ITO (TDS) 3(4), MUMBAI V. UNIVERSAL TRAFFIC COMPANY, MUMBAI

ITA 1429/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84418 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2014
• Appeal Filed By: Department
• Bench Allotted: E
• Next Hearing Date: 08-12-2014
• Assessment Year: 2011-2012
• Appeal Filed On: 19-02-2013
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIPDR
• Assessee Lawyers: ATUL MODIAR
• Keywords: Double taxation relief; Non-deduction of tax
• Section: 133A; 194C; 201(1)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E , MUMBAI .. , ! , ' BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ITA NOS.1426 TO 1429/MUM/2013 (AYS : 2008-09 TO 20 11-12) INCOME TAX OFFICER(TDS)-3(4) 10 TH FLOOR, ROOM NO.1011, SMT. K.G.M. AYURVEDI HOSPITAL BUILDING, CHARNI ROAD, MUMBAI-400 002. / VS. M/S. UNIVERSAL TRAFFIC CO. 301, ELITE SQUARE, 3 RD FLOOR PERIN NARIMAN STREET, FORT MUMBAI-400 001. PA NO.AAAFU 0403 H ( $% / // / APPELLANT) ( &'$% / RESPONDENT) ITA NOS.1473 TO 1475/MUM/2013 (AYS: 2008-09 TO 2010 -11) INCOME TAX OFFICER(TDS)-1(4) ROOM NO.808, K.G. MITTAL HOSPITAL BLDG., CHARNI ROAD MUMBAI-2 / VS. M/S. EXPRESS TRANSPORT PVT. LTD. 2 ND FLOOR, KULKARNI PATIL BHAVAN, 14, MARZBAN ROAD, FORT, MUMBAI-400 001. PA. NO.AAACE 2632 F ( $% / // / APPELLANT) ( &'$% / RESPONDENT) $% ( ) /APPELLANT BY : SHRI NEIL PHILIP-DR &'$% ( ) /ASSESSEE BY : SHRI ATUL MODI-AR ( *+ / / / / DATE OF HEARING : 08.12.2014 ,-. ( *+ / DATE OF PRONOUNCEMENT : 17.12.2014 2 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 !/ / O R D E R PER JOGINDER SINGH (JM) : THIS BUNCH OF SEVEN APPEALS IS BY THE DEPARTMENT DIRECTED AGAINST THE COMMON ORDER PASSED BY LD. CI T(A) DATED 22/11/2012 FOR THE ASSESSMENT YEARS 2008-09 TO 2011 -12 IN THE CASE OF UNIVERSAL TRAFFIC CO. AND ORDER DATED 1 6.11.2012 FOR THE ASSESSMENT YEARS 2008-09 TO 2010-11 IN THE CASE OF EXPRESS TRANSPORT PVT. LTD. THE GROUND RAISED PERTA INS TO THAT THE ASSESSEE WAS NOT LIABLE TO DEDUCT TAX U/S 194 I OF THE INCOME-TAX ACT AGAINST THE ORDER OF THE ASSESSING O FFICER THAT THE ASSESSEE WAS IN DEFAULT WITHIN THE PROVISION OF SECTION 194 I OF THE ACT IN HIS ORDER PASSED U/S 201(1) AND 201 (IA) OF THE ACT. 2. DURING HEARING OF THESE APPEALS THE LD. DR, SHRI NEIL PHILIP DEFENDED THE CONCLUSION DRAWN IN THE ORDER O F THE ASSESSING OFFICER PASSED U/S 201(1) AND 201(1A) OF THE ACT RESPECTIVELY. ON THE OTHER HAND, SHRI ATUL MODI, LD. COUNSEL FOR THE ASSESSEE DEFENDED THE CONCLUSION DRAWN IN T HE IMPUGNED ORDER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. FIRST WE SHALL T AKE UP THE APPEALS OF THE M/S UNIVERSAL TRAFFIC COMPANY (ITA N O. 1426 TO 1429/MUM/2013). THE FACTS, IN BRIEF ARE THAT THE A SSESSEE, A PARTNERSHIP CONCERN, CARRIES ON THE BUSINESS OF CUS TOM HOUSE AGENTS. SURVEY OPERATION U/S 133A OF THE ACT WAS C ARRIED OUT 3 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 ON 24/02/2011, AT THE PREMISES OF THE ASSESSEE, TO VERIFY THE COMPLIANCE WITH THE PROVISION OF CHAPTER XVII-B OF THE ACT. IT WAS NOTED BY THE ASSESSING OFFICER THAT THE ASSESSE E HAS NOT DEDUCTED TAX AT SOURCE WITH RESPECT TO VARIOUS EXPE NSES LIKE FREIGHT CHARGES, SEAL WIRE CHARGES, WAREHOUSE CHARG ES, DETENTION CHARGED, DE-STUFFING CHARGES, CRANE/FORK LIFT CHARGES AND SURVEY FEE ETC. A SHOW CAUSE NOTICE WAS ISSUE D TO THE ASSESSEE AS TO WHY THE ASSESSEE MAY NOT BE TREATED AS ASSESSEE IN DEFAULT FOR NON DEDUCTION OF TAX AT S OURCE ON THE AFORESAID EXPENSES. IN RESPONSE, THE ASSESSEE CLAI MED THAT THE PROVISIONS OF SECTION 194 C AND 194J OF THE ACT ARE NOT APPLICABLE AS THERE WAS NO CONTRACT OF THE ASSESSEE WITH THE PAYEES AND FURTHER THE ASSESSEE IS MERELY ACTING AS AN AGENT THEREFORE, NOT RESPONSIBLE TO DEDUCT TAX ON THE PAY MENTS SO MADE. HOWEVER, THE ASSESSING OFFICER DID NOT FIND F AVOUR WITH THE EXPLANATION OF THE ASSESSEE AND TREATED THE ASS ESSEE IN DEFAULT U/S 194C R.W.S. 194 J AND ACCORDINGLY, RAIS ED THE DEMAND U/S 201 AND INTEREST THEREUPON. 2.2. ON APPEAL, BEFORE THE LD.CIT(A), THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESSING OFFICER, WHEREIN THE LD . COMMISSIONER OF INCOME TAX (APPEALS) DECIDED IN FAV OUR OF THE ASSESSEE. THE RELEVANT PORTION FROM THE IMPUGNED O RDER IS REPRODUCED HEREUNDER FOR READY REFERENCE: 5.7 1 HAVE CONSIDERED THE ABOVE SUBMISSIONS OF THE APPELLANT, FACTS AND CIRCUMSTANCES OF THE CASE AS W ELL AS THE ORDER PASSED BY THE AO. IN RESPECT OF FREIGHT CHARG ES, DETENTION CHARGES AND DE-STUFFING CHARGES, IT IS NOTED FROM T HE APPELLANT'S P'1 4 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 SUBMISSIONS AND THE DETAILS OF PAYMENTS THAT THESE CHARGES WERE PAID TO FOREIGN LINES AND/OR THEIR AGENTS. THE FREI GHT CHARGES WERE PAID TO SHIPPING LINES FOR TRANSPORT OF CARGO. DE-STUFFING CHARGES PERTAINED TO HANDLING & UNLOADING OF CARGO FROM THE SHIPS AND DETENTION CHARGES WERE IN THE NATURE OF P ENAL PAYMENTS FOR DELAY IN LOADING/ UNLOADING OF CONSIGN MENT BEYOND THE FREE TIME PROVIDED BY THE FOREIGN LINES. PAYMENTS TO FOREIGN LINES OR TO THEIR AGENTS WERE MADE BY THE A PPELLANT ON BEHALF AND ON ACCOUNT OF ITS CLIENTS FOR WHICH REIMBURSEMENTS WERE CLAIMED. THE AMOUNTS PAID BY TH E APPELLANT TO THE FOREIGN LINES AND/OR THEIR AGENTS DID NOT CONSTITUTE APPELLANTS OWN EXPENDITURE. IN THE COURS E OF APPEAL, THE APPELLANT HAS FILED DOCUMENTS DEMONSTRATING THA T THE SHIPPING DOCUMENTS WERE PREPARED DIRECTLY IN THE NA MES OF THE CLIENTS AND NOT IN THE NAME OF THE APPELLANT. ON TH ESE FACTS, THEREFORE, IT IS EVIDENT THAT THE APPELLANT WAS ONL Y AN INTERMEDIARY IN THE TRANSACTION. THE PRIVITY OF CON TRACT WAS NOT BETWEEN THE APPELLANT AND THE FOREIGN LINES, TO WHO M, FREIGHT, DE- STUFFING AND DETENTION CHARGES WERE PAID. THEREFORE , THE APPELLANT WAS NOT THE PERSON RESPONSIBLE TO DEDUCT TAX ON PAYMENTS MADE TO FOREIGN LINES ON BEHALF OF ITS CLI ENTS. 5.8 PROVISIONS OF CHAPTER XVII-B ARE MACHINERY PROVISIONS FOR COLLECTION AND PAYMENT OF TAXES. IT CREATES AND FASTENS VICARIOUS LIABILITY ON VARIOUS PERSONS WHILE MAKING PAYMENTS OR CREDITING INCOME TO THE ACCOUNTS OF THE PAYEES. IT IS THEREFORE MATERIAL TO DETERMINE THE LOCUS OF THE APPELLANT IN THE TRANSACTIONS IN WHICH PAYMENTS WER E MADE TO FOREIGN LINES IN CONNECTION WITH SHIPMENT AND HANDL ING OF GOODS, BELONGING TO APPELLANT'S CLIENTS. ADMITTEDLY , IN THE PRESENT CASE THE GOODS TRANSPORTED BY FOREIGN LINES DID NOT BELONG TO THE APPELLANT. THE IMPORTER/EXPORTER AVAI LED APPELLANT'S SERVICES FOR COMPLETING CUSTOMS FORMALI TIES AND GETTING THE GOODS CLEARED. FROM SAMPLE COPIES OF SH IPPING 5 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 DOCUMENTS AND STATEMENT OF ACCOUNT, IT IS NOTED THA T THE SHIPPING DOCUMENTS WERE DRAWN UP IN THE NAMES OF TH E IMPORTER/EXPORTER. THE APPELLANT ALSO DEMONSTRATED THAT REIMBURSEMENT OF ACTUAL AMOUNT OF FREIGHT, DE-STUFF ING AND DETENTIONS CHARGES ONLY WERE CLAIMED FOR WHICH BILL S WERE RAISED BY FOREIGN LINES. NO INCOME ELEMENT WAS EMBE DDED IN THE SAME. ON TOTALITY OF THESE FACTS, THEREFORE IT IS C LEAR THAT THE APPELLANT WAS NOTHING BUT A PASS THROUGH ENTITY IN THE TRANSACTION BETWEEN ITS CLIENTS AND THE FOREIGN LIN ES THROUGH WHOM THE GOODS BELONGING TO THE CLIENTS WERE BEING TRANSPORTED. 5.9 ON SIMILAR FACTS, HON'BLE DELHI HIGH COURT, IN THE CASE OF CIT VS CARGO LINKERS (SUPRA), AS CITED BY THE APPEL LANT HAS HELD THAT SINCE THE CONTRACT WAS ACTUALLY BETWEEN THE EX PORTER AND THE SHIPPING LINES AND THE ASSESSEE WAS ONLY AN INTERME DIARY, IT WAS THEREFORE NOT A PERSON RESPONSIBLE FOR DEDUCTION OF TAX IN TERMS OF SEC 194C. IN THAT CASE ALSO, THE ASSESSEE WAS A PARTNERSHIP FIRM WHICH CARRIED ON BUSINESS OF CLEAR ING AND FORWARDING AGENCY. THE ASSESSEE COLLECTED FREIGHT C HARGES FROM EXPORTERS SENDING GOODS THROUGH AIRLINES. FOR THE S ERVICES RENDERED, THE ASSESSEE CHARGED COMMISSION FROM THE AIRLINES. ACCORDING TO THE AO, THE ASSESSEE WAS LIABLE TO DED UCT TAX FROM FREIGHT CHARGES PAID TO AIRLINES. ON APPEAL TH E CIT(A) AND THE TRIBUNAL HELD THAT THE ASSESSEE WAS ONLY AN INTERMEDIARY BETWEEN THE EXPORTERS AND THE AIRLINES AND THEREFORE NOT A PERSON WHO WAS LIABLE TO DEDUCT TAX U/S 1940. ON FURTHER APPEAL, THE DELHI HIGH COURT UPHELD THE TRIBUNAL'S FINDING AND DISMISSED THE REVENUE'S APPEAL. FACTS O F THE APPELLANT'S CASE ARE IDENTICAL AND THEREFORE THE RA TIO LAID DOWN IN THIS DECISION IS APPLICABLE. 5.10 BEFORE THE AO TREATS A PERSON TO BE AN AS ASSE SSEE IN DEFAULT U/S 201 OF THE ACT FOR NON DEDUCTION OF TAX U/S 194C, HE MUST GATHER SOME EVIDENCE TO SHOW THAT THERE EXI STED A LEGALLY BINDING WORK CONTRACT BETWEEN THE PARTIES SO AS TO CREATE 6 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 VICARIOUS LIABILITY TO DEDUCT TAX U/S 194C ON THE PAYER. IN THE CIRCUMSTANCES. SEC 1940 COULD NOT BE INVOKED MERELY BECAUSE THE APPELLANT HAD MADE PAYMENTS OF FREIGHT CHARGES, THIS VIEW ALSO FINDS SUPPORT FROM THE DECISIONS OF PUNJAB & H ARYANA HIGH COURT IN THE CASES OF CIT VS BHAGWATI STEEL (SUPRA) AND CIT VS UNITED RICE LAND LIMITED (SUPRA) CITED THE APPELLAN T. SIMILAR WAS THE VIEW OF ITAT KOLKATA BENCH WHICH WAS APPROV ED BY THE CALCUTTA HIGH COURT IN THE CASE OF CIT VS STUMM INDIA (SUPRA). IN THESE DECISIONS, IT HAS BEEN JUDICIALLY HELD THAT UNLESS THERE EXISTS A CONTRACT BETWEEN THE ASSESSEE AND THE TRANSPORTERS WHO TRANSPORTED THE GOODS, THE ASS ESSEE COULD NOT BE HELD LIABLE TO DEDUCT TAX U/S 194C. 5.11 THE FREIGHT, DE-STUFFING AND DETENTION CHARGES RECEIVED BY THE FOREIGN SHIPPING LINES ARE INTEGRAL PART OF THE REVENUES GENERATED BY THEM FROM THE OPERATIONS OF SHIPS AND ACCORDINGLY THEY ARE CHARGEABLE TO TAX AS PROFITS O F THE SHIPPING BUSINESS. THE APPELLANT HAS FURNISHED THE PARTICULARS OF THESE PAYMENTS FROM WHICH IT IS GATHERED THAT TH E RECIPIENTS WERE ALL FOREIGN LINES OR THEIR AGENTS. THE TAXABIL ITY OF THE PROFITS OF FOREIGN SHIPPING LINES IS SUBJECTED TO APPLICATI ON OF DTAAS OR CBDT CIRCULAR NO. 723 DATED 19.09.1995. WHEREVER DT AAS ARE APPLICABLE, INCOME OF FOREIGN SHIPPING LINE IS NOT CHARGEABLE IN INDIA BUT THE SAME IS TAXABLE IN THE COUNTRY WHERE THE SHIPPING COMPANY IS DOMICILED AND HAS ITS PLACE OF RESIDENCE . WITH REGARD TO FOREIGN SHIPPING LINES WHICH DO NOT COME WITHIN THE PURVIEW OF DTAAS, INCOME OF SUCH SHIPPING COMPANIES IS ASSESSABLE UNDER SECTION 172 OF THE ACT WHICH IS A CODE IN ITSELF. IN CIRCULAR NO. 723 DATED 19.09.1995, THE B OARD HAS CLARIFIED THAT THE PROVISIONS RELATING TO TAX DEDUC TION AT SOURCE WILL NOT BE APPLICABLE WHILE MAKING PAYMENTS TO FOR EIGN LINES OR THEIR AGENTS. I THEREFORE HOLD THAT THE APPELLANT D ID NOT HAVE ANY LIABILITY TO DEDUCT TAX AT SOURCE ON THE PAYMENTS M ADE TO FOREIGN LINES TOWARDS FREIGHT. DE-STUFFING & DETENTION CHAR GES. 5.12 FROM THE IMPUGNED ORDERS, I FIND THAT THE AO H AS NOT 7 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 DISPUTED THE FACT THAT THE APPELLANT HAD FURNISHED PARTICULARS OF PAYMENTS MADE TO SHIPPING LINES AND THEIR AGENTS. T HE DETAILS FURNISHED SHOW THAT THE PAYMENTS WERE MADE TO FOREI GN LINES OR THEIR AGENTS. IN THE CIRCUMSTANCES, THE PR OVISIONS OF SECTION 1940 DO NOT HAVE AN APPLICATION AND THE ISS UE COULD ONLY BE CONSIDERED UNDER SECTION 195 OF THE ACT, IF ANY. AS PER CBDT NOTIFICATION NO.SO 1680(E) 250/2007 DATED 28.09.200 7, THE JURISDICTION TO INITIATE PROCEEDING UNDER SECTION 195 DID NOT VEST WITH THE OFFICERS UNDER THE CHARGE OF CIT( TDS). ON THE JURISDICTIONAL ASPECT ALSO THEREFORE THE AO WAS NOT JUSTIFIED IN TREATING THE APPELLANT TO BE AN ASSESSEE-IN-DEFA ULT. 5.13 FURTHER, THE APPELLANT'S RELIANCE ON THE DECI SION OF THE ITAT DELHI IN THE CASE OF HAH LOGISTICS VS DCLT IN ITA NO. 1864/DEL/2011 IS ALSO WELL PLACED, WHERE THE DELHI ITAT CONSIDERED SOMEWHAT SIMILAR ISSUE. IN THE CASE BEFO RE THE DELHI ITAT, A PARTNERSHIP FIRM CARRIED ON THE BUSIN ESS OF C&F AGENCY. DURING THE RELEVANT YEAR, THE ASSESSEE INCU RRED VARIOUS EXPENSES WHICH INTER ALIA INCLUDED FREIGHT PAID TO DIFFERENT SHIPPING LINES FROM WHICH NO TAX WAS DEDUCTED AT SO URCE. SIMILARLY NO TAXES WERE DEDUCTED FROM OTHER CHARGES AND EXPENSES PAID BY THE ASSESSEE ON ACCOUNT OF ITS CLI ENTS FOR WHICH REIMBURSEMENTS WERE CLAIMED. ON THESE FACTS, THE TRIBUNAL, RELYING ON THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF CARGO LINKERS (SUPRA) HELD THAT THE ASSESSE E HAD NO LIABILITY TO DEDUCT TAX U/S 1940 OF THE ACT. SIMILA R VIEW HAS BEEN TAKEN BY THE DELHI TRIBUNAL IN ITS DECISION DATED 0 1 .08.2012 IN THE CASE OF JAY KAY FREIGHTERS PVT. LTD IN ITA 3407 /DEL/201 1. 5.14 ON TOTALITY OF THE FACTS AS DISCUSSED ABOVE, T HEREFORE, I HOLD THAT THE AO WAS NOT JUSTIFIED IN TREATING THE APPELLANT TO BE AN ASSESSEE-IN-DEFAULT FOR NON-DEDUCTION OF TAX AT SOURCE FROM THE PAYMENTS OF FREIGHT, DE-STUFFING AND DETENTION CHARGES. THE AO IS THEREFORE DIRECTED TO DELETE THE DEMAND R AISED U/S 201(1)/(1A) IN RESPECT OF THE AFOREMENTIONED PA YMENTS. 5.15 WITH REGARD TO PAYMENT OF WAREHOUSING (CFS) 8 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 CHARGES, IT IS NOTED THAT THE APPELLANT BEING A CHA MADE THE PAYMENTS IN ITS CAPACITY AS AN INTERMEDIARY APPROVE D BY THE CUSTOMS DEPARTMENT. THE PAYMENT MADE BY THE CHA DOE S NOT REPRESENT EXPENDITURE OF THE CHA. IT IS FOR THI S REASON THAT CHA OBTAINS ONLY THE REIMBURSEMENT OF ACTUAL EXPENS E FROM ITS CLIENTS. THERE IS NO PRIVITY OF CONTRACT BETWEEN TH E APPELLANT I.E. THE PAYER AND THE CFS. THE GOODS WHICH PASS THROUGH CFS DO NOT BELONG TO THE APPELLANT AND THE SERVICES PRO VIDED FOR HANDLING OF CARGO TILL CLEARANCE OF CUSTOMS ARE NOT AVAILED OR UTILIZED BY THE APPELLANT BUT BY THE OWNER OF THE G OODS. THE LIABILITY TO BEAR CFS CHARGES IS ON THE OWNER OF TH E GOODS I.E. IMPORTER/EXPORTER AND THEREFORE SUCH CHARGES REPRES ENT EXPENDITURE OF THE OWNER OF THE CARGO AND NOT THE A PPELLANT. FOR THE REASONS SET OUT IN THE FOREGOING PARAGRAPHS , I AM OF THE OPINION THAT THE DEC I S I ON OF THE DELHI BENCHES OF ITAT IN THE CASE OF HAH LOGISTIC VS DCIT (SUPRA) & JAY KAY FREIGHTERS PVT. LTD (SUPRA) AND DELHI HIGH COURT IN THE CASE OF CARGO LINKES (SUPRA) ARE APPLICABLE WITH REGARD TO PAYMENTS MADE TO CFS. 5.16 AT THE TIME OF HEARING, THE LD. ARS HAVE ALSO INVITED MY ATTENTION TO THE PUBLICATIONS OF THE GOVERNMENT OF INDIA, IN WHICH THE ROLE OF THE CFS HAS BEEN DESCRI BED IN DETAIL. THESE PUBLICATIONS BELONG TO MINISTRY OF CO MMERCE AND PLANNING COMMISSION. A CONTAINER FREIGHT STATION HA S BEEN DEFINED BY THE MINISTRY OF COMMERCE TO MEAN A COMMON USER FACILITY WITH PUBLIC AUTHORITY STATUS E QUIPPED WITH FIXED INSTALLATIONS OFFERING SERVICES FOR HAND LING AND TEMPORARY STORAGE OF IMPORT/EXPORT GOODS CARRIED UN DER THE CUSTOMS CONTROL AND WITH CUSTOMS AND OTHER AGENCIES COMPETENT TO CLEAR THE GOODS FOR HOME USE, TEMPORAR Y ADMISSIONS, RE-EXPORT OR TRANSSHIPMENT OF CARGO. WI TH INCREASE OF THE INTERNATIONAL TRADE AND MECHANIZATION OF TRA NSPORT FACILITIES, CARGO IS LARGELY FERRIED ACROSS THE COU NTRIES IN CONTAINERS. THE PORTS & THE AIRPORTS FACE PROBLEMS OF CONGESTION. HENCE THEY REQUIRE SOLUTIONS FOR DE- 9 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 BOTTLENECKING TO ENSURE FREE AND EASIER MOVEMENT OF CARGO. THE IMPORT AND EXPORT OF GOODS CAN BE CARRIED OUT ONLY IN CONFORMITY WITH THE CUSTOMS ACT, 1962 AND PROCEDURES FRAMED TH ERE-UNDER. THE CUSTOMS PROCEDURES PROVIDE DEFINITIVE MEASURES BY WHICH GOODS ENTER OR EXIT COUNTRIES ON PAYMENT OF A PPLICABLE DUTIES. FOR REGULATING AND EXERCISING CONTROL OVER MOVEMENT OF CARGO IN AND OUT OF THE COUNTRY, THE CARGO IS AL LOWED AT NOTIFIED PLACES. TILL THE CUSTOMS FORMALITIES ARE C OMPLETE, THE GOODS ARE REQUIRED TO BE KEPT IN THE CUSTODY OF NOT IFIED PERSONS FOR SAFE STORAGE TILL THEY ARE CLEARED FOR HOME CONSUMPTION OR EXPORT. ON PERUSAL OF 'HANDLING OF C ARGO IN CUSTOMS AREA REGULATIONS, 2009' ISSUED BY THE DEPAR TMENT OF REVENUE, MINISTRY OF FINANCE WHICH ARE AVAILABLE IN THE PUBLIC DOMAIN, I FIND THAT THESE REGULATIONS DEFINE THE OBLIGATIONS AND RESPONSIBILITIES OF THE CUSTODIANS WHO ARE PERMITTED TO HANDLE THE CARGO WITHIN THE CUSTOMS NO TIFIED AREA TILL THEIR CLEARANCE UNDER THE CUSTOMS REGULATIONS. THESE REGULATIONS PROVIDE THE MANNER IN WHICH THE IMPORTED/EXPORTED GOODS CAN BE RECEIVED, STORED, DE LIVERED OR OTHERWISE HANDLED IN THE CUSTOMS AREA. THESE REGULA TIONS PRESCRIBE THE RESPONSIBILITIES OF THE CUSTODIANS WH O ARE ALLOWED TO OPERATE IN THE CUSTOMS AREA AND ARE PERMITTED TO HANDLE GOODS. SUCH PERSONS ARE CALLED AS CUSTOMS CARGO SER VICE PROVIDERS (CCSP) AND THEIR OBLIGATIONS AND RESPONSI BILITIES HAVE BEEN ELABORATELY SET OUT IN CLAUSE 6 OF THE SA ID REGULATIONS. THE CBEC CIRCULAR NO. 13 OF 2009 HAS C LARIFIED THAT CFS. PORT TRUST, AAI, ]CDS ETC. ARE ALL AUTHOR IZED TO FUNCTION AS CCSPS AND THEREFORE THEY ARE OBLIGED TO FUNCTION IN CONFORMITY WITH THE SAID REGULATIONS AND RENDER SER VICES TO THE IMPORTER AND EXPORTER OF CARGO IN COMPLYING WITH CU STOMS PROCEDURES AND REGULATIONS. CCSPS ARE THUS THE NOTI FIED CUSTODIANS WHO ASSIST THE CUSTOMS AUTHORITIES IN EN SURING THAT IMPORTERS/EXPORTERS OF GOODS COMPLY WITH THE STATUT ORY CUSTOMS PROCEDURES. 5.17 FOR THE SERVICES RENDERED, THE CCSPS ARE ENTIT LED TO 1 0 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 RECEIVE CHARGES WHICH ARE LEVIED IN CONFORMITY WITH TARIFF NOTIFICATIONS APPROVED BY THE CUSTOMS. IN THE MATTE R OF PAYMENT OF CHARGES TO THESE ENTITIES, THE IMPORTER/EXPORTER HAS NO OPTION BECAUSE THE CHARGES ARE STATUTORY IN NATURE. WITHOU T THESE PAYMENTS, THE GOODS CANNOT BE CLEARED FROM THE NOTI FIED CUSTOMS AREA. THE CHARGES ARE PAID ON THE BASIS OF WEIGHT O R VALUE OF CARGO. THE PAYMENTS MADE TO CCSPS ARE THEREFORE IN THE NATURE OF STATUTORY CUSTODIAL CHARGES PAID IN CONFORMITY W ITH CUSTOMS NOTIFIED REGULATIONS. I ALSO NOTE THAT IN ORDER TO ATTRACT THE PROVISION OF SECTION 194C THERE MUST BE A CONTRACT OR AN AGREEMENT. THE WORD 'CONTRACT' OR 'AGREEMENT' CONNO TES THAT THERE IS A MUTUAL UNDERSTANDING BETWEEN TWO PARTIES ON AGREED TERMS. AN AGREEMENT CAN ONLY BE BETWEEN TWO WILLING PARTIES WHO HAVE OPTION OF AGREEING OR NOT AGREEING TO THE TERMS. IN THE MATTER OF IMPORT OR EXPORT, THE OWNER OF THE GOODS HAS NO OPTION BUT TO UTILIZE THE SERVICES OF THE CCSPS FOR COMPLYING WITH CUSTOM REGULATIONS AND FORMALITIES TO OBTAIN C USTOM CLEARANCES. THE PAYMENTS ARE IN THE NATURE OF STATU TORY CHARGES FOR CUSTODY OF GOODS BY CUSTOMS NOTIFIED EN TITIES AND THE PAYER DOES NOT HAVE ANY OPTION BUT TO MAKE THES E PAYMENTS. I THEREFORE FIND FORCE IN THE SUBMISSIONS OF THE AP PELLANT THAT THE CHARGES PAID TO CCSPS (CFS IN THIS CASE) WERE NOT I N THE NATURE OF CONTRACTUAL PAYMENTS SO AS TO ATTRACT THE PROVIS IONS OF SECTION 194C. ACCORDINGLY, I HOLD THAT THE APPELLAN T DID NOT HAVE THE LIABILITY TO DEDUCT TAX UNDER SECTION 194C ON WAREHOUSING (CFS) CHARGES. THE AO IS THEREFORE DIRE CTED TO DELETE THE DEMAND RAISED U/S 201(1)/(1A) IN RESPECT OF THE AFOREMENTIONED PAYMENTS. 5.18 WITH REGARD TO SURVEY FEES, I FIND THAT THESE WERE PAID TO PERSONS OR AGENCIES APPOINTED BY THE CCSPS WHO C ONDUCT INSPECTION OF GOODS. THESE ARE THE CHARGES REQUIRED TO BE INCURRED BY THE IMPORTER/EXPORTER WHOSE GOODS ARE I NSPECTED BY THE SURVEYORS. INSPECTION OF THE CARGO IS ONE OF THE INTEGRAL STEPS IN THE CUSTOMS CLEARANCE PROCEDURE. THE REPOR T OF THE SURVEYOR IS FURNISHED IS TO THE IMPORTER/EXPORTER A ND THE 1 1 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 APPELLANT IN ITS CAPACITY AS AN INTERMEDIARY MAKES THE PAYMENT ON BEHALF OF IMPORTER/EXPORTER AND OBTAINS REIMBURSEMENTS. IT IS NOT A CASE WHERE THE APPELLAN T HAD PRIVITY OF CONTRACT WITH THE SURVEYOR OR THAT THE SERVICES WERE CONSUMED BY THE APPELLANT. THE APPELLANT BEING AN INTERMEDIARY APPOINTED BY THE IMPORTER/EXPORTER MER ELY ACTS AS A PASS THROUGH ENTITY THROUGH WHOM THE PAYMENT I S PASSED ON TO THE AGENCIES WHO PROVIDE THE SURVEY RE PORT. HAVING REGARD TO THE FACTS THAT THE APPELLANT WAS ONL Y AN INTERMEDIAR Y . I AM OF THE OPINION THAT THE APPELLANT BEING AN INTER MEDIARY CANNOT BE CONSIDERED TO BE A PERSON RESPONSIBLE FOR DEDUCTION OF TAX UNDER SECTION 194J. THE AU IS THEREFORE DIRE CTED TO DELETE THE DEMAND RAISED U/S 201(1)(1A' IN RESPECT OF THE AFOREMENTIONED PAYMENTS. 5.19 REGARDING SEAL WIRE CHARGES', IT IS NOTICED TH AT THESE PAYMENTS ARE MADE TO THE LOCAL LABOR OPERATING WITH IN THE CUSTOMS NOTIFIED PREMISES TO SEAL/UN-SEAL CONTAINERS/CARGO. THE LABOR WAS APPOINTED AT THE IN STANCE OF THE APPELLANT'S CLIENT AND THE PAYMENTS WERE MADE T O THEM ON BEHALF OF THE CLIENT. THE APPELLANT WAS ONLY AN INT ERMEDIARY THROUGH WHOM THE PAYMENTS WERE AFFECTED. FURTHERMOR E, AS CLAIMED BY THE APPELLANT THAT THE PAYMENTS MADE TO EACH LABOR ON BEHALF OF PER CONSIGNEE/EXPORTER DID NOT EXCEED RS.20.000/- PER INSTANCE OR RS.50.000/- IN AGGREGATE, PER LABOR . HENCE, THE PAYMENTS BEING BELOW THESE PRESCRIBED THRESHOLD LIM ITS UNDER SECTION 194C OF THE INCOME-TAX ACT, 1961, THERE WAS NO LIABILITY TO DEDUCT TAX AT SOURCE ON THE PART OF THE APPELLAN T. THE AO IS DIRECTED TO DELETE THE DEMAND RAISED U/S 201(1)/(1A ) IN RESPECT OF THE AFOREMENTIONED PAYMENTS. 5.20 REGARDING CRANE/ FORK-LIFT CHARGES, IT IS PLEA DED BY THE APPELLANT THAT EVEN THESE PAYMENTS WERE IN THE NATU RE OF PURE REIMBURSEMENTS. THE APPELLANT DEFRAYED THESE CHARGE S ON BEHALF OF ITS CUSTOMERS. I FIND THAT THE APPELLANT HIRED CONTRACTORS FOR HANDLING AND TRANSPORTATION OF CARG O. AFTER 1 2 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 CUSTOM CLEARANCES WERE OBTAINED. IN CONNECTION WITH LOADING AND UNLOADING OF THE CARGO, THE CONTRACTORS HIRED F ORKLIFTS AND CRANES FOR WHICH PAYMENTS WERE MADE. THE APPELLANT HIRED THE SERVICES OF THE CONTRACTORS FOR HANDLING OF THE GOODS AND IN THE COURSE OF MATERIAL HANDLING SERVICES; TH E CONTRACTORS ENGAGED THE SERVICES OF CRANES AND FORKLIFT OPERATO RS. IT WAS THEREFORE A CASE WHERE THE CONTRACTORS PROVIDED THE IR SERVICES OF MATERIAL HANDLING, IN THE PERFORMANCE O F WHICH THE CRANES/FORKLIFTS WERE UTILIZED BY THE CONTRACTO RS . IT WAS THEREFORE A CASE OF 'WET LEASE' OR A COMPOSITE CONT RACTOR. SUCH PAYMENTS THEREFORE QUALIFY FOR TAX DEDUCTION U NDER SECTION 1940. 5.21 THIS VIEW IS SUPPORTED BY THE DECISION OF JUR ISDICTIONAL ITAT, MUMBAI BENCH IN THE CASE OF ACIT VS ACCENTURE SERVICES (F) LTD (SUPRA) AND ITAT, CUTTACK BENCH IN THE CASE OF GIRDCO LIMITED VS ASST. CIT (SUPRA). IN THESE DECISIONS IT HAS BEEN HELD THAT WHERE, IN THE PERFORMANCE OF SERVICE, PLANT & EQUIPMENTS ARE USED BY THE CONTRACTORS THEN THE TRANSACTION FA LLS FOR CONSIDERATION UNDER SECTION 1940 AND NOT 1941. I TH EREFORE UPHOLD THE ORDER OF THE AO IN THIS REGARD. THE AO S HALL HOWEVER. GRANT DUE RELIEF TO THE APPELLANT U/S 201(1) IN RES PECT OF TAX ALREADY PAID BY THE RECIPIENTS OF INCOME IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF HINDUSTAN C OCA COLA BEVERAGES PVT. LTD VS CIT (293 ITR 226). 5.22 IN GROUNDS G AND H, THE APPELLANT HAS OBJECTED TO THE AO'S FAILURE TO TAKE INTO ACCOUNT THE FACT THAT THE PAYE ES WERE ASSESSED TO TAX AND THE AMOUNTS PAID BY THE APPELLA NT ON BEHALF OF HIS CLIENTS WERE INCLUDED IN INCOME-TAX RETURNS OF THE PAYEES AND THEREFORE THE TAX COULD NOT BE ONCE AGAIN RECOV ERED FROM THE APPELLANT BY RESORTING TO SECTION 201. IN ITS SUBMI SSIONS, THE APPELLANT HAS STATED THAT COMPLETE DETAILS OF PAYME NTS MADE ALONG WITH NAMES, ADDRESSES & P.A.N. IN RESPEC T OF FREIGHT, WAREHOUSING EXPENSES, DETENTION CHARGES , DE- STUFFING CHARGES, SURVEY FEES ETC WERE FURNISHED TO THE ASSESSING 1 3 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 OFFICER AS REQUIRED BY HIM. IT WAS ARGUED BEFORE TH E AO THAT THE PAYEES WERE INDEPENDENT ASSESSEES AND THEY HAD PAID TAXES ON THEIR RESPECTIVE UNIVERSAL TRAFFIC CO. AY 2008-09 & 2009-10 INCOMES. IN THE CIRCUMSTANCES, THE APPELLANT COULD NOT HAVE BEEN TREATED BY THE AO TO BE AN 'ASSESSEE-IN-DEFAUL T' UNLESS IT WAS PROVED BY THE AO THAT THE PAYEES HAD ALSO FAILE D TO DISCHARGE THEIR ONUS OF PAYING DUE TAXES ON THEIR I NCOME. RELIANCE IN THIS REGARD IS PLACED BY THE APPELLANT ON THE SUPREME COURT DECISION IN THE CASE OF HINDUSTAN COCA COLA B EVERAGES PVT LTD VS CIT (293 ITR 226), THE ALLAHABAD HIGH COURT DECISION IN THE CASE OF JAGAN PRAKASHAN LTD VS DOLT (345 ITR 28 6) AND ITAT KOLKATA BENCH DECISION IN THE CASE OF RAMKRISHNA VE DANTA MATH VS ITO IN ITA NO. 477 TO 479/KOL/2012. 5.23 ALTHOUGH, THESE SUBMISSIONS OF THE APPELL ANT HAVE MERIT. HOWEVER IN MY OPINION, THESE GROUNDS HAVE BECOME IN - FRUCTUOUS AND REDUNDANT, IN VIEW OF MY FINDINGS ON MERITS WITH REGARD TO ABOVE ISSUES, EXCEPT IN RESPE CT OF CRANE/ FORK-LIFT CHARGES. WHERE I HAVE DIRECTED THE AO TO GRANT NECESSARY RELIEF TO THE APPELLANT U/S 201(1) IN RESPECT OF TAX ALREADY PAID BY THE RECIPIENTS OF IN COME IN VIEW OF SUPREME COURT DECISION IN THE CASE OF HINDU STAN COCA COLA BEVERAGES PVT. LTD (SUPRA). 2.3. LIKEWISE IN THESE APPEALS OF M/S EXPRESS TRANS PORT PVT. LTD. (ITA NO.1473 TO 1475) FOR A.Y.S .2008-09 TO 2010- 11, IDENTICALLY THE LD. COMMISSIONER OF INCOME TAX (APPEALS), SO FAR AS DEDUCTION U/S 194 I OF THE ACT IS CONCERNED, MADE AN ELABORATE DISCUSSION AND HELD AS UNDER: 3.6 I HAVE CONSIDERED THE ABOVE SUBMISSIONS OF T HE APPELLANT, THE ORDER PASSED BY THE AO AS WELL AS THE FACTS AND CIR CUMSTANCES OF THE CASE. THE AO HAS REJECTED THE APPELLANT'S CONTENTION ON THE GROUND THAT THE PAYEES TO WHOM PAYMENTS WERE MADE, WERE PROVIDING THE APPELLANT WITH THE AREAS OR SPACE FOR STORAGE OF GOODS AND THEREFO RE THE PAYMENTS WERE IN THE NATURE OF RENT REQUIRING DEDUCTION OF TAX UNDER SECTION 194I. FROM THE 1 4 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 STATUTORY FRAMEWORK AS OUTLINED BY THE LD. ARS OF T HE APPELLAT IN THE ABOVE SUBMISSIONS AS PER THE CUSTOMS ACT, 1962 AND THE REGULATIONS MADE THERE-UNDER IN CONNECTION WITH THE GRANT OF CUSTOMS CLEARANCES, IT APPEARS TO ME THAT THE PAYMENTS WHICH THE APPELLANT HAD TO MAKE TO THE PARTIES WERE NOT FOR MERE USE OF SPACE. FROM THE PU BLICATIONS OF MINISTRY OF COMMERCE AND PLANNING COMMISSION, GOVERNMENT OF INDIA WHICH ARE AVAILABLE IN PUBLIC DOMAIN IT IS NOTED THAT THE ROL E OF CFS HAS BEEN / DESCRIBED IN DETAIL THEREIN. A CFS (CONTAINER FREIG HT STATION) OR ICD (INLAND CONTAINER DEPOT) HAS BEEN DEFINED BY THE MI NISTRY OF COMMERCE TO MEAN A COMMON USER FACILITY WITH PUBLIC AUTHORIT Y STATUS EQUIPPED WITH FIXED INSTALLATIONS, OFFERING SERVICES FOR HAN DLING AND TEMPORARY STORAGE OF IMPORT/EXPORT GOODS CARRIED UNDER THE CU STOMS CONTROL AND WITH CUSTOMS AND OTHER AGENCIES COMPETENT TO CLEAR THE GOODS FOR HOME USE, TEMPORARY ADMISSIONS, RE-EXPORT OR TRANSSHIPME NT OF CARGO. 3.7 ON PERUSAL OF 'HANDLING OF CARGO IN CUSTOMS AR EA REGULATIONS, 2009' ISSUED BY THE DEPARTMENT OF REVENUE, MINISTRY OF FINANCE WHICH ARE ALSO AVAILABLE IN THE PUBLIC DOMAIN, I FIND THA T THESE REGULATIONS DEFINE THE OBLIGATIONS AND RESPONSIBILITIES OF THE CUSTODI ANS WHO ARE PERMITTED TO HANDLE THE CARGO WITHIN THE CUSTOM NOTIFIED AREA TILL THEIR CLEARANCE UNDER THE CUSTOMS REGULATIONS. THESE REGULATIONS PR OVIDE THE MANNER IN WHICH THE IMPORT/EXPORT GOODS CAN BE RECEIVED, STOR ED, DELIVERED OR OTHERWISE HANDLED IN THE CUSTOMS AREA. THESE REGULA TIONS PRESCRIBE THE RESPONSIBILITIES OF THE CUSTODIANS WHO ARE ALLOWED TO OPERATE IN THE CUSTOMS AREA AND ARE PERMITTED TO HANDLE GOODS. SUC H PERSONS ARE CALLED CUSTOMS CARGO SERVICE PROVIDERS (CCSP) AND T HEIR OBLIGATIONS AND RESPONSIBILITIES HAVE BEEN ELABORATELY SET OUT IN C LAUSE 6 OF THE SAID REGULATIONS. CLAUSE 5 OF THE SAID REGULATIONS SETS OUT VARIOUS CONDITIONS WHICH AN APPLICANT IS REQUIRED TO FULFILL TO GET RE COGNITION FROM THE CUSTOMS AUTHORITIES TO FUNCTION AS CCSPS. A PERUSAL OF REGULATION 5 SHOWS THAT HAVING LAND & BUILDING IS JUST ONE OF TH E REQUIREMENTS TO BE COMPLIED WITH BY A PERSON TO FUNCTION AS CCSP. IN A DDITION, SUCH PERSON NEEDS TO PROVIDE FACILITIES AND TO INSTALL I NFRASTRUCTURE AND EQUIPMENTS WITHIN CUSTOM NOTIFIED AREAS SO AS TO RE NDER A GAMUT OF SERVICES AS A STATUTORY CUSTODIAN OF CARGO TILL CUS TOM CLEARANCE FORMALITIES ARE COMPLETED BY THE IMPORTER /EXPORTER OF 1 5 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 CARGO/GOODS. THE CBEC CIRCULAR NO. 13 OF 2009 HAS C LARIFIED THAT CFS, PORT TRUST, AAI, ICDS ETC. ARE ALL AUTHORIZED TO FU NCTION AS CCSPS AND THEREFORE THEY ARE OBLIGED TO FUNCTION IN CONFORMIT Y WITH THE SAID REGULATIONS AND RENDER SERVICES TO THE IMPORTED AND EXPORTER OF CARGO IN COMPLYING WITH CUSTOMS PROCEDURES AND REGULATIONS. 38. THE CUSTOMS PROCEDURES PROVIDE DEFINITIVE MEAS URES BY WHICH GOODS ENTER OR EXIT TERRITORIAL BOUNDARIES ON PAYME NT OF APPLICABLE DUTIES AND TAXES. IN ORDER TO ENSURE THAT THE CUSTOMS NOTI FIED PROCEDURES ARE FOLLOWED PROPERLY, IT IS THEREFORE NECESSARY FOR TH E CUSTOMS TO ENSURE THAT THE MOVEMENT OF CARGO IS REGULATED AND THEREFORE AL LOWED TO BE KEPT WITHIN NOTIFIED PLACES TILL CUSTOMS FORMALITIES ARE COMPLETE. CCSPS ARE THE NOTIFIED CUSTODIANS WHO ASSIST THE CUSTOMS AUTH ORITIES IN ENSURING THAT IMPORTERS/EXPORTERS OF GOODS COMPLY WITH THE S TATUTORY CUSTOMS PROCEDURES. THESE PROCEDURES INTER ALIA INCLUDE EXA MINATION, ASSESSMENT, LEVY & COLLECTION OF DUTIES, DOCUMENTATION AND ULTI MATELY THE DELIVERY OF THE CARGO. THE CCSPS ARE REQUIRED TO PROVIDE VARIOU S SERVICES IN HANDLING, STORING AND COMPLYING WITH CUSTOMS PROCED URES. 3.9 THUS CCSPS DO NOT MERELY PROVIDE STORAGE SPACE BUT RENDER A RANGE OF SERVICES, WHICH THEY ARE OBLIGED TO PROVID E IN TERMS OF REGULATIONS PRESCRIBED BY THE CUSTOMS DEPARTMENT FU NCTIONING UNDER THE MINISTRY OF FINANCE, GOVERNMENT OF INDIA. FOR THESE SERVICES RENDERED, THE CCSPS ARE ENTITLED TO RECEIVE CHARGES WHICH ARE LEVIED IN CONFORMITY WITH TARIFF NOTIFICATIONS APPROVED BY THE CUSTOMS D EPARTMENT. IN THE MATTER OF PAYMENT OF CHARGES TO THESE ENTITIES, THE IMPORT ER/EXPORTER HAS NO OPTION BECAUSE THE CHARGES ARE LARGELY STATUTORY IN NATURE. WITHOUT THESE PAYMENTS, THE GOODS CANNOT BE CLEARED FROM THE NOTI FIED CUSTOMS AREA. IT IS ALSO NOTED THAT THE CHARGES PAYABLE TO CCSPS DO NOT DEPEND ON THE AREA OR SPACE OCCUPIED. THE CHARGES ARE PAID ON THE BASIS OF WEIGHT OR VALUATION OF THE CARGO. AN IMPORTER/EXPORTER LIABLE TO PAY CHARGES OF CCSP IS NOT ENTITLED TO USE OR OCCUPY ANY SPECIFIC AREA NOR DOES IT EXERCISE ANY CONTROL OR DOMAIN OVER THE AREA BELONG ING TO CCSP. THE PAYMENTS MADE TO THE CCSP ARE IN FACT IN THE NATURE OF CUSTODIAL CHARGES PAID IN CONFORMITY WITH THE CUSTOMS NOTIFIED REGULA TIONS AND FOR AVAILING NUMEROUS SERVICES TILL CUSTOMS CLEARANCE IS OBTAINE D IN RESPECT OF 1 6 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 IMPORT/EXPORT OF GOODS. 3.10 THE AO'S CONTENTION IS THAT 'RENT' DEFINED IN EXPLANATION (1) TO SECTION 1941 IS VERY WIDE IN ITS AMBIT AND INCLUDES WITHIN ITS SWEEP, PAYMENT BY WHATEVER NAME CALLED, WHICH IS PAID PURS UANT TO ANY AGREEMENT OR ARRANGEMENT. HOWEVER, IN ORDER TO ATTR ACT THE SAID DEFINITION, IT MUST BE PROVED THAT THERE IS AN AGRE EMENT OR ARRANGEMENT BY WHICH LEASE, SUB-LEASE, TENANCY IS GRANTED BY THE P AYEE IN RELATION TO ANY LAND OR BUILDING OR MACHINERY OR EQUIPMENT CONN ECTED THEREWITH. THE USE OF THE WORD ARRANGEMENT' OR 'AGREEMENT' SHO WS THAT THERE IS A MUTUAL UNDERSTANDING BETWEEN TWO PARTIES ON AGREED TERMS. AN AGREEMENT CAN ONLY BE BETWEEN TWO WILLING PARTIES W HO HAVE OPTION OF AGREEING OR NOT AGREEING TO THE TERMS. IN THE MATTE R OF IMPORT OR EXPORT, THE OWNER OF THE GOODS HAS NO OPTION BUT TO UTILIZE THE SERVICES OF THE CCSPS FOR COMPLYING WITH CUSTOMS REGULATIONS AND FO RMALITIES TO OBTAIN CUSTOMS CLEARANCES. THE PAYMENTS, AS STATED ABOVE, ARE LARGELY IN THE NATURE OF STATUTORY CHARGES FOR CUSTODY OF G OODS BY CUSTOMS NOTIFIED ENTITIES AND THE PAYER DOES NOT HAVE ANY O PTION BUT TO MAKE THESE PAYMENTS. IT MAY BE SO THAT THE IMPORTER/EXPO RTER MAY HAVE OPTION TO CHOOSE A CCSP BUT HE HAS NO CHOICE BUT TO COMPULSORILY AVAIL THE SERVICES OF A CCSP FOR COMPLETING CUSTOMS FORMA LITIES. 3.11 I ALSO FIND FORCE IN THE SUBMISSIONS OF THE AP PELLANT THAT THE CCSPS DO NOT MERELY PROVIDE THE STORAGE SPACE BUT RENDER A R ANGE OF SERVICES ENABLING THE IMPORTER OR EXPORTER TO COMPLY WITH TH E CUSTOMS REGULATIONS TILL CLEARANCE IS OBTAINED. THE USE AND /OR OCCUPATION OF THE SPACE WITHIN THE AREA BELONGING TO CCSF IS ONLY INC IDENTAL IN THE DETAILED PROCEDURE LAID DOWN BY THE CUSTOMS TILL THE GOODS A RE CLEARED. IT IS NOT A CASE WHERE THE IMPORTER/EXPORTER UTILIZES THE SERVI CES OF 00SF FOR STORAGE OF GOODS SIMPLICITOR OR THAT THEY CAN INDEF INITELY UTILIZE THE SPACE FOR STORAGE OF GOODS. IT IS FOR THIS REASON THAT TH E IMPORTER/EXPORTER CANNOT DEMAND ANY SPECIFIC SPACE OR STORAGE AREA NOR CAN E XERCISE ANY CONTROL OR DOMAIN OVER ANY PARTICULAR SPACE COMPRISED IN THE F ACILITY. IN THE CIRCUMSTANCES, THEREFORE THE FACILITIES PROVIDED BY THE CCSPS ARE NOT IN THE NATURE OF MERE STORAGE OR WAREHOUSING BUT THESE ARE INFRASTRUCTURAL 1 7 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 FACILITIES DEVELOPED IN ACCORDANCE WITH AND IN CONF ORMITY TO THE SPECIFICATIONS AND REGULATIONS PRESCRIBED BY MINIST RY OF COMMERCE AS WELL AS MINISTRY OF FINANCE, GOVERNMENT OF INDIA. I THER EFORE FIND FORCE IN THE SUBMISSIONS OF THE LD. ARS THAT THE CHARGES PAID TO CCSPS WERE NOT IN THE NATURE OF RENT SIMPLICITOR BUT THEY WERE IN THE NAT URE OF STATUTORY CHARGES OR LEVIES PAID FOR COMPLYING WITH THE ABOVE NOTIFIED PROCEDURES. 3.12 I ALSO FIND FORCE IN THE SUBMISSIONS OF THE APPELLA NT THAT IN THE MATTER OF PAYMENT OF THESE CHARGES, THE APPELLANT AS CHA ACTED ONLY AS AN INTERMEDIARY. THE APPELLANT'S FUNCTIONING AS CHA IS GOVERNED BY CUSTOMS HOUSE AGENT'S LICENSING REGULATIONS 2004. R EGULATION 13 EXHAUSTIVELY LISTS OUT THE OBLIGATIONS AND RESPONSI BILITIES OF THE CHAS AS PER CUSTOMS REGULATIONS, THE OBLIGATION TO MAKE PAYMENT OF THE CHARGES TO CCSP IS ON THE IMPORTER/EXPORTER WHOSE G OODS ARE HANDLED BY THEM. THE SERVICES PROVIDED BY THE CCSPS ARE CON SUMED BY THE IMPORTER/EXPORTER AND THEREFORE IF AN ARRANGEMENT I S TO BE PERCEIVED, EVEN THEN SUCH ARRANGEMENT CAN ONLY BE BETWEEN THE IMPOR TER/EXPORTER AND CCSP AND NOT BETWEEN THE CCSP AND THE APPELLANT, WH O IS A CHA. VIEWED FROM THIS ANGLE ALSO, I AM OF THE OPINION TH AT THE APPELLANT WAS NOT THE PERSON RESPONSIBLE FOR PAYMENT OF INCOME BY WAY OF RENT AS UNDERSTOOD IN SECTION 194 I AND THEREFORE THE APPEL LANT COULD NOT BE REGARDED AS AN ASSESSEE-IN-DEFAULT FOR NON- DEDUCTI ON OF TAX UNDER SECTION 194 I. 2.4. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) A LSO MADE AN ELABORATE DISCUSSION ON SECTION 194 J WHICH IS A LSO REPRODUCED HEREUNDER FOR READY REFERENCE 4.6 . I HAVE CONSIDERED THE ABOVE SUBMISSIONS OF THE APPELLANT, THE ORDER PASSED BY THE AO AS WELL AS TH E FACTS AND CIRCUMSTANCES OF THE CASE. REGARDING SURVEY FEE S, THE APPELLANT HAS SUBMITTED THAT THERE WERE INSTANCES W HERE THE PAYMENTS DID NOT EXCEED THE THRESHOLD LIMITS PRESCR IBED IN 194J AND IN SOME CASES, THE PAYEES HAD PROVIDED LOW ER 1 8 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 WITHHOLDING TAX CERTIFICATES, BUT THE SAME WERE NOT CONSIDERED BY THE ASSESSING OFFICER. THE LD. ARS HAVE SUBMITTE D THAT ONCE THE FOREGOING ERRORS ARE RECTIFIED, THE DEMAND RAISED U/S 201 WOULD STAND VACATED. ON PERUSAL OF THE INFO RMATION FURNISHED, I FIND FORCE IN THE SUBMISSIONS OF THE A PPELLANT. THE AO HAD APPLIED THE RATE OF 10% ON THE GROSS PAY MENTS TOWARDS SURVEY FEES WITHOUT CONSIDERING THE FACT TH AT PAYMENTS TO SOME PARTIES DID NOT EXCEED THRESHOLD L IMIT AND IN SOME INSTANCES LOWER TAX DEDUCTION CERTIFICATES WER E AVAILABLE WITH THE APPELLANT. FOR THE REASONS SET OUT IN THE FOREGOING, I THEREFORE DIRECT THE AO TO VERIFY THE CLAIM OF THE APPELLANT AND ACCORDINGLY RE-COMPUTE THE DEMAND U/S 201. IN C ASE OF ANY DIFFERENCE, THE AO SHALL PASS A SPEAKING ORDER GIVING REASONS FOR HOLDING THAT APPELLANT HAD SHORT DEDUCT ED TAX U/S 194J ON PAYMENTS 4.7 WITH REGARD TO FUMIGATION CHARGES, I FIND FO RCE IN THE SUBMISSIONS OF THE APPELLANT THAT THESE SERVICES DI D NOT INVOLVE RENDERING OF ANY PROFESSIONAL OR TECHNICAL SERVICE. THE 00SF REGULATIONS REQUIRE THAT THE AREA WHERE TH E CARGO IS STORED IS PROPERLY FUMIGATED SO THAT THE C ARGO IS NOT DAMAGED DUE TO ATTACK BY THE PESTS ETC. THE REGULATIONS PUT IN PLACE REQUIRE THE CCSPS TO MAKE ARRANGEMENTS FOR REGULAR FUMIGATION OF THE STORAGE AREAS AND IN TURN THESE CHARGES ARE RECOVERED FROM THE IMPORTER/EXPORTER WHOSE GOODS ARE HANDLED BY CCSPS WHILE IN THEIR CUSTODY. THE PERSON ENTRUSTED WITH T HE JOB OF FUMIGATION MERELY SPRAYS CHEMICALS, INSECTICIDES TO PREVENT ATTACK BY PESTS ETC. THAT THE CARGO/GOODS A RE NOT DAMAGED. THESE PERSONS SIMPLY PERFORM MANUAL, NON- TECHNICAL OPERATIONS INVOLVING SPRAYING OF CHEMICAL S, PESTICIDES ETC. TO MAKE THE AREA PEST/INSECT FREE. THE CHARGES PAID INTER ALIA INCLUDE THE COST OF CHEMICA LS, PESTICIDES ETC. NO TECHNICAL SKILL IS INVOLVED NOR ANY 1 9 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 TECHNICAL INFORMATION IS GIVEN; NEITHER ANY TECHNICAL KNOWLEDGE, DESIGN ETC. IS IMPARTED WHILE PERFORMING FUMIGATION ACTIVITIES. ON THE FACTS OF T HE CASE THEREFORE, I FIND MERIT IN THE APPELLANT'S SUBMISSI ONS THAT FUMIGATION CHARGES COULD NOT BE BROUGHT WITHIN THE AMBIT OF FEES FOR PROFESSIONAL OR TECHNICAL SERVICES REQUIRI NG TAX DEDUCTION UNDER SECTION 194J. I THEREFORE HOLD THAT THE APPELLANT DID NOT COMMIT ANY DEFAULT FOR NON-DEDUCT ION OF TAX UNDER SECTION 194J IN RELATION TO FUMIGATION CH ARGES PAID. THE DEMAND OF TAX U/S 201(1) AT RS.1,988/- AN D INTEREST AT RS.656/- IS DELETED. 4.8 AS REGARDS CRANE & FORKLIFT CHARGES, I FIND FRO M THE EXPLANATION AND INFORMATION SUBMITTED THAT THE APPE LLANT HIRED CONTRACTORS FOR HANDLING AND TRANSPORTATION O F CARGO, AFTER CUSTOMS CLEARANCES WERE OBTAINED. IN CONNECTI ON WITH LOADING AND UNLOADING OF THE CARGO, THE CONTRA CTORS HIRED FORKLIFTS AND CRANES FOR WHICH THE PAYMENTS W ERE MADE. IT APPEARS THAT THE APPELLANT ITSELF DID NOT TAKE ON HIRE ANY CRANES OR FORKLIFTS. THE APPELLANT HIRED T HE SERVICES OF THE CONTRACTORS FOR HANDLING OF THE GOO DS AND IN THE COURSE OF MATERIAL HANDLING SERVICES, THE CONTR ACTORS ENGAGED THE SERVICES OF CRANES AND FORKLIFT OPERATO RS. FROM DETAILS FURNISHED, IT IS ALSO EVIDENT THAT THE APPE LLANT DID NOT INCUR ANY EXPENDITURE SUCH AS WAGES, REPAIRS, F UEL ETC FOR OPERATION AND MAINTENANCE OF CRANES AND FORKLIF TS (AFTER TAKING THEM ON HIRE). RATHER IT IS A CASE WHERE THE CONTRACTORS HIRED FORKLIFTS AND CRANES IN FULLY OPE RATIONAL CONDITIONS AND ALL OPERATING EXPENSES WERE BORNE BY THEM AND NOT THE APPELLANT. ON THE BASIS OF THESE FACTS, THEREFORE I AM OF THE OPINION THAT SUCH PAYMENTS ARE LIABLE FOR TAX DEDUCTION UNDER SECTION 1940 AND NOT U/S 1941 OF TH E ACT. 4.9 THIS VIEW IS SUPPORTED BY THE DECISION OF JURIS DICTIONAL 2 0 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 ITAT, MUMBAI BENCH IN THE CASE OF ACIT VS ACCENTURE SERVICES (P) LTD (44 SOT 290) AND ITAT, CUTTACK BENCH IN THE CASE OF GIRDCO LIMITED VS ASST. CIT (49 SOT 363). IN THESE DECISIONS, IT IS HELD THAT WHERE, IN THE PERFORMANCE OF A SERV ICE, PLANT & EQUIPMENTS ARE USED BY THE CONTRACTORS THEN THE TRA NSACTION FALLS UNDER SECTION 1940 AND NOT 1941. I THEREFORE HOLD THAT THE TAX DEDUCTION AT SOURCE IN RESPECT OF FORK LIFT AND CRANE CHARGES WAS NOT REQUIRED TO BE MADE UNDER SECTION 1941. THE APPELLANT COULD THEREFORE NOT BE REGARDED AS 'AN AS SESSEE-IN- DEFAULT' FOR NON-DEDUCTION OF TAX UNDER SECTION 194 1. HENCE, THE AG IS DIRECTED TO DELETE THE DEMAND RAISED U/S 201(1)/201(1A) IN RELATION TO FORKLIFT AND CRANE CH ARGES. 2.5 . IF THE OBSERVATION MADE IN THE ASSESSMENT ORDER, CONCLUSION DRAWN IN THE IMPUGNED ORDER, MATERIAL AV AILABLE ON RECORD AND THE ASSERTION MADE BY THE LD. RESPECTIVE COUNSEL, IF KEPT IN JUXTAPOSITION AND ANALYZED, WE NOTE THAT TH E LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS PLACED REL IANCE UPON VARIOUS JUDICIAL PRONOUNCEMENTS FROM VARIOUS B ENCHES OF THE TRIBUNAL LIKE HAH LOGISTICS VS DCIT (ITA NO.1864/DEL./2011) ORDER DATED 04 TH NOVEMBER 2011 FROM DELHI TRIBUNAL, DCIT VS JAY KAY FREIGHTERS PVT. LTD . (ITA NO.3407/DEL/2011) ORDER DATED 08/08/2012, HONBLE D ELHI HIGH COURT IN CIT VS CARGO LINKERS (218 CTR 295), W HERE IN THE HONBLE COURT HELD THAT THE ASSESSEE BEING A C& F AGENT, IS AN INTERMEDIARY, WHO BOOKED CARGO FOR AND ON BEHALF OF IMPORTERS AND EXPORTERS AND FACILITATED THE CONTRAC T FOR CARRYING GOODS, THEREFORE NOT LIABLE TO WITHHOLD TA X U/S 194C FROM PAYMENTS MADE TOWARDS AIR FREIGHT ON BEHALF OF ITS CUSTOMERS, DECIDED IN FAVOUR OF THE ASSESSEE. WE A RE IN 2 1 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 AGREEMENT WITH THE CONCLUSION DRAWN BY THE LD. COMM ISSIONER OF INCOME TAX (APPEALS) BECAUSE SUCH PERSON WHO ACT S AS AN AGENT HAS NO LIABILITY TO DEDUCT TAX AT SOURCE BECA USE HE IS ACTING MERELY AS AN INTERMEDIARY BETWEEN THE AIRLIN ES/SHIPPING LINES AS ALSO CUSTODIANS OF GOODS ON ONE HAND AND T HE IMPORTERS/EXPORTERS ON THE OTHER. THE CONTRACT IS BETWEEN THE PARTIES AND NOT WITH THE AGENT. THE INVOICES AND O THER SHIPPING DOCUMENTS ARE IN THE NAMES OF IMPORTER/EXP ORTER AND THE ASSESSEE MERELY RECEIVES FUNDS AND DISBURSES TO THE AIRLINE/SHIPPING LINES TILL CLEARANCE BY THE CUSTOM S. THE STATUTORY WAREHOUSING CHARGES IS ALSO THE SOLE LIAB ILITY OF THE CLIENTS AND THE ASSESSEE MERELY DEFRAYS THE EXPENSE S ON BEHALF OF THE CLIENTS, THUS, THE ASSESSEE/AGENTS ARE NOT L IABLE TO DEDUCT TAX U/S 194C OF THE ACT. THUS, IT IS UNJUSTIFIED ON THE PART OF THE ASSESSING OFFICER TO HOLD THE ASSESSEE AS ASSESSEE IN DEFAULT. THE PRIVITY OF CONTRACT IS BETWEEN TH E CLIENTS AND NOT WITH THE ASSESSEE. THERE WAS NO CONTRACT BETWE EN THE ASSESSEE AND THE AUTHORITIES RATHER THE ASSESSEE IS WORKING AS A FACILITATOR/AGENT BETWEEN THE PARTIES AND THE AUT HORITIES. IT IS WELL UNDERSTOOD THAT TDS IS DEDUCTABLE U/S 194C ON THE PAYMENTS MADE TO THE CONTRACTORS/ SUB-CONTRACTORS T HUS THE BASIC PREMISE FOR DEDUCTING TAX IS ON THE CONTRACTI NG PARTIES. IN THE ABSENCE OF ANY CONTRACTUAL RELATIONSHIP BETW EEN THE ASSESSEE AND AIRLINES/SHIPPING LINES/AUTHORITIES TH E ASSESSEE AGENT IS NOT LIABLE TO WITHHOLD TAX/DEDUCT TAX U/S 194C OF THE ACT. OUR VIEW IS FORTIFIED BY THE DECISION OF THE KOLKATA BENCH IN S.K. ASGAR VS ITO (ITA NO.2000/K/2009) ORDER DAT ED 31/08/2010 AND ITO VS S.S. IMPEX (ITA NO.997/K/2011 ) ORDER DATED 23/09/2011, THE DECISION IN BHAGWATI STEELS ( 326 ITR 2 2 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 108) AND THE RATIO LAID DOWN IN CIT VS UNITED RICE LAND LTD. (322 ITR 294) (P & H). IT IS ALSO NOTED THAT THE L D. COMMISSIONER OF INCOME TAX (APPEALS) HAS DEALT WITH THE INDIVIDUAL FEE/PAYMENT/CHARGES AND THE CONCLUSION A RRIVED AT THEREIN IS IDENTICAL. IT IS WORTH QUOTING THAT THE HONBLE APEX COURT IN HINDUSTAN COCA COLA BEVERAGES PVT. LTD. VS CIT (293 ITR 226) HELD THAT WHERE THE DEDUCTEE CONCERNS HAVE ALREADY PAID TAXES ON THE PAYMENTS MADE BY THE ASSESSEE PAY ER THEN THE DEPARTMENT COULD NOT DEDUCT TAX FROM THE DEDUCT OR ON THE SAME INCOME BY TREATING THE LATTER TO BE AN ASSESS EE IN DEFAULT. SIMILARLY, IN THE PRESENT CASE, THE PAYE ES HAVE OFFERED THE CORRESPONDING INCOME IN THEIR RETURNS, THEREFOR E, THE ALLEGED TDS LIABILITIES, RAISED UPON THE ASSESSEE W AS NOT ENFORCEABLE. RATIO LAID DOWN IN RAMKRISHNA VEDANTA M ATH VS ITO (ITA NO.477/KOL/2012) ORDER DATED 31/07/2012 BY THE KOLKATA BENCH OF THE TRIBUNAL SUPPORTS OUR VIEW. W E NOTE THAT THE FREIGHT CHARGES, DETENTION CHARGES AND DE-STUFF ING CHARGES, ETC. WERE PAID TO FOREIGN LINES OR TO THEIR AGENTS OR SHIPPING LINES FOR TRANSPORTATION OF CARGO THUS THE PRIVITY OF CONTRACT IS NOT BETWEEN THE ASSESSEE AND FOREIGN LINES/SHIPPING LINES TO WHOM SUCH CHARGES WERE PAID, THUS, THE ASSESSEE CAN NOT BE HELD TO BE A PERSON RESPONSIBLE TO DEDUCT TAX ON SU CH PAYMENTS WHILE ACTING FOR HIS CLIENTS. THE HONBLE DELHI HIGH COURT IN CIT VS CARGO LINKERS HELD THAT SINCE THE C ONTRACT WAS BETWEEN THE EXPORTER AND SHIPPING LINES AND THE ASS ESSEE WAS MERELY WORKING AS INTERMEDIARY/AGENT, THEREFORE, HE IS NOT A PERSON RESPONSIBLE TO DEDUCT TAX IN TERMS OF SECTIO N 194 C OF THE ACT. IN VIEW OF THESE FACTS, WE FIND NO INFIRM ITY IN CONCLUSION DRAWN BY THE LD. COMMISSIONER OF INCOME TAX 2 3 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 (APPEALS). 2.6. SO FAR AS, SURVEY FEE IS CONCERNED, IT IS PAI D TO THE PERSONS OR AGENCIES APPOINTED BY CCSPS WHO CONDUCT INSPECTION OF THE GOODS. INSPECTION OF CARGO IS IN TEGRAL STEP FOR CUSTOM CLEARANCE. LIKEWISE SEAL WIRE CHARGES ARE P AID TO LOCAL LABOUR OPERATING WITHIN THE CUSTOMS NOTIFIED PREMIS ES TO SEAL/UNSEAL THE CARGO/CONTAINER, THUS, SUCH PAYMENT S ARE PAID ON BEHALF OF THE CLIENT AND THE ASSESSEE IS MERELY ACTING AS INTERMEDIATOR FOR THE SMOOTH CLEARANCE ON BEHALF OF THE CLIENTS. IDENTICAL IS THE SITUATION FOR CRANE/FORK LIFT CHAR GES. RELIANCE CAN BE PLACED UPON THE DECISION IN ACIT VS ACCENTUR E SERICVES (P) LTD. (MUMBAI BENCH OF THE TRIBUNAL) AND GIRDCO LTD. VS ACIT (CUTTACK BENCH OF THE TRIBUNAL). RESPECTFULLY FOLLOWING THE DECISIONS DISCUSSED HEREINABOVE AND ALSO DISCUS SED IN THE IMPUGNED ORDER, WE FIND NO INFIRMITY IN THE CONCLUS ION DRAWN BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS). T HE IMPUGNED ORDERS ARE UPHELD. FINALLY, THE APPEALS OF THE REVENUE ARE DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION O F THE HEARING ON 08 TH DAY OF DECEMBER, 2014 . !/ ( ,-. 0!1 08.12.2014 - ( 7 SD/- SD/- (B.R. BASKARAN) (JOGINDER S INGH) ! / ACCOUNTANT MEMBER ! /JUDICIAL MEMBER MUMBAI; 0! DATED : 17 TH DEC. 2014. - JV. SR. P.S. 9 F{X~{T? P.S/. . 2 4 ITA NOS.1426-29 /MUM/2013 ITA NOS.1473 TO 1475/MUM/2013 !/ ( &*9 :9.* !/ ( &*9 :9.* !/ ( &*9 :9.* !/ ( &*9 :9.*/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. &'$% / THE RESPONDENT. 3. ; ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. ; / CIT CONCERNED, MUMBAI 5. 9 7 &* , , / DR, ITAT, MUMBAI E BENCH 6. 7>? @ / GUARD FILE. !/ !/ !/ !/ / BY ORDER, '9* &* //TRUE COPY// A AA A/ // / B C B C B C B C (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI.