TMI Blog2022 (3) TMI 1445X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Learned Commissioner of Income Tax(Appeals)-Valsad/3- Surat, [for short ld. CIT(A) ], which in turn arise out of separate penalty orders passed by the Assessing Officer under section 271C of the Income Tax Act, 1961 (hereinafter referred to as the Act ). 2. At the outset, Shri Divyang J Shah, Ld. Authorized Representative (AR) of the assessee states that all assessee s appeals are barred by limitation by 150, 144 and 174 days respectively. The ld Counsel has stated that assessee has filed separate petitions for condonation of delay, requesting the Bench to condone the delay in filing 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 Fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned in their internal process. We are of the view that provisions of law have to be adhered strictly and that one cannot be allowed to act in leisure and make a mockery of enacted law, because law and provisions are laid down to benefit both sides of litigation. Be that as it may, we have to do justice and the Hon ble Supreme Court in the case of Collector, Land Acquisition vs Mst. Katiji and others , reported in 167 ITR 471, (1988 SC 897) (7) has observed as follows: 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim 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 fourtee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact of taxability of a payment in not in respect of taxable income the hands of an assessee under this head . Clearly, therefore, taxability of an income, in the hands of the employee concerned, under the head' income from salaries' per se is thus not sufficient to invoke the tax withholding obligations of the employer. There can be situations in which the employer genuinely and reasonably estimates income of the employees under the head salaries, and yet actual taxability of income under the head salaries of the related employees may be higher than employer's estimation. Therefore, while examining the question as to whether the employer has properly discharged his duties 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 Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... travel (remaining statutory provision not reproduced as it is not considered to be relevant for the present discussion) Conditions for the purpose of section 10(5) as prescribed under rule 2 B of the Income-tax Rules, 1962 2B. (1) The amount exempted under clause (5) of section 10 in respect of the value of travel concession or assistance received by or due to the individual from his employer or former employer for himself and his family, in connection with his proceeding- (a) on leave to any place in India; (b) to any place in India after retirement from service or after the termination of his service, shall be the amount actually incurred on the performance of such travel subject to the following conditions, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e benches as well, and, therefore, we need not question that at this stage. The relevant question, however, is not the actual status of taxation; the relevant question is whether the assessee employer could be said to unreasonable or mala fide in proceeding on the basis that in such a situation also, the cost of a direct flight between Mumbai Delhi on national airlines will be available for exemption under section 10(5). When we look at the detailed statement of facts, extracts from which have been extensively reproduced by us earlier in this order, we do not find anything wrong or unreasonable in the conduct of the assessee employer. There is no specific bar in the law on the travel, eligible for exemption under section 10(5), involving a sector of overseas travel, and, in the 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 indicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that whether entire travel costs are borne by the employer or whether only the partial costs, limited to direct flight on the shortest route and as per the national carrier, are borne by the employer, is not unambiguous from the findings of the authorities below, and the matter should, at least for this verification, be restored to the file of the Assessing Officer. We see no merits in this plea. It has been a specific stand of the assessee all along that the leave travel facility extended by the assessee employer is restricted to the cost of direct flights, on the national carrier, by the shortest route taken, and that is reiterated in the statement of facts filed before the CIT(A) as well. This stand of the assessee remains uncontroverted. There is no reason to doubt the same and prolong 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
