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TMI Blog2022 (3) TMI 1445X X X X Extracts X X X X X X X X Extracts X X X X ..... these fourteen appeals. The contention raised by the assessee in sample affidavit, in ITA No.50/SRT/2019, (explaining the reasons for late filing of these appeals before the Tribunal), is reproduced below: "I, Shri Ashok Vadera (above stated person) hereby confirm the fact that State Bank of India was in appeal in front of first appellate authority against the order passed u/s 271C of the Act in case of 'State Bank of India, Station Road Branch, Valsad; Vide TAN-SRTS04036E for AY 2012-13". IMPUGNED ORDER also confirm the fact that State Bank of India was also in receipt of First Appellate order for above stated appeal. For filing a second appeal in above case, an approval is required from "Deputy General Manager-Banking & Operation (Surat Area Office)" of State Bank of India [hereinafter referred as DGM-B&O (SAO)].Further, before granting approval by DGM-B&O(SAO), he also have to take recommendation from appropriate authority from Local Head Office situated at Ahmedabad for given matter. Due to this reason (which merged with other tiny issues), DGMB&O(SAO) can accord his approval only as on 24/01/2019 for above state matter. Thus, for given matter, due to following reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim to have vested right in injustice being done because of a nondeliberate delay." 6. When we weigh these two aspects then the side of justice becomes heavier and casts a duty on us to deliver justice. We note that reasons given in the affidavit for condonation of delay were convincing and these reasons would constitute reasonable and sufficient cause for the delay in filing these appeals. We, therefore, condone the delay in each appeal and admit all the appeals for hearing. 7. Since, the issues involved in all these fourteen appeals are common and identical; therefore, these appeals have been clubbed and heard together and are being disposed of by this consolidated order. For the sake of convenience, the grounds as well as the facts narrated in ITA No.50/SRT/2019, for assessment year 2012-13, have been taken into consideration for deciding the above appeals en masse. 8. The grounds of appeal raised by the assessee in "lead case" in ITA No.50/SRT/2019, for A.Y 2012-13, are as follows: 1. Whether, on facts and in circumstances of the case and in law, Ld. Assessing Officer has erred in levying penalty of Rs.64,260/- u/s 271C of the Act." 9. When these appeals were called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties under section 192, all that is to be seen is whether the employer has reasonably, or bona fide, estimated the income of the employees and deducted tax in respect of such estimated income. As long as the conduct of the employer in this exercise is bona fide, he cannot be said to be wanting in his conduct under section 192. Explaining this legal position, in the oftquoted landmark judgment in the case of Gwalior Rayon Co. Silk Co. Ltd. v. CIT [1983] 14 Taxman 99/140 ITR 832 (MP), Hon'ble Madhya Pradesh High Court judgment has, inter alia, observed that, "A duty is cast on an employer to form an opinion about the tax liability of his employee in respect of the salary income. While forming this opinion, the employer is undoubtedly expected to act honestly and fairly. But if it is found that the estimate made by the employer is incorrect, this fact alone, without anything more, would not inevitably lead to the inference that the employer has not acted honestly and fairly. Unless that inference can be reasonably raised against an employer, no fault can be found with him. It cannot be held that he has not deducted tax on the estimated income of the employee". We humbly bow to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , namely:- (i) where the journey is performed on or after the 1st day of October, 1997, by air, an amount not exceeding the air economy fare of the national carrier by the shortest route to the place of destination; (ii) where places of origin of journey and destination are connected by rail and the journey is performed on or after the 1st day of October, 1997, by any mode of transport other than by air, an amount not exceeding the airconditioned first class rail fare by the shortest route to the place of destination; and (iii) where the places of origin of journey and destination or part thereof are not connected by rail and the journey is performed on or after the 1st day of October, 1997, between such places, the amount eligible for exemption shall be:- (A) where a recognised public transport system exists, an amount not exceeding the 1st class or deluxe class fare, as the case may be, on such transport by the shortest route to the place of destination; and (B) where no recognised public transport system exists, an amount equivalent to the air-conditioned first class rail fare, for the distance of the journey by the shortest route, as if the journey had been perfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he absence of such a bar, the assessee employer cannot be faulted for not inferring such a bar. The reimbursement is restricted to airfare, on the national carrier, by the shortest route- as is the mandate of rule 2B. The employee has actually travelled, as a part of that composite itinerary involving a foreign sector as well, to the destination in India. The guidance available to the assessee employer indicates that, in such a situation, the exemption under section 10(5) is available to the employee- though to the extent of farthest Indian destination by the shortest route, and that is what the assessee employer has allowed. In the light of this analysis of the legal position and the factual backdrop, whatever may be the position with respect of taxability of such a leave travel concession in the hands of the employee, the assessee employer cannot be faulted for not deducting tax at source from the leave travel concession facility allowed by him to the employees. As we hold so, we may add that we have not really addressed ourselves to the larger question with respect to the actual taxability of this leave travel concession in the hands of the employees concerned, even though we ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olong the proceedings. In case the Assessing Officer finds that this relief is based on incorrect facts, its open to him to seek appropriate remedy by, inter alia, seeking a recall of this order, but, on our own and merely to double-check, we are not inclined to remit the matter to the file of the Assessing Officer. Inconvenience to the assessee and smallness of the amounts involved apart, this is a case of a public sector undertaking, and any unnecessary further prolonging of the proceedings can only at the cost of taxpayers' hard-earned monies. We must avoid that. The second point we must make is that we are alive to the fact that on materially identical facts, the coordinate benches have decided the matter against the assessee by holding that exemption under section 10(5) is not available to the employees on the facts of these cases. That does not, however, affect our conclusions, which are essentially based on our interpretation about the impact of section 192(1) so far as obligations of the assessee employer are concerned, and, in none of the cases cited before us, any findings are given about the mala fides, or even lack of bonafides, on the part of the assessee employer. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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