TMI Blog2016 (2) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... IT v/s. Tungabhadra Industries Ltd. [1993 (9) TMI 82 - KERALA High Court] without appreciating the fact the same was rendered in connection with allowability of deduction u/s. 37(3A) of the Income Tax Act, 1961 when Fringe Benefit Tax was not brought on Statute? (7) Whether on the facts and in the circumstance of the case and in law, the Tribunal was right in granting relief of Fringe Benefit Tax on maintenance of accommodation not in the nature of guest house in total disregard to the provision laid in clause (A) to (P) of sub section (2) of Section 115WB of the Income Tax Act?". - Income Tax Appeal No. 2325 of 2013, Income Tax Appeal No. 2399 of 2013, Income Tax Appeal No. 464 of 2014 - - - Dated:- 2-2-2016 - M. S. Sanklecha And B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... education facilities merely on surmises and conjectures, without there being anything on record in support of the finding of the ITAT that these perquisites were taxed in the hands of the employees or not and, therefore, this tantamount to perverse finding of fact? (4) Whether on the facts and in the circumstance of the case and in law, the Tribunal was right in granting relief of Fringe Benefit Tax on expenses incurred on Salary of drivers/pilots in total disregard to the provision laid in clause (A) to (P) of sub section (2) of Section 15WB of the Income Tax Act? (5) Whether on the facts and in the circumstance of the case and in law, the Tribunal was right in granting relief of Fringe Benefit Tax on expenses incurred on insura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Fringe Benefit, the Appellant had appended a note, indicating that according to it, no Fringe Benefit tax on the amounts offered is payable. However, the same is being filed by way of abundant caution. The Assessing Officer after recording the fact of implied protest dealt with the various amounts returned by the Appellant in its Fringe Benefit Returns. However, by order dated 26th December, 2008, on merits, held that the tax is payable; (b) In appeal, the CIT(A) did not allow the RespondentAssessee to urge that no Fringe Benefit Tax in fact is payable. This on the ground that as the Respondent-Assessee had not claimed the benefit in its Return, it cannot raise the issue in appeal. This by relying on decision of the Apex Court in Goetz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im with regard to it. Nevertheless, this Court has held in Pruthvi Builders (supra) it could be raised in appeal. Moreover, in the present facts, the claim had already been made by the Respondent in its Return of Fringe Benefit by way of note therein. Thus, it is not a new claim. In any case, on account of the decision of this Court in Pruthvi Brokers and Shareholders (supra), the RespondentAssessee is well entitled to raise the claim before the Appellate Authority even it not raised before the Assessing Officer; (f) In the above circumstances, the Question 1 does not give rise to any substantial question of law. Hence not entertained. 4. Regarding Question (2): The impugned order of the Tribunal allowed relief of Fringe Benefit Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he RespondentAssessee before the Tribunal is not correct. In case, the statement made by the Counsel appearing on behalf of the RespondentAssessee before the Tribunal is not correct and is so found by the Revenue, the remedy, if any, is to move the Tribunal . Accordingly, the question as framed does not give rise to any substantial question of law. Hence, dismissed. 6. Regarding Question (6): (a) Mr. Suresh Kumar, learned Counsel appearing for the Revenue submits that there is nothing on record to indicate that the preoperative expenditure which has been excluded from the value of Fringe Benefit Tax was a capital expenditure. We find that before the Assessing Officer, the RespondentAssessee had relied upon the CBDT Circular No.8 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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