DCIT, Jaipur V. M/S STATE BANK OF BIKANER & JAIPUR, Jaipur

ITA 548/JPR/2011

• Counselvise Citation: 54823114 RSA 2011
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 17-10-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 01-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHASH CHANDRA
• Assessee Lawyers: VARUN BANSAL
• Section: 80C

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR (BEFORE SHRI R.K.GUPTA AND SHRI N.L.KALRA) ITA NO. 548/ JP/2011 ASSESSMENT YEAR 2006-07 PAN: AADCS 4750 R D.C.I.T. CIRCLE-6, JAIPUR V STATE BANK OF BIKANE R & JAIPUR TILAK MARG, C-SCHEME, JAIPUR (APPELLANT ) (RESPONDENT) DEPARTMENT BY : SHRI SUBHASH CHANDRA ASSESSEE BY: SHRI VARUN BANSAL DATE OF HEARING: 11-10-2011 DATE OF PRONOUNCEMENT: 21 -10-2011 ORDER PER N.L. KALRA, AM:- THE REVENUE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)- II, JAIPUR DATED 28.3.2011. GROUND OF APPEAL RAIS ED BY THE REVENUE IS AS UNDER:- 1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAWS THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 10 1, 84,19,427/- TREATING THE CONTRIBUTION MADE TO SBBJ EMPLOYEES PENSION FUND AS NOT LIABLE TO FBT WITHOUT APPRECIATING THE FACT THAT THE AMENDMENT MADE IN SE CTION 115WC(1)(B) VIDE FINANCE ACT, 1961 IS PROSPECTIVE AND IS APPLICABLE FROM ASSESSMENT YEAR 2007-08. 2. THE ISSUE BEFORE US STANDS DECIDED BY THE TRIBUN AL IN THE CASE OF RAJASTHAN RAJYA VIDYUT UTPADAN NIGAM LTD. AND RAJAS THAN RAJYA VIDYUT PRASARAN NIGAM LTD. GROUND OF APPEAL IN THE CASE O F RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LTD. FOR ASSESSMENT YEAR 2006 -07 WAS AS UNDER:- 2 1 CONFIRMING THE ACTION OF AO IN HOLDING THAT CONT RIBUTION TO SUPERANNUATION FUND AMOUNTING TO RS. 13,52,14,733 /- IS LIABLE FOR FBT BY NOT ACCEPTING THE CONTENTION OF ASSESSEE THAT:- (I) THE PAYMENT TO SUPERANNUATION FUND IS STATUTORY LIA BILITY IN LIEU OF CPF. (II) THE AMENDMENT MADE BY FINANCE ACT 2007 PROVIDI NG THAT CONTRIBUTION TO SUPERANNUATION FUND UP TO RS. 1.00 LACS FOR EACH EM PLOYEE IS NOT LIABLE TO FBT IS RETROSPECTIVE IN NATURE; AND 2 CONFIRMING THAT INTEREST IS CHARGEABLE U/S 115WJ( 3) AT RS. 1,46,97,943/- AND U/S 115WK AT RS. 2,35,938/-. 3. THE TRIBUNAL VIDE ORDER DATED 27.11.2009 IN THE CASE OF RAJASTHAN RAJYA VIDYUT PRASARAN NIGAM LTD. CONSIDERED THAT TH E AMENDMENT HAS BEEN MADE AS WELFARE MEASURE FOR OVERWHELMING MAJORITY O F EMPLOYEES TO MAKE IT PARALLEL WITH THE DEDUCTION PROVIDED U/S 80C REA D WITH SECTION 80CCD. SUCH VIEW WAS TAKEN AFTER COMBINED READING OF THE S PEECH OF FINANCE MINISTER AND THE MEMORANDUM EXPLAINING THE PROVISIO NS OF THE BILL. IT WILL BE USEFUL TO REPRODUCED PARA 10 OF THE ORDER OF THE TRIBUNAL DATED 27.11.2009:- THE ABOVE PRINCIPLE OF INTERPRETATION LAID DOWN IN VARIOUS JUDGMENTS OF HON'BLE SUPREME COURT WHEN READ IN CONTEXT WITH THE PURCHASE AND INTENTION FOR WHICH THE AMENDMENT WAS MADE U/S 115W B(1)(C) LEAVES NO SCOPE OF DEBATE THAT THE SAID AMENDMENT WAS TO R EMEDY THE UNINTENDED CONSEQUENCES AND THEREFORE,, IT IS REQUI RED TO BE CONSIDERED AS RETROSPECTIVE IN OPERATION SO THAT A REASONABLE INTERPRETATION CAN BE GIVEN TO THE SCHEME OF LEVY O F FRINGE BENEFIT TAX ON CONTRIBUTION TO SUPERANNUATION FUND AS A WHOLE. WE, THEREFORE, HOLD THAT THE CONTRIBUTION TO SUPERANNUATION FUND I N PRESENT CASE BEING LESS THAN RS. 1.00 LAC PER EMPLOYEE, IS NOT LIABLE FOR FRINGE BENEFIT TAX. IN THE RESULT, THIS GROUND OF ASSESSEE IS ALLOWED. 4. THE ABOVE REFERRED DECISION HAS BEEN FOLLOWED IN THE FOLLOWING ORDER:- 3 RAJASTHAN RAJYA VIDYUT UTPADAN NIGAM LTD., I.T.A. N O. 730/JP/20/2009 ORDER DATED 26.2.2010 SINCE THE ISSUE BEFORE US STANDS COVERED BY THE DEC ISION OF THE TRIBUNAL AND HENCE FOLLOWING THE DECISION OF THE TRIBUNAL, WE HO LD THAT THE LD. CIT(A) WAS JUSTIFIED IN HOLDING THAT THE ADDITION BY TREAT ING THE CONTRIBUTION MADE TO SBBJ EMPLOYEES PENSION FUND AS NOT LIABLE TO FBT AS AMENDMENT MADE IN SECTION 115WC(1)(B) IS RETROSPECTIVE AND APPLICABLE TO THE ASSESSMENT YEAR 2006-07. 5 IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMI SSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 21 -10-2011 SD/- SD/- (R.K. GUPTA) (N.L. KALRA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR DATED: 21 /10/2011 SURESH COPY FORWARDED TO :- 1. THE D.C.I.T. CIRCLE6, JAIPUR 2. M/S SBBJ, JAIPUR 3. THE LD. CIT 4. THE LD. CIT(A) 5. THE LD.DR 6. THE GUARD FILE (ITA NO.39/JP /11) A.R, ITAT, JAIPUR 4 5 6 7 8 9