The Tax Publishers2021 TaxPub(DT) 0929 (Mad-HC) : (2021) 432 ITR 0622

CONSTITUTION OF INDIA, 1950

Article 226 Section 115WD

As per the legal position that is presently prevailing, petitioner was not at all liable to have made any payment of FBT in respect of contribution towards Superannuation Fund and case on hand turns less on maintainability of the claim for refund, but more on lawfulness of department in retaining the amount paid by petitioner without any corresponding legal liability, therefore, petitioner was permitted to file an appropriate application before CBDT who would pass orders on the petitioner's application thereon.

Writ - Refund claim on Fringe benefit tax value as per section 115WD(4) paid in excess - Petitioner was not at all liable to have made any payment of FBT in respect of contribution towards Superannuation Fund -

Petitioner filed fringe benefit tax return for the assessment year 2006-07. Petitioner took the stand that the value of contribution to statutory pension fund cannot be considered as a perquisite and therefore, cannot be regarded as fringe benefit under the Income Tax Act and accordingly filed refund of fringe benefit tax. An order adverse to the petitioner was passed by AO. Appellate authority declined to interfere with the order passed by AO. Tribunal allowed appeal filed by petitioner holding that the statutory contribution made to superannuation fund is outside the ambit of FBT. Petitioner stated that no interim order in favour of the department was granted and it was still pending. Held: The Income Tax Department being an arm of the State is bound by the constitutional mandate enshrined in Article 14 of Constitution of India. In other words, department was bound by principles of fairness and reasonableness. Any taxing statute would have to be construed strictly and there is no scope for applying equitable principles. But, the case on hand was not one of tax liability. As per the legal position that is presently prevailing, petitioner was not at all liable to have made any payment of FBT in respect of contribution towards Superannuation Fund. Case on hand turns less on maintainability of the claim for refund, but more on the lawfulness of department in retaining the amount paid by petitioner without any corresponding legal liability. Therefore, petitioner was permitted to file an appropriate application before CBDT who would pass orders on the petitioner's application thereon.

REFERRED :

FAVOUR : Directions issued.

A.Y. : 2006-07



IN THE MADRAS HIGH COURT

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