TaxTMI 
TaxTMI 
2001 (4) TMI 184
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....efore, bad in law. 2. Without prejudice to the foregoing, in not upholding that the valuation of perquisite in respect of domestic servants should be done according to the Circular No 122, dt.19th Oct., 1973, issued by the CBDT. As such, the perquisite value should not be the actual reimbursement of servant wages but Rs. 60 per month and consequent deletion of interest charged under s. 201(1A) of the Act." 2. The authorised representative of the assessee Mrs. Preeti Goyal submitted that the case of the assessee is fully covered by the order of the Tribunal in assessee's own case and decision of the Mumbai Bench in the case of Associated Cement Company in ITA No. 2309/Mum/1997. Reliance was also placed upon the order of the Tribunal in Nes....
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....not including the same while working out the TDS payment. 5. In reply the learned authorised representative reiterated that the matter is fully covered by the order of the Tribunal in assessee's case and the amount being paltry in nature, the assessee-company would not be able to recover anything from the employees. As such, the order under s. 201(1) deserves to be quashed. 6. We have heard the rival submissions and perused the material placed on our files. The orders of the Tribunal and the decisions of the High Court and Supreme Court have been perused by us. At the outset, we would like to make it clear that the argument that the amount is small would not by itself carry much weight as the issue would be decided on the basis of princip....
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....sis of bona fide estimate and, therefore, demand on account of short deduction was not justified. In this connection, reliance has been placed on the decision of Bombay Bench "C" of the Tribunal in the case of Glaxo India Ltd. (formerly Oil India Ltd.)Bombayvs. 1st ITO,TDS Circle,Bombayin ITA No. 101 to 107/Bom/90 dt. 12h June, 1995. It has also been contended that the employees of the assessee are regular taxpayers and there is no loss to the Revenue. In these circumstances, the Tribunal came to the conclusion that: "In these circumstances, it cannot be said that assessee has consciously defaulted by making short deductions. We are, therefore, of considered view that it is not a fit case for recovery of tax under 201 r/w s. 102. We are su....
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..... A fair reading of s. 201 indicates that it just serves the purpose of creating a fiction whereunder a person is deemed to be in default. In addition to this section does not confer any further power of any nature whatsoever on the taxing authority. It simply prescribes a particular situation viz. that when the company fails to deduct or after deducting fails to pay the tax it shall be deemed to be an assessee in default. Similar fictions are created under s. 218 for default in demand of advance tax and under s. 220 for default in payment of regular tax. The deeming provisions incorporated in these sections may lead us to s. 221. However, going back to s. 201, with which we are concerned in this appeal, it is sufficient to observe that the....
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....payer of the income and that such tax has to be recovered from payer of the income and that such tax has to be recovered from the assessee direct." At para 14, the Tribunal further held as under: "In the present case upon the completion of the assessment of the assessee employee nothing prevents the Department from passing re-assessment order under s. 147 after including above two items in dispute and recover tax penalty and interest from them such absurd reasons resulting in double taxation must be avoided. Accordingly, the third argument raised by Shri Vyas also requires to be accepted. 9. Similarly, the assessee has placed reliance on the order of the Delhi Bench of the Tribunal in Nestle India's case wherein the assessee-company did ....
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....t 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." 11. Thus, having examined the position of law, it is necessary to advert to the position of facts before us. It is seen that all these cases are not applicable to the issue before us and in all these cases the belief of the assessee wa....