Non deduction of TDS on Medical Reimbursement

Non deduction of TDS on Medical Reimbursement based on bona fide estimate of taxable salary

In the present case, as already detailed, the exemption in respect of medical expenditure is considered after collecting and verifying the details and evidence furnished by the employees. Policies and controls are in force to ensure that the requirements of the provision are fulfilled. The details filed before the TDS officer explains the policies adopted to fulfill the process adopted in considering the exemption proviso to section 17(2). The assessee is a law abiding Company. Internal controls are in place to discharge the statutory obligation under section 192. Honest and bona fide estimate of taxable salary is made in the process of deducting tax at source under section 192. Every effort is made by the assessee to comply with the requirements of section 192. The assessee is not benefited by allowing employees to claim exemption. The order passed by the AO under section 201(1) & 201 (1A) is therefore bad in law and rightly quashed by the CIT(A).

In the light of the admitted position that the conditions for grant of exemption up to Rs.15,000 per employee towards medical reimbursement paid by the Assessee satisfies conditions contemplated by the proviso (v) to Sec.1 7(2) of the Act, can the AO deny the relief under the proviso (v) to Sec.17(2) of the Act? The answer admittedly is ‘no’, because the AO does not dispute non-fulfilment of conditions for allowing exemption under proviso (v) to Sec.1 7(2) of the Act. The liability of the person deducting tax at source cannot be greater than the liability of the person on whose behalf tax at source is deducted. The AO has ignored this aspect and has proceeded to pass the order u/s.201(1) and 201(1A) of the Act. His order was rightly held to be unsustainable by the CIT(A).

INCOME TAX APPELLATE TRIBUNAL, “A” BENCH : BANGALORE

BEFORE SHRI N. BARATHVAJA SANKAR, VICE PRESIDENT

AND SHRI N.V. VASUDEVAN, JUDICIAL MEMBER

ITA Nos. 1414 to 1416/Bang/2012

Assessment years : 2008-09 to 2010-11

The Assistant Commissioner of Income Tax (TDS)

 Vs.

M/s. SAP Labs India Pvt. Ltd.

Date of hearing : 15.07.2013

Date of Pronouncement : 15.07.2013

O R D E R

Per Bench

These are appeals by the Revenue against the common order dated 23.8.2012 of CIT(A)-II, Bangalore, relating to A.Ys. 2808-09 to 2010-11.

2. In these three appeals, the revenue has challenged the order of the CIT(Appeals) whereby the CIT(Appeals) cancelled the order of the Assessing Officer treating the appellant herein as an assessee in default  for not deducting tax at source u/s. 201 of the Act and also imposing interest on tax not deducted at source u/s. 201(1A) of the Act. The particulars of the amounts for which the order u/s. 201(1) and 201(1A) were passed by the AO are as follows:-

3. The assessee is a 100% export oriented unit (EO U) under the scheme of STPI and is engaged in the business of providing software development and related services to SAP AG, Germany. There was a survey u/s. 133A of the Act by the DCIT (TDS), Circle 18(2), Bangalore [hereinafter referred to as the “Assessing Officer / AO”] on 26.10.2010 in the premises of the assessee. In the course of survey, a question arose as to whether the appellant herein as an employer was justified in not deducting tax at source on medical reimbursements upto Rs.15,000 paid to its employees.

4. Section 192(1) of the Act casts an obligation on the part of person responsible for paying income chargeable under the head “salaries” to deduct tax at source, at the time of payment. Section 192 (1) of the Act reads as under:-

“192. Salary.-(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.”

5. A perusal of section 192 of the Act clearly indicates that the person responsible for paying any income chargeable under the head “Salaries” shall be liable to deduct income-tax at source at the time of payment of such salary. The items of income that are chargeable to tax under the head income from “Salaries” is laid down in Sec.15 to 17 of the Act. Sec. 15 of the Act provides that income described therein shall be chargeable to tax under the head “Salaries”. The income described therein consists of salary from the employer or former employer falling in three categories. Sec.1 6 of the Act contains deductions to be made from salaries. Section 17 of the Act contains an inclusive definition of “salary” for purposes of Section 15, Section 16 and Section 17 of the Act which, along with other items, includes “perquisite” and these terms are also separately defined therein. Sec.1 7 of the Act, which defines “Salary”, “perquisite” and “profits in lieu of salary” in so far as it is relevant to the present appeal reads thus:

“For the purposes of sections 15 and 16 and of this section – (1) “Salary” includes-

(i) to (iii)

(iv) any fees, commissions, perquisites or profits in lieu of or in addition to any salary or wages;

(v) to (viii)

(2) “perquisite” includes-

(i) to (ii)

(iii) …..

(iv) any sum paid by the employer in respect of any obligation which but for such payment, would have been payable by the assessee; and

(v) to (vii)

Provided that nothing in this clause shall apply to,- (i) to (iv)…..

(v) any sum paid by the employer in respect of any expenditure actually incurred by the employee on his medical treatment or treatment of any member of his family other than the treatment referred to in clauses (i) and (ii); so, however, that such sum does not exceed fifteen thousand rupees in the previous year.

(vi)….”

6. The dispute in these appeals are regarding the obligation of the assessee to deduct tax at source on “medical reimbursement”. It is not in dispute that the amounts paid as medical reimbursements is in the nature of perquisite falling with the definition of perquisites as given in sec.17(2) (iv) proviso (v) of the Act.

7. As far as Medical reimbursement is concerned, if the amount paid by an employer to the employee for medical treatment of the employee or his family is Rs. 15,000 or less per annum, then the same will not be perquisite as laid down in Sec.17(2) proviso (v) of the Act and therefore need not be considered as part of “salary” for the purpose of deducting tax at source at the time of payment by the employer to the employee. In other words, expenditure actually incurred on medical treatment to the extent of Rs. 15,000/- is exempt and the remaining is taxable.

8. The payments to employees of the assessee include a component towards medical expenditure. Towards this, employees are paid a sum every month. This sum, when paid is considered as part of taxable salary. If the employee submits proof of having incurred the expenditure towards medical treatment, the sum spent towards medical treatment or Rs. 15,000/-, whichever is less, is excluded from salary. The exclusion is on the basis of the proviso (v) to section 17(2) of the Act. If the amount spent towards medical treatment is in excess of Rs. 15,000/- the excess (beyond Rs. 15,000) is considered not considered as a deduction. Effectively, the excess amount spent continues to remain taxable. If no proof of having incurred the expenditure towards the medical treatment is produced by the employee, the entire sum paid is considered as a perquisite. Tax under section 192 of the Act is deducted accordingly.

9. The AO has in a very elaborate order discussed various aspects and case laws relating to the relevant statutory provisions and ultimately concluded that the Assessee was an “Assessee in default” in respect of that portion of medical reimbursement paid to its employees which were considered as exempt and hence not treated as part of income under the head “Salaries” for the purpose of deducting tax at source. We have culled out the reasons for the AO to come to the above conclusion, which can be summarized as follows:

1. As far as medical reimbursement is concerned, the AO was of the similar view that what is contemplated by proviso (iv) to Sec.17(2) of the Act was any sum paid by the employer in respect of any expenditure “actually incurred” by the employee on his medical treatment or treatment of any member of his family. Since the Assessee was paying medical reimbursement as a component of the monthly payment to the employee and later claiming that it was not perquisite to the extent of Rs. 15,000, the same had to be considered as salary and not exempt perquisite. The reasoning is the same that the payment should not precede the actually incurring of the expenses and it should be only by way of reimbursement.

10. The AO accordingly considered the Assessee as an “Assessee in default” u/s.201(1) of the Act, in respect of the portion of exemption claimed towards medical reimbursement for the AYs 2008- 09 to 2010- 11. The AO also levied interest u/s.201(1A) of the Act, on tax not deducted, from the date on which tax ought to have been deducted till the date on which the tax not deducted is paid over to the credit of the Government.

11. On appeal by the Assessee, the CIT(A) cancelled the order of the AO treating the Assessee as an “Assessee in default” u/s.201 (1) of the Act and also levying interest u/s.201(1A) of the Act, holding that amount paid even as reimbursement ought to be considered as perquisite. In coming to the above conclusion, the CIT(A) relied on the Circular of the CBDT, viz., Circular No.603 dated 6.6.1991, wherein the CBDT has opined that the value of the perquisite arising by way of payment or reimbursement by an employer of expenditure on medical treatment will not be included in the taxable salary of the employee. The following were the relevant observations of the CIT(A):-

“3. MEDICAL REIMBURSEMENT

3.3 I have carefully considered the appellant’s submissions and perused the AO’s order. The employees are paid up to Rs. 15,000/- per annum which is paid as advance at Rs. 1,250/- every month for the sake of administrative convenience. This amount is treated as exempt under the provisions of I.T.Act only if supported by bills. Wherever bills are (not) provided the amount is treated as a taxable salary and tax is deducted during the financial year end.

3.4 On the facts of the case, I find that:

a) No instance has been brought on record to suggest that, in the case of any employee, the benefit or allowance has been allowed without TDS during the financial year if it is not backed by actual expenditure.

b) In such a case, the benefit provided clearly fits into the ambit of the exemption provided in the proviso to section 17(2) which says:

“(v) any sum paid by the employer in respect of any expenditure actually incurred by the employee on his medical treatment or treatment of any member of his family other than the treatment referred to in clauses (1) and (ii); so, however, that such sum does not exceed *fifteen thousand rupees, in the previous year;”

[increased from ‘ten thousand rupees’ with effect from 1/4/1999]

c ) The Board’s Circular No.603 dated 6/6/199 1 reads as follows:

CIRCULAR No. 603 dated 6.6.1991 (CLARI.)

“Non-inclusion of value of perquisite arising from expenditure on medical treatment incurred by employee on himself or on his spouse, children, etc. in certain cases

In suppression of Circular No. 376 dt. 6th Jan., 1984, Circular No. 445 date 31st Dec., 1985, Circular No. 481 date 20th Feb., 1987 and all other instructions on the subject, the Board have decided that the value of the perquisite arising by way of payment or reimbursement by an employer of expenditure on medical treatment incurred by his employee on himself or on his spouse, children or parents, including the provision of free medical treatment or treatment at a concessional rate, will not be included in the taxable salary of the employee in the following cases:

(i) Where the medical treatment is availed at hospitals, clinics, etc., maintained by the employer;

(ii) Where the medical treatment is availed at hospitals maintained by the Government or local authorities or hospitals approved for the purposes of the Central Government Health Schedule or Central Medical Scheme (a list of such hospitals furnished by the Ministry of Health and family welfare on 11th April, 1991 is annexed).

(iii) Where the expenditure is on medical insurance premia;

(iv) Where the medical treatment is availed of from any doctor outside the institutions/schemes mentioned in (i) to (iii) above, an expenditure of up to Rs. 10,000 in a year, in the aggregate; and

(v) Where the medical treatment is availed of in a hospital outside India and the expenditure is incurred for treatment (including on travel and stay abroad in connection with such treatment) as also on travel and stay abroad of one attendant, to the extent permitted by the Reserve Bank of India, subject to the condition that the amount qualifying for such tax exemption would not include expenditure incurred on travel in the

case of employees whose gross total income, as computed under the IT Act without considering the amount paid or reimbursed for expenditure in

connection with medical treatment abroad, exceeds Rs. 1,00,000.

(emphasis supplied)

2. The contents of this circular will be applicable in relation to the assessment year 1991-92 and the subsequent years”

d) Moreover, in the present case, the amount of Rs. 15,000/- per employee per annum is too small for any other interpretation.

3.5 It is clear, therefore, that in effect there is no infringement of the tax provisions allowable to the employees by the employer appellant. Merely because the same is taken into account at the beginning of the year or at the time of deciding his/her salary, which itself is in terms of cost to company, it cannot be said that it ceases to be a perquisite and, therefore, not entitled to exemption u/s 17(2). Perquisite in any case also forms part of taxable salary. The employer has clarified that, wherever the said disbursement is not backed by bills, it is liable to TDS and this liability is not denied or infringed.

3.6 Therefore, in my view, the view of the AO is a very narrow and technical interpretation and in respect of a welfare measure to the employees across the salaried strata it cannot be the correct interpretation.”

12. Aggrieved by the order of the CIT(A), the revenue is in appeal before the Tribunal. The following are the grounds of appeal raised by the revenue (which is common for all the A.Ys.):-

“1) The CIT(A) has erred in not according the AO an opportunity of being heard as envisaged u/s 250(1) and 250(2) of the I.T.Act.

2) The CIT(A) has erred in not considering the letters dated 21/11/2011, 23/2/2012, 4/6/2012 and 13/7/2012 of the Commissioner, for affording the AO an opportunity of being heard.

3) The CIT(A) has erred in holding that no instance has been brought on record that an employee was conferred the benefit without TDS if it is not backed by actual expenditure.

4) The CIT(A) has erred in not appreciating the fact that the nature of income is to be determined at its source.

5) The CIT(A) has erred in not appreciating the fact that the application of funds cannot determine the nature of income.

6) The CIT(A) has erred in not appreciating the fact that an exemption granted or the application of funds cannot determine a type of income which is to be determined at source.

7) The CIT(A) has erred in holding that the perquisite also being a taxable income could constitute a part of cost to the company.

8) The CIT(A) has erred in holding that the order was based on narrow and technical interpretation in respect of a welfare measure.

9) The CIT(A) has erred in holding that a component of the salary paid on month to month basis could form part of salary which would be exempt under proviso to section 17(2).

10) The CIT(A) has erred in being guided by the quantum of exemption granted per employee rather than the entitlement as per law.

11) The CIT(A) has erred in not appreciating the fact that the employer has itself not considered these amounts as perquisites in the Form 12BA issued to the employees.

12) The CIT(A) has erred in not taking cognizance of the fact that the employer cannot consider a disbursement as a perquisite only for the purpose of exemption, and not for the purposes of Form 12BA.

13) The CIT(A) has erred in not considering the fact that every contention of the deductor has been addressed elaborately while the AO’s contentions and findings have not been reasoned against.

14) The CIT(A) has erred in passing an order which allows employees who enjoy unintended benefits as per the existing provisions of law.

15) The CIT(A) has erred in not considering the distinctions drawn in respect of the judicial decisions relied upon by the deductor.

16) The CIT(A) has erred in not considering the fact that the AO has studied the Board’s Circulars and their applicability as evident from the order passed.

17) The CIT(A) has erred in not considering the fact that such exempted income was not admitted by the employee on the basis of the Form 16 and 12BA issued.

18) The CIT(A) has erred in not considering the fact that the provisions of Sec.191 also are not been followed due to such issue of erroneous certificates in Form 16 and 12BA.

19) The CIT(A) has erred in not considering the term “actually incurred” in the proviso to Sec.17(2) of the I.T. Act.

20) For these and other grounds that may be urged during the course of appeal, the order of the AO may be restored.”

13. The learned DR reiterated the stand of the revenue as reflected in the grounds of appeal and relied on the order of the AO.

14. The learned counsel for the Assessee reiterated the stand of the Assessee as put forth before AO and CIT(A) and relied on the order of the CIT(A).

15. To appreciate the stand taken by the AO, we have to look at the relevant provisions of Sec.192 of the Act in so far as the same is relevant for the present case.

“192. Salary.-(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

(2)

(3) The person responsible for making the payment referred to in sub-section (1) or sub-section (1A) or sub-section (2) or sub¬section (2A) or sub-section (2B)] may, at the time of making any deduction, increase or reduce the amount to be deducted under this section for the purpose of adjusting any excess or deficiency arising out of any previous deduction or failure to deduct during the financial year.”

16. Section 192(1) of the Act, requires tax to be deducted at average rate of income-tax in force on estimated income under the head salaries. The person making payment has to make an honest of income under the head salary payable by him to his employee at the time of payment. The person making the payment has to take into consideration various deductions permitted under the Act under Chapter VIA of the Act, as also exempt income under Sec.10 of the Act. Rebate available under sections 88 and 88B can be considered by the employer. Employer should obtain the proof of investment made by the employee and should not rely on simple declaration or oral assurance. Certain employees who are entitled to relief under section 89(1) can furnish the information in prescribed form to the employer, and in such cases employer can adjust the amount of TDS by allowing relief available under section 89. It is for the employer to prove the allowances and perquisites given to the employee are tax-free and not to be included in the salary.

17. It is no doubt true that TDS is to be made at the time of payment of salary and not on the basis of salary accrued. Sec.192(3) of the Act permits the employer to increase or reduce the amount of TDS for any excess or deficiency. We have already noticed that the fact that bills/evidence to substantiate incurring of expenditure on medical treatment up to Rs.15,000/- for availing exemption by the employees, have not been disputed by the AO. Even assuming the case of the AO, that at the time of payment the Assessee ought to have deducted tax at source, is sustainable; the Assessee on a review of the taxes deducted during the earlier months of the previous year is entitled to give effect to the deductions permissible under proviso (v) to Sec.1 7(2) of the Act in the later months of the previous year. What has to be seen is the taxes to be deducted on income under the head ‘salaries’ as on the last date of the previous year. The case of the AO is that medical reimbursement should be paid at the time the expenditure is incurred or after the expenditure is incurred by way of reimbursement and not at an earlier point of time. If it is so paid, then, even though the payment would not form part of taxable salary of an employee, the employer has to deduct tax at source treating it as part of salary, is contrary to the provisions of Sec.192(3) of the Act and cannot be sustained. The reliance placed by the AO on the expression “actually incurred” found in proviso (v) to Sec.17(2) of the Act, in our view cannot be sustained. In any event, the interpretation of the word “actually paid” is not relevant while ascertaining the quantum of tax that has to be deducted at source u/s.192 of the Act. As far as the Assessee is concerned, his obligation is only to make an ”estimate” of the income under the head “salaries” and such estimate has to be a bonafide estimate.

18. The primary liability of the payee to pay tax remains. Section 191 confirms this. In a situation of honest difference of opinion, it is not the deductor that is to be proceeded against but the payees of the sums. To reiterate, the payment towards medical expenditure and leave travel is made keeping in view the employee welfare. The exclusion in respect of payment towards medical expenditure is considered after verifying the details and evidence furnished by the employees. No exemption is granted in the absence of details and/or evidence. The exemption in respect of medical expenditure is restricted to expenditure actually incurred by the employees, or Rs. 15,000/- whichever is lower. The exemption is granted even if the payment precedes the incurrence of expenditure. The requirements/conditions of proviso to section 17(2) are meticulously followed before extending the deduction/ exemption to an employee. No tax can be recovered from the employer on account of short deduction of tax at source under section 192 if a bona fide estimate of salary taxable in the hands of the employee is made by the employer, is the ratio of the following decisions.

CIT vs. Nicholas Piramal India Ltd (2008) 299 ITR 0356 (BOMBAY);

CIT v. Semiconductor Complex Ltd [2007] 292 ITR 636 (P&H) CIT vs. HCL Info System Ltd. [2006] 282 ITR 263 (Del)

CIT v Oil and Natural Gas Corporation Ltd [2002] 254 ITR 121 (Guj)

ITO v Gujarat Narmada Valley Fertilizers Co. Ltd [2001] 247 ITR 305 (Guj)

CIT v Nestle India Ltd (2000) 243 ITR 0435 (DEL)

Gwalior Rayon Silk Co. Ltd. v. CIT [1983] 140 ITR 832 (MP) ITO v G. D. Goenka Public School (No. 2) [2008] 306 ITR (AT) 78 (Del)

Usha Martin Industries Ltd. V. ACIT (2004) 086 TTJ 0574 (KOL)

Nestle India Ltd. v. ACIT (1997) 61 ITD 444 (Del)

Indian Airlines Ltd. v ACIT (1996) 59 ITD 353 (Mum)

19. In the present case, as already detailed, the exemption in respect of medical expenditure is considered after collecting and verifying the details and evidence furnished by the employees. Policies and controls are in force to ensure that the requirements of the provision are fulfilled. The details filed before the TDS officer explains the policies adopted to fulfill the process adopted in considering the exemption proviso to section 17(2). The assessee is a law abiding Company. Internal controls are in place to discharge the statutory obligation under section 192. Honest and bona fide estimate of taxable salary is made in the process of deducting tax at source under section 192. Every effort is made by the assessee to comply with the requirements of section 192. The assessee is not benefited by allowing employees to claim exemption. The order passed by the AO under section 201(1) & 201 (1A) is therefore bad in law and rightly quashed by the CIT(A).

20. In the light of the admitted position that the conditions for grant of exemption up to Rs.15,000 per employee towards medical reimbursement paid by the Assessee satisfies conditions contemplated by the proviso (v) to Sec.1 7(2) of the Act, can the AO deny the relief under the proviso (v) to Sec.17(2) of the Act? The answer admittedly is ‘no’, because the AO does not dispute non-fulfillment of conditions for allowing exemption under proviso (v) to Sec.1 7(2) of the Act. The liability of the person deducting tax at source cannot be greater than the liability of the person on whose behalf tax at source is deducted. The AO has ignored this aspect and has proceeded to pass the order u/s.201(1) and 201(1A) of the Act. His order was rightly held to be unsustainable by the CIT(A).

21. In the grounds of appeal raised by the revenue, we find that among other grounds there are grievances regarding lack of opportunity to the AO before CIT(A) and grounds challenging the finding that there is no dispute that the Assessee has satisfied itself that the employees were entitled to exemption under proviso (v) to Sec.17(2) of the Act. As far as lack of opportunity is concerned, we find that the CIT(A) has only called for break¬up of the figures regarding medical reimbursement which was actually paid to employees and that which was considered not forming part of salary by the employee on production of evidence by the employee. In fact, the figures so given are the same figures on the basis of which the AO has passed order u/s.201 (1) and 201 (1 A) of the Act.

22. Arguments were advanced that employees have filed their returns of income and offered to tax income under the head salaries received from the Assessee and therefore no order u!s.201(1) & 201(1A) of the Act can be passed against the Assessee. In this regard our attention was drawn to the following decisions:

Hindustan Coco Cola Beverage Pvt.Ltd. Vs. CIT 293 ITR 226 (SC) CIT Vs. Eli Lilly & Co. 312 ITR 225 (SC)

Decision of Hon’ble Karnataka High Court in the case of CIT Vs. Tata Elxsi ITA No.82 of 2003 dated 23.1.2008.

We have not examined the above argument for the reason that the assertion of the assessee in this regard has not been examined either by the AO or CIT(A).

23. For the reasons given above, we do not find any grounds to interfere with the order of the CIT(A). Consequently, these appeals by the Revenue are dismissed.

24. In the result, the appeals by the revenue are dismissed.

Pronounced in the open court on this 15th day of July, 2013.