M/s Dhar Authomotive Pvt. Ltd, Indore V. DCIT TDS, Indore

ITA 102/Ind/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0507 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-08-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 25-04-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R P MOURYA
• Assessee Lawyers: LALIT JAIN CAS
• Keywords: TDS
• Section: 44AD; 133A; 194C; 201(1); 201

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER ITA )NO 101 TO 103/IND/2018 ASSESSMENT YEARS 2013-14 TO 2015-16 PAN : BPLD00407B M/S. DHAR AUTOMOTIVES PVT.LTD, V/S DEPUTY COM MISSIONER 42, CHANDRALOK EXTENSION, OF INCOME TAX, TDS MANISHPURI, INDORE INDORE (REVENUE) (RESPONDENT) REVENUE BY : SHRI R. P. MOURYA, SR.DR ASSESSEE BY : S/SHRI HITESHCHIMNANI & LALIT JAIN, CAS DATE OF HEARING : 01.08.2019 DATE OF PRONOUNCEMENT : 13.09.2019 O R D E R PER MANISH BORAD, AM. THE ABOVE CAPTIONED APPEALS FILED AT THE INSTANCE O F ASSESSEE PERTAINING TO ASSESSMENT YEARS 2013-14 TO 2015-16 A RE DIRECTED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TA X (APPEALS)-II (IN SHORT LD.CIT(A)], INDORE DATED 01.11.2017 & 02.11 .2017 WHICH ARE ARISING OUT OF THE ORDER U/S 201(1)/201(1A) DATED 2 6.03.2015, 20.04.2015 & 01.07.2015 RESPECTIVELY FRAMED BY DCIT CPC-TDS, INDORE. DHAR A UTOMOTIVES P. LTD ITA NO. 101 T O 103/IND/18 2 2. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL IN ITA NO.101/IND/2018 ASSESSMENT YEAR 2013-14 1. THE LD. CIT(A-I ERRED IN DISMISSED GROUNDS OF APPEA L NO.1 OF CIT APPEAL FOR APPLYING RATE OF DEDUCTION OF TDS U/S 201(1) & 201(1A) BY APPLYING INCORRECT RATE OF DEDUCTION OF TDS & CORRECT HEAD O F DEDUCTION. THE CORRECT HEAD OF DEDUCTION IS 194C IN WHICH RATE OF DEDUCTIO N WAS 2% WHILE THE LD. OFFICER CONSIDERED INCORRECT HEAD U/S 194J IN WHICH RATE OF DEDUCTION TAKEN @10% & SUSTAINED THE ORDER OF DCIT(TDS) INDORE WHIC H IS BAD IN LAW UNJUSTIFIED AND UNWARRANTED SHOULD BE DELETED. 2. THE LD. CIT(A)-I ERRED IN DISMISSED GROUNDS OF APPE AL NO.2 OF CIT APPEAL FOR THE CORRECT HEAD OF SECTION IS 194C FOR DEDUCTION OF TDS UNDER CONTRACTUAL ARRANGEMENTS FOR OPERATION & MAINTENANC E OF MACHINES WHILE CIT(A)-I FAILS TO ACCEPT THE CORRECT PROVISION OF T HE INCOME TAX ACT, 1961 & APPLIED INCORRECT HEAD OF DEDUCTION OF TDS FOR PAYM ENT OF PROFESSIONAL & TECHNICAL SERVICES U/S 194J & SUSTAINED THE ORDER O F DCIT (TDS) INDORE WHICH IS WRONG AND JUSTIFIED. 3. THE LD. CIT(A)-I ERRED IN DISMISSED GROUNDS OF APPE AL NO.3 OF CIT APPEAL FOR COMPUTING THE CORRECT TDS U/S 206C ON SA LE OF SCRAP OF RS.21,36,296/- OF ALL THE FOUR QUARTERS FOR F.Y. 20 12-13 ON WHICH CORRECT TCS COLLECTED & DEPOSITED IN TIME AND THE RATE OF COLLE CTION OF TCS WAS @1% OF RS.21,36,296/- & WRONG DEMAND CREATED U/S 206C(6A) & 206C(7) & SUSTAINED THE ORDER OF DCIT(TDS) INDORE WHICH IS WR ONG AND UNJUSTIFIED. 4. THE LD. CIT(A)-I ERRED IN DISMISSED GROUNDS OF APPE AL NO.3 OF CIT FOR OVERLOOKING THE FACTS AND SUBMISSIONS WITH ALL SUPP ORTING DOCUMENTS DATED. 15.07.2014 & ALSO THE ASSESSEE IS NOT IN DEFAULT FO R DEDUCTION AND COLLECTION OF TDS/TCS & CORRECT RATE OF DEDUCTION APPLIED AS P ER CONTRACTUAL ARRANGEMENTS. IT IS SUBMITTED THAT ON THE FACTS AN D IN THE CIRCUMSTANCES OF THE CASE THE DEDUCTION & COLLECTION WAS CORRECTLY M ADE & DEPOSITED AND THE SAME MAY VERY KINDLY BE ACCEPTED/BE NOW ALLOWED AND THE SAID ORDER DATED. 26.03.2015 DCIT-TDS MAY KINDLY BE QUASHED. 5. THAT THE APPELLANT FURTHER, LEAVE TOAD, TO ALTER AN D/OR AMEND OR MAKE ANY ADDITIONAL GROUNDS OF APPEAL AS AND WHEN NECESS ARY. ITA NO.102/IND/2018 FOR ASSESSMENT YEAR 2014-15 1. THE LD. CIT(A-I ERRED IN DISMISSED GROUNDS OF APPEA L NO.1 OF CIT APPEAL FOR APPLYING RATE OF DEDUCTION OF TDS U/S 201(1) & 201( 1A) BY APPLYING INCORRECT RATE OF DEDUCTION OF TDS & CORRECT HEAD O F DEDUCTION. THE CORRECT HEAD OF DEDUCTION IS 194C IN WHICH RATE OF DEDUCTIO N WAS 2% WHILE THE LD. OFFICER CONSIDERED INCORRECT HEAD U/S 194J IN WHICH RATE OF DEDUCTION TAKEN @10% & SUSTAINED THE ORDER OF DCIT(TDS) INDOR E WHICH IS BAD IN LAW UNJUSTIFIED AND UNWARRANTED SHOULD BE DELETED. 2. THE LD. CIT(A)-I ERRED IN DISMISSED GROUNDS OF APPE AL NO.2 OF CIT APPEAL FOR THE CORRECT HEAD OF SECTION IS 194C FOR DEDUCTI ON OF TDS UNDER CONTRACTUAL ARRANGEMENTS FOR OPERATION & MAINTENANC E OF MACHINES WHILE DHAR A UTOMOTIVES P. LTD ITA NO. 101 T O 103/IND/18 3 CIT(A)-I FAILS TO ACCEPT THE CORRECT PROVISION OF T HE INCOME TAX ACT, 1961 & APPLIED INCORRECT HEAD OF DEDUCTION OF TDS FOR PAYM ENT OF PROFESSIONAL & TECHNICAL SERVICES U/S 194J & SUSTAINED THE ORDER O F DCIT (TDS) INDORE WHICH IS WRONG AND JUSTIFIED. 3. THE LD. CIT(A)-I ERRED IN DISMISSED GROUNDS OF APPE AL NO.3 OF CIT APPEAL FOR OVERLOOKING THE FACTS AND SUBMISSIONS WITH ALL SUPPORTING DOCUMENTS DATED. 15.07.2014 & ALSO THE ASSESSEE IS NOT IN DEF AULT FOR DEDUCTION AND COLLECTION OF TDS/TCS & CORRECT RATE OF DEDUCTION A PPLIED AS PER CONTRACTUAL ARRANGEMENTS. IT IS SUBMITTED THAT ON THE FACTS AN D IN THE CIRCUMSTANCES OF THE CASE THE DEDUCTION & COLLECTION WAS CORRECTLY M ADE & DEPOSITED AND THE SAME MAY VERY KINDLY BE ACCEPTED/BE NOW ALLOWED AND THE SAID ORDER DATED. 26.03.2015 DCIT-TDS MAY KINDLY BE QUASHED. 4. THAT THE APPELLANT FURTHER, LEAVE TOAD, TO ALTER AN D/OR AMEND OR MAKE ANY ADDITIONAL GROUNDS OF APPEAL AS AND WHEN NECESSARY. ITA NO.103/IND/2018 FOR ASSESSMENT YEAR 2015-16 1. THE LD. CIT(A-I ERRED IN DISMISSED GROUNDS OF APPEA L NO.1 OF CIT APPEAL FOR APPLYING RATE OF DEDUCTION OF TDS U/S 201(1) & 201( 1A) BY APPLYING INCORRECT RATE OF DEDUCTION OF TDS & CORRECT HEAD O F DEDUCTION. THE CORRECT HEAD OF DEDUCTION IS 194C IN WHICH RATE OF DEDUCTIO N WAS 2% WHILE THE LD. OFFICER CONSIDERED INCORRECT HEAD U/S 194J IN WHICH RATE OF DEDUCTION TAKEN @10% & SUSTAINED THE ORDER OF DCIT(TDS) INDOR E WHICH IS BAD IN LAW UNJUSTIFIED AND UNWARRANTED SHOULD BE DELETED. 2. THE LD. CIT(A)-I ERRED IN DISMISSED GROUNDS OF APPE AL NO.2 OF CIT APPEAL FOR THE CORRECT HEAD OF SECTION IS 194C FOR DEDUCTI ON OF TDS UNDER CONTRACTUAL ARRANGEMENTS FOR OPERATION & MAINTENANC E OF MACHINES WHILE CIT(A)-I FAILS TO ACCEPT THE CORRECT PROVISION OF T HE INCOME TAX ACT, 1961 & APPLIED INCORRECT HEAD OF DEDUCTION OF TDS FOR PAYM ENT OF PROFESSIONAL & TECHNICAL SERVICES U/S 194J & SUSTAINED THE ORDER O F DCIT (TDS) INDORE WHICH IS WRONG AND JUSTIFIED. 3. THE LD. CIT(A)-I ERRED IN DISMISSED GROUNDS OF APPE AL NO.3 OF CIT APPEAL FOR OVERLOOKING THE FACTS AND SUBMISSIONS WITH ALL SUPPORTING DOCUMENTS DATED. 15.07.2014 & ALSO THE ASSESSEE IS NOT IN DEF AULT FOR DEDUCTION AND COLLECTION OF TDS/TCS & CORRECT RATE OF DEDUCTION A PPLIED AS PER CONTRACTUAL ARRANGEMENTS. IT IS SUBMITTED THAT ON THE FACTS AN D IN THE CIRCUMSTANCES OF THE CASE THE DEDUCTION & COLLECTION WAS CORRECTLY M ADE & DEPOSITED AND THE SAME MAY VERY KINDLY BE ACCEPTED/BE NOW ALLOWED AND THE SAID ORDER DATED. 26.03.2015 DCIT-TDS MAY KINDLY BE QUASHED. 4. THAT THE APPELLANT FURTHER, LEAVE TOAD, TO ALTER AN D/OR AMEND OR MAKE ANY ADDITIONAL GROUNDS OF APPEAL AS AND WHEN NECESSARY. 3. AS THE ISSUES RAISED IN THESE APPEALS ARE COMMON T HESE WERE HEARD TOGETHER AND THEREFORE ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR SAKE OF CONVENIENCE AND BREVITY. DHAR A UTOMOTIVES P. LTD ITA NO. 101 T O 103/IND/18 4 4. FROM PERUSAL OF THE GROUNDS WE OBSERVE THAT FIRS T COMMON ISSUE RELATES TO THE DIFFERENCE OF RATE OF DEDUCTION OF T DS & U/S 201(1) & 201 (1A) OF THE ACT ON THE AMOUNTS PAID BY THE ASSESSEE TOWARDS OPERATION & MAINTENANCE OF WINDMILL MACHINES. THIS ISSUE IS C OMMON FOR ITANOS. 101, 102 & 103/IND/2018. 5. SECOND ISSUE ONLY PERTAINS TO A.Y. 2013-14 IN IT ANO.101/IND/2018 FOR LOWER DEDUCTION OF TAX COLLECTED AT SOURCE. 6. APROPOS TO FIRST COMMON ISSUE RELATING TO RATE O F DEDUCTION OF TAX AS TO WHETHER THE ASSESSEE HAS RIGHTLY DEDUCTED THE TA X AT SOURCE U/S 194C OF THE ACT OR WHETHER THE LD. AO WAS JUSTIFIED IN APPLYING THE RATE OF 10% PROVIDED U/S 194J OF THE ACT FOR PAYME NT OF PROFESSIONAL & TECHNICAL SERVICES. 7. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECO RDS ARE THAT THE ASSESSEE OWNS FOUR WIND TURBINE GENERATION PLANTS. A TDS SURVEY U/S 133A OF THE ACT WAS CONDUCTED ON 26.05.2014 TO VERI FY THE TCS/TCS COMPLIANCES OF THE ASSESSEE. IT ENTERED INTO CONTRA CT FOR OPERATION AND MAINTENANCE OF THE PLANTS WITH M/S RRB ENERGY LIMIT ED, M/S. ENERCON (INDIA) LIMITED & M/S KELVIN ENERGY SOLUTIO N. THE ASSESSEE APPLIED SECTION 194C OF THE ACT AND DEDUCTED TAX @ 2% ON THE PAYMENTS MADE. HOWEVER, LD. AO TOOK A VIEW THAT THE PLANT HAVE A DHAR A UTOMOTIVES P. LTD ITA NO. 101 T O 103/IND/18 5 LARGE INVESTMENT AND SPECIALIZE TECHNICAL KNOWLEDGE IS REQUIRED TO CARRYING OUT SUCH OPERATION AND MAINTENANCE WORK AN D THEREFORE, TAX WAS REQUIRED TO DEDUCT @ 10% U/S 194J OF THE ACT. 8. AGAINST THE FINDING OF LD. ASSESSING OFFICER (AO ) APPLYING U/S 194J OF THE ACT ON THE ALLEGED TRANSACTIONS OF PAYMENT O F OPERATION AND MAINTENANCE CHARGED TO THE RESPECTIVE COMPANIES, TH E ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) BUT COULD NOT SUCCE ED. 9. NOW THE ASSESSEE IS IN APPEAL RAISING COMMON ISS UE FOR A.Y. 2013- 14 TO A.Y. 2015-16. LD. COUNSEL FOR THE ASSESSEE TO OK US THROUGH THE PROVISIONS OF U/S 194C & 194J OF THE ACT AND ALSO M ADE DISTINCTION BETWEEN BOTH SECTIONS WITH REGARD TO THE NATURE OF PAYMENT, ROLE OF PAYEE AND FINAL OUTCOME. HE FURTHER SUBMITTED THAT THE TASK OF OPERATION AND MAINTENANCE OF WINDMILL IS CARRIED OU T BY EMPLOYING SKILLED LABOURS. THE ASSESSEE I.E. CUSTOMER HAS NOT SEEKED ANY TECHNICAL SERVICE OR ADVICE FROM ALLEGED FOUR PAYEE S. REFERRING TO THE DECISION OF AHMEDABAD TRIBUNAL IN THE CASE OF GUJAR AT STATE ELECTRICITY CORPN. LTD. VS. ITO (2004) 3 SOT 468 (AHD.), IT WAS CONTENDED THAT WHEN THERE IS A COMPOSITE CONTRACT FOR OPERATION AN D MAINTENANCE, IT WOULD COME WITHIN THE AMBIT OF UNDER SECTION 194C O F THE ACT AND NOT U/S 194J OF THE ACT. RELIANCE WAS ALSO PLACED ON TH E DECISION OF I.T.A.T., PUNE BENCH IN THE CASE OF BHARAT FORGE LT D. VS. ADDITIONAL DHAR A UTOMOTIVES P. LTD ITA NO. 101 T O 103/IND/18 6 COMMISSIONER OF INCOME TAX (2013) 36 TAXMANN.COM 57 4 (PUNE-TRIB) AND THE DECISION OF DELHI TRIBUNAL THE CASE OF DCIT VS. PARASRAMPURIA SYNTHETICS LTD. 20 SOT 248 . PLACING RELIANCE ON THE ABOVE JUDGMENT, IT WAS SUBMITTED THAT THE PAYMENT FOR OPERATION & MA INTENANCE CHARGES CANNOT BE CONSIDERED AS FEES FOR PAYMENT OF TECHNICAL SERVICES AS THEY ARE SPECIFICALLY EXCLUDED FROM TH E DEFINITION OF FEES FOR TECHNICAL SERVICES AND ARE BEING SPECIFICALLY COVER ED BY THE PROVISIONS OF SECTION 194C OF THE ACT. 10. PER CONTRA, LD. DR VEHEMENTLY ARGUED SUPPORTING THE ORDERS OF BOTH THE LOWER AUTHORITIES. 11. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US AND CAREFULLY GONE THROUGH WRITTEN SUBMIS SIONS FILED BY THE LD. COUNSEL FOR THE ASSESSEE AND THE JUDGMENTS/DECI SIONS REFERRED AND RELIED THEREIN. THE DEDUCTOR COMPANY I.E. THE ASSES SEE IS ENGAGED IN THE BUSINESS OF FOREGOING OF STEEL FOR AUTOMOBILE C OMPONENTS AND WIND POWER GENERATION PLANT. THE TWO PLANTS ARE LOCATED AT MAHARASHTRA (250 KWA & 500 KWA), ONE AT MADHYA PRADESH (230 KWA ) AND ANOTHER ON AT TAMILNADU (600 KWA) FOR THE OPERATION & MAINTENANCE. IT ENTERED INTO WRITTEN CONTRACT WITH M/S. RRB ENE RGY LIMITED., M/S ENERCON (INDIA) LIMITED, SUZLON ENERGY LTD., M/S KE LVIN ENERGY SOLUTION & UJAAS ENERGY LTD. FOR CARRYING OUT THE C ONTRACT FOR DHAR A UTOMOTIVES P. LTD ITA NO. 101 T O 103/IND/18 7 OPERATION & MAINTENANCE. COPIES OF ALL THE AGREEM ENTS ARE PLACED IN THE PAPER BOOK. FROM PERUSAL OF RESPECTIVE CLAUSE I N THESE AGREEMENT WE FIND THAT THE CONTRACT HAVE BEEN ENTERED FOR OP ERATION & MAINTENANCE WORK. THE ALLEGED PAYMENTS TO THESE 5 COMPANIES WERE SUBJECT TO DEDUCTION OF TAX AT SOURCE. THE ASSESSEE DEDUCTED 2% TDS AS PER THE PROVISIONS OF SECTION 194C OF THE ACT AS SUMING IT TO BE WORKS CONTRACTS WHEREAS THE ASSESSING OFFICER TREAT ED AS PAYMENT FOR FEE FOR TECHNICAL SERVICES WHICH SUBJECT TO 10% TDS U/S 194J OF THE ACT. THERE IS NO DISPUTE IN THE FACT THAT THE RESPE CTIVE CONTRACTS ARE COMPOSITE CONTRACT FOR OPERATION AND MAINTENANCE W ORK OF THE WIND TURBINE WHICH IS REGULARLY ACQUIRED TO BE CARRIED O UT. THERE IS NO MENTION ABOUT SUPPLY OF ANY TECHNICAL SERVICES TO T HE ASSESSEE COMPANY. IN THE RESPECTIVE AGREEMENTS CONTRACT WOR K IS USED AT ALL THE PLACES FOR THE OPERATIONS AND MAINTENANCES WOR K. 12. WE FIND THAT THE AHMEDABAD, TRIBUNAL IN THE CAS E OF GUJARAT STATE ELECTRICITY COOPERATION LTD. (SUPRA) HELD THAT A COMPOSITE CONTRACT FOR OPERATION AND MAINTENANCE WOULD COME WITHIN AMBIT O F U/S 194C AND NOT U/S 194J OF THE ACT. FOR ARRIVING AT THIS CONCL USION THE TRIBUNAL OBSERVED AS FOLLOWS: 10. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MA DE BY THE LEARNED REPRESENTATIVES OF THE PARTIES AND HAVE GONE THROUG H THE ORDERS OF THE LEARNED DEPARTMENTAL AUTHORITIES. WE HAVE ALSO GONE THROUGH ALL THE JUDGMENTS CITED BY THE LEARNED REPRESENTATIVES. DHAR A UTOMOTIVES P. LTD ITA NO. 101 T O 103/IND/18 8 11. THE OPERATION AND MAINTENANCE AGREEMENT EXECUTE D BETWEEN GSECL (APPELLANT-COMPANY) AND GEB ON 14TH OCT., 1998, REL ATES TO OPERATION AND MAINTENANCE OF 200MW, GANDHINAGAR UNIT-5. THE SAID AGREEMENT HAS BEEN EXECUTED FOR A PERIOD OF 30 YEARS COMMENCING ON THE EFFECTIVE DATE. THE OPERATING PERIODS COVERED BY THE SAID AGREEMENT HAV E BEEN CLASSIFIED AS PERIOD I WHICH COMMENCED FROM THE DATE OF START OF TRIAL OPERATION UPTO THE START OF COMMERCIAL OPERATION. THE PERIOD II SHALL COMMENCE FROM THE DATE OF THE START OF THE COMMERCIAL OPERATION OF THE PLANT AND SHALL TERMINATE ON THE EXPIRY OF THE TERM OF 30 YEARS OF THIS AGREEMENT, T HE PERIOD I COMMENCED FROM 17TH MARCH, 1998, AND CONTINUED TILL 10TH OCT., 199 8. THE PERIOD II COMMENCED FROM 10TH OCT., 1998, AND WILL REMAIN IN FORCE FOR THE ENTIRE TERM OF 30 YEARS FROM THE EFFECTIVE DATE OF THIS AGREEME NT. GEB HAS BEEN DESCRIBED AS 'THE OPERATOR' IN THE SAID AGREEMENT THE ASSESSE E HAS BEEN DESCRIBED AS 'THE OWNER'. THE PREAMBLE OF THE SAID AGREEMENT IS REPRODUCED BELOW : 'WHEREAS THE OWNER IS SETTING UP A POWER PROJECT OF 210 MW GANDHINAGAR THERMAL POWER STATION, UNIT-5, AND WHEREAS THE OWNE R WILL SELL ALL OF THE NET ELECTRICITY PRODUCED BY THE PLANT AS PER THE TERMS OF THE POWER PURCHASE AGREEMENT (PPA) EXECUTED BETWEEN GUJARAT STATE ELEC TRICITY CORPORATION LTD. AND GUJARAT ELECTRICITY BOARD DT. 22ND JAN., 1997. AND WHEREAS THROUGHOUT THE COMMERCIAL OPERATION OF THE PLANT, THE OWNER REQUIRES A QUALIFIED, COMPETENT AND EXPERIENCED OPE RATOR TO PERFORM THE OPERATION & MAINTENANCE OF THE PLANT. AND WHEREAS THE OPERATOR HAS LONG-STANDING EXPERIEN CE IN OPERATION AND MAINTENANCE OF POWER PLANTS OF SIMILAR CAPACITY. AND WHEREAS THE OPERATOR IS WILLING TO PROVIDE THE SERVICES ON THE TERMS AND CONDITIONS SETFORTH HEREINAFTER. AND WHEREAS BOTH THE OWNER AND THE OPERATOR HAVE AG REED TO FOLLOW THE PPA BETWEEN GUJARAT STATE ELECTRICITY CORPORATION LTD. AND GUJARAT ELECTRICITY BOARD DT. 22ND JAN., 1997, WITHOUT VIOLATING ANY RE QUIREMENT/PROVISION OF THE SAID PPA. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROM ISES CONTAINED HEREIN AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED THE PARTIES HERETO, INTENDI NG TO BE LEGALLY BOUND, HEREBY AGREE AS FOLLOWS : ..............' THE ACTIVITIES REQUIRED TO BE CARRIED OUT BY GEB IN RELATION TO PERIOD II, WHICH IS APPLICABLE FOR THE YEAR UNDER CONSIDERATION HAVE BEEN ENUMERATED IN PARA 4.3.2 OF THE SAID AGREEMENT, WHICH IS REPRODUCED BE LOW : '4.3.2 DURING PERIOD 2 : THE OPERATOR SHALL OPERATE AND MAINTAIN THE FACILIT Y INCLUDING SUCH OFFSITE FACILITIES IN ACCORDANCE WITH PRUDENT ENGINEERING A ND OPERATING PRACTICES, AND PROCEDURES AND IN ACCORDANCE WITH THE TERMS OF THE PPA. THE OPERATOR'S SERVICE IN PERIOD 2 SHALL INCLUDE, BUT NOT LIMITED TO, THE FOLLOWING REQUIRED FOR SAFE AND HEALTHY RUNNING OF THE FACILITY : (I) OPERATE AND MAINTAIN THE PLANT/FACILITY IN ACCO RDANCE WITH THE TERMS OF THE PPA OVERRIDING AND STANDARD OF PRUDENT UTILITY PRAC TICES. (II) CARRY OUT ALL PERFORMANCE TESTS FROM TIME TO T IME AS REQUIRED UNDER THE PROVISIONS OF THE PPA. DHAR A UTOMOTIVES P. LTD ITA NO. 101 T O 103/IND/18 9 (III) PROVIDE TECHNICAL ADVICE AND SUPPORT TO THE O WNER, REGARDING OPERATION AND MAINTENANCE ISSUES. (IV) MAINTAIN RECORD OF QUANTITY AND QUALITY OF FUE L RECEIVED FROM THE FUEL SUPPLIER. (V) MAINTAIN RECORD OF QUANTITY AND QUALITY OF WATE R RECEIVED FROM GUJARAT ELECTRICITY BOARD. (VI) ADVISE THE OWNER ON TAKING APPROPRIATE INSURAN CE POLICIES AND MAKE ARRANGEMENT FOR THE SAME. (VII) MAINTAIN RECORD AND DATA REQUIRED TO BE MAINT AINED UNDER THE PPA. (VIII) MAINTAIN THE PREMISES AND THE FACILITY IN GO OD CONDITION, EXCEPT FOR REASONABLE WEAR AND TEAR WHICH DOES NOT ADVERSELY A FFECT THE EFFICIENT OR PROPER UTILISATION THEREOF, INCLUDING PAINING, OR C LEANING THE EXTERIOR OF THE FACILITY AND MAKE ALL AUTHORISED REPAIRS AND REPLAC EMENT. (IX) MAINTAIN ALL FIRE PROTECTION AND SAFETY EQUIPM ENT, (X) ANTI-EROSION MEASURES, MAINTAIN LANDSCAPING IN GOOD CONDITION. (XI) HIRE, TRAIN, ADMINISTER, SUPERVISE THE WORKFOR CE NECESSARY TO PERFORM OPERATION, MAINTENANCE AND INSPECTION WORK. (XII) KEEP THE OWNER APPRISED OF THE OPERATOR'S NEG OTIATIONS WITH THE UNIONS REPRESENTING THE OPERATOR'S WORK FORCE. (XIII) PROVIDE ALL PERSONNEL, SERVICES, VENDOR CONT RACTS, TOOLS, EQUIPMENT AND MATERIALS, UNDER APPROVAL OF THE OWNER, TO MAKE SUC H REPAIRS OR REPLACEMENTS AS MAY BE NECESSARY TO OPERATE AND MAINTAIN ALL POR TIONS OF THE FACILITY. (XIV) PERFORM PERIODIC ROUTINE AND ANNUAL OVERHAUL OF EQUIPMENT RELATED TO THE FACILITY. (XV) PERFORM ROUTINE INSPECTIONS AND MAINTENANCE OF THE FACILITY. (XVI) PERFORM PERIODIC OPERATIONAL CHECKS, AND TEST ING OF EQUIPMENT RELATING TO THE FACILITY. (XVII) MAINTAIN RECORDS OF MAINTENANCE INSPECTIONS, OPERATIONAL CHECKS AND FINANCIAL TRANSACTIONS RELATING TO THE FACILITY. (XVIII) PERFORM CALIBRATION OF ALL INSTRUMENTS AND LOOP CHECKING ON A REGULAR BASIS. (XIX) PREPARE PAPER WORK FOR ANY INSURANCE CLAIM ON BEHALF OF THE OWNER.' THE PROVISIONS OF SECTION 194J PROVIDE THAT ANY PERSON, NOT BEING AN INDIVIDUAL OR A HUF, WHO IS RESPONSIBLE FOR PAYING TO A RESIDENT ANY SUM BY WAY OF : (A) FEES FOR PROFESSIONAL SERVICES, OR (B) FEES FOR TECHNICAL SERVICES, SHALL, AT THE TIME OF CREDIT OF SUCH SUM TO THE ACCOUNT OF THE PAYEE OR AT THE TIME OF PAYMENT, WHI CHEVER IS EARLIER, DEDUCT AN AMOUNT EQUAL TO FIVE PER CENT OF SUCH SUM AS INCOME -TAX ON INCOME COMPRISED THEREIN. THE EXPRESSION 'PROFESSIONAL SERVICES' AND 'FEES FOR TECHNICAL SERVICES' HAVE BEEN DEFINED IN EXPLANATION TO SECTION 194J WHICH IS BEING REPRODUCED IN EARLIER PART OF THIS ORDER. IT IS NOT THE CASE O F THE AO THAT THE PAYMENT MADE TO GEB REPRESENTS PAYMENT OF FEES FOR PROFESSIONAL SERVICES. THE AO HAS INVOKED THE PROVISIONS OF SECTION 194J BY TREATING THE PAYMENT MADE TO GEB AS PAYMENT MADE BY WAY OF 'FEES FOR TECHNICAL SERVI CES'. IT WILL, THEREFORE, BE RELEVANT HERE TO REPRODUCE THE DEFINITION OF 'FEES FOR TECHNICAL SERVICES' GIVEN IN EXPLN. 2 TO SECTION 9(1)(VII) OF THE ACT : 'EXPLANATION 2 : FOR THE PURPOSES OF THIS CLAUSE, ' FEES FOR TECHNICAL SERVICES' MEANS ANY CONSIDERATION (INCLUDING ANY LUMP SUM CON SIDERATION) FOR THE DHAR A UTOMOTIVES P. LTD ITA NO. 101 T O 103/IND/18 10 RENDERING OF ANY MANAGERIAL, TECHNICAL OR CONSULTAN CY SERVICES (INCLUDING THE PROVISION OF SERVICES OF TECHNICAL OR OTHER PERSONN EL) BUT DOES NOT INCLUDE CONSIDERATION FOR ANY CONSTRUCTION, ASSEMBLY, MININ G OR LIKE PROJECT UNDERTAKEN BY THE RECIPIENT OR CONSIDERATION WHICH WOULD BE INCOME OF THE RECIPIENT CHARGEABLE UNDER THE HEAD 'SALARIES'.' 12. THE SCOPE AND EFFECT OF SECTION 9(1)(VII) I AS ORIGINALLY ENACTED HAD BEEN ELABORATED IN DEPARTMENTAL CIRCULAR NO. 202, DT. 5T H JULY, 1976. PARA 16.3 OF THE SAID CIRCULAR IS PUBLISHED AT PP. 624 AND 625 O F INCOME-TAX LAW BY CHATURVEDI & PITHISARIA, VOL-I, IS REPRODUCED BELOW : '16.3 THE EXPRESSION 'FEES FOR TECHNICAL SERVICES' HAS BEEN DEFINED TO MEAN ANY CONSIDERATION (INCLUDING ANY LUMP SUM CONSIDERA TION) FOR THE RENDERING OF MANAGERIAL, TECHNICAL OR CONSULTANCY SERVICES, INCL UDING THE PROVISION OF SERVICES OF TECHNICAL OR OTHER PERSONNEL. IT, HOWEV ER, DOES NOT INCLUDE FEES OF THE FOLLOWING TYPES, NAMELY : (I) ANY CONSIDERATION RECEIVED FOR ANY CONSTRUCTION , ASSEMBLY, MINING OR LIKE PROJECT UNDERTAKEN BY THE RECIPIENT. SUCH CONSIDERA TION HAS BEEN EXCLUDED FROM THE DEFINITION ON THE GROUND THAT SUCH ACTIVIT IES VIRTUALLY AMOUNT TO CARRYING ON BUSINESS IN INDIA FOR WHICH CONSIDERABL E EXPENDITURE WILL HAVE TO BE INCURRED BY A NON-RESIDENT AND ACCORDINGLY IT WI LL NOT BE FAIR TO TAX SUCH CONSIDERATION IN THE HANDS OF A FOREIGN COMPANY ON GROSS BASIS OR TO RESTRICT THE EXPENDITURE INCURRED FOR EARNING THE SAME TO 20 PER CENT OF THE GROSS AMOUNT AS PROVIDED IN NEW SECTION 44AD OF THE IT ACT. CONSIDERATION FOR ANY CONSTRUCTION, ASSEMBLY, MINING OR LIKE PROJECT WILL , THEREFORE, BE CHARGEABLE TO TAX ON NET BASIS, I.E., AFTER ALLOWING DEDUCTION IN RESPECT OF COSTS AND EXPENDITURE INCURRED FOR EARNING THE SAME AND CHARG ED TO TAX AT THE RATES APPLICABLE TO THE ORDINARY INCOME OF THE NON-RESIDE NT AS SPECIFIED IN THE RELEVANT FINANCE ACT . (II) CONSIDERATION WHICH WILL BE CHARGEABLE TO TAX IN THE HANDS OF THE RECIPIENT UNDER THE HEAD 'SALARIES'.' 13. IT IS CLEAR FROM THE AFORESAID CIRCULAR THAT TH E EXPRESSION 'FEES FOR TECHNICAL SERVICES' DOES NOT INCLUDE CONSIDERATION FOR ANY CO NSTRUCTION, ASSEMBLY, MINING OR LIKE PROJECT UNDERTAKEN BY THE RECIPIENT. SUCH CONSIDERATION HAS BEEN EXCLUDED FROM THE DEFINITION ON THE GROUND THA T SUCH ACTIVITIES VIRTUALLY AMOUNT TO CARRYING ON BUSINESS FOR WHICH CONSIDERAB LE EXPENDITURE WILL HAVE TO BE INCURRED BY THE RECIPIENT. A PERUSAL OF THE O PERATION AND MAINTENANCE AGREEMENT EXECUTED BETWEEN GSECL (APPELLANT-COMPANY ) AND GEB CLEARLY SHOWS THAT THE AGREEMENT WAS NOT ONLY FOR PROVIDING OF SKILLED AND TECHNICAL SERVICES RELATING TO OPERATION AND MAINTENANCE OF P OWER PLANTS BUT THE ENTIRE BUSINESS ACTIVITIES OF OPERATION AND MAINTENANCE OF POWER PLANTS WERE ENTRUSTED TO GEB, WHO HAD LONG-STANDING EXPERIENCE IN THE FIELD OF OPERATION AND MAINTENANCE OF POWER PLANTS OF SIMILAR CAPACITY . THE AFORESAID CONTRACT REQUIRES GEB TO CARRY OUT ALL OR ANY OF THE ACTIVIT IES REQUIRED FOR OPERATION AND MAINTENANCE OF POWER PLANTS. SUCH AGREEMENT HAS BEE N EXECUTED WITH A VIEW TO ENTRUST THE ENTIRE RESPONSIBILITIES OF CARRYING OUT IMPORTANT PART OF BUSINESS ACTIVITIES OF POWER PROJECT, VIZ. TO CARRY ON THE B USINESS ACTIVITIES OF OPERATION AND MAINTENANCE OF PLANTS. A SEPARATE AGREEMENT HAS ALSO BEEN EXECUTED BETWEEN THE APPELLANT-COMPANY AND GEB ON 22ND JAN., 1997, IN RELATION TO SALE/DISTRIBUTION OF ELECTRICITY PRODUCED BY THE AP PELLANT-COMPANY AS PER THE TERMS OF POWER PROJECT AGREEMENT. ON A CAREFUL READ ING OF THE ENTIRE DHAR A UTOMOTIVES P. LTD ITA NO. 101 T O 103/IND/18 11 AGREEMENT DT. 14TH OCT., 1998, WE ARE OF THE VIEW T HAT THE PAYMENT MADE BY THE APPELLANT-COMPANY TO GEB WAS A PAYMENT MADE FOR CARRYING OUT THE MEGA PROJECT OF ENTIRE OPERATION AND MAINTENANCE OF POWE R PLANTS UNDERTAKEN BY THE GEB. SUCH PAYMENT WOULD CAME WITHIN THE LIMB OF EXC LUSIONARY PART, VIZ. 'CONSIDERATION FOR LIKE PROJECT' EXCLUDED IN THE DE FINITION OF 'FEES FOR TECHNICAL SERVICES' GIVEN IN EXPLN. 2 TO SECTION 9(1)(VII) OF THE ACT. SUCH PAYMENT CANNOT ALSO BE TREATED AS PAYMENT OF FEES FOR PROFESSIONAL SERVICES AS CONTEMPLATED IN SECTION 194J . 14. IT MAY NOW BE RELEVANT TO REPRODUCE MAIN PART O F SECTION 194C OF THE ACT; '194C. (1) ANY PERSON RESPONSIBLE FOR PAYING ANY SU M TO ANY RESIDENT (HEREAFTER IN THIS SECTION REFERRED TO AS THE CONTR ACTOR) FOR CARRYING OUT OF A CONTRACT BETWEEN THE CONTRACTOR AND : (A) THE CENTRAL GOVERNMENT OR ANY STATE GOVERNMENT; OR (B) ANY LOCAL AUTHORITY; OR (C) ANY CORPORATION ESTABLISHED BY OR UNDER A CENTR AL', STATE OR PROVINCIAL ACT ; OR (D) ANY COMPANY; OR.......... SHALL, AT THE TIME OF CREDIT OF SUCH SUM TO THE ACC OUNT OF THE CONTRACTOR OR AT THE TIME OF PAYMENT THEREOF IN CASH OR BY ISSUE OF A CH EQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEVER IS EARLIER, DEDUCT AN AMOUNT EQUAL TO : (I) ONE PER CENT IN CASE OF ADVERTISING, (II) IN ANY OTHER CASE TWO PER CENT, OF SUCH SUM AS INCOME TAX ON INCOME COMPRISED THEREIN.' THE HON'BLE APEX COURT HAS EXPLAINED THE MEANING AN D SCOPE OF SECTION 194C IN THE CASE OF ASSOCIATED CEMENT CO. LTD. V. CIT (SUPRA) AS UNDER, AT P. 440 : 'WE SEE NO REASON TO CURTAIL OR TO CUT DOWN THE MEA NING OF THE PLAIN WORDS USED IN THE SECTION. 'ANY WORK' MEANS ANY WORK AND NOT A 'WORKS CONTRACT', WHICH HAS A SPECIAL CONNOTATION IN THE TAX LAW. IND EED, IN THE SUB-SECTION, THE 'WORK' REFERRED TO THEREIN EXPRESSLY INCLUDES SUPPL Y OF LABOUR TO CARRY OUT A WORK. IT IS A CLEAR INDICATION OF THE LEGISLATURE T HAT THE 'WORK' IN THE SUB- SECTION IS NOT INTENDED TO BE CONFINED TO OR RESTRI CTED TO 'WORKS CONTRACT'. 'WORK' ENVISAGED IN THE SUB-SECTION, THEREFORE, HAS A WIDE IMPORT AND COVERS 'ANY WORK' WHICH ONE OR THE OTHER OF THE ORGANISATI ONS SPECIFIED IN THE SUB- SECTION CAN GET CARRIED OUT THROUGH A CONTRACTOR UN DER A CONTRACT AND FURTHER IT INCLUDES OBTAINING BY ANY OF SUCH ORGANISATIONS SUP PLY OF LABOUR UNDER A CONTRACT WITH A CONTRACTOR FOR CARRYING OUT ITS WOR K WHICH HAVE FALLEN OUTSIDE THE 'WORK', BUT FOR ITS SPECIFIC INCLUSION IN THE S UB-SECTION.' THE AGREEMENT EXECUTED BETWEEN APPELLANT-COMPANY AN D GEB IS NOT AN AGREEMENT SIMPLICITER FOR ACQUIRING TECHNICAL SERVI CES OR PROFESSIONAL SERVICES FROM THEM BUT IT IS AN AGREEMENT REQUIRING GEB TO E XECUTE THE WORK CONTRACT OF OPERATING AND MAINTAINING THE MEGA POWER PROJECT. S UCH A CONTRACT WILL COME WITHIN THE AMBIT AND SCOPE OF SECTION 194C OF THE ACT IN VIEW OF THE AFORESAID JUDGMENT OF HON'BLE APEX COURT. THE ASSESSEE HAD, T HEREFORE, RIGHTLY DEDUCTED TAX AT SOURCE AS PER SECTION 194C OF THE ACT. DHAR A UTOMOTIVES P. LTD ITA NO. 101 T O 103/IND/18 12 13. THE ABOVE DECISION OF THE AHMEDABAD TRIBUNAL WA S FOLLOWED BY THE PUNE BENCH IN THE CASE OF BHARAT FORGE LTD . (SUPRA) HOLDING THAT THE PAYMENT MADE TO M/S ENERCON WAS FOR A COMPREHENSIVE CONTRACT COVERING ALL THESE FUNCTIONS ON WHICH THE APPELLANT COMPANY HAS RIGHTLY DEDUCTED TAX U/S 194C OF THE ACT. 14. FURTHER THE DELHI TRIBUNAL IN THE CASE OF DCIT VS. PARASRAMPURIA SYNTHETICS LTD. (SUPRA) HAS ELABORATED THE CONCEPT OF FEES FOR TECHNICAL SERVICES OBSERVING AS FOLLOWS: 'IN CERTAIN CASES, IT IS SEEN THAT THERE MAY BE USE OF SERVICES OF TECHNICALLY QUALIFIED PERSONS TO RENDER THE SERVICES BUT THAT ITSELF DO NOT BRING THE AMOUNT PAID AS 'FEES FOR TECHNICAL SERVICES' WITHIN THE MEANING OF EXPLN. 2 TO S. 9(1)(VII). IN THE PRESENT CASE, THE AMOUNTS PAID ARE TOWARDS ANNUAL MAINTENANCE CONTRACT OF CERTAIN MACHINERY OR FOR CONVERTING POY INTO TEXTURED/TWISTED YARN. THE TECHNOLOGY OR THE TECHNICAL KNOWLEDGE OF THE PERSONS IS NOT MADE AVAILABLE TO THE ASSESSEE BUT ONLY BY USING SUCH TECHNICAL KNOWLEDGE SERVICES ARE RENDERED TO THE ASSESSEE. IN SUCH A CASE, I T CAN NOT B E S AID T HAT THE AMOUNT IS PAID AS 'FEES FOR TECHNICAL SERVICES'. RENDERING SERVICES BY USING TECHNICAL KNOWLEDGE OR SKILL IS DIFFERENT THAN CHARGING FEES FOR TECHNICAL SERVICES. IN A LATTER CASE, THE TECHNICAL SERVICES ARE MADE AVAILABLE DUE TO WHICH THE ASSESSEE ACQUIRED CERTAIN RIGHT WHICH CAN BE FURTHER USED. IN THE PRESENT CASE, IT IS NOT SO. THE PERSONS RENDERING CERTAIN SERVICES HAS ONLY MAINTAINED MACHINERY OR CONVERTED YARN BUT THAT KNOWLEDGE IS NOT NOW VESTED WITH THE ASSESSEE BY WHICH ITSELF IT CAN DO RESEARCH WORK. IN THE CIRCUMSTANCES, THE AMOUNT PAID CANNOT BE CONSIDERED AS FEES FOR TECHNICAL SERVICES WITHIN THE MEANING OF S. 194J OF THE ACT'. 15. FROM GOING THROUGH THE FACTS OF THE INSTANT CAS E, IN THE LIGHT OF THE ABOVE DECISIONS AS WELL AS THE PROVISIONS OF LAW IS PROVIDED U/S 194C & 194J OF THE ACT, WE ARE OF THE CONSIDERED VIEW THAT THE ALLEGED PAYMENT MADE FOR OPERATION & MAINTENANCE OF THE WIND MILL S PAID BY THE DHAR A UTOMOTIVES P. LTD ITA NO. 101 T O 103/IND/18 13 ASSESSEE COMPANY TO VARIOUS PAYEES WAS UNDER A COMP OSITE CONTRACT AND THE DEDUCTION OF TAX ON SUCH PAYMENT WAS REQUIR ED TO BE MADE U/S 194C OF THE ACT @ 2%. THE REVENUE AUTHORITIES H AVE FAILED TO REFER TO ANY OF THE SPECIFIC CLAUSE OF THE AGREEMENT WHIC H COULD SHOW THAT THE AMOUNT HAS BEEN PAID TOWARDS TAKING THE TECHNIC AL SERVICES THROUGH WHICH THE ASSESSEE HAS ACQUIRED CERTAIN RIG HTS WHICH COULD BE USED IN THE FUTURE. THEREFORE, THERE REMAINS NO DIS PUTE THAT THE ALLEGED PAYMENT IS A PAYMENT FOR CONTRACTUAL PAYMEN T OF LABOUR FOR OPERATIONS AND MAINTENANCE WORK LIABLE FOR DEDUCT ION OF TAX AT SOURCE U/S 194C OF THE ACT AND NOT 194J OF THE ACT. ACCORDINGLY, THIS COMMON ISSUE FOR A.Y. 2013-14 TO 2015-16 IS ALLOWED IN FAVOUR OF THE ASSESSEE. 16. APROPOS TO THE SECOND ISSUE WHICH PERTAINS TO A .Y. 2013-14 ONLY, BRIEF FACTS ARE THAT THE ASSESSEE WAS REQUIRED TO C OLLECT TAX AT SOURCE ON THE SALE OF SCRAP. THE LD. AO OBSERVED THAT THER E WAS A SHORT DEDUCTION OF TCS AT RS.9,596/- AND AFTER ADDITION I NTEREST OF RS.2,303/-, DEMAND OF RS.11,899/- HAS BEEN RAISED A GAINST THE ASSESSEE. ASSESSEE COULD NOT GET RELIEF BEFORE THE LD. CIT(A). 17. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 18. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUB MITTED THAT THE CALCULATION OF TCS AT THE END OF THE REVENUE AUTHOR ITIES IS INCORRECT, DHAR A UTOMOTIVES P. LTD ITA NO. 101 T O 103/IND/18 14 SINCE THE ASSESSEE HAS ALREADY DEPOSITING THE ENTIR E TAX COLLECTED AT SOURCE OF RS.21,363/- FOR ALL THE FOUR QUARTERS AND THE EVIDENCE OF PAYMENT SEEMS TO HAVE BEEN OVERLOOKED BY THE REVENU E AUTHORITIES. 19. PER CONTRA, LD. DR SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 20. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. THE ASSESSEE HAS CHALLENGED THE DEMAND O F RS.9596/- BEING DEFAULT IN COLLECTION OF TCS ALLEGED BY THE LD. AO. BEFORE US THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ENTIRE TCS OF RS.21,363/- CALCULATED @ 1% OF THE RS.21,36,296/- STANDS ALREAD Y DEPOSITED. WE FIND THAT THE FIGURE OF SALE OF SCRAP OF RS.21,36,2 96/- IS NOT UNDISPUTED. THE ASSESSING OFFICER HAS COMPUTED THE NON COLLECTION OF TCS ON THE AMOUNT OF SALE OF SCRAP OF RS.9,59,608/- WHICH IS THE DIFFERENCE BETWEEN THE TOTAL SALE OF SCRAP OF RS.21 ,36,296 LESS RS.11,76,688) ON WHICH TCS HAS BEEN COLLECTED. THE LD. AO HAS NOT DOUBTED ON THE COLLECTION OF TCS OF RS.11,76,688/- PAID BY THE ASSESSEE FOR SALE OF SCRAP BUT FAILED TO GIVE CREDI T FOR THE TCS CLAIMED TO HAVE BEEN DEPOSITED OF RS.9596/-. IN OUR VIEW THIS ISSUE NEEDS TO RESTORED BACK TO TH E FILE OF LD. AO SO THAT THE ASSESSEE CAN PROVE THE PAYMENT OF TAX DEDU CTED AT SOURCE AT RS.21,363/- WHICH I NTER ALIA INCLUDES THE TCS PAYMENT OF RS.9596/-. IF THE LD. AO IS SATISFIED WITH THE NECESSARY SUPPO RTING EVIDENCE, THE DHAR A UTOMOTIVES P. LTD ITA NO. 101 T O 103/IND/18 15 ALLEGED DEMAND OF RS.9596/- AND THE INTEREST CHARGE D THEREON MAY BE DELETED AFTER GIVING REASONABLE OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE. 20. IN THE RESULT, THE SECOND ISSUE FOR LOWER/NON-D EDUCTION OF TCS RAISED BY THE ASSESSEE IN GROUND NO.3 OF THE ASSESS EES APPEAL FOR A.Y. 2013-14 IS ALLOWED FOR STATISTICAL PURPOSES. 21. IN THE RESULT, ASSESSEES APPEAL FOR A.Y. 2013- 14 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND THAT FOR A.Y. 2014-15 & A.Y. 2015-16 ARE ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 13.09.20 19. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 13 TH SEPTEMBER, 2019 PATEL/PS COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT. REGISTRAR, I.T .A.T., INDORE