State Bank Of India, New Delhi V. ACIT, Circle-77(1), New Delhi

ITA 4852/DEL/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 4003 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2016-2017
• Appeal Filed On: 27-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; TDS
• Section: 133A

Judgement Text

1 ITA No. 4852/Del/2019 & 4853/Del/2019 State Bank of India Vs. ACIT IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: ‘B’ NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER I.T.A. No. 4852/DEL/2019 (A.Y 2016-17) State Bank of India Office Administration Department, 4 th Floor, Local Head Office, 11-Sansad Marg, New Delhi PAN: AAACS8577K (APPELLANT) Vs. ACIT Circle-77 (1) 5 th Floor, Laxmi Nagar, Delhi (RESPONDENT) I.T.A. No. 4853/DEL/2019 (A.Y 2017-18) State Bank of India Office Administration Department, 4 th Floor, Local Head Office, 11-Sansad Marg, New Delhi PAN: AAACS8577K (APPELLANT) Vs. ACIT Circle-77 (1) 5 th Floor, Laxmi Nagar, Delhi (RESPONDENT) Assessee by : Shri Vivek Gupta, CA Department by: Shri Sumit Kumar Verma, Sr. D. R.; Date of Hearing 20.09.2022 Date of Pronouncement 23.09.2022 2 ITA No. 4852/Del/2019 & 4853/Del/2019 State Bank of India Vs. ACIT ORDER PER YOGESH KUMAR U.S., JM These two present appeals are filed by the assessee against the order dated 19/03/2019 of the ld. Commissioner of Income Tax (Appeals)-31, New Delhi [hereinafter referred to CIT (Appeals)] for Assessment Year 2016-17 & 2017-18 respectively. 2. The grounds of appeal are as under:- I.T.A. No. 4852/DEL/2019 (A.Y 2016-17) 1. That order of Ld CIT (A), on aspects agitated in this appeal, is bad in law being contrary to the provisions of the law and without appreciation of the facts and circumstances of the case in their right perspective. 2. That on the facts and circumstances of the case and provisions of the law, the Ld AO as well as Ld CIT(A) erred in raising/confirming the demand of Rs. 32,36,633- (including interest of Rs.7,19,761/-) by denying the exemption u/s 10(5) in respect of reimbursement of Leave Travel concession involving foreign leg through circuitous route as long as the employees designated place is in India for his leave travel concession and he actually visits the place as designated. 3. That consequential to our Ground No.1,& 2 above, the learned AO and Ld CIT(A) has erred in charging/confirming interest u/s 201(1A) of Rs.7,19,761/-. 3 ITA No. 4852/Del/2019 & 4853/Del/2019 State Bank of India Vs. ACIT I.T.A. No. 4853/DEL/2019 (A.Y 2017-18) 1. That order of Ld CIT (A), on aspects agitated in this appeal, is bad in law being contrary to the provisions of the law and without appreciation of the facts and circumstances of the case in their right perspective. 2. That on the facts and circumstances of the case and provisions of the law, the Ld AO as well as Ld CIT(A) erred in raising/confirming the demand of Rs. 47,68,383/- (including interest of Rs.7,33,480/-) by denying the exemption u/s 10(5) in respect of reimbursement of Leave Travel concession involving foreign leg through circuitous route as long as the employees designated place is in India for his leave travel concession and he actually visits the place as designated. 3. That consequential to our Ground No.1,& 2 above, the learned AO and Ld CIT(A) has erred in charging/confirming interest u/s 201(1A) of Rs.7,33,480/-. ITA NO. 4852/Del/2019 (Assessment Year 2016-17) 3. Brief facts of the case are that, a survey u/s 133A was carried out at the premises of the assessee Local Head Office, No. 11, Sansad Marg, New Delhi on 20/01/2018 and it was found that the employees of the bank availed Leave Fare Concession (LFC) through a Circuitous tour including the foreign destination and reimbursed amount was allowed as examined u/s 10(5) of the Act. Since the expenditure incurred on foreign LFC was not except, a notice u/s 201(1)/201(1A) of the Act was issued to the assessee. In reply, the assessee mainly contended that as per Section 10(5) of the Act read with Rule 2B of Income Tax Rules, the LFC (Leave Fare Concession) has to be only to a designated place in India and the same has been complied with. The said 4 ITA No. 4852/Del/2019 & 4853/Del/2019 State Bank of India Vs. ACIT contention of the assessee has been rejected on the ground that exemption u/s 10(5) of the Act is available for journey performed in India only. Therefore, the total expenditure reimbursed by the assessee on account of foreign component of LFC has been determined by the A.O separately and accordingly tax deductable thereon was worked out at Rs. 32,36,631/- including interest u/s 201(IA) of the Act. 4. As against the order passed u/s 201(1)/201(1A) dated 26/03/2018, the assessee has preferred an appeal before the CIT (A). The Ld.CIT (A) vide order dated 19/03/2019 upheld the action of the A.O by confirming the demand of Rs. 32,36,633/- u/s 201(1)/201(1A) and further directed the A.O to take necessary action for recovery of demand on the basis of final outcome of the MP No. 2/14 in WP No. 11991/2014 pending before the Madras High Court in the case of All India State Bank Officer Federation Chennai and New Delhi Vs. SBI through its Chairman. 5. Aggrieved by the order of the Ld.CIT(A) dated 19/03/2019, the assessee has preferred the present appeal on the grounds mentioned above. 6. The Ld. Counsel for the assessee submitted that in assessee’s own case for Assessment Year 2013-14 the Coordinate Bench of the Tribunal in ITA No. 5437/Del/2016, relying on the order of the Tribunal for the Assessment Year 2012-13 and other judicial pronouncements, set aside the issue/impugned order to the file of Ld. A.O with a direction to re-adjudicate the issue afresh after affording an opportunity of being heard to the assessee in the light of the observation made in the order. As against the said order of the Tribunal, the assessee has preferred an appeal before the Jurisdictional High Court in ITA No. 5/2020 and the Hon’ble Delhi High Court vide order dated 13/01/2020 dismissed the Appeal filed by the assessee. As against the order of the Hon’ble Delhi High Court in ITA No. 5/2020, the assessee has preferred an Appeal before the Hon'ble Supreme Court in Special Leave to Appeal No. 9876/2020. The Hon'ble Supreme Court vide order dated 13/01/2020, pending further 5 ITA No. 4852/Del/2019 & 4853/Del/2019 State Bank of India Vs. ACIT consideration of the Special Leave Appeal, the operation and the effect of the order under challenge has been stayed. The Ld. Counsel for the assessee submitted that in view of the interim order granted by the Hon'ble Supreme Court, the present appeals may be adjourned. 7. We have heard the parties, perused the material on record and gave our thoughtful consideration. The issue involved in the Assessment Year 2013-14 and that of the present appeal are similar in nature, i.e. whether assessee is liable for deduction of TDS on the reimbursement of Leave Fare Concession in view of Section 10(5) and Rule 2B of the Act or not? The said issue is already under consideration by the Hon'ble Supreme Court which will be binding on the revenue and also on the assessee. Since the Ld. A.O has to give effect to the order that would be passed in Special Leave Appeal No. 9876/2020 in respect of A.Y 2013-14 in Assessee’s own case, we deem it fit to restore the issue also (for A.Y 2016-17) to the file of A.O. to consider the same after disposal of the Special Leave Appeal No. 9876/2020 by the Hon’ble Supreme Court and decide same in compliance with outcome of the order of the Hon’ble Supreme Court. Therefore, the issue involved in the present appeal is restored to the file of the A.O. to decide the same after disposal of Special Leave Appeal No. 9876/2020 by the Hon’ble Supreme Court. 8. In the result, Appeal filed by the assessee in ITA No.4852/Del/2019 is allowed for statistical purpose. ITA No. 4853/Del/2019 9. In view of the deciding the Appeal in ITA No. 4852/Del/2019, the ITA No. 4853/Del/2019 is disposed of in terms of order in ITA No. 4852/Del/2019 by restoring the matter to the file of Ld. A.O to decide the same after disposal of Special Leave Appeal No. 9876/2020 by the Hon’ble Supreme Court. 6 ITA No. 4852/Del/2019 & 4853/Del/2019 State Bank of India Vs. ACIT 10. In the result, Appeal filed by the assessee in ITA No.4853/Del/2019 is allowed for statistical purpose. Order pronounced in the open court on : 23/09/2022 . Sd/- Sd/- ( SHAMIM YAHYA ) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 23/09/2022 *R.N* Sr PS Copy forwarded to : 1. Appellant 2. Respondent 3. CIT 4. CIT (Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI