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TMI Blog2016 (5) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... njoy Mukherjee, JCIT, Sr. DR For the Respondent : None ORDER Per Shri S. S. Viswanethra Ravi, J.M. This appeal is filed by the Revenue having aggrieved by the order dated 22.02.2013 passed by the CIT(Appeals)-XXIV, Kolkata in Appeal No.1165/CIT(A)-XXIV/C-1/12-13 for the assessment year 2006-07 framed under section 115WE(3)/115WG(c) of the I.T.Act. 2. Challenging the above impugned order, the appellant Revenue has raised the following grounds before the Tribunal. 1. That on the facts and in the circumstances of the case the Ld. CIT(A) has erred and is not justified in deleting the addition of ₹ 1,13,42,857/- as fringe benefits u/s 115WB(1)(c) on account of contribution to the Employees Provident Fund Organisation towards employees Pension Scheme, 1995. 2. That the appellant craves leave to add, alter/or amend any of the grounds of appeal during the course of hearing. 3. Brief facts of the case are that the fringe benefit tax for short FBT assessment was completed u/s. 115WE(3) of the Act on 28.10.2008 determining the value of taxable fringe benefits at ₹ 4,92,016/-. The said order passed under section 115WE(3) was rectified under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefits under section 115WB(1)(c) if the Act. 7. Now the question to be decided as formulated by the assessee is as to whether the employer s contribution to the employees provident fund is a contribution defined under section 2(6) of the Act which attracts fringe benefit tax U/s 115WB(1)(c) of the Act or not? 8. The assessee s contention was that the employer s contribution to the employees provident fund is a statutory contribution to the employee s pension scheme framed by the Government of India under the provisions contained in the Employees Provident Fund Miscellaneous Provision Act 1952, but does not come under section 2(6) of the Act and such contributions made to Employees Provident Fund Organization under the Employees Pension Scheme, 1995 are not a Fringe Benefit. 9. In this connection, we may refer to the Section 2(6) of the Income tax Act which defines approved superannuation fund for better under standing approved superannuation fund means a superannuation fund or any part of a superannuation fund which has been and continues to be approved by the Chief Commissioner or Commissioner] in accordance with the rules contained in part B of the Fourth Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provident fund of an establishment in respect of which a notification has been issued by the Central Government under sub-section (2) of section 16 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952). PART B APPROVED SUPERANNUATION FUNDS44 [See sections 2(6), 10(13), 10(25)(iii), 36(1)(iv), 45 87(1)(e), 192(5), 206] Definitions. 1. In this Part, unless the context otherwise requires, employer , employee , contribution and salary have, in relation to superannuation funds, the meanings assigned to those expressions in rule 2 of Part A in relation to provident funds. Approval and withdrawal of approval. 2. (1) The 46[Principal Chief Commissioner or] Chief Commissioner or 46[Principal Commissioner or] Commissioner may accord approval to any superannuation fund or any part of a superannuation fund which, in his opinion, complies with the requirements of rule 3, and may at any time withdraw such approval, if, in his opinion, the circumstances of the fund or part cease to warrant the continuance of the approval. (2) The 46[Principal Chief Commissioner or] Chief Commissioner or 46[Principal Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior year or years (not being more than three years immediately preceding the year in which the said application is made) for which such accounts have been made up, but the47[Principal Chief Commissioner or] Chief Commissioner or 47[Principal Commissioner or] Commissioner may require such further information to be supplied as he thinks proper. (2) If any alteration in the rules, constitution, objects or conditions of the fund is made at any time after the date of the application for approval, the trustees of the fund shall forthwith communicate such alteration to the Assessing Officer mentioned in sub-rule (1), and in default of such communication any approval given shall, unless the 47[Principal Chief Commissioner or] Chief Commissioner or 47[Principal Commissioner or] Commissioner otherwise orders, be deemed to have been withdrawn from the date on which the alteration took effect. Contributions by employer when deemed to be income of employer. 5. Where any contributions by an employer (including the interest thereon, if any) are repaid to the employer, the amount so repaid shall be deemed for the purpose of income-tax to be the income of the employer of the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for employees in factories and other establishments in India. The said Act applicable to every establishment which is a factory engaged in any industry specified in Schedule-I contained therein and in which twenty or more persons are employed and to any other establishment employing twenty or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette specify on this behalf. 14. In this regard, in appellate proceedings Ld AR has explained, how addition under Section 115WB r/w section 2(6) of the Act is not applicable vide his letter dated 12.02.2013 is placed as under.- 1). That the company is an employer to which the provisions of the Employees' Provident Funds Miscellaneous Provisions Act, 1952 applies. 2). That under the provisions contained in Section 6A of the said Act, the Central Government has framed a scheme namely The Employees Pension Scheme, 1995 for the purpose of providing pension to the employees of an establishment to which the Act applies. 3). That the company, as an employer, was required to contribute to the Employees' Pension Fund set up under the said statutory Employees& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; Pension Scheme, 1995 has been framed by the Central Government in exercise of the powers conferred by section 6A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. The relevant part of the scheme reads as under:- Notification No. G.S.R. 748(E, dated November 16, 1995 - In exercise of the powers conferred by section 6A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), the Central Government hereby makes the following Scheme, namely:- 1. Short title, Commencement and Application - (1) This Scheme may be called the Employees' Pension Scheme, 1995. (2) (a) This Scheme shall come into force on 16th day of November, 1 995. (b) Subject to the provisions of this Scheme the employees have an option to become the members of the Scheme with effect from the 1s t April, 1993. (3) Subject to the provisions of section 16 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, this Scheme shall apply to the employees of all factories and other establishments to which the Employees' Provident Funds and Miscellaneous' Provisions Act, 1952 applies or is applied u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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