Kalyan Jyoti Sengupta J. - (1.) By this writ petition, writ petitioner No. 1 being the Officers' Association and Nos. 2 and 3 being the respective office-bearers of petitioner No. 1, have challenged the action of the respondent-bank authorities in recovering the amount of the alleged tax on perquisites on account of supply of furniture at a concessional rate. The deductions have already been made and still are being made. Mr. Murarka, learned counsel appearing for the petitioner, contends that there is no legal basis to recover the aforesaid amount after deducting standard rent of the furniture being supplied as per service condition to the officers concerned over and above a nominal rent being charged and recovered. He contends further that the levy of income-tax on the perquisite of the employees can be imposed under the provisions of Section 17, Sub-section (2). The aforesaid section authorises the employer concerned to deduct at source on account of tax on the value of any benefit or amenity granted or provided free of cost or at a concessional rate in any of the cases as mentioned in Clauses (a), (b) and (c). In this case, he contends that admittedly the furniture by way of amenities has been provided by the bank but for this purpose the rent for such user is being collected from all the employees at a uniform rate and there is no difference, nor any concession being granted by the employer-hank to any of the employees. He contends that the concessional rate cannot be reckoned from the view point of the market rate but from the rate charged by the employer from the other employees. In support of his contention, he has relied on the following decisions in Officers Association, Bhilai Steel Plant v. Union of India [1983] 139 ITR 937 (MP) ; ITO v. All India Vijaya Bank Officers' Association and Steel Executives Association v. Rashtriya Ispat Nigam Ltd. He contends, therefore, that when there is no legal basis to impose tax on the aforesaid perquisites under the law, the whole action of deduction done in the past and presently as well as in future is ultra vires and without jurisdiction. Moreover, he contends that there is no basis and/or method for calculating the rate at which income-tax should be levied. He contends further that it is not for the employer to calculate at the rate which has been done by it. It would be for ihe Assessing Officer to calculate if the situation arises.
(2.) He has drawn my attention to the factual position as to whether the rent is being realised for furnishing these amenities at a uniform rate to all the employees or not. He contends that on the factual score there is no denial by the respondent.
(3.) None appears for the respondent in spite of the matter being called on. Mr. Murarka, learned counsel, has drawn my attention to a particular paragraph of the affidavit filed by the Department. He contends that the stand taken by the Department for computing the aforesaid rate is not in accordance with the correct legal position as they have justified showing a particular notification which contemplates for charging the rate on the basis of the market value. In view of the aforesaid decisions of the High Courts, the method contemplated in the aforesaid regulations is wholly inappropriate and inapplicable.;