Sugra Sulaiman vs Commissioner of Income Tax

Ratnam, J.—At the instance of the assessee, u/s 256(1) of the Income Tax Act, 1961 (hereinafter referred to as ""the Act""), the following

question of law has been referred for the opinion of this court :

Whether, on the facts and in the circumstances of the case, the sum of Rs. 16,620 representing the cost of air fare paid by Messrs. Mecotronics

P. Ltd. to its employee, the assessee, constitutes perquisite assessable u/s 17(2)(iv) in her hands ?

The assessee is an individual and an employee of M/s. Mecotronics P. Ltd., of which her husband, during the relevant year, was the managing

director. For the assessment year 1972-73, the assessment was completed on a total income of Rs. 27,713 and in the course of the examination of

the accounts of Messrs. Mecotronics P. Ltd., it was found that the company had met the expenditure of Rs. 16,620 incurred by the assessee in

respect of a foreign tour in which she had accompanied her husband. Thereupon, the assessment was reopened u/s 147(a) of the Act and the

Income Tax Officer subjected to tax the amount of Rs. 16,620 as perquisite. On appeal by the assessee, the Appellate Assistant Commissioner

took the view that there was no obligation on the part of the assessee to spend money on the foreign tour and in its absence, there was no scope

for the application of section 17(2)(iv) of the Act and deleted the inclusion of Rs. 16,620, representing the cost of air fare, etc., of the assessee as

perquisite. On further appeal by the Revenue to the Tribunal, it took the view that as the expenses incurred by the company had not been claimed

by the assessee, she was under an obligation to pay the air fare and that, in turn, having been met by the employer, section 17(2)(v) of the Act

stood attracted and the addition of Rs. 16,620 as perquisite was in order. That is how the question referred at the outset has arisen.

Learned counsel for the assessee contended that no obligation was cast on the assessee to undertake a foreign tour and there was no need for

the assessee to incur this expenditure and, therefore, such expenditure, even it had been met by the company of which the assessee was an

employee, could not be termed as a perquisite falling u/s 17(2)(iv) of the Act. On the other hand, learned counsel for the Revenue submitted that

the assessee had undertaken a foreign tour and as that tour was not in connection with the business of the company, the assessee had to meet the

expenditure in connection with that tour and that having been met by the company, the Tribunal was quite right in treating the expenditure incurred

by the company as a perquisite falling within section 17(2)(iv) of the Act and subjecting it to tax as well.

Before proceedings to consider there rival submissions, we may notice a few undisputed facts. The assessee has, as a matter of fact, undertaken

a foreign tour. That tour was not in connection with the business of the company and the company had also not claimed the expenses incurred fin

connection with the foreign tour of the assessee as business expenditure. It is in the light of these undisputed facts that the applicability of section

17(2)(iv) of the Act has to be considered. Section 17(2)(iv) of the Act is as under :

17(2) ''perquisite'' includes - ...

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

In this case, inasmuch as the assessee was an employee of the company and the foreign tour was undertaken by such employee not in

connection with the business of the company, but otherwise, definitely an obligation was cast on the assessee to defray the expenses in connection

with the tour. That obligation had been discharged by the employer by making the payment to meet the expenses of the assessee in connection with

the foreign tour undertaken by her. We are not concerned, while considering whether such payment would constitute a perquisite, with the

obligation on the assessee to undertake the tour. The obligation contemplated u/s 17(2)(iv) of the Act is an obligation to make a payment or to

discharge the liability in respect of the expenses incurred in connection with the tour. Earlier, we have noticed that the assessee did under take a

foreign tour, though not for purposes of the company, and, therefore, the tour should be considered to be a personal or private one, in respect of

which the assessee was undoubtedly under an obligation to make payment with reference to the expenditure incurred by her. It is that obligation

that had been met by the company in which the assessee was an employee. We are of the view that the answer to the question referred would, in

turn, depend upon the answers to the following - (i) was the foreign tour undertaken by the assessee for her own purposes ? (ii) was she under an

obligation to pay for the expenses incurred in connection with that tour ? and (ii) was that obligation discharged by the employer by payment of the

amount ? On the undisputed facts in this case, the answer to all the aforesaid three questions would only be ""yes"". In that event, there is no escape

from the conclusion that the amount paid by the company in discharge of the obligation of the assessee to meet the expenses of her private or

personal foreign tour should be regarded as a perquisite falling u/s 17(2)(iv) of the Act. Though, on behalf of the Revenue, reference to some

decisions was made, we find that none of them is in point and, therefore, we are relieved of the necessity of making any reference to them. On a

consideration of the factual position and applying section 17(2)(iv) of the Act in relation to the payment made by the company, it follows that the

amount so paid was rightly treated as a perquisite assessable in the hands of the assessee in respect of the assessment year 1972-73. We,

therefore, answer the question referred to us in the affirmative and against the assessee. The Revenue will be entitled to the costs of this reference.

Counsel''s fee Rs. 500.