48. Section 17(2)(ii) as it stood prior to amendment in 2007 did not contain any ‘deeming clause’ to deem rent paid less than 10% or 7.5% as a concession or that the employees is deemed to have received that concession. An employer may provide residential accommodation to his employees for several reasons. It is also possible that for making available staff quarters/colonies/ accommodations, State Governments or Central Government may provide land to public sector undertakings/ companies/ corporations at a concessional rate imposing appropriate conditions including the amount of rent, if any, to be recovered by the employer and in such circumstances as held by certain decisions that residential facility provided by the employer to the employee was not a “perquisite” within the meaning of income-tax laws. In such a case instead of concession, there would be compulsion.
49. As also held by the Supreme Court, in the absence of deeming the difference as perquisite, it is open to the assessee to contend that there was in fact no concession in the matter of rent, and that can only be on the. yardstick of the case laws relied upon by the assessee, namely, the decisions of Uttranchal High Court, Calcutta High Court and M.P. High Court and the Bombay Tribunal referred to above and other attending circumstances. The Revenue has to give a finding as to concession in the matter of rent in the absence of the deeming provision to treat the difference as perquisite in view the decision in Arun Kumar1 case (supra).
50. Again, as stated in the case of Arun Kumar, there might be reasons for providing accommodation to employees looking to location, situation, aren, exigency of employment and in such companies instead of concession, there was compulsion. Western Coal Field is in remote area and the Proviso lo Rule 3 itself provides for such an exception when it states that nothing contained in this sub-rule would be applicable to any accommodation located in a ‘remote area” provided to an employee working at a mining site or an onshore oil exploration site, or a project execution site or an accommodation provided in an off shore site of similar nature; or in the amended Proviso with effect from 1-10-2004. providing that nothing contained in this sub-rule shall apply to any accommodation provided to an employee working at a mining site or an onshore oil exploration site or a project execution site, or a dam site or a power generation site or an off-shore site which, being of a temporary nature and having plinth area not exceeding 800 square feet, is located not less than • eight kilometers away from the local limits of any municipality or a cantonment board; or is located in a remote area,”
51. The Id. DR then attempted to also justify the action of the Assessing Officer by the amendment with retrospective effect in section 17(2) deeming the difference in amount at specified rate and rent charged from the employees as perquisite by inserting Explanation 1. The Explanations 1 and 4 to Section 17(2) are referred for contending the concession in the matter of rent is to be determined with respect to the fixed rate, 10% in cities having population sxceeding 4 lakhs and 7.5% in other cities upto 2006-07 and being 15% of salary in cities having population exceeding 25 lakhs; 10% of salary in cities laving population exceeding ten lakhs but not exceeding twenty-five lakhs and 7.5% of salary in any other place thereafter. This amendment was, brought by Finance Act, 2007 but it was with retrospective effect from 1-4-2002, and therefore, according to Id. DR, it would apply to all cases under consideration and the cases relied upon are of no help to the assessee. A retrospective amendment has to be given full effect and it is to be assumed that an amended provision was in force right from the date with effect from which retrospective effect is given. This is even by the appellate authority where the retrospective amendment was introduced during pendency of appeal.
52. As held in Rajathan Jewellers (supra) by Karnataka High Court, a retrospective amendment is to be given effect to as it were there in existence on the date with effect from which it is effect to. We therefore have to hold that perquisite value is to be worked out on the basis of the amended provision of section 17(2) of the Act and the decisions referred to by the assessee may not have any precedent value in determining the value of perquisite of an employee that is value being the difference in the specified rate and the rent charged by the employer.
53. However, in our opinion, a retrospective amendment could be a valid for levy of tax on the employee, but we do not find any force in the contention of the revenue that the employer would also be under a responsibility to deduct tax at source retrospectively.
54. Section 192 deals with the deduction of tax at source. It is computed on ‘ the estimated income of an assessee under the head salary and the liability is at the time of payment of salary. As the perquisite is actually not a payment but a benefit not in terms of money there was no provision initially to deduct tax at source. It is provided by section 192(1B) by Finance Act, 2002 with effect from 1-6-2002 and as to computation of income of perquisite the provision is in section 192(1A) which also by the same Act and with effect from same date 1-6-2002. This.tax at the optionof the assessee’can be paid on the whole or part of such income without making any deduction there form at the time when it was otherwise deductible u/s 192. Therefore if there is a perquisite there is a responsibility to deduct tax of the employer. Section 192(1), 192(1A) and 192(1B) read as under
“192 (1) Any person responsible for paying any income chargeable under the head “Salaries” shall, at the time of payment, deduct income-tax 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.
(1A) Without prejudice to the provisions contained in sub- section (1), the person responsible for paying any income in the nature of a perquisite which is not provided for by way of monetary payment, referred to in clause (2) of section 17, may pay, at his option, tax on the whole or part of such income without making any deduction therefrom at the time when such tax was otherwise deductible under the provisions of sub-section (1).
(1B) For the purpose of paying tax under sub-section (1A), tax shall be determined at the average of income-tax computed on the basis of the rates in force for the financial year, on the income chargeable under the head “Salaries” including the income referred to in subsection (1A), and the tax so payable shall be construed as if it were, a tax deductible at source, from the income under the head “Salaries” as per the provisions of sub-section (1), and shall be subject to the provisions of this Chapter.
55. A duty is cast on the person deducting to the tax so deducted u/s 200 which reads as under:
“(1) Any person deducting any sum in accordance with the foregoing provisions of this Chapter, section 194E, section 194EE, section 194F, section 194G, section 194H, [section 194-1, section 194J and section 194K, 194 section 195, section 196A, section 196B, section 196C and section 196D shall pay within the prescribed time, the sum so deducted to the credit of the Central Government or as the Board directs.
(2) Any person being an employer, referred to in sub-section (1A) of section 192 shall pay, within the prescribed time, the tax to the credit of the Central Govemment or as the ‘Board-directs.
(3) Any person deducting any sum on or after the 1st day of April, 2005 in accordance with the foregoing provisions of this Chapter or, as the case may be, any person being an employer referred to in sub-section (1A) of section 192 shall, after paying the tax deducted to the credit of the Central Government within the prescribed time, prepare quarterly statements for the period ending on the 30th June, the 30th September, the 31st December and the 31st March in each financial year and deliver or cause to be delivered to the prescribed income-tax authority or the person authorised by such authority such statement in such form and verified in such manner and setting forth such particulars and within such time as may be prescribed.”
56. Section 201 provides for consequences of failure to deduct tax or pay the deducted tax and deem the person responsible for deducting tax at source as ‘assessee in default1. It reads as under,
“(1) If any such person referred to in section 200 and in the cases referred to In section 194, the principal officer and the company of which he is the principal officer does not deduct the whole or any part of the tax or after deducting fails to pay the tax as required by or under this Act, he or it shall, without prejudice to any other consequences which he or it may mcur, be deemed to be an assessee in default in respect of the tax:
Provided that no penalty shall be charged under section 221 from such person, principal officer or company unless the Assessing Officer is satisfied that such person or principal officer or company, as the case may be, has without good and sufficient reasons failed to deduct and pay the tax.
(1A) Without prejudice to the provisions of sub-section (1), if any such person, principal officer or company as is referred to in that sub-section does not deduct the whole or any part of the tax or after deducting fails to pay the tax as requited by or under this Act he or it shall be liable to pay simple interest at one per cent, for every month or part of a month on the amount of such tax from the date on which such tax was deductible to the date on which such tax is actually paid and such interest shall be paid before furnishing the quarterly statement for each quarter in accordance with the provisions of sub-l section (3) of section 200.
(2) Where the tax has not been paid as aforesaid after rt is deducted, the amount of the tax together with the amount of simpie interest thereon referred to in sub-section (1A) shaft be a charge upon all the assets of the person, or the company, as the case may be, referred to in sub-section (1).”
57. Rule 30 of the income tax Rules, 1962 provides for the time and mode of payment to Government account of tax deducted at source, it reads as under:
“(1) All sums deducted in accordance with the provisions of sections 192 to 194, section 1S4A, section 194B, section 194SB, section 194C, section 1940, section 194E, section 194EE, section 194F, section 1940, section 194H, section 194-iy sect/on “J94J, section 194K, section 195, section 196A, section 196B, section 196C and section 1960 shall be paid to the credit of the Central Government –
(a) in the case of deduction by or on behalf of the Government, on the same day;
(b) in the case of deduction by or on behalf of persons other than those mentioned in clause (a), –
(i) in respect of sums deducted in accordance with the provisions of section 193, section 194A, section 194C, section 194D, section 194E, section 194G, section 194H, section 194-1, section 194J, section 195, section 196A, section 196B, section 196C and section 196D –
(1) where the income by way of interest on securities referred to in section 193 or the income by way of interest referred to in section 194A or the sum referred to in section 194C or the income by way of insurance commission referred to in section 194D or the payment to non-resident sportsmen or sports associations referred to in section 194E or the income by way of commission, remuneration or prize on sale of lottery tickets referred to in section 194G or the income by way of commission or brokerage referred to in section 194H or the income by way of rent referred to in section 194-i or the income by way of fees for professional or technical services referred to in section 194J or the interest or any other sum referred to in section 195 or the income of a foreign company referred to in sub-section (2) of section 196A or the income from units referred to in section 196B or the income from foreign currency bonds or shares of an Indian company referred to in section 196C or the income of Foreign Institutional Investors from securities referred to in section 196D is credited by a person to the account of the payee as on the date up to which the accounts of such person are made, within two months of the expiration of the month in which that date falls;
(2) in any other case, within one week from the last day of the month in which the deduction is made; and
(ii) in respect of sums deducted in accordance with the other provisions within one week from the last day of the month in which the deduction is made :
Provided that the Assessing Officer may, in special cases, and with the approval of the Joint Commissioner –
(a) in cases falling under sub-clause (i), permit any person to pay the Income-tax deducted from any income by way of interest, other than income by way of interest on securities or any income by way of insurance commission or any income by way of commission or brokerage referred to in section 194H quarterly on July 15, January 15 and April 15; and
(b) in – cases fading under sub-clause (ii), permit an employer to pay income-tax deducted from any income chargeable under the head “Salaries” quarterly on June 15, September 15, December 15 and March 15.
(1A) AH sums paid under sub-section (1A) of section 192 shad be paid to the credit of the Central Government-
(a) in the case of payment on behaif of the Government, on the same day
(b) In all other cases, within one weak from the last day of the month on which the income tax is due under sub-section (1B) of section 192.
(2) The person responsible for making the deduction from any income chargeable under the head “Salaries” or, the person who pay tax, referred to in sub-section (1A) of section 192 or in cases covered by sub-section (5) of section 192, the trustees shall pay the amount of tax so deducted to the credit of the Central Government by remitting it within the time prescribed in sub-rule (1) into any branch of the Reserve Bank of India or of the State Bank of India or of any authorised bank accompanied by an income-tax challan:
Provided that where the deduction or payment, as the case may be, is made by or on behalf of Government, the amounts shall be credited within the time and in the manner aforesaid without the production of a challan.
(3) The person responsible for making deduction under sections 193, 194, 194A, 194B, [194BB, 194C, 194D, 194E, 194EE, 194F, 194G, 194H, section 194-1, 194J, 194K 195, 196A, 196B, 196C and 196D shall pay the amount of tax so deducted to the credit of the Central Government by remitting it within the time prescribed in sub-rule (1) into any branch of the Reserve Bank of India or of the State Bank of India or of any authorised bank accompanied by an income-tax challan, provided that where the deduction is made by or on behalf of Government the amount shall be credited within the time and in the manner aforesaid without the production of a challan.”
58. On a perusal of these provisions it would be clear that the liability to deduct tax is there on the date(s) when the salary is actually paid or wholly or partly at any time, at the option of the employer, if it were on a value of the perquisite not in the form of a monetary payment. But both are within a week or so immediately after the financial year of payment or grant of perquisite.
59. Therefore, if there was no perquisite at the time when the tax was to be deducted at source there would be no liability to deduct tax. If a perquisite value is assumed by the retrospective amendment after the period during which it was to be deducted, how can a deduction be made on a back date ? The retrospective amendment is for deeming valuation of perquisite and not extended to for deduction of tax at source thereon, which remains to be within the financial year of the income to which it relates.
60. As per the provision of section 200 the tax deduction at source is a mode of payment of tax on the income of the person on whose income it is deducted i.e., employees in this case. The credit of this deduction at source is given against the tax liability of the employee as provided in section 199 of the Act. Therefore in our opinion when the time prescribed for deduction had expired the employer cannot be asked to deduct tax and pay it to the Govt. The term ‘at source’ also suggest that the deduction has be at that time, namely, when the payment is made or the perquisite is granted and if the source time had expired and at that time there was no liability to deduct tax, there cannot be a liability to deduct tax afterwards in absence of the source at which it was to be deducted. Retrospective amendment is to deem the value of perquisite and not to deduction of tax which was to be made at the time of payment or granting the perquisite. This liability in our opinion cannot relate back as one cannot go back in the matter of time nor the wheels of time can be retrieved.
61. Saddling the liability on the assessee employer by retrospective amendment and treating him to be an ‘assessee-in- default’, would amount to be or akin to a penal liability, and consequently. A penal law cannot generally have retrospective operation- Article 20 of the Constitution imposes two limitations on the retrospective applicability of penal laws – first, the making of an act an offence for the first time and then making that law retrospective is prohibited; second, in the infliction of a penalty grater than that which might have been inflicted under the law which was in force when the act was committed is not permitted. See in this connection the decisions in i) Punjab Business 188 ITR 550(P&H); ii) CIT vs. Kurriudam, 242 ITR 159 (Mad) iii) Engineers Impex vs. Sharma, 244 ITR 247 (0e): and iv) Ashok Paper, 256 ITR 673 (Gah).
62. It is a well settled law that the law as it stood on the date of filing of the return would determine the liability. The assessee cannot be treated as assessee in default retrospectively and interest under section 201(1A) cannot also be charged on a liability which came into existence by a retrospective amendment. The Supreme Court in the case of CIT Vs. Hindustan Electro Graphites Limited (supra) may be referred to holding:
‘No additional tax would have been leviable on the cash compensatory support if the Finance Act 1990 had not so provided even though retrospectively. Assessee could not have suffered additional tax but for the Finance Act 1090. After he had filed his return of income which was correct as per law on the date of filing of the return, it was thereafter that the cash compensatory support also came within the sway of Section 26- When additional tax has imprint of penalty revenue cannot be heard saying that levy of additional tax is automatic u/s 143 (1A) of the Act. If additional tax could be levied in such circumstances, it would be punishing the assessee for no fault of his. That cannot ever be the legislative intent. It shocks the very conscious if in the circumstances section 143 (1A) could be invoked to levy the additional tax.”
63. In Star (India) Pvt. Ltd. Vs. Comm. Of Excise, 280 ITR 321 the Supreme Court held:
“The liability to pay interest would only arise on default and is really in the nature of a quasi-punishment. Such liability although created retrospectively could not entail the punishment of payment of interest with retrospective effect.
ft is also to be noted that the Tribunal itself deleted the imposition of penalty imposed by the Commissioner (Appeals) on the appellants on this ground.
Besides, if the liability has been created under the amended section by virtue of sub-section (2) of Section 148 of the Finance Act, 2002, it must be given effect to, wholly. The section expressly makes the assessee liable under the amended provision to pay the tax within the period of 30 days from the date of the Presidential Assent to the Finance Bill, 2002. It is admitted that the Finance Bill, 2002 was assented to on 11-5-2002 by the President. In the circumstances, the appellant was entitled to a period of thirty days thereafter to make payment of the tax. Needless to say, if it did not make payment within thirty days from 11-5-2002, it would be liable to pay interest at the rate specified after that date.”
64. Similarly the decision of the Hon’ble Karnataka High Court in the case of Bharat Conductors (P) Limited (supra) held on a similar issue relating to charging of interest, as follow:
“The law is amended retrospectively creating liability of tax then, in my opinion, it would be sufficient cause for not charging the interest under section 139(8). In these circumstances, the interest levied in respect of income because of retrospective amendment for sale of import entitlement requires complete waiver. Interest under section 217 on the same reasoning is also to be waived in respect of the income derived by the assessee on sale of import entitlement which was made taxable because of retrospective amendment by Finance Act, 1990.”
65. Again in the case of Deverson (P) Limited (supra) Gujarat High Court held that since liability arose on account of retrospective amendment of law, consequential interest under section 243B was clearly required to be dealt with as a fit case for reduction or waiver of interest.
66. The observation of the CIT(A) that these cases are not applicable because they were dealing with a penal levy and not to the valuation of perquisite which was not penal in nature, has therefore little force. Also because, insofar as, the assessee was concerned, it could not have deducted tax, because under Section 192, it is required to be deducted when there was payment of the salary or when the salary and perquisite became due during the relevant previous year. It could also have been not paid because the year has already ended, and it would be impossible to deduct tax retrospectively.
67. It may be stated that retrospective amendment was to deem the difference in specified rent and rent charged as perquisite and not to deduct tax at source under section 192. If that be so, there was a reasonable cause not to deduct tax at source under section 192. If that be so, there was a reasonable cause not to deduct tax at source, at the particular point of time, and to ask the assessee was not required to deduct the tax for accommodation provided to its employees as there was no concession and rule 3 had no applicability as also affirmed by the Supreme Court in the case of Arun Kumar (Supra). Thus there was no default on the part of the assessee to deduct tax while making payment of salary. Merely because the law has been amended with retrospective effect, the assessee cannot be held to be assessee in default retrospectively. !t would now be impossible on the part of the appellant to deduct tax from the salary of the employees for that year in accordance with the amended section 17(2) of the Act, for which salary has already been paid in that year. Remedy available to assessee to recover the tax from its employees had lapsed and now it is impossible to deduct tax from the salaries of the employees as per the amended section 17(2) of the Act.
68. It is a well settled law that law does not compel a man to do that which he cannot possibly perform as held by the Supreme Court in the case of Supdt. of Taxes , Dhubri & Others vs. Onkarmal Nathmal Trust & Others, 4 CTR 172 (SC). The Supreme Court in the said case has held as follows:
“Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over, there the law will in general excuse him, and though impossibility of performance is in general no excuse for not performing an obligation with a party has expressly undertaken by contract, yet when the obligation is one implied by law, impossibility of performance is a good excuse”
“Under certain circumstances compliance with the provisions of statutes which prescribe how something is to be done will be excused. Thus, in accordance with the maxim of law, Lex non cogit ad impossibilia, if it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances oyer which the persons interested had no control, like the act of god or the King’s enemies, these circumstances will be taken as a valid excuse.”
69. The Supreme Court also observed similarly in the cases of Life Insurance Corporation Of India Vs. CIT, 219 ITR 410 that –
“It is obvious that in the surplus or deficit in any inter-valuation period relating to the Corporation which came to be formed only on the appointed day in 1956, this amount could not be reflected since it related to a period prior to the formation of the Corporation. The law does not contemplate or require the performance of an impossible act – lex non cogit ad impossibilia. It is now to be seen whether the expression “included therein” in r. 2(1)(b) is alone sufficient to negative the logical legal effect of section 7 of the LIC Act.”
70. Even if the amendment has been brought into with retrospective effect, the assessee cannot be treated as “assessee in default” retrospectively and interest under section 201(1 A) cannot be charged on a liability which came into existence by a retrospective amendment. The assessee has all along acted in a bonafide manner and in accordance with the law which existed as on the date on which TDS was to be deducted. Further merely for the reason that the law has been changed retrospectively, the assessee cannot be treated in default for no fault of Its own and cannot be charged with interest which is penal in nature. The Andhra Pradesh High Court in P.V.Rajagopal vs. UOI, 233 ITR 678 (AP) held that the department could not coerce the employer to deduct tax at source on an amount which was in dispute as a perquisite by the employer. Even where there is a difference of opinion due to which tax has not been deducted, section 201/201(1A) cannot be invoked, it would apply with greater force where there is no perquisite on the date of deduction of TDS. Thus, even on this count, the order under appeal is bad in law, since the applicability of section 17(2)(ii) of the Act in the present case was highly debatable and accordingly, the order passed by the Assessing Officer treating the assessee in default for not deducting TDS on such alleged perquisite is not in accordance with the law. The fact that retrospective amendment was brought in Section 17(2) also fortifies the same. Hence, the principle laid down by the Andhra Pradesh High Court squarely applies to the present case.
71. By deeming fiction the revenue can assess the employee and recover tax from them by making their assessments but not the employer whose liability is neither fixed by fiction nor survived by afflux of time. The fiction is only for the purpose of deeming perquisite and should not be extended to others’ liability for deducting tax at source. No liability is created on the employer to deduct tax at source by any retrospective legislation, like that of deeming perquisite. The deeming in valuation of perquisite was not there at the time the assessee was required to deduct tax and therefore there was no liability to deduct tax on such deemed value of perquisite and consequently the assessee cannot be treated in default retrospectively.
72. It is a deeming provision and a deeming provision is intended to enlarge/curtail the meaning of a particular word which includes or excludes matters which otherwise may or may not fall within the provision; it should . therefore, be extended to the consequence and incidence which shall inevitably follow. The following off-quoted observations of Lord Asquith in East and Dwelling Co. Ltd. Vs. Finsburry Borough Council, 1952 (AC) 109, may appropriately be referred to:
“If you are bidden to treat an imaginary state of affairs as real, you must surety, unless prohibited from doing so, a/so imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of the state of affairs.”
73. Section 17(2) Explanation 1 bids one to treat the difference in rent at specified rate and the rent actually charged as a concession in the matter of rent as real, which is or might be an imaginary state of affairs, one must surely, imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flown from or accompanied it i.e., one has to assume that the difference was perquisite. The statute says that you must imagine a certain state of affairs (difference as being perquisite); , it does not say that-having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of the state of affairs, that the rent charged was the standard or market rent and that there was no concession in the matter of rent.
74. It is implicit from the tenor and phraseology implied in section 17(2) Explanation 1 with retrospective effect in substance, a legal fiction is created by which the difference in rent has been treated as the concession in the matter of rent and hence perquisite. To construe this legal fiction it will be proper and necessary to assume all those facts on which alone the fiction can operate, so, necessarily, all the provisions in the Act in respect of a perquisite will apply. As a consequence, the specified rate would have to be assumed as real rent of the accommodation and the difference over rent charged, a concession in the matter of rent and consequently, a benefit granted which is assumed, by necessary implication, a perquisite.
75. The contention on behalf of the assessee that the object of this deeming section was not to treat the difference as perquisite and it would still be open to show that there was no concession in the matter of rent has no force. It would amount to permit your imagination to boggle when it comes to the inevitable corollaries of the deemed state of affairs and also reading something which is prohibited by the fiction as not there in the provisions. Because of the fiction, even if the specified rate is not the real market rent of the accommodation provided to the employees, it has to be assumed so. The fiction is to assume the position that the difference was a concession it has to be perquisite to an employee. It is because by virtue of deeming fiction one has to assume that there is a concession in the matter of rent and that, consequently it has to be a perquisite. The argument that specified rate is not the determining criterion for finding a concession in the matter of rent has the effect of and would amount to ignoring the fiction created in the provision and therefore has no force hence and cannot be accepted.
76. The legal fiction however is to be restricted to the field of definite purpose for which it is created: See~Amarchand 48 ITR 59 (SC); Mother India, 155 ITR 711,718. Again a retrospective amendment is not to apply to action which is barred by efflux of time within which it was to be carried out. It cannot have a greater retrospective operation than its language renders necessary. Retrospective operation is not given to a statute so as to impair the existing right or obligation Govinddas 100 ITR 123,132. In Delhi Cloth & General Mills Co. Ltd. 2 ITC 439, 443 the Privy Council held “Their Lordship can have no doubt that provision which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights.” The liability to deduct tax was there on payment or on grant of perquisite and ended after that period was over as at that time there was no perquisite by way of concession in the matter of rent as there was no deeming of the difference rent as perquisite by the statute as it was given effect to by the Explanation 1 to section 17(2) of the Act under the Finance Act 2007 with retrospective effect from 2001. Retrospective effect is given to treat it as perquisite and not extended to create the liability on the employer to deduct tax and treat him as an assessee in default retrospectively. Therefore so far the assessee as employer is concerned he is not hit by the retrospective insertion of Explanation 1 to Section 17(2) thereto in absence of any such extension of the retrospective effect either in section 192 or section 201 of the Act.