2015 (10) TMI 234

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....e, the order passed by the Learned Commissioner of Income Tax (A) (CIT(A) is bad both in the eye of law and on facts. 2. On the facts and circumstances of the case, ld. CIT(A) has erred both on facts and in law in upholding the validity of the reopening of assessment under Section 115WG of the Act. 3. On the facts and circumstances of the case, ld. CIT(A) has erred both on facts and in law in rejecting the contention of the appellant that the reasons for reopening are bad in law and as such reassessment done in consequence thereof is bad in law and is liable to be quashed. 4(i) On the facts and circumstances of the case, ld. CIT(A) has erred both on facts and in law in confirming addition of Rs. 322,74,88,883/- made by AO on account of c....

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....ct. The Assessing Officer, however, rejected the contentions raised by the assessee and completed the reassessment by the order dated 12.02.2010 by including sum of Rs. 322,74,88,883/- as value of fringe benefit. 4. On appeal, the CIT(A) confirmed the addition made by the Assessing Officer. The relevant findings of the CIT(A) reads as follows: "Perusal of the above provisions of the Act show that the provisions clearly cover any contribution made to superannuation fund. The provisions of the statue are very straight and there is no doubt or any ambiguity. Any contribution made to the superannuation fund is liable to FBT. In the instant case the appellant has made contribution of Rs. 3227488883/- towards superannuation fund of the employee....

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....enefits to its employees on the line of BSNL. 12.4 Thus the very basis for the AO for including this amount as fringe benefit is not correct. 12.5 In this regard it may be relevant to refer to the Circular No.8/2005 dated 29.08.2005 clarifying various fringe benefits and fringe benefit tax. On page 5, it has been clarified that employer-employee relationship is a prerequisite for the levy of FBT. 12.6 Secondly on going through the provisions of section 115WB(1)( c) it is to be noted that this tax is leviable in respect of the contribution to approved superannuation fund. 12.7 The assessee does not have any approved superannuation fund. It has not contributed to any superannuation fund. It has paid the amount to the Department of Telecom....

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....d or transferred, directly or indirectly, by the employer free of cost or at concessional rate to his employees (including former employee or employees)." From reading of the above provision, it is clear contribution can be brought to the value of fringe benefit provided there is an employer-employee relationship and the same is paid to an approved superannuation fund. The Circular No.8/2005 dated 29.08.2005 also clarifies that employer- employee relationship is pre requisite for the levy of Fringe Benefit Tax. The other important aspect is that, the contribution must be to an approved superannuation fund. The contention of the assessee is that it is not contribution made to its employees but lumpsum payment to the Department of Telecommun....