The common
people who earns his livehood by the way of employment requires to pay tax on
his earning, hence it is very important to them to understand the tax
implications on salary by given below case laws:
·
Interest free Rental deposit : Interest
free security deposit given for employee residence on rent is not a perquisite. Refer, CIT V Vijay Singh, 323
ITR 446. Same also confirmed in the case
of CIT v. Shankar Krishnan, 207 Taxman
233 (Bom) (High Court).
·
Uniform Allowance : Attire Allowance is exempt. Refer, CIT v Micro Land
Limited, 323 ITR 670 Kar.
·
LTA : There is no need to verify LTA details. Refer, CIT V Larsen &
Toubro Limited, 313 ITR 1 SC.
·
Restrictive Payment : Value of shares issued to the assessee-director by
the employer company as consideration in terms of restrictive covenant whereby
the assessee agreed to desist from participating in a similar or competitive business
for a period of ten years after termination of his employment or association
with the company assessable as “profit in lieu of salary”. Receipt cannot be
construed as capital receipt. Refer, Neville Tuli vs. ITO, (2010) 38 DTR 325
(Mum.).
However,
in the case of CIT vs. A. K. Khosla, 39 DTR 82 (Mad.), it was held that Non
compete fee received by assessee from the employer company on his retirement
for not to take up any employment is a capital receipt and it can not come
under the term “profits in lieu of salary”. Section 17(3)(iii) inserted by
Finance Act 2001, w.e.f. 1st April 2002, is prospective and applicable only to
Asst. Year 2002-03 onwards.
Assessee
took up post retirement as secretary of a club for a period of three years.
Club also provided accommodation to assessee. Disputes arose between club and
assessee. Assessee filed a police complaint for forcibly removing from club
premises. Employment was terminated after end of first year. Termination
provided withdrawal of allegations vacate premises allotted to assessee as
service accommodation and club would pay Rs 7.5 lakhs which was equivalent to
salary for rest of period of three years. Assessee claimed said amount as
exgratia as capital receipt. The Tribunal held that since the amount given to
assessee for compensating loss of salary for 25 months . same would fall with
in the ambit of expression “ any compensation” used in sub clause (i) of
section 17 (3) relating to “profits in lieu of salary” and taxable under said
provisions.( A.Y. 2001-02). Refer, Yatinder Kumar v ITO, 133 ITD 237 ( Pune)
(Trib).
·
Value of Accommodation: Salary for
purpose of valuation of perquisite value of accommodation is based on Annual
salary from one or two or more employers. Refer, Pratim B Mekerjea V ACIT, ITA
Nos. 2628 MUM / 2005 dated 17-2-2010.
·
ESOP : Conversion of warrants into equity shares under scheme ,benefit
extended to assessee by virtue of employment hence difference between price of
shares at time of exercise of option and predetermined price is liable to tax
as perquisite u/s. 17(2)(iiia). Refer, Tripti Sharma (Smt.), (2010) 1 ITR 471.
Further,
Warrant issued in February 1999 and assesse exercising option in April 1999.
Perquisites arise and taxable in financial year 1999‐2000
relevant to assessment year 2000‐2001. Date of
exercise of option is date of acquisition of shares and not date of certificate.
Refer, Dy CIT v Vijay Gopal Jindal, 11 ITR 451 TRB.
·
Voluntary Retirement : It was held that amounts up to five lakhs of rupees
received on voluntary retirement entitled to exemption u/s. 10(10C). Amount in
excess of five lakhs of rupees was entitled to relief u/s. 89. Refer, Koodathil
Kallyatan Ambujakshan, (2009) 309 ITR 113.
·
Transport : Pick-up and drop facility to employees between the
specified points is not a perquisite. Refer, WNS Global Services (P) Ltd., 33
SOT 445.
·
Club : Club membesrship expenses should considered as perquisites. Refer, CIT
v Wipro Systems, 325 ITR 234.
·
Discounted Loan: Where loan was granted by an employer at rate of
interest less than lending rate of State Bank of India, such a loan is to be
regarded as a concessional loan and consequently, value of perquisite thereon
is to be calculated. Refer, All India Punjab National Bank Officer’s
Association vs. Chairman-cum-Managing Director, Punjab, 190 Taxman 221 (MP).
·
Tax on perquisite: Tax borne by employer on perqusite of Employees would
constitute Non Monetary Benefits and as such same is exempted u/s 10 (10CC).
Refer, Tranocean Discover LLC v ACIT, 6 taxmann.com 18 - Delhi – ITAT. Same had also confirmed in the case of Mitsubishi
Corporation v CIT, 200 Taxman 372 and Isaco Sakai v. Jt. CIT, 49 SOT 154
(Delhi)(Trib.).
In
an appeal before the High Court the revenue raised the question whether the tax
paid by the employer (Japan Airlines International Company Ltd ) is a “Perquisite” within the
meaning of section 17(2) and, therefore , in terms of rule 3 of the Income‐Tax Rules 1962 , cannot be taken in to consideration
for computing the value of the perquisite “rent
free accommodation”. While dismissing the appeal of revenue the court
held that payment of income‐tax by the
employer is payment of employee who has taxable income as an assessee is liable
to pay tax. His income is chargeable to tax. It is the obligation of the
employee as an assessee to pay tax . Its this obligation which is being
discharged and paid by the employer .Therefore , it would fall within the ambit
of section 17(2) (iv). Thus the tax component paid by the employer towards and
as income‐tax , when an employee is entitled to tax free salary
, is a perquisite within the meaning of section 17 (2) and the monetary value
of such tax free salary , that is tax component could not be included in
computing the perquisite value of rent free accommodation provided by the
employer to the employees. Refer, CIT v. Telsuo Mitera, 345 ITR 256.
·
MP Remuneration : Remunerations received by the MLAs and MPs cannot be
taxed under the head income from salary but can only be taxed under the head
income from other sources. Refer, M. Venkata Subbaiah vs. ITO, 47 DTR 403
(Visakha)(Trib.).
·
Tips : Payment of banquet and
restaurant tips to the employees of assessee in its capacity as employer
constitutes salary with in the meaning of section 15 read with section 17 (3) .
Refer, CIT v ITC Ltd, 59 DTR 312/ 243 CTR 114 (Delhi) (High Court).
·
School Fees : Assessee school was providing free educational
facilities to wards of teachers / staff members and cost of education was less
than Rs 1000 per month per child, assessee was entitled to benefit of proviso
to rule (3) ( 5) and consequently , could not be treated as assessee in
default. Refer, CIT v Delhi Public School, 203 Taxman 81/ 63 DTR 325 (Delhi)
(High Court).
·
Flexible Payment : The salary
packages are flexible and often designed keeping in account interest of
individual employees or section of employees and variable component assume a
sizeable sum. The variable component assumes various forms of reimbursements
and payments. in a sequel to yesterday’s report viz a viz Delhi High Court
ruling in CIT (TDS) v. American Express Bank Ltd. in ITA No. 75/2003 dated
21.12.2011 under heading ‘’employee reimbursements’’ it may be advisable to
have a built in softer mechanism either in the employee contract or some kind
of employer liability insurance cover (if its exists or even if not it should
be fought for) which would provide a safeguard for possible recovery of any sum
from the employee as arrears of TDS or otherwise from the insurance company for
any liability arising in future upon the employer or company by invoke of s.201
provisions for short deduction viz a viz reimbursements/variable pay. The Court
in their order has gone straight in writing that in case the employees of the
assessee have paid the taxes as per their individual returns/assessments, then
no amount towards tax would be payable to that extent by the assessee. In the
rarest of the rare cases an employee would go against the estimate made by the
employer in which case the liability would only fall on the employer. In this
case the year of default is as old as financial year 1992-93 and it would be
now impossible for the employer and even almost difficult for the AO to gather
employee record of taxes paid in which case the liability will remain that of
the employer only.
·
Key-man Insurance: Surrender value cannot be taxed as profit in lieu of
salary.( 2(24(xi), 56 ). Refer, CIT v.Rjan Nanda, 249 CTR 141/69 DTR 250
(Delhi) (High Court).
·
Hypo Tax: “Hypothetical Tax” of expatriate employee is not assessable as income.
Refer, CIT v. Jaydev H. Raja, Mumbai HC.
·
Repairs of House Property : Expenditure on repair of residential accommodation
occupied by employee is perquisite Rule
3. Scott R. Bayman v. CIT, 76 DTR 113 (Delhi)(High Court).
Thank you.
