TMI Blog2023 (2) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... superannuation fund is not vested in the hand of employee till the event his superannuation or becoming incapable of services and unless right of the employee is vested in the said amount, it cannot be treated amount of perquisite. The submissions of assessee, though seems to be convincing but against the statutory provisions of section 17(2)(vii). None of the case laws relied by the ld AR for the assessee has considered the provisions of section 17(2)(vii). Therefore, no reason to interfere with the finding of the ld. CIT(A). Addition on account of conveyance maintenance reimbursement expenses (CMRE) - assessee submits that the assessee disallowed (offered) 20% of CMRE to tax and remaining amount was offered to tax - assessee restricted his claim to the extent of 80%, only which is spent and remaining was disallowed by assessee voluntarily - CPC while processing return disallowed the same - HELD THAT:- As assessee vehemently submitted that the assessee restricted the claim to the extent of actually spent and the XCPC taxed the entire claim without seeking any details, we find merit in the submissions of assessee that the disallowance was made without giving opportunity of exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return of income for assessment year (AY) 2017-18 on 15.03.2018 declaring income of Rs. 29,74,291/-, which consist of income from salary of Rs. 29,63,342/- and income from other sources of Rs. 10,949/-. The return of income was processed by Central Processing Centre (CPC) Bangalore. The CPC while processing such return of income noted certain discrepancies in the returned income and the salary income shown in Form-16 26AS. The CPC generated (issued) notice to assessee about such discrepancies and proposed to make adjustment of Rs. 1,50,961/- under section 143(1)(a)(iv). In response to such notice the assessee filed his reply and explained that said amount consist of Rs. 66,642/- on account of conveyance maintenance reimbursement expenses (CMRE) which is exempt under section 10(14) (i) and balance of Rs. 85,319/- employer s contribution to approved superannuation fund not be treated as perquisite under section 17(2). The reply of assessee was not accepted by assessing officer / CPC and made adjustment under section 143(1)(a)(iv) by assessing total income of Rs. 31,14,303/- thereby disallowing Rs. 1,50,961/- (65,642 + 85,319) vide intimation dated 21.03.2019. The assessee fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 10(14)(i) and placed reliance on decision of Gujarat High Court in CIT Vs ONGC (2002) 254 ITR 121- Guj). 6. The ld CIT(A) after considering the submissions of assessee on this issue held that as per salary slip issued by the employer of assessee, in March 2017, the assessee was paid Rs. 82,050/- during FY 2016-17 and 80% of which is Rs. 65,642/-, which was not included by the assessee in his taxable income by assuming it exempt under section 10(14) (i). The assessee made claim on ad hoc basis and is not based on actual expenditure, which is requirement of section 10(14)(i). It was held that the ratio of the case law relied by the assessee is not applicable as the same relates to the obligation of the employer to deduct tax at source on CMRE and does not empower the assessing officer to examine the issue on merit in the assessment of the employee concerned. As per decision for claiming exemption of CMRE expenses require investigation of fact relation to the quantum received and actually utilised and unutilised amount lose exemption, such exercise may give more than one view, often fallen into a debatable area, such exercise is outside the scope of section 154. The assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, contribution to recognised provident fund (RPF) cannot be compared with contribution towards superannuation fund because realisation of amount from RPF is exempt from tax whereas any monthly income from superannuation fund is taxable under heard salary as regular pension income. Therefore, same transaction is taxed twice in the hand of same assessee. To support all such submissions, the ld AR for the assessee relied on the following case laws; CIT Vs Maher Singh Sampuran Singh Chawala (1973) 90 ITR 219 (Delhi), Yoshio Kubo Vs CIT (2013) 36 taxmann.com 1 (Delhi), CIT Vs Tata Oil Mills Company Limited (1990) 182 ITR 130 (Bombay), CIT Vs JN Vas (1999) 240 ITR 101 (Bom), JCIT Vs Pramod Bhasin (2006) 8 SOT 72 (Delhi), The Royal Bank of Scotland NV. (AAR) AAR No.964 of 2010 dated 9th May 2014. 8. On the other hand, the ld SR DR for the revenue supported the order of lower authorities. The ld Sr DR for the revenue submits that the provisions of section 17(2)(vii) are very clear and unambiguous, which clearly prescribed that any amount in excess of Rs. 1.50 Lakhs contributed by employer towards approved superannuation fund is to be considered as perquisite, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. In the limited scrutiny it was disallowed without demanding any details from assessee, thereby taxing 100% of CMRE. The addition made by assessing officer is nothing but act of presumption as that nothing was spent. It is not open to the assessing officer to make such addition, which otherwise must be after examining the documentary evidences and the explanations, thus, the adjustment made by assessing officer deserve to be quashed. To support such contention, the ld AR for the assessee relied on the decision of Tribunal in SV Engineering Construction India (P) Limited Vs DCIT (ITA No. 130/Viz/ 2021 and Prowiz Manysystems Private Limited Vs DCIT (ITA No. 817/Del/2021. 12. On the other hand, the ld. CIT-DR for the revenue supported the orders of lower authorities. The ld. Sr-DR for the revenue submits that the assessee claimed deduction on ad-hock basis, which against the spirit of statutory provisions. The assessee still has not provided the detailed of actual expenses made from the payment of CMRE. The technical objection raised by the assessee is not worth considerable, which is against the legal provisions. And if the assessee claimed that he had spent such amount as clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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