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Facts
The assessee, State Bank of India, has filed appeals against the orders of the NFAC confirming the levy of penalty and interest for non-deduction of TDS on Leave Travel Concession (LTC) payments. The assessee argued that they had a bonafide belief that TDS was not required as employees claimed travel within India, even though some journeys involved foreign legs or circuitous routes.
Held
The Tribunal held that LTC is only for travel within India on the shortest route between designated places. Travel involving foreign legs or circuitous routes outside the shortest path violates the conditions for exemption under Section 10(5) of the Income Tax Act. Therefore, the assessee was obligated to deduct TDS.
Key Issues
Whether the assessee was in default for not deducting TDS on LTC payments when employees' travel involved foreign legs or did not adhere to the shortest route criteria, thereby disentitling them from the exemption under Section 10(5).
Sections Cited
Section 201, Section 201(1A), Section 192, Section 10(5), Rule 2B
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Income Tax Appellate Tribunal, “B’’ BENCH: BANGALORE
Before: SHRI CHANDRA POOJARI & SMT. BEENA PILLAI
PER CHANDRA POOJARI, ACCOUNTANT MEMBER:
These appeals by assessee are directed against different orders of NFAC for the assessment year 2016-17 dated 21.3.2024, wherein NFAC confirmed the levy of penalty & interest u/s 201(1) & 201(1A) of the Income Tax Act, 1961 (in short “The Act”). The assessee raised common grounds of appeal in all these appeals except for figures, which are clubbed together, heard together and disposed of by this common order for the sake of convenience. 2. We reproduce the grounds raised by the assessee in ITA No.983/Bang/2024 for the AY 2016-17 as follows: 1. “The order of the learned Additional/ Joint CIT (Appeals), on aspects agitated in this appeal, is bad in law, contrary to the provisions of law and facts of the case and without appreciation of the facts and circumstances of the case in their right perspective.
The learned Additional / Joint CIT (Appeals) and the assessing officer have erred in treating the assessee as "assessee in default" u/s 201 (l) of the Income Tax Act, 1961 and raising demand of Rs.2,80,165/- and levied interest u/s 201(1A) of the Act Rs. 2,38,140/- on the basis that tax was not deducted at source on payment of Leave Travel Concession.
The learned Additional / Joint CIT (Appeals) erred in not considering the interim order passed by Hon'ble Madras High Court in its WP no. 1 1991/2014 dated 16.02.2015 which was persisting and binding on the appellant branch to not deduct TDS for the assessment year under consideration.
In this respect the appellant brings to your notice that the assessee bank has filed an SLP before the Hon'ble Supreme Court of India against the order of division bench of Madras High Court dated 08/08/2022. The Hon'ble Supreme Court in its order no. SLP — 16734/2023 dated 28.08.2023 has mentioned that "7. Till further orders, operation of the impugned judgment shall remain stayed. However, the petitioner-bank shill not make any recoveries from its employees during the pendency of the present petition.
The Learned Assessing officer and Additional / Joint CIT (Appeals) erred in not appreciating the facts that the bank has not deducted tax because the bank
ITA Nos.983 to 985/Bang/2024 State Bank of India, Bangalore Page 3 of 11 was under honest and bonafide belief that tax was not required to be deducted on LFC granted by it to its employees. 6. The Learned Assessing officer and Additional / Joint CIT (Appeals) erred in not following the decisions of high courts which have held that assessee should not be considered as assessee in default if there exists bonafide belief. The decisions are as follows:
- Gwalior Rayon Silk co. Ltd. vs CIT (140 ITR 832) (Madhya Pradesh High Court) - CIT . Nestle India Ltd. (243 ITR 435) (Delhi High court) - CIT v. HCL Info System Ltd.(282 ITR 263) (Delhi High court) - LIC of India v ACIT (Writ Tax Noi.619 to 6210f 2009) (Allahabad High Court) - CIT v. Oil & Natural Gas Corporation Ltd. (254 1TR 121) Gujarat High Court) - CIT v. I.T.C. Ltd. (220 Taxman 414) (Allahabad High court)
The learned assessing officer has erred in not computing TDS liability of each employee on the basis of his income for that financial year. The assessing officer should compute the tax payable on income and on such income TDS liability should be calculated.
The Learned assessing officer has earned in charging interest u/s 201(1A) of the Act without looking in to the fact that the appellant was prevented from deducting TDS because of stay granted by Hon'ble Madras High Court and Supreme Court.
With these and such other grounds that may be urged at the time of hearing the Appellant prays for the relief sought for.”
After hearing both the parties, we are of the opinion that the issue in dispute came for consideration before this Tribunal in assessee’s own case in ITA No.317/Bang/2024, the Tribunal vide order dated 28.6.2024 held as under: 9. “Considering rival submissions, we note that assessee has not deducted TDS on the LTC reimbursement towards foreign travel by the employees of assessee and exempted from TDS ignoring the mandatory requirement of provision of section 192 of the Income Tax Act. 1961. For the sake of convenience we are reproducing the Section 10(5) of the Act reads as under:-
ITA Nos.983 to 985/Bang/2024 State Bank of India, Bangalore Page 4 of 11 “(5) in the case of an individual, the value of any travel concession or assistance received by, or due to, him,— (a) from his employer for himself and his family, in connection with his proceeding on leave to any place in India ; (b) from his employer or former employer for himself and his family, in connection with his proceeding to any place in India after retirement from service or after the termination of his service, subject to such conditions as may be prescribed33 (including conditions as to number of journeys and the amount which shall be exempt per head) having regard to the travel concession or assistance granted to the employees of the Central Government : Provided that the amount exempt under this clause shall in no case exceed the amount of expenses actually incurred for the purpose of such travel. Explanation.—For the purposes of this clause, "family", in relation to an individual, means— (i) the spouse and children of the individual ; and (ii) the parents, brothers and sisters of the individual or any of them, wholly or mainly dependent on the individual;”
From the above section it is clear that if employees of the assessee travel within India and receive any value for any travel concession or assistance along with his family, is exempt from tax. Therefore there is no requirement of TDS on such value/assistance received from employer. However, in this case, we observe that employees of assessee have travelled outside India which is not exempt income n the hands of the assessee’s employees. Therefore this value or assistance should be considered for TDS u/s. 192 of the Act. Similar issue has been decided by the coordinate Bench of the Tribunal in State Bank of India, Personal Banking Branch, New Delhi & Ors. (supra) in which it has been held as under:- “ 3. At the outset, both the parties fairly submitted that the only issue in the appeal of the Revenue is “whether TDS is liable to be deducted on the LTC paid to employees or not”. 4. Both the parties fairly submitted that the issue is decided in favour of Revenue in assessee’s own case by the Hon'ble Supreme Court. We find that the issue is decided by the Hon'ble Supreme Court in the case of SBI Vs. ACIT in Civil Appeal No.8181 of 2022 dated 04.11.2022 wherein the Hon'ble Supreme Court affirming the decision of the Hon'ble Delhi High Court and the Tribunal held that the assessee ought to have deducted tax at source on the payments made to its employees as LTC. While holding so, Hon'ble Supreme Court held as under: “2. The question which has fallen for our consideration is whether the appellant was in default for not deducting tax at source while releasing payments to its employees as Leave Travel Concession (LTC). 3. LTC is a payment made to an employee which is exempted as ‘income’ and hence under normal circumstances, there should be no question of TDS on this payment. All the same, LTC has to be availed by
ITA Nos.983 to 985/Bang/2024 State Bank of India, Bangalore Page 5 of 11 an employee within certain limitations, prescribed by the law. Firstly, the travel must be done from one designated place in India to another designated place within India. In other words, LTC is not for a foreign travel. Secondly, LTC is given for the shortest route between these two places. Admittedly, the employees of SBI in the present case, had done their travel not just within India but their journey involved a foreign leg as well. It was also not the shortest route, consequently, according to the Revenue this was not a travel from a designated place within India to another designated place in India and thus it was in violation of the statutory provisions and hence the payment made to its employees by the Bank could not be exempted, and the Bank ought to have deducted Tax at source, while making this payment. To give an example of one of the employees of the appellant who availed LTC taking a circuitous route of Delhi-Madurai- Columbo-Kuala LampurSingapore-Columbo-Delhi and his claim was fully reimbursed by the appellant and no tax was deducted under Section 192(1) for the same. 4. The appellant on the other hand through its counsel senior advocate Shri K.V. Vishwanathan, would argue that though the travel made by its employees under LTC did involve a foreign leg and admittedly a circuitous route as opposed to the shortest route was taken, yet two things go in the favour of the employees. Firstly, the employees of the appellant did travel from one designated place in India to another place within India (though in their travel itinerary a foreign country was also involved), and secondly the payments which were actually made to these employees was for the shortest route of their travel between two designated places within India. In other words, no payment was made for foreign travel though a foreign leg was a part of the itinerary undertaken by these employees. 5. The above reasons given by the appellant-bank however, has not found favour either with the Assistant Commissioner of Income Tax or with the Commissioner of Income Tax (Appeals) or even the High Court. After examining the matter our considered opinion is that the view taken by the Delhi High Court and the Tribunal and even by the revenue in its initiation of proceedings cannot be faulted. The appellant whom we shall refer to as the ‘assessee-employer’ ought to have deducted tax at source. 6. Let us first go through some of the relevant provisions of the Income Tax Act, 1961 (for short ‘the Act’) and the Income Tax Rules, 1962 framed therein. Let us first take Section 192(1) of the Act which casts a statutory duty on the employer to deduct Tax at source from the salary of its employee: “192(1) Any person responsible for paying any income chargeable under the head “Salaries” shall, at the time of payment, deduct incometax on the amount payable at the average rate of income- tax computed on the basis of the rates in force for the financial year in which the payment is made, on the estimated income of the assessee under this head for that financial year.”
ITA Nos.983 to 985/Bang/2024 State Bank of India, Bangalore Page 6 of 11 7. The consequences of failure to deduct tax at source when it is due, is given in Section 201, which reads as follows:— “Consequences of failure to deduct or pay. 201. (1) Where any person, including the principal officer of a company,— (a) who is required to deduct any sum in accordance with the provisions of this Act; or (b) referred to in sub-section (1A) of section 192, being an employer, does not deduct, or does not pay, or after so deducting fails to pay, the whole or any part of the tax, as required by or under this Act, then, such person, shall, without prejudice to any other consequences which he may incur, be deemed to be an assessee in default in respect of such tax: Provided that any person, including the principal officer of a company, who fails to deduct the whole or any part of the tax in accordance with the provisions of this Chapter on the sum paid to a payee or on the sum credited to the account of a payee shall not be deemed to be an assessee in default in respect of such tax if such payee-
(i) has furnished his return of income under section 139;
(ii) has taken into account such sum for computing income in such return of income; and
(iii) (iii) has paid the tax due on the income declared by him in such return of income, and the person furnishes a certificate to this effect from an accountant in such form as may be prescribed Provided further that no penalty shall be charged under section 221 from such person, unless the Assessing Officer is satisfied that such person, without good and sufficient reasons, has failed to deduct and pay such tax. 8. Section 10(5) which exempts payments received as LTC with which we are presently concerned. It reads as under:— XXXX XXXXXXXXX 9. The above provision has to be read along with Rule 2B of Income Tax Rules. Rule 2B reads as under:— “[Conditions for the purpose of section 10(5). 2B. (1) The amount exempted under clause (5) of section 10 in respect of the value of travel concession or assistance received by or due to the individual from his employer or former employer for himself and his family, in connection with his proceeding,—
(a) on leave to any place in India; (b) to any place in India after retirement from service or after the termination of his service, shall be the amount actually incurred on the performance of such travel subject to the following conditions, namely :—
ITA Nos.983 to 985/Bang/2024 State Bank of India, Bangalore Page 7 of 11 [(i) where the journey is performed on or after the 1st day of October, 1997, by air, an amount not exceeding the air economy fare of the national carrier by the shortest route to the place of destination; (ii) where places of origin of journey and destination are connected by rail and the journey is performed on or after the 1st day of October, 1997, by any mode of transport other than by air, an amount not exceeding the airconditioned first class rail fare by the shortest route to the place of destination; and (iii) where the places of origin of journey and destination or part thereof are not connected by rail and the journey is performed on or after the 1st day of October, 1997, between such places, the amount eligible for exemption shall be:— (A) where a recognised public transport system exists, an amount not exceeding the 1st class or deluxe class fare, as the case may be, on such transport by the shortest route to the place of destination; and (B) where no recognised public transport system exists, an amount equivalent to the air-conditioned first class rail fare, for the distance of the journey by the shortest route, as if the journey had been performed by rail.]”
The appellant before us is a Public Sector Bank, namely, State Bank of India (SBI). The Revenue has held the appellant to be an “assessee in default”, for not deducting the tax at source of its employees. 11. These proceedings started with a Spot Verification under Section 133A when it was discerned by the Revenue that some of the employees of the assessee-employer had claimed LTC even for their travel to places outside India. These employees, even though, raised a claim of their travel expenses between two points within India but between the two points they had also travelled to a foreign country as well, thus taking a circuitous route for their destination which involved a foreign place. The matter was hence examined by the Assessing Officer who was of the opinion that the amount of money received by an employee as LTC is exempted under Section 10(5) of the Act, however, this exemption cannot be claimed by an employee for travel outside India which has been done in this case and therefore the assessee-employer defaulted in not deducting tax at source from this amount claimed by its employees as LTC. There were two violations of the LTC Rules, pointed out by the Assessing Officer: A. The employee did not travel only to a domestic destination but to a foreign country as well and B. The employees had admittedly not taken the shortest possible route between the two destinations thus the Applicant was held to be an assessee in default by the Assessing Officer.
ITA Nos.983 to 985/Bang/2024 State Bank of India, Bangalore Page 8 of 11 12. The travel undertaken by the employees as LTC was hence in violation of Section 10(5) of the Act read with Rule 2B of the Income Tax Rules, 1962, both of which have been reproduced above. The order of the Assessing Officer was challenged before CIT (A), which was dismissed and so was their appeal before the Income Tax Appellate Tribunal. 13. The Delhi High Court vide its order dated 13.01.2020 dismissed the appeal holding that there was no substantial question of law in the Appeal. It was held that the amount received by the employees of the assessee employer towards their LTC claims is not liable for the exemption as these employees had visited foreign countries which is not permissible under the law. 14. The provisions of law discussed above prescribe that the air fare between the two points, within India will be given and the LTC which will be given will be of the shortest route between these two places, which have to be within India. A conjoint reading of the provisions discussed herein with the facts of this case cannot sustain the argument of the appellant that the travel of its employees was within India and no payments were made for any foreign leg involved. 15. We do not want to get into the role of the travel agencies and the present dynamics of air fare, but it is difficult for us to accept that a person will avail foreign tour without paying any price for it. We leave it at that. 16. It can be seen from the records that many of the employees of the appellants had undertaken travel to Port Blair via Malaysia, Singapore or Port Blair via Bangkok, Malaysia or Rameswaram via Mauritius or Madurai via Dubai, Thailand and Port Blair via Europe etc. It is very difficult to appreciate as to how the appellant who is the assesseeemployer could have failed to take into account this aspect. This was the elephant in the room. 17. The contention of the Appellant that there is no specific bar under Section 10(5) for a foreign travel and therefore a foreign journey can be availed as long as the starting and destination points remain within India is also without merits. LTC is for travel within India, from one place in India to another place in India. There should be no ambiguity on this. 18. The second argument urged by the appellant that payments made to these employees was of the shortest route of their actual travel cannot be accepted either. It has already been clarified above, that in view of the provisions of the Act, the moment employees undertake travel with a foreign leg, it is not a travel within India and hence not covered under the provisions of Section 10(5) of the Act. 19. A foreign travel also frustrates the basic purpose of LTC. The basic objective of the LTC scheme was to familiarize a civil servant or a Government employee to gain some perspective of Indian culture by traveling in this vast country. It is for this reason that the 6th Pay
ITA Nos.983 to 985/Bang/2024 State Bank of India, Bangalore Page 9 of 11 Commission rejected the demand of paying cash compensation in lieu of LTC and also rejected the demand of foreign travel. In para 4.3.4 of the 6th Pay Commission Report dated March, 2008 this is what was said:— “4.3.4. The demand for allowing travel abroad at least once in the entire career under the scheme is not in consonance with the basic objective of the scheme. The Government employee cannot gain any perspective of the Indian culture by traveling abroad. Besides, the attendant cost in foreign travel would also make the expenditure under this scheme much higher. The Commission is, therefore, not inclined to concede the demand to allow foreign travel under LTC.”
This is also an objection of the Revenue which has been raised in its counter affidavit filed by respondent no. 1-Assistant Commission of Income Tax wherein the Revenue has asserted that the provision for LTC was introduced to motivate employees and encourage its employees towards tourism in India and it is for this reason that reimbursement of LTC was exempted. There was no intention of legislature to allow the employees to travel abroad in the garb of LTC available by virtue of Section 10(5) of the Act. Therefore, the Revenue has a valid objection (apart from other objections which are clearly violative of the Statute), that the intention and purpose of the scheme is also violated in the garb of tour within India, foreign travel is being availed. 21. The aforementioned order passed by the CIT(A) has rightly held that the obligation of deducting tax is distinct from payment of tax. The appellant cannot claim ignorance about the travel plans of its employees as during settlement of LTC Bills the complete facts are available before the assessee about the details of their employees’ travels. Therefore, it cannot be a case of bonafide mistake, as all the relevant facts were before the Assessee employer and he was therefore fully in a position to calculate the ‘estimated income’ of its employees. The contention of Shri K.V. Vishwanathan, learned senior advocate that there may be a bonafide mistake by the assessee-employer in calculating the ‘estimated income’ cannot be accepted since all the relevant documents and material were before the assessee-employer at the relevant time and the assessee employer therefore ought to have applied his mind and deducted tax at source as it was his statutory duty, under Section 192(1) of the Act. 22. In conclusion we do not find any reason to interfere with the order passed by the Delhi High Court. The appeal is dismissed.” 5. We have perused the order of the Hon'ble Madras High Court in MP No.2 of 2014 in WP No.1199/2014 dated 16.02.2015 referred by the ld. AR and observed that a writ petition was filed challenging the circular issued by the SBI to the effect that officers/employees would not be entitled to visit Overseas Countries/Centers as part of LTC /HTC. In the interim order passed by the Hon'ble Madras High Court, it has been held that any amount paid to the petitioner towards LTC/reimbursement of LTC pursuant to the impugned order would not amount to income so as
ITA Nos.983 to 985/Bang/2024 State Bank of India, Bangalore Page 10 of 11 to enable the bank to deduct tax at source. We further observed that the Hon'ble Madras High Court in its interim order held that if the writ petition is dismissed, the employees are liable to pay tax on the amount paid by the bank. 6. However, the Hon'ble Supreme Court in the case of the assessee in Civil Appeal No.8181 of 2022 arising out of SLP(C) No.. 9876 of 2020 dated 4.11.2022 affirmed the order of the Hon'ble Delhi High Court in holding that the assessee is liable to deduct tax at source on the payments made to its employees towards LTC bills. In view of the decision of the Hon'ble Supreme Court, the interim stay granted by the Hon'ble Madras High Court is of no help to the assessee bank. Thus, respectfully following the decision of the Hon'ble Supreme Court, we hold that the assessee is in default within the meaning of section 201(1)(1A) of the Act for nondeduction of tax under Section 192 of the Act on the reimbursement of LTC (Leave Travel Concession) /LFC (Leave Fare Concession) and HTC (Home Travel Concession). 7. In the result, the appeals of the assessee are dismissed.”
We also note that the Hon’ble Apex Court had decided the issue in favour of revenue in the case of State Bank of India v. ACIT in C.A. No.8181 of 2022 dated 04.11.2022 reported in [2022] 144 taxmann.com 131 (SC). The entire arguments raised by the assessee has been considered in the above decision of the coordinate Bench of Delhi ITAT. Respectfully following the same, we dismiss the appeal of the assessee.” 3. In view of the above order of the Tribunal, we dismiss all these three appeals filed by the assessee. 4. In the result, all the appeal of the assessee are dismissed. Order pronounced in the open court on 1st July, 2024
Sd/- Sd/- (Beena Pillai) (Chandra Poojari) Judicial Member Accountant Member
Bangalore, Dated 1st July, 2024. VG/SPS
ITA Nos.983 to 985/Bang/2024 State Bank of India, Bangalore Page 11 of 11 Copy to:
The Applicant 2. The Respondent 3. The CIT 4. The DR, ITAT, Bangalore. 5 Guard file By order
Asst. Registrar, ITAT, Bangalore.