ILLEGAL DEDUCTION OF INCOME TAX BY SBI

Law Office of NAVDEEP   SINGH                                 

Advocate, Punjab & Haryana High Court

Office-cum-Residence : # 1063, Sec 2, Panchkula – 134112, Haryana

Phones : 099888-LEGAL, 093161-32817    Email : navdeepsingh.india@...

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 Our  reference :

 To:

Chairman-cum-Managing Director (CMD)

State Bank of India, Mumbai

                                                                                      01 September 2016

ILLEGAL DEDUCTION OF INCOME TAX ON DISABILITY PENSION BY THE STATE BANKOF INDIA IN CONTRAVENTION OF DIRECTIONS OF THE GOVT

1.    Shocking instances have come to light wherein your bank has indulged in deduction of Income Tax at source in case of Disability Pensioners. On further inquiry, it has been informed that the action is based upon some ‘advice’ rendered by a Chartered Accountant that income tax exemption is only available to those pensioners who have been invalided out before completion of their service for normal pension, that is, those released earlier than 20 years in case of Commissioned Officers and 15 years in case of ranks other than Commissioned Officers, and that the said exemption is not available on the service element of those who have been released/ retired/discharged with a pension after serving more than 20/15 years of service as above.

2.    Firstly, your attention is invited to Instruction No 2/2001 issued by the Central Board of Direct Taxes in this regard which amply explains the issue (Appx A). Your attention is also invited to Paragraph 88.3 of the Pension Payment Instructions issued to all your banks by the Government (Appx B) which leaves no scope of doubt regarding exemption of income tax from the entire disability pension, including service element. Moreover, the interpretation of your bank in this regard is absolutely incorrect, absurd and militates against the rules and norms promulgated by the Government as above. It may be recalled that Income Tax exemption on complete disability pension is available to defence personnel since the 1920s.

3.    On discussion, it emerges that the confusion has been created due to the terminology of ‘Service Element’ which is hereby clarified for your benefit in the following lines. Disabled personnel who are granted disability benefits at the time of release from service are known as Disability Pensioners.  The said Disability Pension consists of two elements- service element and disability element. Both elements taken together are known as Disability Pension. There is no minimum qualifying service required for the grant of Service Element with effect from 01 January 1973. The calculation of service element however is different in cases of those personnel released from service before completion of pensionable service limits vis-a-vis those who are released on completing pensionable service limits. In case of the latter, the service element is granted at a rate equal to Service Pension. The fact that the pension granted for service in both cases is known as Service Element becomes clear from a bare perusal of Regulation 183 of the Pension Regulations, 1961, which contains two clauses, that is, 183(1)(a) for those who are released with sufficient service to earn a pension, and 183(1)(b) for those who are released before completing sufficient service to qualify for normal service pension. The said Regulation is enclosed as Appx C. Please note from the Regulation that in both cases the service part of the pension is known as Service Element. Even the normal service pension rates reflected under Regulation 183(1)(a)(i) are categorized as ‘Service Element’.

4.    The fact that the service part of pension, whether a person is released prior to completion of service limits or after completion of service limits (20/15 years), is known as ‘Service Element’ also becomes clear from a perusal of the recent Circular No 554 (Appx D) issued by the Principal Controller of Defence Accounts (Pensions) to all banks, including yours. Paragraphs 1(i) and (ii) and then 1(iv) & 1(v) as well as Paragraph 6 of the same clearly stipulate that in case of disability pensioners, the amount of service part of the pension is known as ‘Service Element’ irrespective of the fact whether a person has lesser or more than 20/15 years of service. In simple words, the service element of pension in cases of those disabled personnel who have completed pensionable limits is equal to normal service pension, but being disability pensioners, it is nomenclatured as ‘Service Element’.

5.    Even otherwise, it would be important to point out that disabled personnel released prior to completion of pensionable terms as well as those who are released on completion of terms or at own request are all treated at par as far as disability pension is concerned. In fact, all those who are in low medical category at the time of release are to be treated as ‘invalided’  as per rules (Also Appx C) as has also been held as per interpretation of teh pre-existing rules by the Hon’ble Delhi High Court in CW 2967/1989 Mahavir Singh Narwal Vs Union of India decided on 05 May 2004 as affirmed by the Hon’ble Supreme Court in SLP 24171/2004 on 04 January 2008 and also in the recent decision of the Hon’ble Supreme Court in Civ Appeal 11208//2011 Union of India Vs Angad Singh Titaria decided on 24 Feb 2015.

6.    In view of the above, you are requested to inform all your branches to cease and desist from flouting guidelines of the Central Board of Direct Taxes in this regard and direct them to honour income tax exemption on both service as well as disability elements of disability pensioners as was being done till now. It may be appreciated that the opinion of your Chartered Accountant cannot override existing law and rules that have been followed since times immemorial.

7.    You are requested to issue directions to refund the illegally deducted amount to all affected disabled pensioners within a period of 7 days from the receipt of this letter.

Thanking You

Sd/-

Navdeep Singh

Advocate, High Court