TMI Blog1998 (4) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... s treated as a perquisite in the hands of the assessee and was brought to tax by the AO. The learned CIT(A) sustained the addition so made on the ground that the same was covered under the provisions of s. 17(2)(iii) and (iv) of the Act. This is not correct. On facts, the company paid the amount to the assessee s brother settled inUSA. After having accepted that the payment had no genesis in the contract between the company and the assessee and also after being of the opinion that the same did not emanate from vested rights of the assessee, the same could not be taxed under s. 17(2)(iii) and 17(2)(iv) of the Act. 3. In support reliance was placed on the decision of Tribunal, Jaipur Bench, in case of Smt. Asha Golcha vs. Asstt. CIT (1992) 42 ITD 7 (Jp), wherein on identical facts it was held that reimbursement of medical expenses could not be treated as perquisite under s. 17(2)(iii)(c) or under s. 17(2)(iv) of the Act. Again, in case of Dy. CIT vs. P.G. Shanbagh (1995) 54 ITD 417 (Hyd), it was held that expenditure incurred by employer on travel of attendant accompanying the assessee to USA for medical treatment could not be treated as perquisite having been incurred in discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sstt. CIT where the facts are identical. In the aforesaid case, the assessee who is a managing director, had to go toUSAfor medical check up and to undergo bypass surgery. He was reimbursed in cash medical expenses by the company. On interpretation of the relevant provisions, it was held that reimbursement made by the company to the assessee was on grounds of commercial expediency or staff welfare expenses. The expression "the value of any benefit or amenity granted or provided free of cost." could not apply to reimbursement in cash of the medical expenses. The benefit or perquisite could not be money itself or cash payment. The reimbursement of medical expenses of the managing director by the company was not an expenditure by the company which resulted directly or indirectly in the provisions of any benefit or amenity or perquisite. So far as s. 17(2)(ii) is concerned, it refers to any sum paid by the employer in respect of any obligation which but for such payment, would have been payable by the assessee . That clause would also not be attracted in the instant case because the question of any obligation did not arise. Therefore, the amount was not to be treated as a perquisite i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sst. yr. 1971-72 as income from other sources. The AAC held that the amount was capital gains and had to be assessed in the asst. yr. 1962-63 and accordingly deleted the addition made in the asst. yr. 1971-72. The AAC directed the ITO to bring the amount to tax in the correct asst. yr. 1962-63. On further appeal, the Tribunal held that the decision of the AAC to exclude the amount in the asst. yr. 1971-72 was correct but AAC had no jurisdiction to direct the ITO to bring the amount to tax in the correct assessment year. On reference to the High Court, their Lordships held that the AAC had no jurisdiction to come to a finding that the amount could be taxed in a particular assessment year. In holding so, reliance was placed on the decision of the Hon ble Supreme Court in the case of ITO vs. Murlidhar Bhagwan Das (1964) 52 ITR 335 (SC). Referring to the case of Murlidhar Bhagwan Das we find that the issue has been decided under s. 34(3) of the 1922 Act. The expression "finding and direction" came for an interpretation therein. It was held that these expressions have limited meaning. A finding given in an appeal arising out of an assessment must be one necessary for the disposal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iving further directions for the remaining amount to be taxed in the other assessment year. Thus, viewed from this angle, the case clearly falls within the decision of the Hon ble Supreme Court. Nevertheless, as pointed out earlier, under the provisions of s. 153(3)(ii) read with Explanations, the directions of the learned CIT(A) are in order. We would also like to point out that their Lordships of Calcutta in one case on which sole reliance was placed did not consider the decision of the Andhra Pradesh High Court in case of Abdul Rehman Sahab vs. ITO (1975) 100 ITR 541 (AP) wherein the decision of the Hon ble Supreme Court in case of Murlidhar Bhagwan Das was also considered. Their Lordships also did not consider the case of P.J. Udani vs. CIT (1967) 63 ITR 766 (AP). 10. In short, since the directions were necessary for deciding the issue relating to the assessment year, in our considered view, they were validly issued. We have expressed our opinion on the issue as we were asked to do so. In any way, this would be of academic value only because of our decision that the amount could not be brought to tax in the form of a perquisite as held by the Revenue authorities. 11. The ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share of income from the estate of mother. In this context, we find that while the AO brought to tax 1/6th share of income from the estate of mother and the learned CIT(A) confirmed the finding. According to Shri Syali, since the estate was not administered till the year end relevant for of the assessment year, the question of inclusion of income in the hands of the assessee did not arise. It was argued that the issue was not examined from the point of view of the provisions of the Act relevant to the administration of estate. In the circumstances, the assessment should be set aside on the aforesaid matter. The learned Departmental Representative conceded that as the issue has not been examined properly, the matter should go back to the AO for re-examination and rendering the decision in accordance with law. 15. On careful consideration of the facts, we find that the facts have not been discussed in detail. Circumstances under which the assessee came to acquire 1/6th share in the property and also whether till the date the estate was fully administered or not were not discussed. In the circumstances, on the aforesaid issue, the matter need to go back to the file of the AO for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct facts in regard to the ownership of the property and in case same is assessed in the hands of the estate, the aforesaid factor should be taken into consideration while deciding whether the income is assessable in the hands of the assessee or not. The issue is to be decided in accordance with law. 21. The next ground relates to in sustaining the addition of Rs. 16,000 as income from undisclosed sources. The facts in brief are that the assessee declared income from agriculture at Rs. 75,000. The AO adopted the same at Rs. 50,000, thus making an addition of Rs. 25,000. The learned CIT(A) reduced the addition by Rs. 9,000. The issue has come up in appeal for assessment year in ITA No. 2207/D/1991. For the reasons given therein, we restore the matter back to the file of the AO. For the same reasons, the AO is directed to redecide the issue in the light of the directions given therein. The matter is restored back to the file of the AO. ITA No. 7879/D/1992: 22. The first issue relates to confirmation of an addition of Rs. 8,500 in respect of income from house property No. 5 C/20,Rohtak Road,New Delhi. The issue has since been discussed in appeal in ITA No. 119/D/1992. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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