M/s MCC PTA India Corpn. Pvt. Ltd., Purba Medinipur V. ACIT, CIR-59, TDS, kOLKATA, Kolkata

ITA 151/KOL/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6135 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 03-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Charitable institution
• Section: 12A; 194C; 12AA; 37; 11

Judgement Text

1 ITA NOS. 151 & 152/KOL/2016 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, KOLKATA BEFORE : SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER AND SHRI DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA NO. 151/KOL/2016 A.Y 2011-12 ITA NO. 152/KOL/2016 A.Y 2012-13 M/S.MCC PTA INDIA VS. ACIT, CIR-59(TDS) CORP.PVT. LTD. K OLKATA PAN: CALM 05043D (APPELLANT) (RES PONDENT) APPEARANCES BY : SHRI J.P. KHAITAN, SENIORADVOCATE, SHRI ASIM CHOUDHURY & SHRI ROHAN PODDAR, ADVOCATES FOR ASSESSEE SHRI G. HANGSHING, CIT-DR FOR RESPONDENT REVENUE DATE OF HEARING : 23-04-2018 DATE OF PRONOUNCEMENT : 18-07-2018 O R D E R SHRI S.S. VISWANETHRA RAVI, JM : ABOVE MENTIONED TWO APPEALS BY THE ASSESSEE ARE AG AINST THE SEPARATE ORDERS OF THE COMMISSIONER OF INCOME-TAX ( APPEALS), 24, KOLKATA BOTH DATED 30-11-2015 FOR ASSESSMENT YEARS 2011-12 & 2012-13 RESPECTIVELY. 2. SINCE THE ISSUES RAISED IN BOTH THE APPEALS ARE BASED ON IDENTICAL FACTS AND, THEREFORE, WITH THE CONSENT OF BOTH THE PARTIES, WE PROCEED TO HEAR BOTH THE APPEALS ABOVE TOGETHER AND DISPOSE OF THE SAME BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2 ITA NOS. 151 & 152/KOL/2016 3. FIRST, WE SHALL TAKE UP THE APPEAL IN ITA NO. 15 1/KOL/2016 FOR A.Y 2011-12 BY THE ASSESSEE. ITA NO. 151/KOL/2016 A.Y 2011-12-BY ASSESSEE 4. THE ASSESSEE HAS FILED THE FOLLOWING GROUNDS OF APPEAL ALONG WITH FORM 36:- 1. FOR THAT THE COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN HOLDING THAT WHARFAGE CHARGES PAID BY THE APPELLANT TO KOLKATA PORT TRUST WAS IN THE NATURE OF RENTAL PAYMENTS MADE FOR USAGE OF LAND AND TAX WAS REQUIRED TO BE D EDUCTED AT SOURCE ON SUCH PAYMENT. THE SAID FINDING IS WITHOUT ANY BASIS AND ILLEGAL. 2. FOR THAT THE COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN NOT APPRECIATING THE FACT THAT THERE IS NO FIXED PLATFORM OR SPACE GIVEN BY T HE KOLKATA PORT TRUST TO THE APPELLANT AND ALSO DID NOT APPRECIATE THE FACT THAT THE APPEL LANT WAS IN ADDITION TO WHARFAGE CHARGES SEPARATELY PAYING RENTAL CHARGES FOR USAGE OF LAND AND FOR WHICH TDS WAS DEDUCTED UNDER SECTION 1941 OF THE ACT. 3. FOR THAT THE COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN NOT APPRECIATING THE FACT THAT THE WHARFAGE CHARGES WERE PAID FOR VARIOUS FAC ILITIES PROVIDED BY KOLKATA PORT TRUST AND WAS NOT FOR THE PURPOSE OF USAGE OF ANY PARTICU LAR SPACE OR PLATFORM AND ERRED IN NOT APPLYING THE PRINCIPLES ENUNCIATED IN CIRCULAR NO.1 OF 2008 ISSUED B CBDT WHEREIN IN RELATION TO COLD STORAGE IT HAS BEEN PROVIDED THAT WHEN THERE IS NO RIGHT TO USE OF ANY DEMARCATED SPACE PROVISIONS OF SECTION 194I WILL NO T APPLY. 4. FOR THAT THE APPELLANT RESERVES ITS RIGHT TO ADD FURTHER TO THE ABOVE AND/ OR AMEND ANY ONE OF THEM AT OR BEFORE THE TIME OF HEARING OF THE APPEAL. 5. THEREAFTER, THE ASSESSEE FILED AN APPLICATION SE EKING TO ACKNOWLEDGE THE FOLLOWING ADDITIONAL GROUND, WHICH READS AS UNDER:- 1. FOR THAT FURTHER AND IN ANY EVENT AND WITHOUT P REJUDICE, EVEN IF THE PAYMENT MADE ON WHARFAGE IS TREATED AS RENT, THE INCOME OF KOLKATA PORT TRUST, A PUBIC CHARITABLE TRUST BEING EXEMPT UNDER SECTION 11/12AA OF THE INCOME TAX ACT IS NOT LIABLE FOR DEDUCTION OF TAX AT SOURCE AND AS SUCH THE FIND ING OF THE CIT(A) MAY BE REVERSED AND APPEAL ALLOWED ON THIS GROUND. 6. THE LD.AR SUBMITS THAT IN ANY EVENT IF THE PAYME NT MADE ON WHARFAGE IS TREATED AS RENT AS RAISED IN THE MAIN G ROUNDS OF APPEAL, WITHOUT PREJUDICE TO THE SAME AND URGED TO ADMIT TH E ADDITIONAL GROUND AND TO ADJUDICATE THE SAME AS PRELIMINARY ISSUE. 7. THE LD. AR SUBMITS THAT THE ISSUE IN ADDITIONAL GROUND RAISED ABOVE ALREADY BEEN DECIDED BY THE CO- ORDINATE BENC H OF THIS TRIBUNAL BY ITS ORDER DATED 18.12.2014 IN THE CASE OF M/S GO URISHANKAR BIHANI 3 ITA NOS. 151 & 152/KOL/2016 AND PLACED ON RECORD THE COPY OF SUCH ORDER. THE LD .AR REFERRED TO PARA NO-2 OF SUCH ORDER AND SUBMITTED THAT AN IDENTICAL ISSUE WAS RAISED IN THE SAID CASE AS TO WHETHER THE CIT(A) THEREIN WAS JUSTIFIED IN CONFIRMING THE DISALLOWANCE OF EXPENDITURE FOR NON- DEDUCTION OF TDS U/S 194I OF THE ACT PAID ON ACCOUNT OF RENT TO KOLK ATA PORT TRUST FOR SHORT AS KPT HEREAFTER . FURTHER, REFERRED TO PARA NO-4 AND SUBMITTED THA T HAVING CONSIDERED THE ORDER DATED 08.06.2007 OF ITA T, KOLKATA IN THE CASE OF KOLKATA PORT TRUST VS DIT (EXEMPTION) IN IT A NO.2011/KOL/2006, THE CO-ORDINATE BENCH HELD THAT THE KPT IS A CHAR ITABLE INSTITUTION AND NO TAX IS DEDUCTIBLE AT SOURCE U/S 194I OF THE ACT. THE LD. AR DREW OUR ATTENTION TO THE ISSUE IN CHALLENGE INVOLVING MAIN GROUNDS OF APPEAL AND SUBMITTED THAT THE AO INITIATED PROCEEDINGS U/S. 20 1(1)/201(1A) OF THE ACT FOR NON DEDUCTION OF TDS U/SEC 194I OF THE ACT ON ACCOUNT OF PAYMENT MADE TO KPT IS IDENTICAL TO THE FACTS AND CIRCUMSTANCES IN THE CASE OF M/S. GOURISHANKAR BIHANI SUPRA . 8. ON THE OTHER HAND, THE LD. DR DID NOT CONTROVERT THE ABOVE SUBMISSIONS OF LD.AR. 9. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD, WE FIND THAT IN THE PRESENT CASE, THE AO INITIATED PROCEEDI NGS U/SEC. 201(1)/201(1A) OF THE ACT AGAINST THE ASSESSEE FOR NON DEDUCTION OF TDS ON WHARFAGE CHARGES PAID TO KPT AND HELD THAT T HE ASSESSEE IS IN DEFAULT AND CHARGED INTEREST BY AN ORDER DT. 31-03- 2014 PASSED U/S. 201(1)/201(1) OF THE ACT. AS POINTED OUT BY THE LD. AR, WE FIND THAT THIS TRIBUNAL IN THE CASE OF M/S. GOURISHANKAR BIHANI SUPRA HAD AN OCCASION TO DECIDE AN ISSUE WHICH IS IDENTICAL IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE INVOLVING ADDITIONAL GROUND AS WE LL AS MAIN GROUNDS OF APPEAL. IN THIS REGARD, WE MAY USEFULLY REPRODUCE T HE RELEVANT PORTION 4 ITA NOS. 151 & 152/KOL/2016 AT PARAS 2 TO 7 OF THE ORDER DT. 18-12-2014 IN THE CASE OF M/S GOURISHANKAR BIHARI SUPRA:- 2. ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGAINST THE ORDER OF CIT(A), CONFIRMING DISALLOWANCE OF EXPENDITURE FOR NON-DEDUCTION OF TD S U/S. 194-I OF THE ACT, BY INVOKING PROVISIONS OF SECTION 40(A)(IA) OF THE ACT, ON RENT PAID TO KOLKATA PORT TRUST (KPT). 3. BRIEF FACTS ARE THAT THE ASSESSEE HAS CLAIMED EX PENDITURE ON ACCOUNT OF RENT PAID TO KPT AT RS.54,21,256/-. THE ASSESSEE HAS NO T DEDUCTED ANY TAX AT SOURCE ON PAYMENT OF THIS RENT TO KPT. THE AO REQUIRED THE AS SESSEE TO EXPLAIN AS TO WHY EXPENDITURE CLAIMED ON ACCOUNT OF PAYMENT OF RENT T O KPT BE DISALLOWED BY INVOKING PROVISIONS OF SECTION 40(A)(IA) OF THE ACT FOR NON- DEDUCTION OF TDS U/S 194I OF THE ACT. ACCORDINGLY, AO DISALLOWED THE EXPENDITURE DEBITED ON ACCOUNT OF RENT AT RS.54,21,256/- BY INVOKING PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO ALSO CONFIRMED THE ACTION OF AO. AGGRIEVED, NOW ASSESSEE IS IN SECOND APPEAL BEFORE ITAT. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. FACTS ARE ADMITTED AND NO DISPUTE ON THE SAME. BEFORE US, LD. SR. ADVOCATE SHRI J. P. KHAITAN ARGUED THAT THE ASSESSEE HAS PAID REN T TO KPT, WHICH IS A PUBLIC CHARITABLE TRUST REGISTERED U/S. 12AA OF THE ACT. HIS FIRST AR GUMENT IS THAT INCOME OF PUBLIC CHARITABLE TRUST REGISTERED U/S. 12AA OF THE ACT IS EXEMPT AND ONCE THE INCOME IS EXEMPTED, ASSESSEE IS NOT LIABLE TO TDS. WE FIND FROM THE ORD ER OF TRIBUNAL DATED JUNE, 8, 2007 PASSED IN ITA NO. 2011/KOL/2006 IN THE CASE OF KOLK ATA PORT TRUST V. DIT(EXEMPTION), KOLKATA THAT KOLKATA PORT TRUST IS A CHARITABLE INS TITUTION ELIGIBLE FOR REGISTRATION U/S 12A OF THE ACT AND SUCH REGISTRATION WAS DIRECTED TO BE GR ANTED WITH EFFECT FROM APRIL, 1, 2005. HON'BLE TRIBUNAL IN DECIDING KOLKATA PORT TRUSTS C ASE, PLACED RELIANCE, INTER ALIA, ON THE JUDGMENT OF THE HON'BLE GUJARAT HIGH COURT IN THE C ASE OF CIT V. GUJARAT MARITIME BOARD (2007) 289 ITR 139 (GUJ). THE REVENUES APPEAL AGAI NST THE JUDGMENT OF HON'BLE GUJARAT HIGH COURT WAS DISMISSED BY HON'BLE SUPREME COURT I N CIT V. GUJARAT MARITIME BOARD (2007) 295 ITR 561 (SC). 5. IN SUCH CIRCUMSTANCES, WE ARE OF THE VIEW THAT K OLKATA PORT TRUST IS A CHARITABLE INSTITUTION ENTITLED FOR REGISTRATION UNDER SECTION 12A OF THE ACT. FOR ASSESSMENT YEAR 2007-08 INVOLVED IN THIS APPEAL, KOLKATA PORT TRUST WAS ASSESSED IN THE STATUS OF A CHARITABLE INSTITUTION AND THERE WAS NO DEMAND RAIS ED AGAINST IT AND REFUND OF THE ORDER OF RS.91.61 CRORES WAS ISSUED TO IT. THE AFORESAID FAC TS ARE MENTIONED IN THE LETTER DATED MAY 4, 2012 OF THE KOLKATA PORT TRUST ENCLOSED AT PAGE 17 OF ASSESSEES PAPER BOOK. IN VIEW OF THE ABOVE FACTS AND AS ARGUED BY LD. COUNSEL FOR TH E ASSESSEE THAT THE AFORESAID POSITION OBTAINED IN THE CASE OF KOLKATA PORT TRUST VIZ. THA T IT WAS GRANTED REGISTRATION AND ASSESSED AS A CHARITABLE INSTITUTION UNDER THE PROV ISIONS OF THE ACT, IT CANNOT BE DISPUTED THAT THE INCOME OF KOLKATA PORT TRUST IS NOT CHARGE ABLE TO TAX UNDER THE PROVISIONS OF THE ACT. SECTION 11 UNDER WHICH KOLKATA PORT TRUST WAS ASSESSED, INTER ALIA, FOR THE ASSESSMENT YEAR 2007-08 FALLS UNDER CHAPTER III OF THE ACT FOR INCOMES WHICH DO NOT FORM PART OF TOTAL INCOME. WE FIND THAT WHEN INCOME IS NOT TO BE INCLUDED IN THE TOTAL INCOME, IT IS WITHOUT A DOUBT, NOT CHARGEABLE UNDER THE PROVIS IONS OF THE ACT. IN VIEW OF THE ABOVE, WE HERE REFERRED TO SECTION 2(45) OF THE ACT, WHICH DEFINES TOTAL INCOME AND TO MEAN THE TOTAL AMOUNT OF INCOME REFERRED TO IN SECTION 5 , COMPUTED IN THE MANNER LAID DOWN IN THE ACT. SECTION 4 IS THE CHARGING SECTION AND PROV IDES FOR LEVY OF INCOME TAX ON THE TOTAL INCOME, WHEREAS, SECTION 5 LAYS DOWN THE SCOPE OF T OTAL INCOME. BOTH SUB-SECTIONS (1) AND (2) OF SECTION 5 OF THE ACT START WITH THE EXPR ESSION SUBJECT TO THE PROVISIONS OF THIS ACT AND THEN GO ON TO SAY WHAT TOTAL INCOME INCLUD ES. THUS, WHERE ANY INCOME IS NOT TO BE INCLUDED IN THE TOTAL INCOME, IT IS CLEARLY NOT CHARGEABLE UNDER THE PROVISIONS OF THE ACT. WE THEN WENT THROUGH THE PROVISIONS OF SECTION 194- I, WHICH PROVIDES FOR DEDUCTION OF TAX FROM RENT HAS TO BE READ IN CONJUNCTION WITH SECTIO N 204(III) OF THE ACT. SECTION 194-I IMPOSES THE OBLIGATION TO DEDUCT TAX ON PERSON RES PONSIBLE FOR PAYING INCOME BY WAY OF RENT. THE EXPRESSION PERSON RESPONSIBLE FOR PAYING HAS BEEN DEFINED IN SECTION 204 OF THE ACT. CLAUSE (III) OF SECTION 204 IS RELEVANT IN THE CONTEXT OF SECTION 194-I. THE MATERIAL PORTION OF SECTION 204 RELEVANT FOR THE PURPOSES OF THE INSTANT APPEAL IS SET OUT HEREIN BELOW:- 204. FOR THE PURPOSES OF THE FOREGOING PROVISIONS OF THIS CHAPTER AND SECTION 2885, THE EXPRESSION PERSON RESPONSIBLE FOR PAYING: MEANS- **** 5 ITA NOS. 151 & 152/KOL/2016 (III) IN THE CASE OF CREDIT, OR, AS THE CASE MAY BE , PAYMENT OF ANY OTHER SUM CHARGEABLE UNDER THE PROVISIONS OF THIS ACT , THE PAYER HIMSELF, OR, IF THE PAYER IS A COMPANY, THE COMPANY ITSELF INCLUDING THE PRINCIPAL OFFICER THER EOF THE OBLIGATION TO DEDUCT TAX FROM PAYMENTS TO RESID ENTS IS IN RESPECT OF SUM CHARGEABLE UNDER THE PROVISIONS OF THIS ACT. SECTION 195 IS A PPLICABLE IN RESPECT OF PAYMENTS TO NON- RESIDENTS AND ALSO STIPULATES DEDUCTION OF INCOME T AX AT SOURCE FROM SUM CHARGEABLE UNDER THE PROVISIONS OF THIS ACT. THUS, THE OBLIGA TION TO DEDUCT TAX WOULD ARISE ONLY WHEN THE AMOUNT IS SUM CHARGEABLE UNDER THE PROVISIONS OF THIS ACT, WHETHER THE PAYEE IS A RESIDENT OR NON-RESIDENT. IN RESPECT OF PAYMENTS TO RESIDENTS, EACH OF THE PROVISIONS REQUIRING TAX DEDUCTION AT SOURCE INCLUDING SECTION 194-I HAS TO BE READ IN CONJUNCTION WITH SECTION 204 AND NO TAX IS REQUIRED TO BE DEDUC TED IF THE AMOUNT PAYABLE IS NOT CHARGEABLE UNDER THE PROVISIONS OF THE ACT. THE CAS E OF PAYMENT TO A NON-RESIDENT WAS CONSIDERED BY THE HON'BLE SUPREME COURT IN GE INDIA TECHNOLOGY CENTRE P. LTD.V CIT, (2010) 327 ITR 456 (SC), WHERE IT WAS HELD THAT PRO VISIONS RELATING TO TAX DEDUCTION AT SOURCE APPLIED ONLY TO THOSE SUMS WHICH WERE CHARGE ABLE TO TAX UNDER THE ACT. THE SAID CASE DEALT WITH SECTION 195 OF THE ACT BUT THE PRIN CIPLE LAID DOWN THEREIN IS EQUALLY APPLICABLE EVEN IN RESPECT OF PROVISIONS RELATING T O DEDUCTION OF TAX AT SOURCE FROM PAYMENTS TO RESIDENTS WHICH HAVE TO BE READ ALONG W ITH SECTION 204 OF THE ACT. IN THE SAID CASE, THE PROVISIONS OF SECTION 204 OF THE ACT DID NOT COME UP FOR CONSIDERATION. 6. IN TERM OF THE ABOVE, WE ARE OF THE VIEW THAT IN THE INSTANT CASE NO TAX WAS DEDUCTIBLE AT SOURCE UNDER SECTION 194-I READ WITH SECTION 204 COMPRISED IN CHAPTER XVII- B FROM THE RENT PAID BY THE ASSESSEE TO KPT. THIS I S BECAUSE SUCH RENT WAS NOT TO BE INCLUDED IN THE TAXABLE TOTAL INCOME OF THE KPT AND WAS, THEREFORE, NOT CHARGEABLE UNDER THE PROVISIONS OF THE ACT. AS ARGUED BY LD. SENIOR ADVOCATE THAT IN THE INSTANT CASE NO TAX WAS AT ALL PAYABLE BY KPT FOR AY 2007-08. U/S 191 O F THE ACT THE PERSON MAKING THE PAYMENT CAN BE DEEMED TO BE AN ASSESSEE IN DEFAULT WITHIN THE MEANING OF SUB-SECTION (1) OF SECTION 201 ONLY WHERE THE DEDUCTEE/PAYEE HA S ALSO FAILED TO PAY SUCH TAX DIRECTLY. THIS ISSUE HAS BEEN CONSIDERED BY HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF JAGRAN PRAKASHAN LTD. V. DCIT (TDS) (2012) 345 ITR 288 (AL L) AND BY ITAT KOLKATA BENCH IN THE CASE OF RAMAKRISHNA VEDANTA MATH V. ITO (2013) 55 S OT 417 (KOL). IN THE INSTANT CASE, KPT WAS NOT REQUIRED TO PAY ANY TAX AND IN TURN THE ASSESSEE CANNOT BE TREATED TO BE IN DEFAULT WITHIN THE MEANING OF SECTION 201(1). ACCOR DINGLY, WE ARE OF THE VIEW THAT NO DISALLOWANCE OUGHT TO HAVE BEEN MADE UNDER SECTION 40(A)(IA) OF THE ACT. BUT, LD. SENIOR DR, SHRI AMITAVA ROY RELIED ON THIS TRIBUNALS ORDE R OF B BENCH IN ITA NO.1091/KOL/2012 DATED 14-10-2014 FOR THE AY 2009-10 IN THE CASE OF ACIT V. HITECH LOGISTICS LTD. WHEREIN EXACTLY THE SIMILAR FACTS WERE THERE AND THE SAME P ARTY THAT KPT WAS THE RECIPIENT OF RENT WITHOUT THE DEDUCTION OF TDS AND HON'BLE BENCH DECI DED THE ISSUE VIDE PARA-4 OF ITS ORDER AS UNDER:- 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE CIT(A) HAS DELETED THE DISALLOWANCE FOR THE REASON THAT THE PAYMENTS MADE TO KOLKATA PORT TRUST DO NOT ATTRACT THE TDS PROVISION. FOR THIS, HE OBSERVED THAT I FIND THAT THE KOLKATA PORT TRUST I S UNDER THE MINISTRY OF SURFACE TRANSPORT, WHERE IN THE GOVT. OF INDIA HAS FULL BENEFICIAL INT EREST. THEREFORE, ANY PAYMENT MADE TO KOLKATA PORT TRUST WILL BE COVERED U/S. 196 OF THE I. T. ACT, 1961 AND AS SUCH ASSESSEES APPEAL ON THIS GROUND IS ALLOWED. WE FIND THAT TH E FINDINGS OF CIT(A) IS TOTALLY PERVERSE AND AGAINST LAW FOR THE REASON THAT THE TDS FROM RE NT PAYMENT TO KOLKATA PORT TRUST IS LIABLE TO TDS U/S. 194-I OF THE ACT. KOLKATA PORT T RUST IS ASSESSABLE ENTITY WITHIN THE PROVISIONS OF INCOME TAX ACT AND IT IS NOT GOVERNME NT ITSELF. IT IS A CORPORATE ENTITY ASSESSABLE TO TAX. ONCE THE PAYMENT OF RENT ON ACCO UNT OF WAREHOUSE BY THE ASSESSEE WAS MADE TO KOLKATA PORT TRUST AND IS CLAIMED AS EXPEND ITURE, THE SAME IS LIABLE FOR TDS U/S. 194-I OF THE ACT, FOR WHICH THE ASSESSEE HAS NOT DE DUCTED ANY TDS. THE DISALLOWANCE MADE BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA ) OF THE ACT BY THE AO IS WITHIN THE PROVISIONS OF LAW. HENCE, WE RESTORE THE DISALLOWAN CE AND THE ORDER OF CIT(A) IS REVERSED. THIS ISSUE OF REVENUES APPEAL IS ALLOWED. ACCORDINGLY LD SENIOR DR STATED THAT THE ISSUE IS C OVERED IN FAVOUR OF REVENUE. BUT OTHER FACET OF ARGUMENTS HAS NOT BEEN COUNTERED. 7. IN VIEW OF THE ABOVE FACT, WE ARE OF THE VIEW TH AT IN THE INSTANT CASE NO TAX WAS DEDUCTIBLE AT SOURCE UNDER SECTION 194-I READ WITH SECTION 204 COMPRISED IN CHAPTER XVII- B FROM THE RENT PAID BY THE ASSESSEE TO KPT. THIS I S BECAUSE SUCH RENT WAS NOT TO BE INCLUDED IN THE TOTAL INCOME OF THE KPT AND WAS, TH EREFORE, NOT CHARGEABLE UNDER THE PROVISIONS OF THE ACT. IN THE CASE LAW REFERRED BY LD. SR. DR THE FACT RELATING TO THE CLAIM OF EXEMPTION OF THE INCOME OF KPT WAS NOT BEFORE TR IBUNAL OR THAT ISSUE WAS NOT RAISED BUT 6 ITA NOS. 151 & 152/KOL/2016 IN THE INSTANT CASE, KPT WAS NOT REQUIRED TO PAY AN Y TAX AND IN TURN CANNOT BE TREATED TO BE IN DEFAULT WITHIN THE MEANING OF SECTION 201(1). ACCORDINGLY, WE ARE OF THE VIEW THAT NO DISALLOWANCE OUGHT TO HAVE BEEN MADE UNDER SECTION 40(A)(IA) OF THE ACT. 10. IT IS CLEAR FROM THE AFOREMENTIONED ORDER THAT THIS TRIBUNAL DIRECTED THE DIT(EXEMPTION) TO GRANT REGISTRATION U /S. 12A OF THE ACT W.E.F 01-04-2005 VIDE ITS ORDER DT. 8-6-2007. THE A .Y UNDER CONSIDERATION IN THE AFOREMENTIONED CASE WAS 2007-0 8 AND THE CO- ORDINATE BENCH FOUND THERE WAS NO DEMAND RAISED AND GRANTED REFUND OF RS. 91.61 CRORES IN THE SAID A.Y 2007-08. THE LD . DR DID NOT DISPUTE THE SAME. THEREFORE, IT IS CLEAR FROM THE RECORD TH AT THE KPT WAS ASSESSED IN THE STATUS OF CHARITABLE INSTITUTION IN PURSUANCE OF ORDER OF THIS TRIBUNAL AND ITS INCOME IS EXEMPT IN TERMS OF SECTION 11 OF THE ACT HAVING REGISTRATION U/S. 12A OF THE ACT. IN VIEW OF ABOVE DISCUSSION, WE FIND FORCE IN THE SUBMISSIONS OF THE LD.AR THAT TH E KPT IS A PUBIC CHARITABLE TRUST AND NO TDS IS LIABLE TO BE DEDUCTE D AT SOURCE BY THE ASSESSEE AND THE ADDITIONAL GROUND RAISED BY THE AS SESSEE IS ALLOWED. 11.FURTHER, THE LD.AR SUBMITS THAT, WHETHER THE WHA RFAGE CHARGES PAID BY THE ASSESSEE IS IN THE NATURE OF RENT FOR USE OF DOCK IN THE KPT. IN THIS CONNECTION, HE REFERS TO THE FACTS RELATING TO WHARFAGE CHARGES AND SUBMITS THAT THE ASSESSEE IS A PRIVATE LIMITED COMP ANY AND ENGAGED IN THE BUSINESS OF PRODUCING PURIFIED TEREPHPHALIC ACI D. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE USED WHARF OR QUAY WHICH PROVIDES ACCESS TO THE SHIPS FOR ITS UNLOADING OF IMPORTED C ARGO. THE AO FOUND THAT THE ASSESSEE PAID A SUM OF RS. 1.09 CRORES AS WHARFAGE CHARGES TO KPT FOR USE OF A PLATFORM(WHARF OR QUAY) MADE AND P ROVIDED BY THE KPT AND OPINED THAT THE SAID PAYMENT TO KPT IS IN THE N ATURE OF RENT. THE AO INITIATED PROCEEDINGS U/S. 201(1)/201(1A) OF THE AC T FOR NON DEDUCTION OF TDS U/SEC 194I OF THE ACT ON ACCOUNT OF PAYMENT OF RENT MADE TOKPT.THE CIT-A SUPPORTED THE VIEW TAKEN BY THE A O THAT THE SAID 7 ITA NOS. 151 & 152/KOL/2016 PAYMENT IS IN THE NATURE OF RENT AND TDS IS DEDUCTI BLE U/S. 194 I OF THE ACT. 12. BEFORE US, THE LD.AR FILED A DETAILED PAPER BOO K CONSISTING OF PAGES 1-140. THE LD.AR REFERRED TO THE PROVISION U/ SEC 35 OF MAJOR PORTS ACT 1936 AND SUBMITTED THAT THE SECTION 35 EM POWERS THE BOARD TO EXECUTE WORKS AND PROVIDE APPLIANCES AND MAY EXECUTE SUCH WORKS WITHIN OR WITHOUT THE LIMITS OF THE PORT AND PROVID E SUCH APPLIANCES AS IT MAY DEEM NECESSARY. FURTHER, THE SECTION 37 PROV IDE POWER TO BOARD TO ORDER SEA-GOING VESSELS TO USE DOCKS, WHAR VES, ETC.. AFTER OBTAINING THE APPROVAL OF THE COLLECTOR OF CUSTOMS AND BY NOTIFICATION PUBLISHED IN THREE CONSECUTIVE ISSUES OF THE OFFICI AL GAZETTE, DECLARE THAT SUCH DOCK, BERTH, WHARF, QUAY, STAGE, JETTY OR PIER IS READY FOR RECEIVING, LANDING AND SHIPPING OR FOR LANDING OR F OR SHIPPING GOODS OR PASSENGERS FROM AND UPON SEA-GOING VESSELS. 13. THE LD.AR ARGUED THAT WHARFAGE IS A FEE CHARGED BY THE KPT FOR THE USE OF A PLATFORM BUILT OUT FROM THE SHORE INTO THE WATER SUPPORTED BY PILES AND PROVIDES ACCESS TO SHIPS AND BOATS FOR LOADING AND UNLOADING OF CARGO. HE REFERRED TO PAGE-1 OF THE PA PER BOOK AND SUBMITTED THAT THE KPT ISSUED CARGO BILL IN THE NAM E OF ASSESSEE MENTIONING NAME OF VESSEL, PARTICULARS OF CARGO, QU ANTITY AND RATES. THE VESSEL BY NAME M.T GOLDEN DREAM WAS ARRIVED IN THE KPT ON 12- 02-2011. THE KPT HAS ALLOTTED BERTH NO. 00065 FOR U NLOADING OF IMPORTED ACETIC ACID THROUGH PIPELINE, FOR WHICH, T HE KPT CHARGED RS.1,28,878/- FOR A QUANTITY OF 1997.30 OF ACETIC A CID @ RS. 58.50. THE LD. AR ARGUED THAT THE SAID VESSEL ARRIVED ON 1 2-02-2011 AND DEPARTED FROM THE KPT ON 15-02-2011. THE ASSESSEE U SED SUCH PLATFORM TEMPORARILY FROM 12-02-2011 TO 15-02-2011 FOR UNLOADING OF THE SAID CARGO AND IT IS NOT A RENT ATTRACTING THE PROVISIONS OF SECTION 8 ITA NOS. 151 & 152/KOL/2016 194I OF THE ACT AS THERE WAS NO PERMANENT AND CONTI NUOUS USAGE OF SAID PLATFORM. HE REFERRED TO PAGE-3 OF THE PAPER B OOK AND ARGUED THAT THE KPT ALLOTTED ANOTHER BERTH NO. 00105 FOR V ESSEL BY NAME M.T SUNNY DREAM, WHICH WAS ARRIVED ON 07-01-2011 AND DE PARTED ON 08- 01-2011 AND UNLOADED A QUANTITY OF 6242.60 OF PARAE XYNE AND THE KPT CHARGED RS.5,26,749/- @ RS.76.50. HE ARGUED THA T THERE IS NO PERMANENT ALLOTMENT OF BERTHS AND IT CHANGES FROM T IME TO TIME AND THE RATES ALSO VARY FROM CARGO TO CARGO. THE LD. AR FURTHER ARGUES WHEN THERE IS NO PERMANENT ALLOTMENT OF BERTH DEMAR CATING THE SPACE AND NO FIXED RATE AND THE PAYMENTS MADE THEREON CAN NOT BE CONSTRUED AS RENT AS VIEWED BY THE AO AND CIT-A. 14. THE LD. AR FURTHER REFERS TO CLARIFICATION ISSU ED BY THE CBDT VIDE CIRCULAR NO. 1/2008 DT. 10-01-08, PLACED AT PAGE-13 5 OF THE PAPER BOOK AND SUBMITTED THAT THE CBDT CLARIFIED THE APPLICABI LITY OF PROVISIONS OF SECTION 194I OF THE ACT FOR THE PAYMENTS BY THE CUS TOMER ON ACCOUNT OF COOLING CHARGES TO THE COLD STORAGE OWNERS. HE FURT HER ARGUED THAT THE CBDT TAKEN INTO CONSIDERATION THE MAIN FUNCTION OF THE COLD STORAGE WHICH PRESERVES PERISHABLE GOODS BY MEANS OF MECHAN ICAL PROCESS AND CLARIFIED THAT STORAGE OF SUCH GOODS IS ONLY INCIDE NTAL IN NATURE. THE CUSTOMER THEREIN WAS GIVEN NO RIGHT TO USE DEMARCAT ED SPACE AND THUS DOES NOT BECOME A TENANT ATTRACTING THE PROVISIONS OF SECTION 194 I OF THE ACT. THE LD. AR FURTHER SUBMITS THAT THE ASSESS EE DEDUCTED TDS U/S. 194C OF THE ACT ON WHARFAGE CHARGES PAID TO KPT AND DEPOSITED THE SAME TO THE GOVERNMENT ACCOUNT. IT IS CLEAR FROM TH E CBDT CIRCULAR WHEN THERE IS NO PERMANENT SPACE DEMARCATED FOR ANY COOLING ACTIVITY AND SUCH PROCESS IS INCIDENTAL IN NATURE AND ARGUED THAT THE CLARIFICATION WAS GIVEN IN CONNECTION WITH COOLING CHARGES IS SIM ILAR TO THE WHARFAGE 9 ITA NOS. 151 & 152/KOL/2016 CHARGES PAID TO THE KPT AND THE ASSESSEE CANNOT BE TERMED AS TENANT FALLING UNDER THE AMBIT OF SECTION 194I OF THE ACT. 15. THE LD.AR REFERRED TO THE DECISION OF HONBLE S UPREME COURT IN THE CASE OF JAPAN AIRLINES CO.LTD REPORTED IN 377 ITR 372 (SC) AND SUBMITTED THAT THE SUPREME COURT WHILE DEALING WITH THE ISSUE IN HAND CONSIDERED THE DECISIONS OF HONBLE HIGH COURT OF D ELHI IN THE CASE OF UNITED AIRLINES REPORTED IN 287 ITR 281 AND SINGAPO RE AIRLINES LTD OF HONBLE HIGH COURT OF MADRAS REPORTED IN 358 ITR 23 7. THE LD. AR SUBMITS THAT THE ISSUE IN BOTH CASES WAS THAT WHETH ER THE TDS IS TO BE DEDUCTED U/S. 194C OR 194I FOR LANDING THE AIRCRAFT S AND PARKING THEREOF. THE HONBLE HIGH COURT OF DELHI HELD THAT WHEN THE WHEELS OF AN AIRCRAFT COMING INTO AIRPORT AND TOUCHED THE SUR FACE OF THE AIRFIELD AND PARKING THE AIRCRAFT IN THE AIRPORT IS USE OF L AND AND ATTRACTS THE PROVISIONS OF SECTION 194I OF THE ACT. THE HONBLE HIGH COURT OF MADRAS HELD THAT THE FACILITY WAS NOT USE OF LAND PER SE A ND WAS PROVIDED IN COMPLIANCE WITH THE VARIOUS INTERNATIONAL PROTOCOL AND THERE WAS NO USE OF LAND AND HELD NO APPLICABILITY OF SECTION 194I O F THE ACT. THE LD. AR SUBMITS THAT THE HONBLE SUPREME COURT AFFIRMED TH E VIEW TAKEN BY THE HONBLE HIGH COURT OF MADRAS IN THE CASE OF SINGAPO RE AIRLINES LTD SUPRA AND OVERRULED THE VIEW OF HONBLE HIGH COURT OF DEL HI IN THE CASE OF JAPAN AIRLINES CO. LTD. HE ALSO SUBMITS THAT THE I SSUE RAISED BEFORE THE HONBLE SUPREME COURT IN THE CASE OF JAPAN AIRLINES CO.LTD IS SIMILAR AND IDENTICAL TO THE FACTS OF PRESENT CASE AND ARGU ED THAT THE PAYMENTS MADE BY THE ASSESSEE TO KPT ON ACCOUNT OF WHARFAGE CHARGES CANNOT BE CONSIDERED AS RENT ATTRACTING THE PROVISIONS OF SEC TION 194I OF THE ACT. 16. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORD ERS OF AO & CIT-A. 10 ITA NOS. 151 & 152/KOL/2016 17. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIA L ON RECORD. WE MAY REFER TO THE RELEVANT PROVISIONS CONTAINED IN T HE MAJOR PORTS ACT 1963 EXPLAINING THE POWERS OF BOARD OF PORT TRUST, WHICH READS AS UNDER: - 35. POWER OF BOARD TO EXECUTE WORKS AND PROVIDE APP LIANCES.- (1) A BOARD MAY EXECUTE SUCH WORKS WITHIN OR WITHOU T THE LIMITS OF THE PORT AND PROVIDE SUCH APPLIANCES AS IT MAY DEEM NECESSARY OR EXPEDIE NT. (2) SUCH WORKS AND APPLIANCES MAY INCLUDE- (A) WHARVES, QUAYS, DOCKS, STAGES, JETTIES, PIERS A ND OTHER WORKS WITHIN THE PORT OR PORT APPROACHES OR ON THE FORESHORE OF THE PORT OR PORT APPROACHES, WITH ALL SUCH CONVENIENT ARCHES, DRAINS, LANDING PLACES, STAIRS, FENCES, ROA DS, RAILWAYS, BRIDGES, TUNNELS AND APPROACHES AND BUILDINGS REQUIRED FOR THE RESIDENCE OF THE EMPLOYEES OF THE BOARD AS THE BOARD MAY CONSIDER NECESSARY; (B) BUSES, RAILWAYS, LOCOMOTIVES, ROLLING STOCK, SH EDS, HOTELS, WAREHOUSES AND OTHER ACCOMMODATION FOR PASSENGERS AID GOODS AND OTHER AP PLIANCES FOR CARRYING PASSENGERS AND FOR CONVEYING, RECEIVING AND STORING GOODS LAND ED, OR TO BE SHIPPED OR OTHERWISE; (C) MOORINGS AND CRANES, SCALES AND ALL OTHER NECES SARY MEANS AND APPLIANCES FOR LOADING AND UNLOADING VESSELS; (D) RECLAIMING, EXCAVATING, ENCLOSING AND RAISING A NY PART OF THE FORESHORE OF THE PORT OR PORT APPROACHES WHICH MAY BE NECESSARY FOR THE EXEC UTION OF THE WORKS AUTHORISED BY THIS ACT, OR OTHERWISE FOR THE PURPOSES OF THIS ACT; (E) SUCH BREAKWATERS AND OTHER WORKS AS MAY BE EXPE DIENT FOR THE PROTECTION OF THE PORT; (F) DREDGERS AND OTHER MACHINES FOR CLEANING, DEEPE NING AND IMPROVING ANY PORTION OF THE PORT OR PORT APPROACHES OR OF THE FORESHORE OF THE PORT OR PORT APPROACHES; (G) LIGHTHOUSES, LIGHTSHIPS, BEACONS, BUOYS, PILOT BOATS AND OTHER APPLIANCES NECESSARY FOR THE SAFE NAVIGATION OF THE PORT AND OF THE PORT APP ROACHES; (H) VESSELS, TAGS OR OTHER BOATS FOR USE WITHIN THE LIMITS OF THE PORT OR BEYOND THOSE LIMITS, WHETHER IN TERRITORIAL WATERS OR OTHERWISE, FOR THE PURPOSE OF TOWING OR RENDERING ASSISTANCE TO ANY VESSEL, WHETHER ENTERING OR LEAVI NG THE PORT OR BOUND ELSEWHERE, AND FOR THE PURPOSE OF SAVING OR PROTECTING LIFE OR PROPERT Y AND FOR THE PURPOSE OF LANDING, SHIPPING OR TRANSHIPPING PASSENGERS OR GOODS UNDER SECTION 42; (I) SINKING OF TUBE-WELLS, AND EQUIPMENT, MAINTENAN CE AND USE OF BOATS, BARGES AND OTHER APPLIANCES FOR THE PURPOSE OF THE SUPPLY OF WATER A T THE PORT; (J) ENGINES AND OTHER APPLIANCES NECESSARY FOR THE EXTINGUISHING OF FIRES; (K) CONSTRUCTION OF MODELS AND PLANS FOR CARRYING O UT HYDRAULIC STUDIES; (L) DRY DOCKS, SLIPWAYS, BOAT BASINS AND WORKSHOPS TO CARRY OUT REPAIRS OR OVERHAULING OF VESSELS, TUGS, BOATS, MACHINERY OR OTHER APPLIANCES . 37. POWER OF BOARD TO ORDER SEA-GOING VESSELS TO US E DOCKS, WHARVES, ETC.- (1) WHEN ANY DOCK, BERTH, WHARF, QUAY, STAGE, JETTY OR PIER ERECTED AT ANY PORT OR PORT APPROACHES UNDER THE PROVISIONS OF THIS ACT HAS BEE N COMPLETED WITH SUFFICIENT WAREHOUSES, SHEDS AND APPLIANCES FOR RECEIVING, LAN DING OR SHIPPING GOODS OR PASSENGERS FROM AND UPON SEA-GOING VESSELS, THE BOARD MAY, AFT ER OBTAINING THE APPROVAL OF THE COLLECTOR OF CUSTOMS AND BY NOTIFICATION PUBLISHED IN THREE CONSECUTIVE ISSUES OF THE OFFICIAL GAZETTE, DECLARE THAT SUCH DOCK, BERTH, WH ARF, QUAY, STAGE, JETTY OR PIER IS READY FOR RECEIVING, LANDING AND SHIPPING OR FOR LANDING OR FOR SHIPPING GOODS OR PASSENGERS FROM AND UPON SEA-GOING VESSELS. 11 ITA NOS. 151 & 152/KOL/2016 (2) AS FROM THE DATE OF THE PUBLICATION OF SUCH NOT IFICATION FOR THE THIRD TIME, IT SHALL BE LAWFUL FOR THE BOARD, FROM TIME TO TIME, WHEN THERE IS ROOM AT SUCH DOCK, BERTH, WHARF, QUAY, STAGE, JETTY OR PIER, TO ORDER TO COME ALONGS IDE OF SUCH DOCK, BERTH, WHARF, QUAY, STAGE, JETTY OR PIER FOR THE PURPOSE OF LANDING AND SHIPPING GOODS OR PASSENGERS OR FOR LANDING OR FOR SHIPPING THE SAME, ANY SEA-GOING VES SEL WITHIN THE PORT OR PORT APPROACHES WHICH HAS NOT COMMENCED TO DISCHARGE GOODS OR PASSE NGERS, OR WHICH BEING ABOUT TO TAKE IN GOODS OR PASSENGERS, HAS NOT COMMENCED TO DO SO : PROVIDED THAT BEFORE MAKING SUCH ORDER, THE BOARD SHALL HAVE REG ARD, AS FAR AS POSSIBLE, TO THE CONVENIENCE OF SUCH VESSEL AND OF THE SHIPPE RS, IN RESPECT OF THE USE OF ANY PARTICULAR DOCK BERTH, WHARF, QUAY, STAGE, JETTY OR PIER: PROVIDED FURTHER THAT IF THE BOARD IS NOT THE CONSERVATOR OF THE PORT, T HE BOARD SHALL NOT ITSELF MAKE THE ORDER AS AFORESAID BUT SHALL REQUIR E THE CONSERVATOR OF THE PORT, OR OTHER PERSON EXERCISING THE RIGHTS, POWERS, AND AUTHORITI ES OF THE CONSERVATOR OF THE PORT, TO SNAKE SUCH ORDER. 18. AS POINTED OUT BY THE LD. AR THAT THE SECTION 3 5 OF MAJOR PORTS ACT 1963 EMPOWERS THE BOARD TO EXECUTE WORKS PROVIDING APPLIANCES WHICH INCLUDES WHARVES, QUAYS, DOCKS, STAGES, JETTIES, PI ERS AND OTHER WORKS WITHIN OR WITHOUT THE PORT LIMITS AND ALSO MOORINGS AND CRANES, SCALES AND ALL OTHER NECESSARY NEEDS AND APPLIANCES FOR LO ADING AND UNLOADING. SECTION 37 EXPLAINS THAT THE BOARD MAY ISSUE NOT IFICATION DECLARING ANY DOCK, BERTH, WHARVES, QUAYS, DOCKS, STAGES, JET TIES, PIERS IS READY FOR RECEIVING, LANDING AND SHIPPING GOODS OR PASSEN GERS AFTER OBTAINING APPROVAL OF COLLECTOR OF CUSTOMS. THEREFORE, IT IS CLEAR FROM THE ABOVE THAT THERE IS NO DEMARCATED SPACE. FURTHER, WE FIND THE SCALE OF RATES APPROVED BY TARIFF AUTHORITY FOR MAJOR PORTS PUBLIS HED IN GAZETTE NOTIFICATION NO. 30 DT. 15-02-2011, PLACED AT PAGE- 96 OF THE PAPER BOOK, WHEREIN WE NOTICED CHARGES ON BREAK BULK AND BULK CARGO IN PART- I RELEVANT TO WHARFAGE. THE SAID RATES AS WE NOTICE D ARE FIXED AS PER TONNE APPLICABLE TO DIFFERENT CATEGORIES OF CARGO I .E. FOR LIQUID/GAS AND IT IS CLEAR THAT NO FIXED RATE LEVIED OR RECOV ERABLE ON ALL CARGO/CONTAINER LANDED OR SHIPPED OR TRANSSHIPPED W ITHIN THE PORT LIMIT AND APPROACHES OR PASSING THROUGH THE DECLARED LAND ING STAGE OF THE PORT AND, THUS, THE CHARGES COLLECTED BY THE KPT IS NOT A RENT ATTRACTING THE PROVISION U/SECTION 194I OF THE ACT. 12 ITA NOS. 151 & 152/KOL/2016 19. ON PERUSAL OF DETAILS-(CARGO BILL), IT IS NOTIC ED THAT THE KPT (HALDIA COMPLEX) ISSUED THE CARGO BILL TO ASSESSEE, WHEREIN DETAILS OF CARGO WHARFAGE, BILL NO. DATE, VESSEL NAME, IMPORT ROT NO. PARTICULARS, QUANTITY, RATE AMOUNT, VESSEL ARRIVAL & DEPARTURE D ATE/TIME ARE REFLECTED FROM PAGES 1-95 OF THE PAPER BOOK. AS DIS CUSSED ABOVE, ON PERUSAL OF PAGES 96-134, IT IS NOTICED THAT THE KPT APPROVED SCALE OF RATES APPLICABLE FOR MAJOR PORTS, WHEREIN IT IS FO UND THAT WHARFAGE WAS DEFINED UNDER SECTION 2 (XXIII), WHEREIN WHARFAGE W AS DEFINED AS A BASIC DUES RECOVERABLE ON ALL CARGO/CONTAINER LANDED OR S HIPPED OR TRANSSHIPPED WITHIN THE PORT LIMIT AND APPROACHES O R PASSING THROUGH THE DECLARED LANDING STAGE OF THE PORT, WHETHER TH E PORTERAGE WAS PROVIDED BY THE PORT OR NOT AND SHALL INCLUDE HOOKI NG/UNHOOKING OPERATION ON SHORE. WE ALSO FIND BREAK UP OF BULK C ARGO CHARGES IN SECTION 4.1, WHEREIN THE KPT LEVIES RATES VARYING O N LIQUIDS/GAS HANDLED THROUGH PIPELINE AND OTHER THAN PIPELINE, THOUGH ME CHANICAL SYSTEM AND OTHER THAN MECHANICAL SYSTEM. 20. IT IS FURTHER NOTICED THAT THE INCOME TAX DEPA RTMENT, GOVT. OF INDIA CLARIFIED THE APPLICABILITY OF PROVISIONS OF SECTION 194I, WHICH READS AS UNDER:- CLARIFICATION REGARDING APPLICABILITY OF PROVISIONS OF SECTION 194-I TO PAYMENTS MADE BY THE CUSTOMERS ON ACCOUNT OF COOLING CHARGES TO T HE COLD STORAGE OWNERS CIRCULAR NO. 1/2008, DATED 1 0-1-2008 REPRESENTATIONS HAVE BEEN RECEIVED FROM VARIOUS QUA RTERS REGARDING APPLICABILITY OF THE PROVISIONS OF SECTION 194-I TO COOLING CHARGES PAID BY THE VARIOUS CUSTOMERS TO THE OWNERS OF COLD STORAGES. IT HAS BEEN REPRESENTED THAT THE COLD STORAGE OWNERS PROVIDE A COMPOSITE SERVICE, WHICH INVOLVES PRESERVATION OF ESSENTIAL FOOD ITEMS INCLUDING PERISHABLE GOODS AT VARIOUS TEMPERATURES SUITABLE F OR SPECIFIC FOOD ITEMS REQUIRED PERIODS AND STORAGE OF GOODS BEING INCIDENTAL TO THE ACTIVI TY OF PRESERVATION. THE COOLING OF BUILDING, PLANT/MACHINERY ETC. IN ANY MANNER AND DO ES NOT BECOME A TENANT OF ANY KIND. 2. THE MATTER HAS BEEN EX4LMINED. THE MAIN FUNCTION OF THE COLD STORAGE IS TO PRESERVE PERISHABLE GOODS BY MEANS OF A MECHANICAL PROCESS, AND STORAGE OF SUCH GOODS IS ONLY INCIDENTAL IN NATURE. THE CUSTOMER IS ALSO NOT GIVE N ANY RIGHT TO USE ANY DEMARCATED SPACE/PLACE OR THE MACHINERY OF THE COLD STORE AND THUS DOES NOT BECOME A TENANT. 'THEREFORE, THE PROVISION OF 194-I IS NOT APPLICABL E TO THE COOLING CHARGES PAID BY THE CUSTOMERS OF THE COLD STORAGE. 3. HOWEVER, SINCE THE ARRANGEMENT BETWEEN THE CUSTO MERS AND COLD STORAGE OWNERS ARE BASICALLY CONTRACTUAL IN NATURE, THE PROVISION OF S ECTION 194-C WILL BE APPLICABLE TO THE 13 ITA NOS. 151 & 152/KOL/2016 AMOUNTS PAID AS COOLING CHARGES BY TILE CUSTOMERS O F THE COLD STORAGE. THIS MAY BE BROUGHT TO THE NOTICE OF THE ASSESSING OFFICERS UND ER YOUR CHARGE. 21. BARE READING OF AFOREMENTIONED CBDT CIRCULAR, E XPLAINS THAT THE PAYMENT OF COOLING CHARGES PAID ON ACCOUNT OF FOR PRESERVATION OF ESSENTIAL ITEMS INCLUDING PERISHABLE GOODS AT VARIO US TEMPERATURES SUITABLE FOR SPECIFIC FOOD ITEMS IS INCIDENTAL TO T HE ACTIVITY OF PRESERVATION AND SUCH ACTIVITY IS CONTROLLED THROUG H MECHANICAL PROCESS. THE CBDT CLARIFIED NO PROVISION U/S. 194I APPLICABL E TO THE RIGHT GIVEN TO USE ANY NON DEMARCATED SPACE/PLACE. IN THE PRESENT CASE, AS WE HAVE SEEN FROM PAGES 1-95 OF THE PAPER BOOK, THE KPT WAS ALLOTTING DIFFERENT BERTH NOS. BASING ON CATEGORY OF CARGO AND CHARGING DIFFERENT RATES FOR QUANTITY OF CARGO APPLICABLE THEREIN. THEREFORE, WE FIND NO DEMARCATED SPACE/PLACE WAS GIVEN TO ASSESSEE PERMANENTLY AND N O FIXED RATE COLLECTED. THEREFORE, IN OUR OPINION THE CLARIFICAT ION ISSUED BY THE CBDT IS APPLICABLE TO THE FACTS IN HAND AND THE IMPUGNED ORDER OF THE CIT-A CONFIRMING THE VIEW OF THE AO IN FINDING THAT THE A SSESSEE IS IN DEFAULT AND IMPOSING INTEREST THEREON U/S 201/201(1A) OF TH E ACT FOR NON DEDUCTION OF TDS U/SEC 194 I OF THE ACT IS NOT MAIN TAINABLE AND THE SAME IS LIABLE TO BE QUASHED. 22. FURTHER, THE HONBLE SUPREME COURT IN THE CASE OF JAPAN AIRLINES PLEASES TO EXPLAIN THE SCOPE OF APPLICABILITY OF SE CTION 194I OF THE ACT AND AFFIRMED THE DECISION OF THE HONBLE HIGH COURT OF MADRAS IN THE CASE OF SINGAPORE AIRLINES LTD REPORTED IN 358 ITR 237 (MAD.), WHICH HELD UTILIZATION OF AIRPORT FOR PROVIDING THE FACIL ITY OF LANDING AND TAKEOFF OF AIRPLANES AND ALSO FOR PARKING FACILITY IS NOT U SED OF LAND. RELEVANT PORTION OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF JAPAN AIRLINES CO. LTD REPORTED IN 377 ITR 372(SC) IS RE PRODUCED HEREIN BELOW:- 14 ITA NOS. 151 & 152/KOL/2016 14. FROM THE READING OF THIS SECTION, IT BECOMES CLEAR THAT TDS IS TO BE MADE ON THE 'RENT'. THE EXPRESSION 'RENT' IS GIVEN MUCH WIDER M EANING UNDER THIS PROVISION THAN WHAT IS NORMALLY KNOWN IN COMMON PARLANCE. IN THE FIRST INSTANCE, IT MEANS ANY PAYMENT WHICH IS MADE UNDER ANY LEASE, SUB-LEASE, TENANCY. ONCE THE PAYMENT IS MADE UNDER LEASE, SUB-LEASE OR TENANCY, THE NOMENCLATURE WHICH IS GIVEN IS INCONSEQUENTIAL. SUCH PAYMENT UNDER LEASE, SUB-LEASE AND/OR TENANCY WOULD BE TREATED AS 'RENT'. IN THE SECOND PLACE, SUCH A PAYMENT MADE EVEN UNDER ANY OTHER 'AGREEMENT OR ARRANGEMENT FOR THE USE OF ANY LAND OR ANY BUILDING ' WOULD ALSO BE TREATED AS 'RENT'. WHETHER OR NOT SUCH BUILDING IS OWNED BY THE PAYEE IS NOT RELEVANT. THE EXPRESSIONS 'ANY PAYMENT', BY WHATEVER NAME CALLED AND 'ANY OTHER AG REEMENT OR ARRANGEMENT' HAVE THE WIDEST IMPORT. LIKEWISE, PAYMENT MADE FOR THE 'USE OF ANY LAND OR ANY BUILDING' WIDENS THE SCOPE OF THE PROVISO. 15. IN THE PRESENT CASE, WE FIND THAT THESE AIRLINES A RE ALLOWED TO LAND AND TAKE-OFF THEIR AIRCRAFTS AT IGIA FOR WHICH LANDING FEE IS CHARGED. LIKEWISE, THEY ARE ALLOWED TO PARK THEIR AIRCRAFTS AT IGIA FOR WHICH PARKING FEE IS CH ARGED. IT IS DONE UNDER AN AGREEMENT AND/OR ARRANGEMENT WITH AAI. THE MOOT QUESTION IS A S TO WHETHER LANDING AND TAKE-OFF FACILITIES ON THE ONE HAND AND PARKING FACILITY ON THE OTHER HAND, WOULD MEAN TO 'USE OF THE LAND ' . 16. AS POINTED OUT ABOVE, THE IMPUGNED JUDGMENT OF THE DELHI HIGH COURT REFERS TO ITS EARLIER JUDGMENT IN THE CASE OF UNITED AIRLINES. TH EREFORE, IN ORDER TO ASCERTAIN THE REASONS THAT PERSUADED THE HIGH COURT TO TAKE THE V IEW THAT IT AMOUNTED TO USE OF LAND, ONE HAS TO SCAN THROUGH THE REASONS GIVEN IN UNITED AIRLINES CASE (SUPRA). IN THIS CASE, THE HIGH COURT HELD THAT THE WORD 'RE NT AS DEFINED IN THE PROVISION HAS A WIDER MEANING THAN 'RENT' IN COMMON PARLANCE. IT IN CLUDES ANY AGREEMENT OR ARRANGEMENT FOR USE OF LAND. IN THE OPINION OF THE HIGH COURT, 'WHEN THE WHEELS OF AN AIRCRAFT COMING INTO AN AIRPORT TOUCH THE SURFACE O F THE AIRFIELD, USE OF THE LAND OF THE AIRPORT IMMEDIATELY BEGINS.' SIMILARLY, FOR PARKING THE AIRCRAFT IN THAT AIRPORT, THERE IS USE OF THE LAND. THIS IS THE BASIC, NAY, THE ONLY REASO N GIVEN BY THE HIGH COURT IN SUPPORT OF ITS CONCLUSION. 17. THE MADRAS HIGH COURT, ON THE OTHER HAND, HAD A MU CH BIGGER CANVASS BEFORE IT NEEDED TO PAINT A CLEARER PICTURE WITH ALL NECESSAR Y HUES AND COLOURS. INSTEAD OF TAKING A MYOPIC VIEW TAKEN BY THE DELHI HIGH COURT BY ONLY C ONSIDERING USE OF THE LAND PER SE, THE MADRAS HIGH COURT EXAMINED THE MATTER KEEPING W IDER PERSPECTIVE IN MIND THEREBY ENCOMPASSING THE UTILIZATION OF THE AIRPORT PROVIDI NG THE FACILITY OF LANDING AND TAKE-OFF OF THE AIRPLANES AND ALSO PARKING FACILITY. AFTER TAKE N INTO CONSIDERATION THESE ASPECTS, THE MADRAS HIGH COURT CAME TO THE CONCLUSION THAT THE F ACILITY WAS NOT OF 'USE OF LAND' PER SE BUT THE CHARGES ON LANDING AND TAKE-OFF BY THE AAI FROM THESE AIRLINES WERE IN RESPECT OF NUMBER OF FACILITIES PROVIDED BY THE AAI WHICH WAS TO BE NECESSARILY PROVIDED IN COMPLIANCE WITH THE VARIOUS INTERNATIONAL PROTOCOL. THE CHARGES, THEREFORE, WERE NOT FOR LAND USAGE OR AREA ALLOTTED SIMPLICITER. THESE WERE THE CHARGES FOR VARIOUS SERVICES PROVIDED. THE SUBSTANCE OF THESE CHARGES WAS INGRAI NED IN THE VARIOUS FACILITIES OFFERED TO MEET THE REQUIREMENT OF PASSENGERS' SAFETY AND O N SAFE LANDING AND PARKING OF THE AIRCRAFT AND THESE WERE THE CONSIDERATION THAT, IN REALITY, GOVERNED THE FIXATION OF THE CHARGES. TO OUR MIND, THE AFORESAID CONCLUSION OF T HE HIGH COURT OF MADRAS IS JUSTIFIED WHICH IS BASED ON SOUND RATIONALE AND REASONING. 18. WE ARE CONVINCED THAT THE CHARGES WHICH ARE FIXED BY THE AAI FOR LANDING AND TAKE- OFF SERVICES AS WELL AS FOR PARKING OF AIRCRAFTS AR E NOT FOR THE 'USE OF THE LAND'. THAT WOULD BE TOO SIMPLISTIC AN APPROACH, IGNORING OTHER RELEV ANT DETAILS WHICH WOULD AMPLY DEMONSTRATE THAT THESE CHARGES ARE FOR SERVICES AND FACILITIES OFFERED IN CONNECTION WITH THE AIRCRAFT OPERATION AT THE AIRPORT. TO POINT OUT AT THE OUTSET, THESE SERVICES INCLUDE PROVIDING OF AIR TRAFFIC SERVICES, GROUND SAFETY SE RVICES, AERONAUTICAL COMMUNICATION FACILITIES, INSTALLATION AND MAINTENANCE OF NAVIGAT IONAL AIDS AND METEOROLOGICAL SERVICES AT THE AIRPORT. 19. BEFORE THE HIGH COURT OF MADRAS, THE ASSESSEE HAD FILED THE MATERIAL IN THE FORM OF AIRPORT ECONOMICS MANUAL, THE INTERNATIONAL AIRPORT S TRANSPORT AGREEMENT (IATA) TO THE CONTRACTING STATES ON CHARGES FOR AIRPORT AND AIR N AVIGATION SERVICES. THIS MATERIAL WHICH WAS SHOWN FOR OUR PERUSAL AS WELL, WOULD CANDIDLY S HOW THAT THERE ARE VARIOUS INTERNATIONAL PROTOCOLS WHICH MANDATE ALL SUCH AUTH ORITIES MANNING AND MANAGING THESE AIRPORTS TO CONSTRUCT THE AIRPORTS OF DESIRED STAND ARDS WHICH ARE STIPULATED IN THE 15 ITA NOS. 151 & 152/KOL/2016 PROTOCOLS. THE SERVICES WHICH ARE REQUIRED TO BE PR OVIDED BY THESE AUTHORITIES, LIKE AAI, ARE AIMED AT PASSENGERS' SAFETY AS WELL AS ON SAFE LANDING AND PARKING OF THE AIRCRAFTS. THEREFORE, IT IS NOT MERE 'USE OF THE LAND'. ON THE CONTRARY, IT IS THE FACILITIES, THAT ARE TO BE COMPULSORILY OFFERED BY THE AAI IN TUNE WITH THE REQUIREMENTS OF THE PROTOCOL, WHICH IS THE PRIMARY FOCUS. 20. FOR EXAMPLE, RUNWAYS ARE NOT CONSTRUCTED LIKE ANY ORDINARY ROADS. SPECIAL TECHNOLOGY OF DIFFERENT TYPE IS REQUIRED FOR THE CO NSTRUCTION OF THESE RUNWAYS FOR SMOOTH LANDING AND TAKE-OFF OF THE AIRCRAFTS. ACCORDING TO ICAO, A RUNWAY IS A 'DEFINED RECTANGULAR AREA ON A LAND AERODROME PREPARED FOR T HE LANDING AND TAKEOFF OF AIRCRAFT.' RUNWAYS MAY BE A MAN-MADE SURFACE (OFTEN ASPHALT, C ONCRETE, OR A MIXTURE OF BOTH) OR A NATURAL SURFACE (GRASS, DIRT, GRAVEL, ICE, OR SAL T). SPECIALISED KIND OF ORIENTATION AND DIMENSIONS ARE NEEDED FOR THESE RUNWAYS WHICH ARE P RESCRIBED WITH PRECISION AND THOSE STANDARDS ARE TO BE ADHERED TO. FURTHER, THERE HAS TO BE PROPER RUNWAY LIGHTING, RUNWAY SAFETY AREA, RUNWAY MARKINGS ETC. TECHNICAL SPECIFI CATIONS FOR SUCH LIGHTING, SAFETY AREA AND MARKINGS ARE STIPULATED WHICH HAVE TO BE PROVID ED. INSOFAR AS RUNWAY LIGHTING IS CONCERNED WHICH IS ESSENTIALLY USED AT AIRPORTS THA T ALLOW NIGHT LANDINGS, REQUIRES THAT THERE HAS TO BE RUNWAY END IDENTIFICATION LIGHTS, R UNWAY END LIGHTS, RUNWAY EDGE LIGHTS, RUNWAY CENTERLINE LIGHTING SYSTEM, TOUCHDOW N ZONE LIGHTS, TAXIWAY CENTERLINE LEAD-OFF LIGHTS, TAXIWAY CENTERLINE LEAD-ON LIGHTS, LAND AND HOLD SHORT LIGHTS, APPROACH LIGHTING SYSTEM ETC. TECHNICAL SPECIFICATI ONS FOR ALL THESE LIGHTS HAVE TO BE COMPLIED WITH SAME APPLIES TO RUNWAY MARKINGS. RUNW AY MARKINGS AND SIGNS ON MOST LARGE RUNWAYS INCLUDE THRESHOLD, TOUCH DOWN ZONE, F IXED DISTANCE MARKS, CENTER LINE ETC. AND ALL THESE HAVE SPECIFIC PURPOSE. SO MUCH S O, DESIGNS AND QUALITY OF PAVEMENT ON THESE RUNWAYS ARE ALSO TO BE TAKEN COMPLIANT. ALL THESE TECHNICAL SPECIFICATIONS KEEP IN MIND THE BASIC FACT, NAMELY, ON LANDING THE AIRCRAFT IS LIGHT ON FUEL AND USUALLY LESS THAN 5% OF THE WEIGHT OF THE AIRCRAFT TOUCHES THE RUNWAY IN ONE GO. ON TAKE-OFF THE AIRCRAFT IS HEAVY BUT AS THE AIRCRAFT ACCELERATES THE WEIGHT GRADUALLY MOVES FROM THE WHEELS TO THE WINGS . IT IS WHILE THE AIRCRAFT IS BEING LOADED AND TAXIING PRIOR TO DEPARTURE, THAT THE APR ON EXPERIENCE SIGNIFICANT LOADS FROM AIRCRAFT WEIGHT. WE HAVE EMPHASISED THE TECHNOLOGICAL ASPECTS OF THE SE RUNWAYS IN SOME DETAIL TO HIGHLIGHT THE PRECISION WITH WHICH DESIGNING AND EN GINEERING GOES INTO MAKING THESE RUNWAYS TO BE FOOL PROOF FOR SAFETY PURPOSES. THE P URPOSE IS TO SHOW THAT THE AAI IS PROVIDING ALL THESE FACILITIES FOR LANDING AND TAKE -OFF OF AN AIRCRAFT AND IN THIS WHOLE PROCESS, 'USE OF THE LAND' PAILS INTO INSIGNIFICANC E. WHAT IS IMPORTANT IS THAT THE CHARGES PAYABLE ARE FOR PROVIDING OF THESE FACILITIES. 21. IN FACT, THE CHARGES WHICH ARE TAKEN FROM THE AIRC RAFTS FOR LANDING AND EVEN FOR PARKING OF THE AIRCRAFTS ARE NOT DEPENDENT UPON THE USE OF THE LAND. ON THE CONTRARY, THE PROTOCOL PRESCRIBES A DETAILED METHODOLOGY OF FIXIN G THESE CHARGES. CHAPTER 4 OF AIRPORT ECONOMICS MANUAL ISSUED BY INTERNATIONAL CIVIL AVIA TION ORGANIZATION DEALS WITH 'DETERMINE THE COST BASIS FOR CHARGING PURPOSES'. T HE CHARGES ON AIR-TRAFFIC WHICH INCLUDES LANDING CHARGES, LIGHTING CHARGES, APPROAC H AND AERODROME CONTROL CHARGES, AIRCRAFT PARKING CHARGES, AEROBRIDGE CHARGES, HANGA R CHARGES, PASSENGER SERVICE CHARGES, CARGO CHARGES ETC. ARE TO BE FIXED APPLYIN G THE FORMULAE STATED THEREIN. A READING THEREOF WOULD CLEARLY POINT OUT THE COST AN ALYSIS WHICH IS TO BE DONE FOR FIXING THESE CHARGES. THUS, WHEN THE AIRLINES PAY FOR THES E CHARGES, TREATING SUCH CHARGES AS CHARGES FOR 'USE OF LAND' WOULD BE ADOPTING A TOTAL LY NAOVE AND SIMPLISTIC APPROACH WHICH IS FAR AWAY FROM THE REALITY. WE HAVE TO KEEP IN MI ND THE SUBSTANCE BEHIND SUCH CHARGES. WHEN MATTER IS LOOKED INTO FROM THIS ANGLE , KEEPING IN VIEW THE FULL AND LARGER PICTURE IN MIND, IT BECOMES VERY CLEAR THAT THE CHA RGES ARE NOT FOR USE OF LAND PER SE AND, THEREFORE, IT CANNOT BE TREATED AS 'RENT WITHI N THE MEANING OF SECTION 194-I OF THE ACT. 22. WE, THEREFORE, ARE OF THE CONSIDERED OPINION THAT THE VIEW TAKEN BY THE MADRAS HIGH COURT IS CORRECT AND WE ARE UNABLE TO SUBSCRIBE TO THE VIEW TAKEN BY DELHI HIGH COURT IN UNITED AIRLINES CASE (SUPRA). THE JUDGMENT IN UNITE D AIRLINES CASE (SUPRA) AS WELL AS THE IMPUGNED JUDGMENT OF THE DELHI HIGH COURT ARE ACCOR DINGLY OVER-RULED. 16 ITA NOS. 151 & 152/KOL/2016 23. RESPECTFULLY FOLLOWING THE ABOVE, WE FIND FORCE IN THE ARGUMENTS OF THE LD.AR AND IN VIEW OF THE DISCUSSION MADE HER EIN ABOVE, WE HOLD THAT THE WHARFAGE CHARGES PAID TO THE KPT IS NOT RE NT AND NO TDS IS LIABLE TO BE DEDUCTED UNDER THE PROVISIONS OF SECTI ON 194I OF THE ACT. IN VIEW OF THE SAME, THE ORDER DT. 30-11-2015 PASSED B Y THE CIT-A IN CONFIRMING THE ORDER OF AO THAT THE ASSESSEE IS IN DEFAULT AND CHARGING OF INTEREST THEREON U/S. 201/201(1A) OF THE ACT IS NOT JUSTIFIED AND IT IS SET ASIDE. THEREFORE, THE GROUND NOS. 1 TO 3 RAISED BY THE ASSESSEE ALONG WITH FORM NO. 36 ARE ANSWERED AS INDICATED AB OVE. ITA NO. 152/KOL/2016 FOR A.Y 2012-13- BY ASSESSEE 24. WE FIND THAT THE ADDITIONAL GROUND RAISED IN TH IS APPEAL IS SIMILAR TO ADDITIONAL GROUND RAISED IN ITA NO. 151/KOL/2016 FO R A.Y 2011-12. SINCE, WE ANSWERED THE SAID ADDITIONAL GROUND IN FAVOUR OF AS SESSEE IN THE AFOREMENTIONED PARAGRAPHS AND WE ADOPT THE SAME VIE W IN THIS APPEAL ALSO. ACCORDINGLY, ADDITIONAL GROUND RAISED IN THIS APPEA L BY THE ASSESSEE IS ALLOWED. FURTHER, WE FIND GROUND NOS. 1 TO 3 RAISE D ALONG WITH FROM NO. 36 ARE SIMILAR TO THE GROUND NOS. 1 TO 3 RAISED IN IT A NO. 151/KOL/2016 FOR A.Y 2011-12 AND WE ANSWERED THE SAID GROUNDS IN FAVOU R OF ASSESSEE BY SETTING ASIDE THE ORDER OF THE CIT-A. WE ADOPT THE SAME VIEW IN THIS APPEAL ALSO AND ACCORDINGLY, THE ORDER DT. 30-11-2015 PASS ED BY THE CIT-A CONFIRMING THE ORDER OF THE AO PASSED U/S. 201/201( 1A) OF THE ACT IS SET ASIDE. THEREFORE, THE GROUND NOS. 1 TO 3 RAISED BY THE ASSESSEE ALONG WITH FORM NO. 36 ARE ANSWERED AS INDICATED ABOVE. 17 ITA NOS. 151 & 152/KOL/2016 25. IN THE RESULT, THE APPEALS FILED BY THE ASSESSE E ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18-0 7-2018 SD/- SD/- ARJUN LAL SAINI S.S.VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18-07-2018 1. THE APPELLANT/ ASSESSEE: M/S. MCC PTA I NDIA CORP. PVT. LTD. VILL + P.O BHUNIARRCHK, VIA: SUTAHATA (HALDIA), PU RBA MIDNAPORE, WEST BENGAL 721 635. 2 . THE RESPONDENT/DEPARTMENT: THE ACIT, CIRCLE-59 (TDS ) (POST RESTRICTING CIRCLE -3 (TDS), 10B, MIDDLETON R OW, 8 TH FLOOR, KOLKATA-700 071. 3. CIT 4. CIT(A) 5. THE DEPARTMENTAL REPRESENTATIVE 6. GUARD FILE TRUE COPY BY ORDER SR.PS/H.O.O ITAT KOLKATA * PRADIP SPS COPY OF THE ORDER FORWARDED TO: -