of Section 10(5) exemption for LTC involving foreign travel.
4. Bona fide belief of the bank regarding LTC payments.
5. Computation of TDS at a flat rate of 30%.
6. Computation of interest on TDS liability.

Detailed Analysis:

1. Legality of the CIT's Order:
The assessee argued that the CIT's order was "bad in law, contrary to the provisions of law and facts of the case," and lacked proper appreciation of the facts. However, the Tribunal upheld the CIT's order, finding no merit in the assessee's contention.

2. Non-deduction of TDS on LTC Payments:
The assessee bank did not deduct TDS on LTC payments made to employees, even when the travel included foreign destinations. The ACIT and CIT(A) held that LTC benefits under Section 10(5) are not available for foreign travel. The Tribunal agreed, stating that "the assessee was aware of the fact that its employees have travelled in foreign countries, for which he is not entitled to exemption under section 10(5)."

3. Applicability of Section 10(5) Exemption for LTC Involving Foreign Travel:
The assessee contended that Section 10(5) does not explicitly bar travel to foreign destinations if the designated place is in India. However, the CIT(A) and the Tribunal found that Section 10(5) and Rule 2B clearly intend that the exemption is applicable only for travel within India. The Tribunal cited decisions from other benches supporting this interpretation, noting, "there was no intention of the Legislature to allow the employees to travel abroad under the garb of benefit of LTC."

4. Bona Fide Belief of the Bank Regarding LTC Payments:
The assessee claimed it was under a bona fide belief that TDS was not deductible on LTC payments involving foreign travel. The Tribunal rejected this claim, stating that the bank was aware of the actual travel details at the time of settling LTC bills and should have deducted TDS accordingly. The Tribunal noted that "the assessee has acted in complicity of such fraudulent claims made by its employees."

5. Computation of TDS at a Flat Rate of 30%:
The assessee argued that TDS should not be computed at a flat rate of 30% but according to the actual tax rate applicable to each employee. The CIT(A) agreed with this contention and directed the AO to compute TDS based on the tax slab of each employee. The Tribunal found this ground to be "infructuous" as the CIT(A) had already provided the necessary directions.

6. Computation of Interest on TDS Liability:
The assessee argued that interest on TDS liability should be computed based on the actual date of LTC payment to employees, not for a fixed period of 35 months. The CIT(A) had already directed the AO to compute interest with reference to the actual date of payment. The Tribunal found this ground to be "infructuous" as well.

Conclusion:
The Tribunal dismissed the appeals filed by the assessee, confirming the findings of the CIT(A). It directed the AO to recompute the tax and interest demand based on the CIT(A)'s directions and serve the revised demand notice to the assessee. The stay petitions were disposed of with instructions to the Department to refrain from coercive steps in the interim.