State Bank of Indore (Since Merged with State Bank of India), Indore V. The ITO-TDS-II, Indore

ITA 76/IND/2012

• Counselvise Citation: 7622714 RSA 2012
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2002-2003
• Appeal Filed On: 14-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DARSHAN SINGH
• Keywords: Retrospective amendment
• Section: 201(1); 12

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NOS. 76 TO 82/IND/2012 F.YS. 2001-02 TO 2007-08 (A.YS. 2002-03 TO 2008-09) STATE BANK OF INDORE (SINCE MERGED WITH STATE BANK OF INDIA) INDORE PAN AAECS 7776C :: APPELLANT VS INCOME TAX OFFICER TDS-II INDORE :: RESPONDENT APPELLANT BY SHRI SUMIT NEMA RESPONDENT BY SHRI DARSHAN SINGH DATE OF HEARING 11.10.2012 DATE OF PRONOUNCEMENT 29.10.2012 O R D E R PER JOGINDER SINGH , JUDICIAL MEMBER THESE ARE THE APPEALS BY THE ASSESSEE AGAINST CONS OLIDATED ORDER DATED 25.11.2011 OF THE LEARNED CIT(A), INDOR E, FOR THE ASSESSMENT YEARS MENTIONED ABOVE. IN THESE APPEALS , THE ASSESSEE HAS TAKEN THE FOLLOWING COMMON GROUNDS :- 2 1.THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED BOTH IN LAW AND ON FACTS IN HOLDING THE APPEALS FILED BY THE ASSESSEE TO BE NON MAINTAINABLE BEING FILED BEYOND STATUTORY PERIOD AND THEREBY DECLINING THE APPLICATION FOR CO NDONATION OF DELAY. 2.THAT LD, CIT (AS) ERRED IN LAW AND ON FACTS IN HOLDING THE A PPEALS TO BE NON MAINTAINABLE ON ACCOUNT OF DELAY AND THEN THEREAFTE R PROCEEDING TO DECIDE THE APPEAL ON MERITS ALSO. 3.THAT LD. CIT (AS) ERRED IN LAW AND ON FACTS IN SU STAINING EXPARTE ORDER PASSED BY THE TDS OFFICER WITHOUT APPRECIATING THE FACTS T HAT THE ORDER PASSED BY THE ASSESSING OFFICER WAS ILLEGAL, VOID AND WITHOUT JURISDICTION. 4 THAT THE ORDER OF THE LD, CIT(AS) IS ERRONEOUS BOTH IN LAW AND ON FACTS AS LD . CIT (AS) HAD FAILED TO APPRECIATE THAT THE NON DEDU CTION OF TAX AT SOURCE WAS ON ACCOUNT OF THE STAY ORDER OF. THE HON'BLE JURISDICT IONAL HIGH COURT WHICH WAS BINDING BOTH ON THE INCOME TAX DEPARTMENT AS WELL A S THE APPELLANT AND THEREFORE, THERE CAN BE NO DEMAND ON THE APPELLANT U/S 201 & 201(IA) OF THE INCOME TAX ACT 1961. 5.THAT THE ORDER PASSED BY THE LD. CIT(AS) IN SUSTA INING THE ORDER DATED 31.12.09 PASSED BY THE ASSESSING OFFICER IS ERRONEO US BOTH IN LAW AND ON FACTS ON ACCOUNT OF TOTAL FAILURE TO CONSIDER THE PROVISI ONS OF DEDUCTION OF TDS SPECIALLY SECTION 192 UNDER WHICH TDS CAN BE DEDUCT ED ONLY DURING THE FINANCIAL YEAR AND NOT AT ANY TIME THEREAFTER. SINC E DURING THE FINANCIAL YEARS UNDER CONSIDERATION, THE INTERIM ORDER OF THE HON'B LE HIGH COURT WAS IN OPERATION, THEREFORE, THE APPELLANT COULD NOT DEDUC T TDS AND THEREFORE COULD NOT BE HELD LIABLE U/S 201 & 201(IA) OF THE INCOME TAX ACT. 2. DURING HEARING OF THESE APPEALS, WE HAVE HEARD S HRI SUMIT NEMA, LEARNED COUNSEL FOR THE ASSESSEE, AND SHRI DA RSHAN SINGH, LEARNED CIT DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN COM ING TO A PARTICULAR CONCLUSION BECAUSE AS PER THE PREVAILING LAW (2001- 2002) THERE WAS NO CONCESSION IN THE MATTER OF RENT AND THE ASSESSEE BONAFIDELY/CORRECTLY COMPUTED TDS ON SALAR IES OF 3 EMPLOYEES WITHOUT TAKING THE PERQUISITE IN THE MATT ER OF ACCOMMODATION AND MORE SO THERE WAS STAY ORDER IN O PERATION FROM THE HONBLE JURISDICTIONAL HIGH COURT DURING T HE RELEVANT PERIOD. IT WAS ALSO PLEADED THAT THE HONBLE APEX C OURT IN THE CASE OF ARUN KUMAR DECIDED THE MATTER IN FAVOUR OF EMPLOYEES BY HOLDING THAT IF THERE IS NO CONCESSION, THERE CANNO T BE ANY PERQUISITE, CONSEQUENTLY, THE ASSESSEE BONAFIDELY C OMPUTED TDS ON SALARIES DURING THE ASSESSMENT YEARS 20002-03 TO 2007-08 AS PER THE PREVAILING LAW, CONSEQUENTLY, THE ASSESSEE CANNOT BE HELD TO BE ASSESSEE IN DEFAULT U/S 201 AND 201(1A) OF TH E ACT. RELIANCE WAS PLACED ON THE DECISION IN THE CASE OF GWALIOR RAYON SILK COMPANY VS. CIT (1983) 140 ITR 832 (MP). A PL EA WAS ALSO RAISED THAT RETROSPECTIVE AMENDMENT IN SECTION 17(2 ) OF THE ACT MADE IN 2007 CANNOT MAKE THE ASSESSEE LIABLE TO DED UCT TDS FOR THE A.YS. 2001 TO 2007 AS THERE WAS NO TDS LIABILIT Y AS PER THE PREVAILING LAW. MR. NEMA FURTHER CONTENDED THAT TH E RETROSPECTIVE AMENDMENT OF 2012 IN SECTION 195 OF T HE ACT IS BEING HIGHLIGHTED TO BUTTRESS THE SUBMISSION OF THE ASSESSEE. THE CRUX OF THE ARGUMENT IS THAT WHENEVER TDS PROVI SION HAS TO BE GIVEN EFFECT RETROSPECTIVELY, IT IS TO BE SO MAD E IN THE ACT AND 4 IN SECTION 192 THERE WAS NO RETROSPECTIVE AMENDMENT IN 2007 WHEN SECTION 17(2) WAS AMENDED. THE LEARNED COUNSE L PLACED RELIANCE ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS : - 1. WESTERN COAL FIELD, ETC. BOMBAY HIGH COURT ORDER DATED 1.10.2010 2. CANARA BANK VS.ITO (2010) 16 ITJ 435(NAGPUR ITAT) 3. BSNL (ITA NO. 260/IND/2010) DT.20.5.2011 (INDORE ITAT) 4. ONGC VS. ITO (TDS) (ITA NO. 980/MUM/2004) DATED 8.4.2011 5. STATE BANK OF INDIA VS. DCIT; ITA NO. 1722 TO 1725/HYD/2008 3. ON THE OTHER HAND, THE LEARNED CIT DR, SHRI DARS HAN SINGH, DEFENDED THE IMPUGNED ORDER BUT DID NOT CONT ROVERT THE SUBMISSIONS OF THE ASSESSEE BY BRINGING ANY POSITIV E MATERIAL ON RECORD. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS A SCHEDULED BANK HAVING SEVERAL EMPLOYE ES ON ITS ROLL. THE ASSESSEE IS CARRYING ON THE BUSINESS OF BANKING HAVING ITS CORPORATE OFFICE AT INDORE. THE EMPLOYEES OF T HE ASSESSEE BANK FORMED A UNION IN THE NAME OF ALL INDIA STATE BANK OF INDORE OFFICERS COORDINATION COMMITTEE (REFERRED HEREINAFTER AS AISBOC). AS PER THE REVENUE, THE ASSESSEE ALLOW ED PERQUISITE 5 TO ITS EMPLOYEES WHICH IS PART OF THEIR SALARY AND THE ASSESSEE BEING THE PERSON RESPONSIBLE FOR COMPLYING WITH THE PROVISIONS OF CHAPTER XVII OF THE ACT AND THUS WAS LIABLE TO DEDU CT TAX AT SOURCE AS REQUIRED U/S 192 OF THE ACT. FURTHER, AS PER THE REVENUE, THE ASSESSEE DID NOT COMPLY WITH THE REQUI REMENT. THE ASSESSEE WAS TREATED AS ASSESSEE IN DEFAULT AND THE TOTAL AMOUNT PAYABLE U/S 201(1) AND 201(1A) WAS CALCULATED AS ME NTIONED AT PAGE 11 OF THE ASSESSMENT ORDER. THE AMOUNTS WERE WORKED OUT AT RS.1,43,24,012/-. THE ASSESSMENT ORDER WAS CARRI ED IN APPEAL BEFORE THE CIT(A) WHEREIN IT WAS AFFIRMED. THE AGG RIEVED ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 5. IF THE IMPUGNED ISSUE IS ANALYSED WITH THE HELP OF CASES CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE AND T HE PROVISIONS OF THE ACT, WE FIND THAT RULE 3 OF THE INCOME TAX R ULES, 1962 WAS AMENDED VIDE CBDT NOTIFICATION NO. 940(E) DATED 25. 9.2001 WHICH PRESCRIBES ABOUT METHOD OF VALUATION OF PERQU ISITE IN THE MATTER OF RENTAL ACCOMMODATION PROVIDED TO THE EMPL OYEES BY THE EMPLOYER. THE VALIDITY OF THE SAID RULE WAS CHALLEN GED BY AISBOC BEFORE THE HONBLE HIGH COURT OF MADHYA PRADESH BY WP NO. 762 OF 2002 AND VIDE INTERIM ORDER ON 13.2.2002 THE HON BLE HIGH COURT DIRECTED THAT THE SALARY TO THE MEMBERS OF AI SBOC 6 (EMPLOYEES) SHALL BE PAID WITHOUT ASSESSING THE VAL UE OF PERQUISITES AVAILABLE TO THEM FOR THE PURPOSES OF T DS TILL FURTHER ORDERS, CONSEQUENTLY, THE ASSESSEE BANK DID NOT DED UCT TDS ON THE PERQUISITES TO ITS EMPLOYEES. THE FINAL ORDER WAS PASSED BY THE HONBLE HIGH COURT ON 10.7.2007 IN WP NO.762/20 02 WHEREIN IT WAS DIRECTED THAT THE VALUE OF RENT FREE ACCOMMODATION BE DETERMINED AFTER ASCERTAINMENT OF FACTS THAT THE RE WAS CONCESSION IN PROVIDING ACCOMMODATION. WHILE COMIN G TO THIS CONCLUSION, THE HONBLE HIGH COURT ALSO TOOK NOTE O F THE DECISION IN THE CASE OF ARUN KUMAR AND OTHERS VS. UNION OF I NDIA (2006) 286 ITR 89 (SC) WHEREIN VALIDITY OF RULE 3 WAS UPHE LD. THEREAFTER, THERE WAS AN AMENDMENT IN THE ACT BY TH E FINANCE ACT, 2007 WITH RETROSPECTIVE EFFECT FROM 1.4.2002 A ND AN EXPLANATION WAS INSERTED IN SECTION 17(2) PROVIDING A DEEMING FICTION THAT IN ALL CASES WHERE RENT WAS PAID LESS THAN 10% OF THE SALARY THEN A CONCESSION SHALL BE DEEMED TO BE PROV IDED. 7.1 AFTER THIS RETROSPECTIVE AMENDMENT, NOTICE WAS ISSUED ON 24.3.2009 U/S 201/201A FOR THE ASSESSMENT OF TDS AN D INTEREST THEREON. VIDE ORDER DATED 31.12.2009, THE ORDER LE VYING TAX U/S 201 AND INTEREST U/S 201(1A) FOR SEVEN YEARS WAS PA SSED FROM 7 F.Y. 2001-02 TO 2007-08. IT IS PERTINENT TO MENTIO N HERE THAT THE NAGPUR BENCH OF THE TRIBUNAL IN THE CASE OF CANARA BANK VS. ITO (2010) 16 ITJ 435 HELD THAT ACCOMMODATION PROVIDED BY THE ASSESSEE EMPLOYER TO THE EMPLOYEES WHEREIN RENT WAS CHARGED FROM THE EMPLOYEES ON STANDARD BASIS AS PER GOVT. N ORMS AND THE ASSESSING OFFICER APPLIED RULE 3 BY HOLDING THA T DIFFERENT BETWEEN10% OR 7.5% OF SALARY REDUCED BY RENT PAID B Y EMPLOYEE SHALL BE DEEMED TO BE PERQUISITE, CONSEQUENTLY, TDS SHOULD HAVE BEEN DEDUCTED. INTEREST U/S 201(1A) WAS ALSO HELD T O BE LEVIABLE. THE NAGPUR BENCH HELD THAT PRIOR TO 2007, LAW AS LA ID DOWN IN ARUN KUMARS CASE, IT WAS STATED THAT SECTION 17(2) (II) DID NOT CREATE DEEMING FICTION AND THE DEPARTMENT HAD TO ES TABLISH THAT THERE WAS A CONCESSION. THIS CANNOT BE STRETCHED TO SECTION 192 OF THE ACT, THEREFORE, THE ASSESSEE EMPLOYER CANNOT BE TREATED AS THE ASSESSEE IN DEFAULT WITH RETROSPECTIVE EFFECT F OR NOT DEDUCTING TDS. IT WAS FURTHER HELD THAT INTEREST CANNOT BE C HARGED RETROSPECTIVELY. IT IS WORTH MENTION THAT THIS DECI SION OF THE NAGPUR BENCH WAS AFFIRMED BY THE HONBLE BOMBAY HIG H COURT IN ITA NO. 93/2008 VIDE ORDER DATED IST OCTOBER, 20 10. IDENTICALLY, IN THE CASE OF BSNL (ITA NO. 260 TO 26 6/IND/2010) 8 (A.YS. 2002-03 TO 2008-09) THE INDORE BENCH OF THE TRIBUNAL FOLLOWED THE AFORESAID DECISION OF NAGPUR BENCH IN THE CASE OF BSNL VS. ITO (ITA NO. 260/IND/10 DATED 20.5.2011) A ND HELD THAT THE ASSESSEE WAS NOT TO BE TREATED AS ASSESSEE IN DEFAULT U/S 201(1A) OF THE ACT. IDENTICAL DECISION WAS TAKEN BY MUMBAI BENCH OF THE TRIBUNAL IN ONGC VS. ITO (ITA NO. 980/ MUM/2004) ORDER DATED 8.4.2011 BY FOLLOWING THE DECISION OF T HE NAGPUR BENCH. LIKEWISE THE HYDRABAD BENCH OF THE TRINAL I N STATE BANK OF INDIA VS. DCIT; ITA NO. 722 TO 725/HYD/2008 ORDE R DATED 3 RD DECEMBER, 2009 FOLLOWED THE DECISION OF THE NAGPUR BENCH. WE FIND THAT THE DECISIONS IN THE CASE OF WESTERN COAL FIELD, ETC./CANARA BANK WERE DISPOSED OF BY THE HONBLE HI GH COURT AT BOMBAY (NAGPUR BENCH) (INCOME TAX APPEAL NOS. 93 TO 108/2008 AND VIDE ORDER DATED IST OCTOBER, 2010 THE HONBLE HIGH COURT AFFIRMED THE DECISION OF THE TRIBUNAL. T HE RELEVANT PORTION FROM THE AFORESAID ORDER IS REPRODUCED HERE UNDER :- 9) ON FURTHER APPEAL FILED BY THE ASSESSEE, THE I NCOME TAX APPELLATE TRIBUNAL BY A COMMON ORDER DATED 4.7.2008 UPHELD THE CONTENTIONS OF THE ASSESSEE AND ALLOWED THE APPEALS. CHALLENGING THE AFORESAID ORDER, THE PRESENT APPEALS ARE FILED BY THE REVENUE. 9 10) ACCORDING TO SHRI PARCHURE, LEARNED COUNSEL FOR THE REVENUE, THE DETERMINATION OF 'CONCESSION IN THE MATTER OF R ENT' IS INBUILT IN RULE 3 OF THE INCOME TAX RULES, 1962 AS INTRODUC ED WITH EFFECT FROM 1/4/2001. SINCE VALIDITY OF RULE 3 INTR ODUCED WITH EFFECT FROM 1/4/2001 HAS BEEN UPHELD BY THE APEX CO URT IN ARUN KUMAR'S CASE (SUPRA) AND THE SAME HAS BEEN FOR TIFIED BY THE RETROSPECTIVE INSERTION OF EXPLANATION TO SECTI ON 17(2)(II) OF THE ACT, THE ASSESSEE WAS OBLIGED TO DEDUCT TAX AT SOURCE AND FAILURE TO DO SO MADE THE ASSESSEE LIABLE FOR' CONS EQUENCES SET OUT UNDER SECTION 201 OF THE ACT. 11) WE SEE NO MERIT IN THE ABOVE CONTENTIONS. THE A PEX COURT IN ARUN KUMARS CASE (SUPRA) WHILE UPHOLDING THE VA LIDITY OF RULE 3 HAS HELD THAT IN THE ABSENCE OF ANY DEEMING FICTION IN THE ACT, IT IS OPEN TO THE ASSESSEE TO CONTEND THAT THERE IS NO CONCESSION IN THE MATTER OF ACCOMMODATION PROVIDED BY THE EMPLOYER TO THE EMPLOYEES AND THE CASE IS NOT COVER ED BY SECTION 17(2)(II) OF THE ACT. IN OTHER WORDS, EVEN AFTER TH E SUBSTITUTION OF RULE 3 WITH EFFECT FROM 1/4/2001, IN THE ABSENCE OF ANY SPECIFIC PROVISION UNDER THE ACT, IT WAS OPEN TO THE ASSESSE E NOT TO DEDUCT TAX AT SOURCE RELATING TO THE ACCOMMODATION GIVEN T O THE EMPLOYEES ON THE GROUND THAT NO CONCESSION IN RENT HAS BEEN G IVEN TO THE EMPLOYEES. THIS CONTENTION OF THE ASSESSEE HAS BEEN IN FACT UPHELD BY THE APEX COURT IN THE CASE OF ARUN KUMAR (SUPRA) . TO OVERCOME THE ABOVE DECISION, THE LAW HAS BEEN AMENDED BY FIN ANCE ACT, 2007 WITH RETROSPECTIVE EFFECT FROM 1/4/2002. THE R ETROSPECTIVE 10 AMENDMENT MERELY TAKES AWAY THE ABOVE ARGUMENT, WHI CH WAS AVAILABLE TO THE ASSESSEE. ONCE THE SALARY IS PAID BY THE EMPLOYER AFTER DEDUCTING TAX AT SOURCE AS PER THE LAW PREVAI LING ON THE DATE OF PAYING THE SALARY, THEN ANY SUBSEQUENT AMENDMENT IN LAW BROUGHT ABOUT RETROSPECTIVELY CANNOT REQUIRE THE EMPLOYER TO DEDUCT TAX AT SOURCE FOR THE PAST PERIOD, BECAUSE T HE SALARY FOR THAT PERIOD HAS ALREADY BEEN PAID. CONSEQUENTLY, TH E EMPLOYER CANNOT BE MADE LIABLE FOR THE CONSEQUENCES SET OUT IN SECTION 201 OF THE ACT ON ACCOUNT OF THE RETROSPECTIVE AMEN DMENT TO SECTION 17(2) OF THE ACT. 12) MOREOVER, AS HELD BY THE TRIBUNAL, THE LEGISLA TURE WHILE RETROSPECTIVELY AMENDING SECTION 17(2)(II) OF THE A CT HAS NOT CHOSEN TO AMEND SECTION 192 OR SECTION 201 OF THE A CT. THEREFORE, THE EMPLOYER ASSESSEE IS NOT HIT BY THE RETROSPECTIVE INSERTION OF EXPLANATION TO SECTION 17(2) OF THE AC T. 13) WE MAKE IT CLEAR THAT WE ARE NOT EXPRESSING ANY OPINION AS TO VALIDITY OF THE RETROSPECTIVE AMENDMENT INSERTED BY FINANCE ACT, 2007. IN THE FACTS OF THE PRESENT CASE, THE DE CISION OF THE TRIBUNAL THAT THE ASSESSEE WAS NOT OBLIGED TO DEDUC T TAX AT SOURCE AND ACCORDINGLY NOT LIABLE TO THE CONSEQUENC ES SET OUT IN SECTION 201 OF THE ACT DOES NOT SUFFER FROM ANY INF IRMITY. 11 6. IF THE TOTALITY OF FACTS AVAILABLE ON RECORD AND THE ASSERTION MADE BY THE LEARNED RESPECTIVE COUNSEL ARE KEPT IN JUXTAPOSITION, WE FIND THAT SECTION 192 DEALS WITH THE DEDUCTION O F TAX AT SOURCE. IT IS COMPUTED ON THE ESTIMATED INCOME OF THE ASSESSEE UNDER THE HEAD SALARY AND THE LIABILITY IS AT THE TIME OF PAYMENT OF SALARY, IF THERE IS A PERQUISITE, THERE IS RESPO NSIBILITY TO DEDUCTION TAX OF THE EMPLOYER U/S 192(1), 192(1A) A ND 192(1B) WHICH READS AS UNDER :- 192(1) ANY PERSON RESPONSIBLE FOR PAYING ANY INCOME CHARGEABLE UNDER THE HEAD SALARIES SHALL A T THE TIME OF PAYMENT, DEDUCT INCOME TAX ON THE AMOUN T PAYABLE AT THE AVERAGE RATE OF INCOME TAX COMPUTED ON THE BASIS OF THERATES IN FORCE FOR THE FINANCIAL YE AR IN WHICH THE PAYMENT IS MADE ON THE ESTIMATED INCOME O F THE ASSESSEE UNDER THIS HEAD FOR THAT FINANCIAL YEA R. (1A) WITHOUT PREJUDICE TO THE PROVISIONS CONTAINED IN SUB-SECTION (1), THE PERSON RESPONSIBLE FOR PAYING ANY INCOME IN THE NATURE OF A PERQUISITE WHICH IS NOT PROVIDED FOR BY WAY OF MONETARY PAYMENT, REFERRED T O IN CLAUASE (2) OF SECTION 17, MAY PAY, AT HIS OPTION, TAX ON THE WHOLE OR PART OF SUCH INCOME WITHOUT MAKING ANY DEDUCTION THEREFROM AT THE TIME WHEN SUCH TAX WAS OTHERWISE DEDUCTIBLE UNDER THE PROVISIONS OF SUB-SE CTION (1). (1B) FOR THE PURPOSE OF PAYING TAX UNDER SUB-SECTIO N (1A), TAX SHALL BE DETERMINED AT THE AVERAGE OF INC OME TAX COMPUTED ON THE BASIS OF THE RATES IN FORCE FOR THE FINANCIAL YEAR, ON THE INCOME CHARGEABLE UNDER THE HEAD SALARIES INCLUDING THE INCOME REFERRED TO IN SUB- SECTION(1A), AND THE TAX SO PAYABLE SHALL BE CONSTR UED AS IF IT WERE, A TAX DEDUCTIBLE AT SOURCE, FROM THE INCOME UNDER THE HEAD SALARIES AS PER THE PROVISIONS OF S UB- 12 SECTION (1), AND SHALL BE SUBJECT TO THE PROVISIONS OF THIS CHAPTER. THUS, SECTION 192 DEALS WITH THE DEDUCTION OF TAX A T SOURCE. PERQUISITE IS ACTUALLY NOT A PAYMENT OF SALARY BUT A BENEFIT NOT IN TERMS OF MONEY, THERE WAS NO PROVISION INITIALLY TO DEDUCT TAX AT SOURCE. IT IS PROVIDED BY SECTION 192(1B) BY THE F INANCE ACT, 2002 WITH EFFECT FROM IST JUNE, 2002 AND AS TO COMP UTATION OF INCOME OF PERQUISITE, THE PROVISION IN SECTION 192( 1A), ALSO BY THE SAME ACT WITH EFFECT FROM THE SAME DATE. THIS TAX, AT THE OPTION OF THE ASSESSEE, CAN BE PAID ON THE WHOLE OR PART O F SUCH INCOME WITHOUT MAKING ANY DEDUCTION THEREFROM AT THE TIME WHEN IT WAS OTHERWISE DEDUCTIBLE U/S 192. A DUTY IS ALSO CAST UPON THE PERSON DEDUCTING TAX U/S 200. RULE 3 OF IT RULES, 1962 PROVIDES FOR THE TIME AND MODE OF PAYMENT TO THE GOVERNMENT ACCOUNT OF TAX DEDUCTED AT SOURCE. AS PER THE PROVISIONS OF S ECTION 200, THE TAX DEDUCTED AT SOURCE IS A MODE OF PAYMENT OF TAX ON THE INCOME OF THE PERSON ON WHOSE INCOME IT IS DEDUCTED I.E. EMPLOYEES IN THIS CASE. 7. THE DECISION IN THE CASE OF CANARA BANK VS. IT16 ITJ 435 (NAGPUR TRIBUNAL) SUPPORTS OUR VIEW WHICH WAS L ATER ON AFFIRMED BY THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF 13 WESTERN COAL FIELD, ETC. VIDE ORDER DATED 1.10.201 0. IN VIEW OF THESE FACTS, THE ISSUE RAISED BY THE ASSESSEE IS SQUARELY COVERED BY THE DECISION OF THE BOMBAY HIGH COURT IN THE CASE OF WESTERN COAL FIELD (SUPRA). RESPECTFULLY FOLLOW ING THE SAME, THE APPEALS OF THE ASSESSEE ARE ALLOWED. FINALLY, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWE D. ORDER PRONOUNCED IN OPEN COURT ON 29 TH OCTOBER, 2012 SD SD (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED - 29 TH OCTOBER, 2012 COPY TO APPELLANT/RESPONDENT/CIT/CIT(A)/DR DN/12.12.26.29.31