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TMI Blog2012 (11) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... March, 2010 in Writ Petition No. 155 of 1996 and the order dated 26th July, 2010 in Notice of Motion No. 364 of 2010 in Review Petition (L) No. 43 of 2010, passed by the Division Bench of the High Court of Bombay. The facts briefly are that Rule 3 of the Income Tax Rules, 1962 was amended by the Income Tax (Twenty-Second Amendment) Rules, 2001 and by the amendment, the method of fixation of the value of 'perquisites' under Section 17(2) of the Income Tax Act, 1961 (for short 'the Act') was also amended. The Association of Scientific & Technical Officers of the Oil & Natural Gas Corporation Limited (for short 'the ONGC') filed Writ Petition No. 155 of 1996 before the High Court, challenging the vires of the aforesaid method of valuation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an assessee in default. The ONGC, thereafter, filed Review Petition (L) No. 43 of 2010 before the High Court, but by the impugned order dated 26th July, 2010, the High Court dismissed the review petition. Mr. Anupam Lal Das, learned counsel appearing for the Association of Scientific & Technical Officers of the ONGC (the petitioner in SLP(C) Nos. 29855-29856 of 2010) submitted that in Arun Kumar (supra), this Court has held that Section 17(2) of the Act declares that the value of any "concession" in the matter of rent respecting any accommodation provided to the employee by his employer would be 'perquisite' and therefore, there has to be a determination as to whether the accommodation provided to the employee of the ONGC was a "concess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing so by virtue of the interim order passed by the High Court on 20th February, 1996 by which the ONGC was restrained from deducting tax on the 10% of the salary of the employees as provided in the amended Rule 3 challenged before the High Court in the writ petition. He submitted that in the peculiar facts and circumstances, therefore, the ONGC was not an assessee in default under Section 192(1) and Section 200 of the Act. Mr. R.P. Bhat, learned senior counsel appearing for the Department, on the other hand, submitted that the ONGC was in default of the provisions of the Act as it failed to deduct the tax and pay the same in favour of the Central Government in accordance with the provisions of Section 192(1) and Section 200 of the Act. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be held to be in default under the provisions of the Act inasmuch as the ONGC was prevented by the Order of the High Court from deducting the tax on 10% of the salary of its employees under Section 192(1) of the Act, and to pay the same to the Central Government under Section 200 of the Act. Hence, during the period from 20th February, 1996 to 15th March, 2010, the ONGC cannot be deemed to be an assessee in default under the provisions of the Act. Consequently, the provisions of sub-section (1A) of Section 201 of the Act for payment of interest by an assessee in default under the provisions of the Act will not be applicable to the payments not made by the ONGC because of the interim order passed by the High Court which was in force fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven to the assessee to establish this claim before the Assessing Officer, in our considered opinion, this stand can only be taken by the assessee before the Assessing Officer in his own assessment proceedings and not by the employer. This stand also cannot be taken by the Association of Scientific & Technical Officers of the ONGC (the writ petitioner and the petitioner in the special leave petitions) as the said Association is not an assessee under the Act. This is because the scheme of the Act provides that after the employer deducts from the salary of the employee the tax and pays the same to the Central Government, a Tax Deduction Certificate is furnished to the employee and it is for the employee to claim before the Assessing Officer in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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