TaxTMI 
TaxTMI 
2023 (2) TMI 411
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....llants request for deletion of same through rectification u/s 154. 3. The learned CIT(A) grossly erred on the facts and law considering the material available with the ld AO before passing the order u/s 154 in holding that it is not a case of rectifying the error apparent from the record and the claimed amount of Rs. 65,642/- is totally unmeritorious and deserve to be rejected. 4. The ld. CIT(A) considering the facts of the case is not justified in holding that there is no merit in the ground of applicability of Rule of consistency. 5. By dismissing the appeal the confirming the adjustments made by the ld. AO your appellant has been over assessed under the Act and is entitled to be refunded. 6. Your appellant craves leave to add, alter and amend any ground of appeal and place such other further evidences as may be available applicable at the time of hearing of the Appeal." 2. Brief facts of the case are that the assessee is an employee of Oil and Natural Gas Corporation (ONGC), filed his 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....
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....tion fund by the employer in respect of the employee, to the extent it exceeds Rs. 1,50,000/-, shall be treated 'perquisite' to be chargeable under head 'salaries'. Therefore, an amount of Rs. 85.318/-, which is in excess of Rs. 1,50,000/- is to be treated as perquisites and there is no mistake in the order of CPC. The ld CIT(A) after referring the provision of section 17(2)(vii) of Income-tax Act 1962 (new Act) and section 7(1)(v) of the 1922 Act (Old Act), held that ratio in case law relied by the assessee in CIT Vs L.W. Russel (supra) is not applicable on the present case. It was held that section 7(1) of Old Act is somewhat in pari materia with clause (v) of section 17(2) of new Act. The present appeal relates to clause (vii) of sub-section (2) of Section 17 of New Act. Thus, the assessing officer was fully justified in rejecting the assessees application under section 154. 5. On the issue of adjustment of CMRE of Rs. 65,642/- the assessee submitted that such amount is exempt under section 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 th....
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....ncapable to continue in service. Premature withdrawal like provident fund is not allowed. Thus, the amount contributed by the employer to the superannuation fund is not vested in the hand of employee till the event his superannuation or becoming incapable of services. Unless right of the employee is vested in the said amount, it cannot be treated amount of perquisite. The ld AR for the assessee further submits that any contribution to any superannuation fund may be considered as perquisite as it is not carrying stringent condition with it. However, where superannuation fund is approved by Commissioner of Income tax, then, it has to be in consonance with the condition of Schedule-4, which prohibit any partition of fund till some future events like superannuation or incapability to continue in service. Therefore, taxing the same without having any right to realise it, is totally against basic principles of taxing jurisprudence and the law declared by Apex Court in L W Russel (supra). Further, 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 inc....
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....services and unless right of the employee is vested in the said amount, it cannot be treated amount of perquisite. The submissions of the ld AR for the 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, I do not find any reason to interfere with the finding of the ld. CIT(A). 10. In the result, ground No. 2 of the appeal is dismissed. 11. Ground No.3 relates to adjustment/ addition of Rs. 65,642/- on account of conveyance maintenance reimbursement expenses (CMRE). The ld AR for the assessee submits that the assessee disallowed (offered) 20% of CMRE to tax and remaining of Rs. 65,642/- was offered to tax. The assessee was very well conscious about the provisions of section 10(14) (i), which restrict the claim to the extent of actual claim. The assesse restricted his claim to the extent of 80%, only which is spent. 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 noth....