Madhya Pradesh Poorve Keshtra Vidyut Vitran Co.Ltd., Jabalpur V. Assistant Commissioner of income tax Circle 2(1), Jabalpur

ITA 71/JAB/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8346 (ITAT-JABALPUR)
• Duration Of Justice: 3 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 28-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: DIRECTED AGAIN ST
• Keywords: Salary income; Question of law; Non-deduction of tax; TDS
• Section: 207; 192

Judgement Text

I.T.A. NO.71/JAB/2016 ASSESSMENT YEAR:2008-09 1 IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.71/JAB/2016 ASSESSMENT YEAR: 2008-09 MADHYA PRADESH POORV KSHETRA VIDYUT VITRAN CO. LTD., JABALPUR [PAN: AADCM 6175E] VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 2(1), JABALPUR (APPELLANT) (RESPONDENT) O R D E R PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINS T THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-2, JABALPUR ( CIT(A) FOR SHORT) DATED 18.02.2016, DISMISSING ITS APPEAL CONTESTING ITS ASSESSMENT UNDER SECTION 115WE(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR ASSESSMENT YEAR (AY) 2008-09 DATED 27/12/2010. 2.1 AT THE VERY OUTSET, IT WAS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, SH. SUKESH KUMAR, THAT THE INSTANT APPEAL BE BLOCKE D TILL THE DECISION BY THE HONBLE HIGH COURT IN RESPECT OF THE ASSESSEES APP EAL AGAINST THE TRIBUNALS ORDER FOR AY 2006-07 (IN ITA NO.98/JAB/2009, DATED 28/8/2009/COPY ON RECORD) DECIDING AN IDENTICAL ISSUE. IN FACT, THE T RIBUNAL FOR AY 2007-08 HAD, APPELLANT BY SHRI SUKESH KUMAR, CA RESPONDENT BY SHRI I.B. KHANDEL, SENIOR DR DATE OF HEARING 11/12/2019 DATE OF PRONOUNCEMENT 20/01/2020 I.T.A. NO.71/JAB/2016 ASSESSMENT YEAR:2008-09 2 ON A SIMILAR PLEA BEING MADE BY THE ASSESSEE, ACCEP TED THE SAME, BLOCKING ITS APPEAL FOR THAT YEAR TILL THE DISPOSAL OF THE SAID APPEAL FOR AY 2006-07 BY THE HONBLE HIGH COURT (IN ITA NO. 7/JAB/2011, DATED 17 /9/2013/COPY ON RECORD). THE ORDER BY THE HONBLE HIGH COURT FOR AY 2006-07 (IN ITA NO. 232/JAB/2009, DATED 6/1/2010), ADMITTING A QUESTION OF LAW, IS ALSO PLACED ON RECORD. 2.2 THE LD. SENIOR DEPARTMENTAL REPRESENTATIVE (SR. DR) WOULD SUBMIT THAT THE ASSESSEE HAS NOT, EVEN AFTER A LAPSE NEARLY TEN YEARS, STATED THE STATUS OF ITS APPEAL BEFORE THE HONBLE HIGH COURT. ITS PRAYER I S UNDER THE CIRCUMSTANCES NOT ACCEPTABLE. THE TRIBUNAL IS OBLIGED TO FOLLOW I TS ORDER FOR AY 2006-07, ADMITTEDLY DECIDING THE SAME ISSUE. THE ASSESSEE CO ULD FILE AN APPEAL FOR THE CURRENT YEAR AS WELL, WHICH WOULD THEN GET TAGGED A LONG WITH THAT FOR AY 2006-07. THE TRIBUNAL FOR AY 2006-07 UPHELD THE LEV Y OF FRINGE BENEFIT TAX (FBT) ON FREE ELECTRICITY PROVIDED TO ITS EMPLOYEE S BY THE ASSESSEE-EMPLOYER AS IT HAD, IN VIEW OF THE EMPLOYEES HAVING CONTESTE D THE DEDUCTION OF TAX AT SOURCE THEREON BY TREATING IT AS A PERQUISITE U/S. 17(2) CHARGEABLE UNDER THE HEAD SALARY, NOT DEDUCTED TAX AT SOURCE THEREON. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 3.1 THE ONLY ISSUE (ON MERITS) ARISING IN THE INSTA NT APPEAL IS THE MAINTAINABILITY OF THE LEVY OF FBT, IN THE FACTS AN D CIRCUMSTANCES OF THE CASE, ON THE PROVISION OF FREE ELECTRICITY BY THE ASSESSE E TO ITS EMPLOYEES DURING THE RELEVANT YEAR, I.E., F.Y.2007-08, VALUED AT RS. 2,7 8,68,642. THE ASSESSEES STAND IS THAT THE SAME IS A PERQUISITE IN THE HANDS OF TH E EMPLOYEES, FORMING PART OF THEIR SALARY INCOME AND, THEREFORE, EXCLUDED UNDER FBT (S.115WB(3)). TAX ON THE SAID PERQUISITE, HOWEVER, HAD NOT BEEN DEDUCTED AT SOURCE AS ITS EMPLOYEES HAD CONTESTED THE SAME BEFORE THE HONBLE HIGH COURT, WHICH MATTER IS SUB-JUDICE. I.T.A. NO.71/JAB/2016 ASSESSMENT YEAR:2008-09 3 THERE IS NO INTERIM ORDER BY THE HONBLE HIGH COURT ADMITTING A QUESTION OF LAW, OR IN EXERCISE OF ITS WRIT JURISD ICTION, ON RECORD TO SUPPORT THE CLAIM OF THE MATTER BEING SUBJUDICE. THERE IS IN FA CT NO REFERENCE TO ANY SUCH ORDER OR INJUNCTION BY THE HONBLE HIGH COURT IN AN Y PLEADING BY THE ASSESSEE AT ANY STAGE, INCLUDING THE STATEMENT OF FACTS FORM ING PART OF THE APPEAL MEMO (IN FORM 36). A PERUSAL OF THE ORDER BY THE TRIBUNA L FOR AY 2006-07, AS WELL AS THE ASSESSEES PETITION BEFORE THE HONBLE HIGH COURT FOLLOWING THE TRIBUNALS ORDER FOR THAT YEAR, THOUGH REVEALS THAT THE EMPLOYEES OF MADHYA PRADESH STATE ELECTRICITY BOARD (MPSEB)(A DEPARTMEN T OF THE STATE GOVERNMENT OF MADHYA PRADESH) HAD, THROUGH THEIR AS SOCIATION, MOVED A WRIT PETITION BEFORE THE HONBLE JURISDICTIONAL HIGH COU RT AGAINST MPSEB CHALLENGING RULE 3 OF THE INCOME TAX RULES, 1962 ( THE RULES HEREINAFTER), TITLED VALUATION OF PERQUISITES PROVIDING FOR VAL UATION OF BENEFIT FROM SUPPLY OF GAS, ELECTRIC ENERGY OR WATER, EITHER FREE OR AT A CONCESSIONAL RATE, BY AN EMPLOYER TO HIS EMPLOYEES FOR THEIR HOUSEHOLD CONSU MPTION. THE HONBLE HIGH COURT VIDE ITS ORDER DATED 19/7/2007 DISPOSED THE SAID MATTER, DIRECTING THAT ALL CLAIMS RAISED BY THE PETITIONER RELATING T O PERQUISITES BE DECIDED IN LIGHT OF THE DECISION BY THE APEX COURT IN ARUN KUMAR & ORS. V. UNION OF INDIA [2006] 286 ITR 89 (SC). THE MATTER HAS THUS BEEN A LREADY DISPOSED OF BY THE HONBLE COURT AND, IN FACT, IN CONSONANCE WI TH THE LAW AS CLARIFIED BY THE APEX COURT. IT WAS THEREFORE OBLIGATORY ON THE PART OF THE PART IES TO HAVE ACTED THEREON . THE ASSESSEE, A COMPANY OWNED BY THE STATE GOVE RNMENT, IS AN INDEPENDENT PERSON, AND NOT A PART OF THE STATE. THAT IS, WAS NOT A PARTY TO THE LIS , I.E., IF THE SAME BE REGARDED AS ONE. THERE IS, A S SUCH, NO SUCH MATTER BEFORE THE HONBLE HIGH COURT IN THE ASSESSEES CAS E AND, RATHER, NONE WHICH CAN BE SAID TO BE SUB-JUDICE BEFORE IT. THE ASSESSE E IS, IN ANY CASE OF THE MATTER, BOUND BY LAW, WHICH IS WHAT THE HONBLE HIG H COURT HAS DIRECTED, AND WHICH IS EQUALLY APPLICABLE TO THE ASSESSEE. RATHER THAN TAKING SHELTER UNDER I.T.A. NO.71/JAB/2016 ASSESSMENT YEAR:2008-09 4 THE PLEA OF THE MATTER BEING SUBJUDICE WHICH IT I S NOT, IT, ON THE CONTRARY, HAS THE BENEFIT OF THE DECISION BY THE HIGHER COURTS, E VEN OTHERWISE BINDING. THERE IS, IN ANY CASE OF THE MATTER, IT NEEDS TO BE EMPHA SIZED, NO ESTOPPLE AGAINST LAW. NOW, IF IT REGARDS THE FREE/CONCESSIONAL ELECT RICITY SUPPLIED TO ITS EMPLOYEES AS A PERQUISITE IN THEIR HANDS, IT OUGHT TO HAVE DEDUCTED TAX AT SOURCE AND, IF NOT, PAID FBT, THEREON. IT IS NOT OP EN FOR IT TO DENY ITS LIABILITY BOTH TOWARD TDS (ON THE SAID BENEFIT) AS WELL AS UN DER FBT, AND WHICH IS WHAT IT IN EFFECT DOES AND, FURTHER, WITHOUT ANY EX PLANATION; THE PLEA OF SUBJUDICE BEING FOUND INCORRECT EVEN AS, AS AFORE -STATED, THERE IS NO ESTOPPLE AGAINST LAW. 3.2 WE DO NOT KNOW FOR SURE WHAT THE DISPUTE BEFORE THE HONBLE HIGH COURT IN THE WRIT PROCEEDINGS, SINCE DISPOSED OF BY IT, WAS. AS IT APPEARS, THE SAME WAS AS TO IF THE SAID BENEFIT IS A PERQUISITE OR NOT, ANSWERED BY THE HONBLE HIGH COURT WITH REFERENCE TO THE DECISION B Y THE APEX COURT IN ARUN KUMAR (SUPRA). WE FIND NO DEVIATION FROM THE CLEAR POSIT ION OF LAW, I.E., OF THE SAME BEING A PERQUISITE IN RESPECT OF THE EMPLOYEES SPECIFIED UNDER SUB- CLAUSES (A), (B) AND (C) OF S. 17(2)(III). THE NEXT QUESTION IS IF TAX HAS BEEN PAID BY THE CONCERNED EMPLOYEES THEREON ? CLEARLY NOT, AND NEITHER IS THERE ANY CONTENTION TO THIS EFFECT AT ANY STAGE; THE ONLY PL EA RAISED BEING OF THE IDENTITY OF THE FACT SITUATION AND OF THE LAW, I.E., AS FOR AY 2006-07, AND THE NON- DEDUCTION OF TAX AT SOURCE, AS FOR THAT YEAR, BEING ON ACCOUNT OF THE MATTER BEING SUBJUDICE WHICH, AS APPARENT FROM THE TRIBUNA LS ORDER FOR THAT YEAR, IT IS NOT. THE NON-DISCHARGE OF THE TAX LIABILITY ON T HE SAID BENEFIT BY THE EMPLOYEES, OR ON THEIR BEHALF BY THE ASSESSEE, IS U NDERSTANDABLE, AS OTHERWISE THE QUESTION OF LEVY OF FBT THEREON ON THE ASSESSEE DOES NOT ARISE (S. 115WB(3)). I.T.A. NO.71/JAB/2016 ASSESSMENT YEAR:2008-09 5 3.3 TDS IS A MODE OF PAYMENT OF THE TAX LIABILITY O F THE PAYEE-DEDUCTEE BY THE PAYER-DEDUCTOR BY DEDUCTING THE SAME AT SOURCE. THIS LIABILITY GETS FASTENED ON THE PAYER U/S. 4(2) READ WITH THE RELEV ANT PROVISION OF CHAPTER XVII OF THE ACT, SO THAT IT BECOMES HIS STATUTORY L IABILITY UNDER LAW. IT IS ON ACCOUNT OF THIS THAT A FAILURE IN HIS STATUTORY OBL IGATION TO DEDUCT TAX ( PAYABLE BY THE PAYEE ) AND DEPOSIT IT TO THE CREDIT OF THE CENTRAL GOVER NMENT, RENDERS THE PAYER LIABLE TO BE REGARDED AS AN ASSESSEE-IN-D EFAULT, I.E., EVEN THOUGH THE PRIMARY TAX LIABILITY IS ON, OR IN RESPECT OF, THE PAYEES INCOME. DEDUCTION OF TAX AT SOURCE, AND ITS DEPOSIT WITH THE CENTRAL GOV ERNMENT, IS ONLY FOR AND ON BEHALF OF THE CONCERNED PAYEE, WHO WOULD, UPON THIS , BE REGARDED AS HAVING DISCHARGED HIS TAX LIABILITY (TO THAT EXTENT AND QUA THE RELEVANT INCOME). THAT IS, SEC. 4 READ WITH SEC. 192 OBLIGES AN ASSESSEE-E MPLOYER TO, WHERE A BENEFIT TO HIS EMPLOYEE IS REGARDED AS A PERQUISITE U/S. 17 (2), DEDUCT AND DEPOSIT THE TAX CHARGEABLE THEREON TO THE CREDIT OF THE CENTRAL GOVERNMENT IN SATISFACTION OF TAX PAYABLE BY THE CONCERNED EMPLOYEE/S. THE NON -DEDUCTION OF TAX AT SOURCE BY THE ASSESSEE ON THE SAID BENEFIT, COUPLED WITH THE NON-PAYMENT OF TAX BY THE CONCERNED EMPLOYEES, WHO HAVE RATHER RE SISTED TAX DEDUCTION AT SOURCE THEREON, CAN, UNDER THE CIRCUMSTANCES, ONLY IMPLY THAT THE SAME HAS NOT BEEN REGARDED AS A PERQUISITE AND, IN ANY CASE, A P ERQUISITE IN RESPECT OF WHICH TAX IS PAYABLE BY THE CONCERNED EMPLOYEES. EVEN NO DEMAND, AS APPARENT, HAS BEEN RAISED ON THE ASSESSEE U/S. 201(1). 3.4 CONTINUING FURTHER, SECTION 115WB DEFINES FRIN GE BENEFIT AND DEEMED FRINGE BENEFIT UNDER SUB-SECTIONS (1) AND (2) THEREOF. SUB-SECTION (3) OF S.115 WB(3) READS AS: FOR THE PURPOSES OF SUB-SECTION (1), THE PRIVILEGE , SERVICE, FACILITY OR AMENITY DOES NOT INCLUDE PERQUISITES IN RESPECT OF WHICH TAX IS PAID OR PAYABLE BY THE EMPLOYEE OR ANY BENEFIT OR AMENITY IN THE NATURE OF FREE OR SUBSIDI ZED TRANSPORT OR ANY SUCH ALLOWANCE PROVIDED BY THE EMPLOYER TO HIS EMPLOYEES FOR JOURN EYS BY THE EMPLOYEES FROM THEIR RESIDENCE TO THE PLACE OF WORK OR SUCH OTHER PLACE OF WORK TO THE PLACE OF RESIDENCE. I.T.A. NO.71/JAB/2016 ASSESSMENT YEAR:2008-09 6 CLEARLY, THEREFORE, ONLY A PERQUISITE IN RESPECT OF WHICH TAX HAS BEEN PAID OR IS PAYABLE BY THE EMPLOYEES IS EXCLUDED FROM THE AMBIT OF SEC. 115 WB(1). THIS IS AS A BENEFIT, FOR ITS EXCLUSION UNDER FBT U/S.11 5-WB(1), MUST THEREFORE BE A PERQUISITE IN RESPECT OF WHICH TAX HAS BEEN PAID OR IS PAYABLE BY THE EMPLOYEE/S. THE EMPLOYEES IN THE INSTANT CASE HAVE, MUCH LESS PAID, CONTESTED THE SAME BEING REGARDED AS A PERQUISITE AND, THUS, THE TAX LIABILITY THEREON. THERE IS NO SUCH CONTENTION BY THE ASSESSEE, I.E., OF THE TAX ON THE SAID PERQUISITE HAVING BEEN PAID OR ADMITTED AS PAYABLE BY THE EMPLOYEES, IN WHICH CASE, WHERE SO, IT INDIRECTLY ADMITS TO A DEF AULT QUA NON-DEDUCTION OF TAX AT SOURCE BY IT INASMUCH AS THERE IS NO INJUNCT ION BY THE HONBLE COURT EVEN AS THERE IS NO ESTOPPLE AGAINST LAW (REFER PAR A 3.3). IN SUM, A BENEFIT FOR ITS EXCLUSION UNDER FBT U/S.115 WB (1), MUST BE A P ERQUISITE AND, TWO, TAX IN RESPECT OF WHICH HAS BEEN PAID OR IS PAYABLE BY THE ASSESSEE, I.E., ON THEIR BEHALF OF THE CONCERNED EMPLOYEES. HOW COULD THE ASSESSEE, WE WONDER, THEN CONTEND THAT THE EMPLOYEES BENEFIT BE REGARDED AS A PERQUISITE IN RESPECT OF WHICH TAX IS PAID OR IS PAYABLE BY THE CONCERNED EM PLOYEES ? DOES IT, ONE MAY ASK, ADMIT TO A DEFAULT U/S. 201(1)/201(1A)? THIS I S ANY SUCH CONTENTION WOULD FASTEN IT WITH THE TAX LIABILITY U/S.192 R/W S. 4(2 ), FOR THE DEPOSIT OF WHICH THERE IS NO TIME LIMIT, I.E., FOR THE RELEVANT YEAR. THAT IS, IT IS AN EITHER/OR SITUATION FOR THE ASSESSEE, WHO CANT HAVE IT BOTH WAYS, EXCL UDING IT FROM CHARGE OF FBT AS WELL AS TAX DEDUCTION AT SOURCE. IT IS THIS THAT LED THE TRIBUNAL FOR AY 2006- 07 TO STATE, TO QUOTE IT VERBATIM, AS UNDER: (PARA 6) WE HAVE CAREFULLY CONSIDERED THE ISSUE. SINCE THE AMOUNT OF FREE ELECTRICITY HAS NOT BEEN CONSIDERED AS THE INCOME OF THE EMPLOYEES AS A BENEFIT OR PERQUISITE AS PART OF THEIR SALARY WHILE DEDUCTING TAX AT SOURCE, THE ASS ESSING OFFICER WAS JUSTIFIED IN CONSIDERING IT FOR FBT IN THE CASE OF THE ASSESSE. THE LD. CIT(A) HAS, THEREFORE, RIGHTLY UPHELD THE IMPUGNED ADDITION MADE BY THE ASSESSING OFFICER. WE, THEREFORE, SEE NO REASON TO INTERFERE WITH HIS DECISION, WHICH IS UPH ELD. AND CONFIRMED THE ACT OF THE LD. CIT(A) IN UPHOLDIN G THE IMPUGNED ADDITION. I.T.A. NO.71/JAB/2016 ASSESSMENT YEAR:2008-09 7 3.5 WE HAVE CONSIDERED THE MATTER AT LENGTH, ADMITT ED AS COVERED BY THE ORDER BY THE TRIBUNAL FOR AY 2006-07, AND WITH WHIC H WE ARE PRINCIPALLY IN AGREEMENT, SO AS TO EXPLAIN THE RATIONALE OF ITS R ATHER CRYPTIC ORDER, WITH THE MATTER BEING ALREADY BEFORE THE HONBLE HIGH COURT. TWO, THE TRIBUNAL HAS FOR AY 2007-08, ACCEPTING THE ASSESSEES PLEA, BLOC KED THE APPEAL WHICH, STATED TO BE UNDER SEC. 158A(1), IS ALSO WITHOUT OB SERVING THE PRESCRIBED PROCEDURE U/S. 158A(2). FURTHER STILL, THE QUESTION OF LAW RAISED BEFORE THE HONBLE COURT, WHICH READS AS UNDER, DOES NOT, IN O UR VIEW, FULLY CAPTURE THE CONTROVERSY AT HAND; IT, RATHER, QUESTIONING THE WI SDOM IN UPHOLDING THE FBT ON A PERQUISITE ON WHICH TAX IS PAYABLE BY THE EMPL OYEES: ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, WH ETHER THE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT THE APPELLANT IS LIABLE FOR FBT WITHOU T EXAMINING SECTION 115WB(3) OF THE INCOME TAX ACT WHICH CLEARLY SAYS THAT FBT WILL NOT BE PAYABLE IN RESPECT OF WHICH TAX IS PAYABLE BY THE EMPLOYEES IN VIEW OF SECTION 17(2 ) OF THE INCOME TAX ACT READ WITH RULE 3(4) OF THE INCOME TAX RULES? THE TRIBUNAL FOR AY 2006-07 IS FULLY CONSCIOUS, AS ARE WE, THAT THERE IS NO ESTOPPEL AGAINST LAW, SO THAT WHERE TAX IS INDEED P AYABLE BY THE EMPLOYEES ON A PERQUISITE, THE SAME GETS EXCLUDED UNDER FBT. AGA IN, WITHOUT DOUBT, IT IS THE CORRECT LEGAL POSITION THAT IS RELEVANT, AND NOT TH E VIEW THAT THE PARTIES MAY TAKE OF THEIR RIGHTS IN THE MATTER [SEE, INTER ALIA , CIT V. C. PARAKH & CO. (INDIA) LTD . [1956] 29 ITR 661 (SC); KEDARNATH JUTE MFG. CO. LTD. V. CIT [1971] 82 ITR 363 (SC)]. THE TAX PAYABLE ON THE PERQUISITE TO ITS EMPLOYEES , IS, HOWEVER, IN VIEW OF S. 192 R/W S.4, BY THE ASSESSEE-EMPLOYER, I .E., BY AND ON BEHALF OF THE EMPLOYEES, AND WHICH IT HAS NOT, AND NEITHER HAVE T HE EMPLOYEES ADMITTEDLY PAID TAX THEREON. IT IS THEREFORE NOT OPEN FOR IT T O CONTEND, AS IT DOES BEFORE THE HONBLE HIGH COURT, THAT THE SAME IS A PERQUISITE O N WHICH TAX IS PAYABLE BY THE EMPLOYEES, SAVING IT FROM BEING CHARGED UNDER F BT ON THE SAID BENEFIT. THAT IS, IT CANNOT TAKE REFUGE IN ITS OWN DEFAULT I N PLEADING FOR A SAVING FROM I.T.A. NO.71/JAB/2016 ASSESSMENT YEAR:2008-09 8 ANOTHER LIABILITY, SO THAT ONE BECOMES AN EXCUSE FO R THE OTHER . THIS IS PARTICULARLY CONSIDERING THAT THE LAW ITSELF CONTEM PLATES OF A LIABILITY UNDER EITHER, SO THAT THERE IS NO SCOPE FOR ESCAPE FROM T AX LIABILITY UNDER BOTH. THE RAISING OF SUCH A PLEA IS EVEN OTHERWISE NOT MAINTA INABLE INASMUCH AS IT IS IMPERMISSIBLE FOR ONE TO, IN SEEKING AN EXCLUSION O R EXEMPTION, TAKE ADVANTAGE OF ONES OWN DEFAULT OR WRONG (SEE, INTER ALIA, B.M. MALANI V. CIT [2008] 306 ITR 196, 207 (SC)). IN FACT, ANY SUCH CONTENTION, I.E., OF THE TAX BEING PAYABLE ON THE SAID PERQUISITE CHARGEABLE U/S . 17(2), EVEN IF MADE NOW (FOR THE CURRENT YEAR), RETRACTING ITS EARLIER STA ND OF BEING NOT LIABLE TO DEDUCT TAX AT SOURCE, WOULD, AS AFORESAID, RENDER IT LIABL E U/S. 201(1)/201(1A); THERE BEING NO ESTOPPLE AGAINST LAW. THE MOOT QUESTION, THEREFORE, IS IF IT IS PERMISSIB LE FOR THE ASSESSEE TO CONTEND OF TAX BEING PAYABLE ON A PERQUISITE BY ITS EMPLOYEES, AS IT DOES BEFORE THE HONBLE HIGH COURT, WHILE DENYING ITS L IABILITY TO TAX DEDUCTION AT SOURCE, EVEN AS THE TAX REMAINS UNPAID BY THE EMPLO YEES. THAT IS, TAKE A CONTRARIAN STAND. AGAIN, COULD THE ASSESSEE DENYING ITS LIABILITY TO TAX DEDUCTION AT SOURCE ON A PERQUISITE, YET CONTEND OF THE TAX THEREON BEING PAYABLE BY THE EMPLOYEES, SAVING IT OF THE LIABILIT Y TO FBT ? THAT IS, IS THE SHELTER OF THE PLEA OF TAX LIABILITY ON A PERQUISIT E BEING OF THE EMPLOYEES AVAILABLE TO AN ASSESSEE, SAVING IT OF TAX LIABILIT Y UNDER BOTH, I.E., S. 192 AS WELL AS UNDER FBT? THIS IS PARTICULARLY IN VIEW OF S. 4( 2), CREATING A CHARGE IN RESPECT OF TAX DEDUCTIBLE AT SOURCE, SO THAT THE OB LIGATION TO PAY TAX, EITHER BY WAY OF INCOME-TAX ON A PERQUISITE, OR BY WAY OF FBT, BEING THE TAX ON THE INCOME BY WAY OF THE VALUE OF THE BENEFIT PASSED BY AN EMPLOYER TO HIS EMPLOYEE/S WHERE NOT REGARDED AS A PERQUISITE ON WH ICH TAX IS PAYABLE BY HIM, IS ON THE ASSESSEE-EMPLOYER, THE PAYER. THIS, IN OUR VIEW, REPRESENTS THE ACTUAL CONTROVERS Y ARISING IN THE INSTANT CASE, I.E., COULD AN ASSESSEE-EMPLOYER DENY ITS LI ABILITY U/S. 4 R/W S. 192, AS I.T.A. NO.71/JAB/2016 ASSESSMENT YEAR:2008-09 9 WELL AS U/S. 115WA(1), I.E., QUA A BENEFIT TO THE EMPLOYEES, BY RAISING A PLEA THAT THE TAX ON FORMER IS PAYABLE BY THE EMPLOYEES, SO THAT THE TAX GETS COLLECTED OR PAID UNDER NEITHER. THIS IS AS, WITHOU T DOUBT, AS AFORE-STATED, ADMISSION OF LIABILITY AND/OR DISCHARGE THEREOF, UN DER ONE WOULD PRECLUDE THE OTHER. IT WOULD, WE ADMIT, BE A DIFFERENT MATTER; T HERE BEING NO ESTOPPLE AGAINST LAW, IF THERE WAS NO OBLIGATION IN LAW ON T HE ASSESSEE TO DEDUCT AND DEPOSIT THE TAX PAYABLE ON THE PERQUISITE TO ITS E MPLOYEES. THE FOREGOING WOULD ALSO EXPLAIN OUR NON-ACCEPTANCE OF THE ASSESS EES PLEA FOR BLOCKING THE APPEAL, EVEN IF REGARDED AS MADE WITH REFERENCE TO S.158A(1), WHICH WOULD THOUGH, AS AFORE-NOTED, REQUIRE US TO OBSERVE THE P ROCEDURE U/S. 158A(2). WE SAY SO INASMUCH AS AN APPLICATION IN FORM 8 (DATED 15/6/2016) IS FOUND TO HAVE BEEN SUBMITTED, I.E., ON RECORD, SO THAT IT CO ULD WELL BE AND, RATHER, AS IT APPEARS, THAT THE LD. COUNSEL OMITTED TO REFER THER ETO WHILE MAKING HIS ARGUMENTS OR PRESENTING HIS CASE. 4. WE, FOR THE FOREGOING REASONS, DECLINE INTERFERE NCE, AND ARE OF CLEAR VIEW THAT ONLY AN ACCEPTANCE OF ITS LIABILITY TO D EDUCT AND DEPOSIT INCOME-TAX ON THE PERQUISITE TO ITS EMPLOYEES AND, RATHER, DO ING SO, WOULD OPERATE TO SAVE THE ASSESSEE OF ITS LIABILITY TO TAX U/S.115WA(1). THE FACTS OF THE CASE ARE ADMITTED AND BORNE OUT BY THE RECORD, BEING ADMITTE DLY THE SAME AS FOR AY 2006-07, AS IS THE POSITION OF LAW FOR BOTH THE YEA RS. THE ASSESSEE DOES NOT ADMITTEDLY ACCEPT ITS LIABILITY TO DEDUCT AND DEPO SIT TAX AT SOURCE ON THE SAID BENEFIT. IT IS ACCORDINGLY LIABLE U/S. 115WA(1). WE MAY ALSO CLARIFY THAT INASMUCH AS THE ASSESSEE WAS NOT HEARD ON SAID DENI AL (TOWARD TDS) ON THE PROVISION OF FREE/CONCESSIONAL ELECTRICITY TO ITS EMPLOYEES FOR THEIR HOUSEHOLD CONSUMPTION, WE ARE NOT ISSUING ANY FINAL FINDING I N THE MATTER. OUR DECISION RESTS ON THE PREMISE THAT THE SAID DENIAL WOULD REN DER IT LIABLE TO FBT U/S. 115WA(1) INASMUCH AS IT WOULD EFFECTIVELY PRECLUDE IT FROM RAISING THE PLEA OF THE TAX ON THE SAID BENEFIT BEING PAYABLE BY THE EMPLOYEES. THAT IS, IT IS NOT I.T.A. NO.71/JAB/2016 ASSESSMENT YEAR:2008-09 10 OPEN FOR IT TO TAKE A CONTRARIAN STAND, AS IT APPAR ENTLY DOES INASMUCH AS IT ADMITS TO NEITHER THE TAX LIABILITY ON THE BENEFI T TO ITS EMPLOYEES AND, CONSEQUENTLY, TO DEDUCTION OF TAX AT SOURCE AND THE CONSEQUENTIAL LIABILITY U/S. 201(1)/201(1A), AS WELL AS TO TAX U/S. 115WA(1). IN FACT, IT DOES NOT ADMIT TO FBT EVEN IN RESPECT OF THE EMPLOYEES NOT COVERED U/ S. 17(2)(III), I.E., ON WHICH THE PLEA OF THE TAX BEING PAYABLE BY THE EMPL OYEE IS, EVEN DE HORS S. 192, NOT APPLICABLE. WE DECIDE ACCORDINGLY. 5. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D. ORDER PRONOUNCED ON JANUARY 20, 2020 SD/- SD/- (BHAVNESH SAINI) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 20/01/2020 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT: THE MANAGING DIRECTOR, MADHYA PRA DESH POORV KSHETRA VIDYUT VITRAN CO. LTD., BLOCK NO.7, SHAKTI BHAWAN, RAMPUR, JABALP UR 2. THE RESPONDENT: ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 2(1), JABALPUR 3. THE CIT CONCERNED 4. THE CIT(A)-2, JABALPUR 5. THE SR. D.R., I.T.A.T.