Bharat Overseas Bank Ltd., CHENNAI V. ACIT, CHENNAI

ITA 524/CHNY/2014

• Counselvise Citation: 52421714 RSA 2014
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 30-09-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 03-03-2014
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Assessee Lawyers: S JAGANNATHAN
• Keywords: Reopening of assessment; Opportunity of being heard; Reassessment proceedings

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . , . , BEFORE SHRI A. MOHAN ALANKAMONY , ACCOUNTANT MEMBER & SHRI DUVVURU R L REDDY , JUDICIAL MEMBER ./ I.T.A.NO. 524/MDS/2014 / ASSESSMENT YEAR :20 06 - 07 BHARAT OVERSEAS BANK LTD., [NOW MERGED WITH INDIAN OVERSEAS BANK], BALANCE SHEET MANAGEMENT, 763, ANNA SALAI, CHENNAI 600 002 . [PAN: A A ACB1374M ] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX , COMPANY CIRCLE I (2), CHENNAI. ( / APPELLANT ) ( / RESPONDENT ) ./ I.T.A.NO. 679 /MDS/2014 / ASSESSMENT YEAR :2006 - 07 THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCL E I (2), CHENNAI 600 034. VS. BHARAT OVERSEAS BANK LTD., [NOW MERGED WITH INDIAN OVERSEAS BANK], BALANCE SHEET MANAGEMENT, 763, ANNA SALAI, CHENNAI 600 002. ( / APPELLANT ) ( / RESPONDENT ) ASSESSEE BY : SHRI S. JAGANNATHAN, FCA DEPARTMENT BY : SHRI A.B. KOLI, JCIT / DATE OF HEARING : 30 . 09 .201 5 / DATE OF P RONOUNCEMENT : 30 .10 .201 5 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : BOTH THE CROSS APPEAL S FILED BY THE ASSESSEE A ND THE REVENUE ARE DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX ( APPEALS ) , I.T.A. NO S . 524 & 679 /M/ 14 2 LARGE TAXPAYER UNIT, CHENNAI , DATED 2 0 . 12 .20 1 3 RELEVANT TO THE ASSESSMENT YEAR 2006 - 07. 2. THE ONLY ISSUE RAISED IN THE APPEAL OF THE ASSESSEE IS WITH REGARD TO REOPENING OF ASSESSMENT. 3 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED THE RETURN OF FRINGE BENEFIT FOR THE ASSESSMENT YEAR 2006 - 07 ON 21.11.2006 ADMITTING FRINGE BENEFIT OF .1,18,90,410/ - . THE ASSESSMENT WAS COMPLETED UNDER SECTION 115WE(3) OF THE INCOME TAX ACT [ ACT IN SHORT ] ON 24.12.2008 ACCEPTING THE VALUE OF FRINGE BENEFITS RETURNED. SUBSEQUENTLY, THE ASSESSING OFFICER HAS NOTICED THAT AN AMOUNT OF .2,22,42,482/ - WA S DEBITED TO PROFIT AND LOSS ACCOUNT TOWARDS SUPERANNUATION FUND OF THE EMPLOYEES. AS THE EXPENDITURE WAS CHARGEABLE TO FRINGE BENEFIT TAX AND HAD ESCAPED ASSESSMENT , THE ASSESSING OFFICER HAS ISSUED NOTICE UNDER SECTION 115WH OF THE ACT ON 26.03.2012 AND REOPENED THE ASSESSMENT. IN RESPONSE TO THE NOTICE, THE ASSESSEE FILED A REPLY ON 16.04.2012 REQUESTING TO TREAT THE RETURN FILED ORIGINALLY AS THE ONE FILED IN RESPONSE TO NOTICE UNDER SECTION 115WH OF THE ACT. AFTER HEARING THE ASSESSEE, THE ASSESSING OF FICER HAS COMPLETED THE ASSESSMENT UNDER SECTION 115WE(3) R.W.S. 115WG OF THE ACT ON 23.01.2013 DETERMINING THE FRINGE BENEFITS AT .3,41,32,892/ - BY MAKING ADDITION OF .2,22,42,482/ - ON ACCOUNT OF CONTRIBUTION TO SUPERANNUATION FUND. I.T.A. NO S . 524 & 679 /M/ 14 3 4 . THE ASSESSEE CA RRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) . THE LD. CIT(A), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND BY FOLLOWING VARIOUS DECISIONS, SUSTAINED THE REASSESSMENT ORDER PASSED UNDER SECTION 115WE(3) R.W.S. 115WG OF THE ACT. 5 . ON BEING A GGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE REOPENING OF ASSESSMENT IS BAD IN LAW AND RELIED ON THE DECISION IN THE CASE OF CIT V. JET AIRWAYS (INDIA) LTD. 331 ITR 236). 6 . ON THE OTHE R HAND, THE LD. DR RELIED ON THE ORDERS OF AUTHORITIES BELOW. 7 . WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF BANKING AND FILED ITS RETURN OF FRING E BENEFIT FOR THE ASSESSMENT YEAR 2006 - 07 ON 21.11.2006. THE ASSESSMENT WAS COMPLETED UNDER SECTION 115WE(3) OF THE ACT ON 24.12.2008 WITHOUT MAKING ANY ADDITION. SUBSEQUENTLY, THE ASSESSMENT WAS REOPENED BY ISSU ING NOTICE AND THE ASSESSING OFFICER HAS PAS SED REASSESSMENT ORDER UNDER SECTION 115WE(3) R.W.S. 115WG OF THE ACT ON 23.01.2013 BY MAKING ADDITION TOWARDS CONTRIBUTION TO THE SUPERANNUATION FUND TO THE EXTENT OF .2,22,42,482/ - . WHILE SUSTAINING THE REASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER , ON MERITS, THE LD. CIT(A) HAS ALLOWED THE GROUND RAISED BY THE ASSESSEE WITH I.T.A. NO S . 524 & 679 /M/ 14 4 REGARD TO CHARGEABILITY OF THE AMOUNT PAID TOWARDS SUPERANNUATION FUND BY THE ASSESSEE TO FBT. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE REASSESSMENT OR DER PASSED BY THE ASSESSING OFFICER IS BAD IN LAW . WE FIND THAT THE LD. CIT(A) HAVING CONSIDERED THE FACTS ON MERITS AND ALLOWED THE ISSUE CANNOT BE A GROUND TO SET ASIDE THE REASSESSMENT PROCEEDINGS. WE ALSO FIND THAT I N THE PRESENT CASE THE ASSESSING OFF ICER HAS VALIDLY ISSUED NOTICE FOR REOPENING OF THE ASSESSMENT BY DULY RECORDING THE REASONS THEREOF AND REASSESSMENT WAS MADE ACCORDINGLY . THEREFORE, THE CASE LAW RELIED ON BY THE ASSESSEE IN THE CASE OF CIT V. JET AIRWAYS (I) LTD. (SUPRA) HAS NO APPLICAT ION. THUS, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. 8 . THE ONLY EFFECTIVE GROUND RAISED IN THE APPEAL OF THE REVENUE IS WITH REGARD TO DELETING THE ADDITION TOWARDS CONTRIBUTION MADE TO PENSION FUND BY CREATING PROVISIONS. WE FIND THAT IN SIMILAR FACTS ON AN IDENTICAL ISSUE, THE COORDINATE BENCH OF THE TRIBUNAL IN ASSESSEE S OWN CASE FOR THE ASSESSMENT YEAR 2007 - 08 IN I.T.A. NO. 1541/MDS/2010 VIDE ORDER DATED 20.02.2013, HAS OBSERVED AS UNDER: 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND ALSO PERUSED THE ORDERS PASSED BY THE LOWER AUTHORITIES. THE PRECISE ISSUE THAT ARISES FOR OUR CONSIDERATION IS WHETHER THE PROVISION IN QUESTION PERTAINING TO CONTRIBUTION MADE BY THE ASSESSEE FOR APPROVED SUPERANNUATION FUND OF ITS EMPLOYEES IS LIABLE TO BE T AXED AS CLAIMED BY THE REVENUE UNDER SECTION 115WB OF THE ACT OR NOT AS SUBMITTED BY THE ASSESSEE. WE FIND THAT THE COORDINATE BENCH OF AHMEDABAD, ITAT (SUPRA) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AS FOLLOWS: I.T.A. NO S . 524 & 679 /M/ 14 5 3. THE FACTS OF THE CASE ARE THA T THE AO AFTER SCRUTINIZING THE FRINGE BENEFIT TAX RETURN FILED, ASKED THE ASSESSEE ABOUT THE PAYMENT OF SELF - ASSESSMENT TAX FF RS.4,50,00,000/ - AND TO EXPLAIN THE BASIS OF CALCULATION AND PAYMENT OF THE SAME. THE DETAILS OF CONTRIBUTION TO SUPERANNUATION FUND WERE ALSO ASKED FOR. THE ASSESSEE VIDE ITS LETTERS DATED 26 - 03 - 2008 AND 10 - 04 - 2008 REPLIED TO THE QUERY RAISED BY THE A O. AFTER CONSIDERING THE REPLY OF THE ASSESSEE, THE AO CONCLUDED AS UNDER IN PARA 2 OF HIS ORDER: 'THE ASSESSEE'S REPLY WAS EXAM INED AND IT WAS FOUND THAT THE ASSESSEE'S CONTENTION IS NOT TENABLE. FRINGE BENEFIT HAS BEEN DEFINED U/S. 115WB AS UNDER: FOR THE PURPOSE OF THIS CHAPTER 'FRINGE BENEFITS' MEANS ANY CONSIDERATION FOR EMPLOYMENT PROVIDED BY WAY OF ANY CONTRIBUTION BY THE EMPLOYER TO AN APPROVED SUPERANNUATION FUND FOR THE EMPLOYEES. THE ASSESSEE HAS MADE A PROVISION OF RS.12.61 CRORES. IT MEANS THAT THE ASSESSEE COMPANY HAS MADE PROVISION FOR PAYMENT OF SUPERANNUATION FUND AND ACCORDINGLY AS PER DEFINITION OF FRINGE BE NEFIT, THIS HAS ALREADY BEEN PROVIDED AS A WAY OF CONTRIBUTION THOUGH PAID IN THE NEXT YEAR. HENCE, THIS IS INCLUDIBLE IN THE CALCULATION OF FRINGE BENEFIT AS PER DEFINITION OF FRINGE BENEFITS. THE DEFINITION CLEARLY STATES THAT THIS IS TO BE PROVIDED ONLY , NOT ACTUAL PAYMENT IS MENTIONED IN THE DEFINITION IN THE ACT. ' 4. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE LEARNED CIT (A) AND IT WAS SUBMITTED THAT THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS ASKED THE ASSESSEE AS TO WHY PROVISIONS OF `.12,61,00,000/ - MADE IN RESPECT OF SUPERANNUATION FUND BE NOT INCLUDED FOR THE PURPOSE OF LEVY OF FRINGE BENEFIT TAX. IN THIS REGARD, THE ASSESSEE SUBMITTED THAT THE ASSESSEE VIDE ITS L ETTERS DATED 26 - 03 - 2008 AND 10.04.2008 ADDRESSED TO. THE AO EXPLAINED THAT AS PER THE PROVISIONS OF SECTION 115WC (1 )(B) OF THE IT ACT WHICH PROVIDES COMPUTATION. OF VALUE OF FRINGE BENEFIT, ONLY ACTUAL AMOUNT OF CONTRIBUTION TOWARDS SUPERANNUATION FUND REFERRED TO IN SECTION 115W B (1) ( C ) WHICH DEFINES FRINGE BENEFITS IS LEVIABLE FOR FRINGE BENEFIT TAX. AS PER PROVISIONS OF SECTION 115WB(1)(C) OF THE I.T. ACT, FRINGE BENEFIT TAX MEANS ANY CONTRIBUTION BY THE EMPLOYER TO APPROVED SUPERANNUATION FUND FOR THE EMPLOYEES. DURING THE YEAR UNDER I.T.A. NO S . 524 & 679 /M/ 14 6 CONSIDERATION I.E. FOR THE YEAR ENDED 31.03.2006 , THE BANK HAS MADE PROVISION FOR SUPERANNUATION FOR EMPLOYEES AMOUNTING RS.12,61,00,000/ - . NO PAYMENT IN RESPECT THEREOF HAS BEEN MADE DURING THE YEAR. THE ACTUAL CONTRIBUTION HAS BEEN MADE DURING YEAR. THEREFORE, IN VIEW O F THE ABOVE CLEAR CUT DEFINITION GIVEN IN THE INCOME TAX ACT ITSELF, SUM ACTUALLY PAID BY THE EMPLOYER (PAID OR DEPOSITED) BY THE EMPLOYER ONLY IT CAN BE TREATED AS CONTRIBUTION. IN THE PRESENT CASE, ONLY THE PROVISION HAS BEEN MADE AND NO PAYMENT HAS BEEN MADE BY THE EMP LOYER OUT OF ITS OWN MONEY TO INDIVIDUAL ACCOUNT OF THE EMPLOYEES AND THEREFORE, THE SAME CANNOT BE TERMED AS CONTRIBUTION. IN VIEW OF THE ABOVE, ADDITION OF `.12,61,00,000/ - BEING PROVISION MADE FOR SUPERANNUATION FOR EMPLOYEES CANNOT BE ADDED FOR THE PUR POSE OF INCLUSION OF FRINGE BENEFIT TAX AND THAT AFTER CONSIDERING THE ABOVE, ADDITION OF RS.12,61,00,000/ - MADE BY THE AO MAY BE DELETED. 5. THE LEARNED CIT(A) CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND MATERIAL ON RECORD DISMISSED THE APPEAL OF T HE ASSESSEE ON THE ABOVE GROUND. HIS FINDINGS IN PARA 6 OF THE APPELLATE ORDER ARE REPRODUCED AS UNDER: '6. I HAVE CAREFULLY GONE THROUGH THE FACTS OF THE CASE AND THE SUBMISSIONS MADE BY THE LD. A R OF THE APPELLANT AND THE ASSESSMENT ORDER. IN TERMS O F THE PROVISIONS, OF SUB - SECTION (1) OF SECTION 115WA AN EMPLOYER IN INDIA IS LIABLE TO FRINGE BENEFIT TAX (FBT) IN RESPECT OF THE, VALUE OF FRINGE BENEFIT. THE SCOPE OF FRINGE BENEFITS PROVIDED OR DEEMED TO HAVE BEEN PROVIDED IS DEFINED IN SECTION 115 WB. THE FBT IS CALCULATED ON A PRESUMPTIVE BASIS AS A PROPORTION OF THE EXPENSES INCURRED FOR THE PURPOSES REFERRED TO IN SUB - SECTION (2) OF SECTION 115WB, WHETHER ACTUAL EXPENDITURE ON FRINGE BENEFITS IS MORE OR LESS THAN THE VALUE OF THE FRINGE BENEFITS, CA LCULATED ON THE PRESUMPTIVE BASIS. IN THE CASE OF THE APPELLANT, IT HAS MADE PROVISION FOR CONTRIBUTION THOUGH CLAIMS TO HAVE PAID IN THE NEXT YEAR. FRINGE BENEFITS ARE CHARGED TO TAX WHENEVER PROVIDED TO THE EMPLOYEES FOR A PARTICULAR YEAR. THE APPELLANT HAS NOT CLARIFIED AS TO WHAT IS THE ACTUAL PAYMENT MADE FOR SUPERANNUATION FUND DURING THE YEAR AND WHAT ACTUALLY HAS BEEN CLAIMED U/S. 43B(B) OF THE ACT. IN THE LETTER DATED 26/3/2008, ADDRESSED TO THE ADDL. CIT, BHAVNAGAR RANGE - 1, BHAVNAGAR, THE DY. GENE RAL MANAGER (F&A) OF THE APPELLANT BANK HAS MENTIONED AS UNDER: 'DURING THE YEAR, UNDER CONSIDERATION I.E. FOR THE YEAR ENDED ON 31 ST MARCH, 2006, BANK HAS MADE PROVISION FOR SUPERANNUATION FUND FOR EMPLOYEES AMOUNTING TO RS.12.61 CRORES. WE WERE UNDER T HE HONEST BELIEF THAT FRINGE BENEFIT TAX (FBT) IS LEVIABLE IN RESPECT OF PROVISION I.T.A. NO S . 524 & 679 /M/ 14 7 MADE FOR APPROVED SUPERANNUATION FUND AND ACCORDINGLY, BY WAY OF ABANDONED CAUTION AND TO AVOID LIABILITY OF INTEREST, PAYMENT OF FBT AMOUNTING TO RS.4,50,00,000/ - HAS BEEN MADE.' THEREFORE, I HOLD THAT THE AMOUNT IS INCLUDIBLE IN THE CALCULATION OF FBT. IN VIEW OF ABOVE DISCUSSIONS, THE ADDITION MADE BY THE AO OF RS.12,61,00,000/ - IS HEREBY, UPHELD. THE CONTENTION OF THE APPELLANT ON THIS ISSUE IS REJECTED. 6. LEARNED C OUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW AND ALSO REFERRED TO FOURTH SCHEDULE TO IT ACT RELATING TO RECOGNIZED PROVIDENT FUNDS AND REFERRED TO PART B OF THE SCHEDULE REGARDING APPROVED SUPERANNUATION FU NDS IN WHICH DEFINITION OF CONTRIBUTION HAS BEEN ASSIGNED THE SAME EXPRESSION IN RULE 2 OF PART A IN RELATION TO PROVIDENT FUNDS. IN PART A OF THE SCHEDULE DEFINITION OF CONTRIBUTION IS PROVIDED IN SUB - SECTION 2(C) MEANS ANY SUM CREDITED BY THE EMPLOYER OUT OF HIS OWN MONEY TO THE INDIVIDUAL ACCOUNT OF AN EMPLOYEE. HE HAS THEREFORE, SUBMITTED THAT WHEN ALL THE PROVISIONS ARE READ TOGETHER, IT WOULD BE CLEAR THAT THE LEVY OF FBT WOULD NOT ARISE ON THE MERE PROVISION. HE HAS SUBMITTED THAT UNLESS ACTUAL CONTRIBUTION IS MA DE TO AN APPROVED SUPERANNUATION FUND, FRINGE BENEFIT TAX CANNOT BE LEVIED IN THE CASE OF THE ASSESSEE. HE HAS FURTHER SUBMITTED THAT ACTUAL CONTRIBUTION WAS MADE TO THE FUND IN THE NEXT YEAR WHICH WOULD BE TAXABLE IN THE NEXT YEAR ACCORDING TO AMENDED PRO VISIONS OF LAW. ON THE OTHER HAND, LEARNED DR RELIED UPON ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND MATERIAL AVAILABLE ON RECORD. THE RELEVANT PROVISIONS DEALING WITH THE ABOVE CASE ARE REPRODUCED AS UNDER: 7.1 S ECTION 115WA (CHARGING OF FRINGE BENEFIT TAX) - (1) IN ADDITION TO THE INCOME - TAX CHARGED UNDER THIS ACT THERE SHALL BE CHARGED FOR EVERY ASSESSMENT YEAR COMMENCING ON OR AFTER THE 1 ST DAY OF APRIL. 2006, ADDITIONAL INCOME TAX (IN THIS ACT REFERRED TO AS FRINGE BENEFIT TAX) IN RESPECT OF THE FRINGE BENEFITS, PROVIDED OR DEEMED TO HAVE BEEN PROVIDED BY AN EMPLOYER TO HIS EMPLOYEES DURING THE PREVIOUS YEAR AT THE RATE OF THIRTY PER CENT ON THE VALUE OF SUCH FRINGE BENEFITS. I.T.A. NO S . 524 & 679 /M/ 14 8 (2) NOTWITHSTANDING THAT NO IN COME TAX IS PAYABLE BY AN EMPLOYER ON HIS TOTAL INCOME COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT, THE TAX ON FRINGE BENEFIT SHALL BE PAYABLE BY SUCH EMPLOYER. 7.2 SECTION 115WB (FRINGE BENEFITS) (1) FOR THE PURPOSE OF THIS CHAPTER, FRI NGE BENEFITS MEANS ANY CONTRIBUTION FOR EMPLOYMENT PROVIDED BY WAY OF (A) (B) .. (C) ANY CONTRIBUTION BY THE EMPLOYER TO AN APPROVED SUPERANNUATION FUND FOR EMPLOYEES. 7.3 SECTION 115WC (VALUE OF FRINGE BENEFITS) (1) FOR THE PURPOSE OF THIS CHAPTER; THE VALUE OF FRINGE BENEFITS SHALL BE THE AGGREGATE OF THE FOLLOWING, NAMELY - (A) .......... (B) ACTUAL AMOUNT OF THE CONTRIBUTION REFERRED TO IN CLAUSE (C) OF SUB - SECTION 115WB. 7.4 THE PHILOSOPHY BEHIND THE ENACTMENT OF FBT HAS BEE N EXPLAINED IN THE FINANCE MINISTER S SPEECH IN PARA 160 AS UNDER ( PAGE 56 OF 273 ITR (ST.)): I HAVE LOOKED INTO THE PRESENT SYSTEM OF TAXING PERQUISITES AND I HAVE FOUND THAT MANY PERQUISITES ARE DISGUISED AS FRINGE BENEFITS AND ESCAPE TAX. NEITHER THE EMPLOYER NOR THE EMPLOYEE PAYS ANY TAX ON THESE BENEFITS, WHICH ARE CERTAINLY OF CONSIDERABLE MATERIAL VALUE. AT PRESENT, WHERE BENEFITS ARE FULLY ATTRIBUTABLE TO THE EMPLOYEE THEY ARE TAXED IN THE HANDS OF THE EMPLOYEE; THAT POSITION WILL CONTINUE. IN ADD ITION, I NOW PROPOSE THAT WHERE THE BENEFITS ARE USUALLY ENJOYED COLLECTIVELY BY THE EMPLOYEES AND CANNOT BE ATTRIBUTED TO INDIVIDUAL EMPLOYEES, THEY SHALL BE TAXED IN THE HANDS OF THE EMPLOYER. HOWEVER, TRANSPORT SERVICES FOR WORKERS AND STAFF AND CANTEEN SERVICES IN AN OFFICE OR FACTORY WILL BE OUTSIDE THE TAX NET. 8. WHEN THE ABOVE PROVISIONS ARE READ TOGETHER IN THE LIGHT OF THE FINANCE MINISTER S SPEECH, IT WOULD BE CLEAR THAT AS PER FINANCE ACT 2005, UNDER SECTION 115WC (1) (B) OF THE IT ACT WHAT WOULD BE TAXABLE BY WAY OF FRINGE BENEFIT IS THE ACTUAL AMOUNT OF CONTRIBUTION REFERRED TO IN CLAUSE (C) OF SUB - SECTION (1) OF SECTION 115WB. SECTION 115WB (1) (C) INCLUDES IN THE FRINGE BENEFITS ANY CONTRIBUTION BY THE I.T.A. NO S . 524 & 679 /M/ 14 9 EMPLOYER TO AN APPROVED SUPERANNUATI ON FUND FOR EMPLOYEES. THE WORD ACTUAL IS NOT USED IN SECTION 115WB (1) (C) BUT IT IS USED IN SECTION 115WC (1) (B) WHICH DEFINES VALUE OF FRINGE BENEFITS ON WHICH FRINGE BENEFIT TAXES ARE PAYABLE. UNLESS ALL THE PROVISIONS ARE READ TOGETHER, IT IS DIFFICU LT TO LEVY TAX ON FRINGE BENEFITS. UNLESS MACHINERY PROVISIONS ARE APPLIED TO THE RELEVANT PROVISIONS, THE VALUE OF FRINGE BENEFITS CANNOT BE CALCULATED AND NO TAX COULD BE LEVIED AS PER LAW. WHEN ALL THE PROVISIONS WOULD BE READ TOGETHER, IT WOULD LEAD TO IRRESISTIBLE CONCLUSION THAT FRINGE BENEFIT TAX CAN BE LEVIED WHEN THERE IS ACTUAL CONTRIBUTION BY THE EMPLOYER TO AN APPROVED SUPERANNUATION FUND FOR THE EMPLOYEES. IT WOULD BE THEREFORE, CLEAR AND RELEVANT THAT THE VALUATION OF FRINGE BENEFITS BEING CO NTRIBUTION TO SUPERANNUATION FUND BECOMES RELEVANT AND MATERIAL ONLY WHEN ACTUAL AMOUNT IS CONTRIBUTED BY THE EMPLOYER TO AN APPROVED SUPERANNUATION FUND FOR THE EMPLOYEES. THE FRINGE BENEFIT COULD ONLY BE SUCH BENEFIT WHICH IS ACTUALLY AND USUALLY ENJOYED BY THE EMPLOYEES. THE SAME LANGUAGE IS USED IN THE SPEECH OF THE FINANCE MINISTER ALSO. THE ASSESSEE PLEADED THAT BANK HAS NOT MADE ANY ACTUAL PAYMENT BUT HAS MADE PROVISIONS OF RS.12.16 CRORES FOR SUPERANNUATION FUND BUT NO DETAILS HAVE BEEN MENTIONED EI THER IN THE ASSESSMENT ORDER OR IN THE ORDER OF THE LEARNED CIT(A). 9. LEARNED COUNSEL FOR THE ASSESSEE REFERRED TO DEFINITION OF CONTRIBUTION AS PER FOURTH SCHEDULE PART A (SUPRA), SUB - SECTION (2) (C) OF THE ABOVE SCHEDULE PROVIDES - 'CONTRIBUTION' MEAN S ANY SUM CREDITED BY OR ON BEHALF OF ANY EMPLOYEE OUT OF HIS SALARY OR BY AN EMPLOYER OUT OF HIS OWN MONIES, TO THE INDIVIDUAL ACCOUNT OF AN EMPLOYEE BUT DOES NOT INCLUDE ANY SUM CREDITED AS INTEREST.' THE ABOVE DEFINITION OF THE CONTRIBUTION WOULD NOT SU PPORT THE CASE OF THE ASSESSEE BECAUSE THE DEFINITION OF THE FRINGE BENEFIT AS PROVIDED U/S 115WB (1) (C) PROVIDES ANY CONSIDERATION FOR EMPLOYMENT PROVIDED BY WAY OF ANY CONTRIBUTION BY THE EMPLOYER TO AN APPROVED SUPERANNUATION FUND FOR EMPLOYEES. WHAT I S REQUIRED BY THE ABOVE PROVISION FOR TAXING THE FRINGE BENEFIT THAT THERE SHOULD BE CONTRIBUTION BY THE EMPLOYER TO AN APPROVED SUPERANNUATION FUND FOR EMPLOYEES. BUT THE DEFINITION OF CONTRIBUTION REFERRED TO BY THE LEARNED COUNSEL FOR THE ASSESSEE PROVI DES CONTRIBUTION BY AN EMPLOYER OUT OF HIS OWN MONEY TO THE INDIVIDUAL ACCOUNT OF AN EMPLOYEE. THERE IS A CONTRADICTION IN BOTH THE LANGUAGE. MOREOVER, SUB - SECTION (2) OF PART A OF FOURTH SCHEDULE TO THE INCOME TAX ACT PROVIDES THAT IN THIS PART, UNLESS TH E CONTEXT OTHERWISE REQUIRES .. SINCE, THE DEFINITION OF FRINGE BENEFIT IS OUT OF CONTEXT AS PER FOURTH SCHEDULE, THE CONTENTION OF LEARNED COUNSEL FOR THE ASSESSEE IS REJECTED. I.T.A. NO S . 524 & 679 /M/ 14 10 10. CONSIDERING THE ABOVE DISCUSSIONS, IT IS CLEAR THAT FRINGE BENEFIT COUL D BE TAXED WHEN THE ACTUAL CONTRIBUTION IS CONTRIBUTED BY THE EMPLOYER TO AN APPROVED SUPERANNUATION FUND FOR EMPLOYEES. THEREFORE, NO FRINGE BENEFIT TAX IS LEVIABLE WHEN THERE IS NO ACTUAL CONTRIBUTION IS MADE BY THE ASSESSEE BANK TO THE APPROVED SUPERAN NUATION FUND. SINCE THE AUTHORITIES BELOW HAVE NOT DISCUSSED THE ACTUAL FACTS IN THE IMPUGNED ORDERS AND NOTHING IS BROUGHT ON RECORD WHETHER ASSESSEE ACTUALLY CONTRIBUTED THE AMOUNT TOWARDS APPROVED SUPERANNUATIO N FUND; THEREFORE, THE MATTER REQUITE RECONSIDERATION AT THE LEVEL OF THE AO. 11. WE ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER TO THE FILE OF THE AO WITH DIRECTION TO RE - DECIDE THE ISSUE IN THE LIGHT OF THE FINDING S GIVEN IN THIS ORDER BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE ON THE ABOVE ISSUE. TAKING CUE FROM THE SAME, WE ALSO HOLD THAT MERELY BY MAKING A PROVISION, THE ASSESSEE HAS NOT MADE ANY ACTUAL CONTRIBUTION TO THE APPROVED PENSION FUND IN QUESTION SO AS TO ATTRACT THE CHARGING SECTION AFORESAID. SO FAR AS THE CASE LAW CITED BY THE REVENUE IS CONCERNED (SUPRA), MINDFUL OF THE TRITE PREPOS ITION OF THE LAW IS THAT IN CASE OF TWO DIVERGENT JUDICIAL OPINIONS, THE ONE WHICH FAVOURS THE ASSESSEE HAS TO BE ADOPTED, WE HEREBY DECIDE THE APPEAL IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IN THIS REGARD, WE FIND SUPPORT FROM THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF CIT VS. VEGETABLE PRODUCTS LTD. [88 ITR 192]. 7. THEREFORE, THE REVENUE S APPEAL IS DISMISSED AND ORDER PASSED BY THE CIT(A) IS UPHELD. 9 . BEFORE US, THE REVENUE COULD NOT CONTROVERT THE ABOVE FINDINGS OF THE TRIBUNAL OR FILED ANY HIGHER COURT DECISION HAVING MODIFIED OR REVERSED THE ABOVE DECISION OF THE TRIBUNAL . THE LD. CIT(APPEALS) HAS RIGHTLY FOLLOWED THE ABOVE DECISION OF THE COORDINATE BENCH AND WE FIND NO INFIRMITY IN THE ORDER I.T.A. NO S . 524 & 679 /M/ 14 11 PASSED BY THE LD. CIT(APP EALS). ACCORDINGLY, T HE APPEAL FILED BY THE REVENUE IS DISMISSED. 10 . IN THE RESULT, THE CROSS APPEAL S FILED BY THE ASSESSEE AS WELL AS REVENUE ARE DISMISSED. ORDER PRONOUNCED ON THE 30 TH OCTOBER , 2015 AT CHENNAI. SD/ - SD/ - (A.MOHAN ALANKAMONY ) ACCOUNT ANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 30 . 10 .201 5 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.