TMI Blog2017 (9) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be read in and nothing is to be implied, in respect of a taxing statute.Section 115WB is a part of Chapter XII-H of the Income Tax Act, 1961. Chapter XII-H of the Income Tax Act, 1961 was introduced to the statute from the year 2005-2006. It was deleted from the year 2009- 2010. Chapter XII-H deals with Fringe Benefits Tax. Section 115WA contemplates that, additional income tax referred to as Fringe Benefits Tax would be payable in respect of fringe benefits provided or deemed to have been provided by an employer to his employee during the previous year at the rate of 30 per cent of the value of such fringe benefits. There has to be an employer employee relationship between the persons for considering whether the employer is giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x on any head or not. It would not be prudent to enter into a discussion in the abstract, without any factual foundational basis. - Decided against the petitioners. - W. P. No. 116 of 2006 - - - Dated:- 1-9-2017 - Debangsu Basak , J. For the Petitioners : Mr. Abhratosh Majumder, Addl. Adv. General Ms. Anupa Banerjee, Advocate Mr. Paritosh Sinha, Advocate Mr. Amitava Mitra, Advocate Mr. Aritra Chakraborty, Advocate For the Respondents : Md. Nizamuddin, Advocate Mr. R.K. Sinha, Advocate ORDER Debangsu Basak , J. The petitioners have assailed Chapter XII-H of the Income Tax Act, 1961 as unconstitutional being opposed by Article 14 and 246(1) read with Entry 82 in List I of the Seventh Schedule to the Constitution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not exist in the provisions of Section 115WB of the Act of 1961. He has relied upon 2004 Volume 11 Supreme Court Cases page 417 (Nandkishore Ganesh Joshi v. Commissioner, Municipal Corporation of Kalyan Dombivali Ors.) and 2004 Volume 6 Supreme Court Cases page 59 (State of West Bengal v. Sadan K. Bormal Anr.) in support of the contentions that, a legal fiction cannot be extended beyond the purpose for which it is created. He has contended that, Section 115WB (2) has to be read down to mean that only items which satisfies the test of Section 115WA(1) and which are relatable to employer employee relationship can be charged for Fringed Benefits Tax. He has relied upon 2017 Volume 3 Supreme Court Cases page 467 (Southern Motors v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so construed so as to make it effective and operative. He has also relied upon (2010) 326 Income Tax Reports page 642 (SC) (Ajmera Housing Corporation v. Commissioner of Income-Tax) for the proposition that, a taxing statute is to be construed strictly. Nothing is to be read in and nothing is to be implied in respect of a taxing statute. Learned Additional Advocate appearing on behalf of the petitioners has distinguished the cases cited on behalf of the revenue. He has submitted that, Tata Consultancy Services Ltd. (supra) has held that, the basis of the Fringe Benefits Tax is the benefits of perquisites which emanates out of an employer employee relationship. So far as the Hindustan Bulk Carriers (supra) is concerned, he has submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of fringe benefits provided or deemed to have been provided by an employer to his employee during the previous year at the rate of 30 per cent of the value of such fringe benefits. There has to be an employer employee relationship between the persons for considering whether the employer is giving any fringe benefit to the employee or not. In other words, whether an employee is receiving a fringe benefit from the employer has to be considered and decided for Fringe Benefit Tax to be attracted. Fringe benefits are defined in Section 115WB. Sub-section (2) of Section 115WB stipulates that, fringe benefits shall be deemed to have been provided by the employer to his employees, if the employer has, in the course of his business incur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in. In Tata Consultancy Services Ltd. (supra) the assessee was assessed by the Assessing Officer on a particular basis and such assessment had received the consideration of the High Court in reference. Southern Motors (supra) has held that, although equity and taxation are often strangers, the Court should attempt that they do not remain always so. For the Court to admit such a resolution, an affected situation has to come before the Court for the Court to try and marry equity with the taxation law. In the present case, the Assessing Officer is yet to arrive at a finding whether the petitioner is liable to Fringe Benefits Tax on any head or not. It would not be prudent to enter into a discussion in the abstract, without any factual foundati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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