TaxTMI 
TaxTMI 
2026 (6) TMI 497
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....d 142(1) of the Act were issued and served upon the assessee, requiring him to submit ITR, computation, audited balance sheet, business activity during the period, advances/ self assessment/TDS and tax paid details with documents alongwith form 10E etc in respect of calculation of relief u/s 89 of the Act. Assessee submitted details alongwith form 10E showing Rs. 23,48,445/- as arrears of salary and claimed relief u/s 89(1) of the Act amounting to Rs. 5,25,620/-. (ii) The assessing officer noticed that assessee was paid following payment during the year under consideration:- (a) Salary as per provisions contained u/s 17(1) - Rs. 30,85,010.72 (b) Value of perquisites u/s 17(2) as per form no.12BA - Rs. 26,69,088.99 (c) Profit in lieu of salary u/s 17(3) as per form no. 12BA - Nil. (iii) The assessing officer observed that the payments of Rs. 26,69,088.99 made by the employer are value of perquisite u/s 17(2) of the Act as per form 12BA, hence, this amount cannot qualify for relief u/s 89(1) of the Act. Ld A.O., thus, disallowed the aforesaid relief claimed u/s 89(1) of the Act and added to tax. 3. Aggrieved, assessee preferred an appeal before ld ....
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....tion to definite contribution scheme deposited by the employer was included in the income under the heads salary by inserting the provision of section 17(2)(vii) in the Income Tax Act, 1961 w.e.f 01.04.2010. Prior to this period, the amount of superannuation fund were totally exempt from the payment of income tax. The relief u/s 89 for Rs. 5,25,620/- is mainly accrued on account of contribution made towards superannuation fund for A.Y. 2007-08, 2008-09 and 2009-10 amounting to Rs. 14,36,607/- Rs. 1,23,836/- and Rs. 1,40,594/- respectively. In these years, the superannuation fund was free from tax. Ld AR has, thus, prayed to allow the relief claimed by the assessee and referred the order dated 16.07.2018 passed by the Agra bench of this tribunal in ITA No. 198/Agr/2018, Rajesh Kumar V. ACIT, reported in (2018) 53 CCH0666 (Agra-Trib), submitting that assessee's case is covered with this case. 8. Ld DR supports the impugned order. 9. The issue under appeal is no more res integra. The single bench of this tribunal has also dealt with the identical issue in Rajesh Kumar (supra). The relevant part of the order read as under: "This is assessee's appeal for A.Y. 2014-15 agai....
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....ence to a 'perquisite'. (B) The arrears in the present case pertain to a perquisite and not to salary or profit in lieu of salary or a family pension as defined in the Explanation to clause (iia) of section 57 of the Act. This fact is proven from a perusal of appellant's Form No.12BA dated 22.05.2014 digitally signed by the Dy. Manager (F&A), GAIL (India) Ltd., a copy of which is reproduced later in this order. (C) Further, it can be observed that the sub-clause (vi) of section 17(2) pertaining to the fringe-benefits or amenities, was substituted by subclauses (vii),(viii) and (ix) w.e.f. 01.04.2010 and thereby the employer's contribution to an approved superannuation fund in respect of any assessee to the extent it exceeded Rs. 1,00,000/-,was specifically brought under the ambit of 'perquisites'. This amendment does not in any way indicates' that the employer's contribution to an approved superannuation fund in respect of any assessee, would be, or was being treated as part of salary or profit-in-lieu of salary or family pension. Even if it was exempt from taxation till 01.04.2010, it does not imply that relief in its respect under....
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....mployees as perquisite. TDS, wherever applicable, will be deducted from monthly salary of employees."........................ 7. The appellant has alleged in his submissions before me that the A.O. was confused and acted in a hurried manner while deciding the issue under consideration. He has also referred to some judicial precedents in his second submission dated 19.12.2017. Further, it has been argued by him that since salary includes perquisites, and perquisites include employer's contribution to superannuation fund, the relief under/ section 89 should be allowed to him. With due respect to the judicial authorities and in consideration of the facts of this case listed above, it is humbly stated that all these submissions are either irrelevant or distinguishable. 8. Therefore, in light of the above, it can be conclusively said that the appellant has claimed undue relief of Rs. 5,27,403/- under the provisions of section 89 of the Act. This relief has been claimed by the appellant by providing incorrect particulars in Form no. 10E to his employer and thereafter making the said claim in his return of income. The A.O.'s action of disallowing the claim of ded....
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....n receipt, in any one financial year, of salary for more than twelve months or a payment which, under the provisions of clause (3) of section 17 is a profit in lieu of salary, or is in receipt of a sum in the nature of family pension as defined in the Explanation of clause (iia) of Section 57, being paid in arrears, due to which his total income is assessed at a rate higher than that at which it would otherwise have been assessed, the AO shall, on an application made to him in this behalf, grant such relief as may be prescribed. 8. Further, as per the pay revision guidelines, which were effective from 01.01.2007 and issued by the Department of Public Enterprises (DPE) in its official Memorandum dated 26.11.2008 and 02.04.2009, the Central Public Sector Enterprises have been allowed to contribute within over all limit of 30 % of basic pay plus dearness allowance of the Employee as superannuation benefit which would include contributory provident fund, gratuity, pension and post retirement benefit scheme. The contribution was made by the employer to superannuation fund scheme, known as defined contribution scheme in F.Y. 2013-14 for the period from 01.01.2007 to 31.03.2013. ....
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....tion 17(2)(vii) of the Act means contribution, exceeding rupees one lac, to an approved superannuation fund by the employer in respect of an assessee. iv. Rule 21A of the IT Rules and Form 10E do not relate to the contribution in question. v. Rule 21A(1)(e) read with Rule 21A(6) does not help the assessee. vi. GAIL's Circular No.CO/HR/Pol/W-19 dated 04.04.2014, in clause 3.1.4 mentions that contributions over and above the exemption limit prescribed under the IT Act would be taxable in the hands of the employees, as perquisite. 8. The ld. CIT(A) has correctly held that section 89 does not talk of perquisite, but of, inter alia, salary, whereas the relief claimed by the assessee pertains to 'perquisite' and not 'salary'; that 'perquisite' within the meaning of section 17(2)(vii) means contribution in excess of one lac rupees to an approved superannuation fund by the employer in respect of an assessee. 9. However, the following position appears to have escaped the knowledge of the ld. CIT(A). Section 17(1) defines 'salary' and 'perquisite' separately for the purposes of sections 15 and 16. Section 15 is the charging section qua income from....