Sarda Mines Pvt. Ltd, Keonjhar V. ACIT(TDS), Bhubaneswar

ITA 152/CTK/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86444 (ITAT-CUTTACK)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 07-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RABIN CHOUDHURI
• Assessee Lawyers: B K MOHAPATRA
• Keywords: Opportunity of being heard; Capital expenditure
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH , CUTTACK BEFORE S/SHRI P.K.BANSAL (AM) AND D.T.GARASIA (JM) I.T.A. NO.152/CTK/2014: ASSESSMENT YEAR:2007-08 I.T.A. NO.153/CTK/2014: ASSESSMENT YEAR:2008-09 I.T.A. NO.154/CTK/2014: ASSESSMENT YEAR:2009-10 SARADA MINES PVT. LTD., BLOCK B, THAKURANI IRON, PO: BARBIL, DIST: KEONJHAR PA NO.AAHCS 2419 R/BBNSO 0108 D VS ACIT, (TDS - II), BHUBANESWAR APPELLANT RESPONDENT FOR THE APPELLANT: SHRI B.K.MOHAPATRA, AR FOR THE RESPONDENT: SHRI RABIN CHOUDHURI DATE OF HEARING: 04/02/2015 DATE OF PRONOUNCEMENT: 3 / 3 /2015 ORDER PER P.K.BANSAL, AM THESE THREE APPEALS FILED BY THE ASSESSEE ARE DIRE CTED AGAINST SEPARATE ORDERS OF LD CIT(A)-1, BHUBANESWAR ALL DATED 28.2.2014, FOR THE ASSESSMENT YEARS 2007-08, 2008-09 & 2009-2010, RESPECTIVELY. 2. IN ITA NO.152/CTK/2014 FOR A.Y. 2007-08, THE ASS ESSEE HAS TAKEN THE FOLLOWING GROUNDS: 2 I.T.A. NO.152/CTK/2014: ASSESSMENT YEAR:2007-08 I.T.A. NO.153/CTK/2014: ASSESSMENT YEAR:2008-09 I.T.A. NO.154/CTK/2014: ASSESSMENT YEAR:2009-10 1. THAT THE LEARNED CIT(A) ERRED BOTH ON FACTS AND IN LAW IN SUSTAINING THE ORDER PASSED BY ACIT(TDS) U/S 201(1)/201(1A) HOLDING SHOR T DEDUCTION OF TAX AT SOURCE AT RS. 2,53,07,224/- AND INTEREST THEREON AT RS. 1,01,22,890/-. 2. THAT THE LEARNED CIT (A) ERRED BOTH ON FACTS AND IN LAW IN HOLDING THAT THE APPELLANT WAS LIABLE TO DEDUCT TAX AT SOURCE IN REG ARD TO PAYMENT MADE TO M/S SUNDERLAL MOHANLAL SARDA AND OTHERS, AN AOP, OF RS. 2,08,52,219/- TOWARDS MINING LEASE EXPENDITURE AND. RS. 7,36,91,121/- FOR PURCHASE OF ASSETS. 3. THAT THE LEARNED CIT (A) ERRED BOTH ON FACTS AND IN LAW IN HOLDING THAT THE PAYMENT MADE TO THE AOP WAS NOT TOWARDS REIMBURSEME NT OF CAPITAL EXPENDITURE AS MINING LEASE EXPENDITURE AND PURCHAS E OF ASSETS AT THE MINING SITE, BUT AS PREMIUM FOR MINING LEASE. 3.1 HAVING HELD THAT THE PAYMENT TO AOP WAS AS PREM IUM FOR MINING LEASE THE LEARNED CIT (A) ERRED BOTH IN FACTS AND IN LAW IN H OLDING THAT TAX WAS DEDUCTIBLE AT SOURCE ON SUCH PREMIUM, WHICH WAS A CAPITAL EXPE NDITURE. 4. THAT THE LEARNED CIT (A) ERRED BOTH ON FACTS AND IN LAW IN HOLDING THAT THE PAYMENT TO AOP WAS PREMIUM FOR MINING LEASE AND ALS O UPHOLDING THE FINDING OF AO THAT IT WAS MINING LEASE RENT. THE FINDING OF TH E LEARNED CIT (A) WAS CONTRADICTORY. 5. THAT THE LEARNED CIT (A) ERRED BOTH ON FACTS AN D IN LAW IN SUSTAINING THE ORDER OF THE AO THAT APPELLANT WAS LIABLE TO DEDUCT TAX AT SOURCE ON SUPPLY OF STORES BY M/S JINDAL STEEL & POWER LTD FOR ITS HEAV Y EARTH MOVING MACHINERY. THE LEARNED CIT(A) OMITTED TO CONSIDER THE FACT THA T IT WAS REIMBURSEMENT FOR STORES SUPPLIED AND VAT WAS DULY PAID BY THE PARTY. 6. THAT THE LEARNED CIT (A) ERRED BOTH ON FACTS AN D IN LAW IN SUSTAINING THE ORDER OF THE AO THAT APPELLANT WAS LIABLE TO DEDUCT TAX A T SOURCE UNDER THE PROVISIONS OF SECTION 194-1 AS AGAINST TDS MADE U/S 194-C IN R ESPECT OF WORKS CONTRACT WITH MINERALS MANAGEMENT SERVICES INDIA LTD. AND WI TH G S ATWAL. 7. THAT THE LEARNED CIT (A) ERRED BOTH IN FACTS AN D IN LAW IN SUSTAINING THE ORDER OF THE AO THAT APPELLANT WAS LIABLE TO DEDUCT TAX A T SOURCE WHEN THE ABOVE PARTIES HAD INCLUDED THESE PAYMENTS AS RECEIPTS IN THEIR ACCOUNTS AND PAID TAXES ON THEIR INCOME IN THE RETURNS OF INCOME FILED. 8.THAT THE LEARNED C1T(A) ERRED BOTH IN FACTS AND IN LAW IN SUSTAINING THE ORDER OF THE AO LEVYING INTEREST OF RS. 1,01,22,890/- UND ER SECTION 201 (1A) OF THE ACT. 3 I.T.A. NO.152/CTK/2014: ASSESSMENT YEAR:2007-08 I.T.A. NO.153/CTK/2014: ASSESSMENT YEAR:2008-09 I.T.A. NO.154/CTK/2014: ASSESSMENT YEAR:2009-10 3. FOR THE ASSESSMENT YEAR 2008-09 IN ITA NO.153/C TK/2014 AND FOR THE A.Y. 2009-2010 IN ITA NO.154/CTK/2014, SIMILAR GROUNDS HAVE BEEN T AKEN BY THE ASSESSEE EXCEPT THAT THE AMOUNT OF SHORT DEDUCTION OF TAX AT SOURCE AND INTE REST BE READ IN THOSE YEARS AS UNDER: ASST. YEAR SHORT DEDUCTION OF TAX AT SOURCE INTEREST U/S.201(1)/(1A) 2008-09 RS.1,06,98,904/- RS.29,95,693/- 2009-2010 RS.1,41,25,141/- RS.22,60,023/- 4. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BEFO RE US VEHEMENTLY CONTENDED THAT THE ASSESSEE IS A COMPANY HAVING ITS REGISTERED OFFICE IN KOLKATA IN THE STATE OF WEST BENGAL AND HAS ITS MINE OFFICE AT BARBIL IN THE STATE OF ODISH A. DURING THE COURSE OF SURVEY ACTION U/S.133(6) OF THE ACT, THE MINE OFFICE OF ASSESSEE WAS REQUIRED TO FURNISH DETAILS OF TDS DEDUCTED IN EACH OF THE FINANCIAL YEARS 2006-07, 20 07-08 & 2008-09, BY THE ACIT (TDS-II), BHUBANESWAR. THE ASSESSING OFFICER SUBSEQUENTLY PA SSED ORDER U/S.201(1)/201(1A) OF THE ACT, HOLDING SHORT DEDUCTION OF TAX AT SOURCE AND INTERE ST THEREON, AS DETAILED BELOW: ASST. YEAR SHORT DEDUCTION OF TAX INTEREST THEREON U/S.201(1)/201(1A) 2007-08 RS. 2,53,07,224 1,01,22,890/- 2008-09 RS.1,06,98,904/- RS.29,95,693/- 2009-10 RS.1,41,25,141/- RS.22,60,023/- 4 I.T.A. NO.152/CTK/2014: ASSESSMENT YEAR:2007-08 I.T.A. NO.153/CTK/2014: ASSESSMENT YEAR:2008-09 I.T.A. NO.154/CTK/2014: ASSESSMENT YEAR:2009-10 5. IN THE ASSESSMENT YEAR 2007-08, M/S. SUNDERALAL MOHANLA SARDA AND OTHERS, AN AOP, TRANSFERRED THE UNEXPIRED PERIOD OF MINING LEASE GR ANTED BY STATE OF ODISHA TO THE ASSESSEE, WHICH WAS DULY APPROVED BY THE STATE GOVERNMENT. T HE ASSESSEE MADE PAYMENT TOWARDS ACQUISITION OF ASSETS LYING AT THE MINE FROM THE AO P AND ALSO REIMBURSED THEM TOWARDS CAPITAL EXPENSES INCURRED FOR THE MINE TAKEN ON LEASE FROM ODISHA GOVERNMENT FOR MINING LEASE EXPENDITURE OF RS.2,08,52,219/- AND FOR PURCHASE OF ASSETS OF RS.7,36,91,121/-. THE PURCHASE AND SALE OF ASSETS AND TRANSFER OF EXPENSES WERE CA PITALIZED AS MINING LEASE EXPENDITURE AND WERE DULY SHOWN BY THE AOP AND THE ASSESSEE COMPANY IN THEIR BOOKS OF ACCOUNT AND THE ASSESSEE HAS DULY REFLECTED THE SAME IN ITS BALANCE SHEET AS AT 31.3.2007. THE ASSESSING OFFICER DISBELIEVED THE PURCHASE AND SALE AND CONSI DERED ENTIRE AMOUNT AS MINING LEASE RENT AND HELD THE SAME LIABLE FOR TDS U/S.194-I OF THE A CT. THE MINE BELONGED TO THE STATE OF ODISHA AND THE ASSESSEE HAD ACQUIRED ONLY RIGHT TO MINE OVER THE LAND FOR THE UNEXPIRED PERIOD OF LEASE BETWEEN THE STATE OF ODISHA AND THE AFORES AID AOP. THE AOP DID NOT OWN THE MINES AND THE AO WAS NOT CORRECT IN CONSIDERING THE PAYME NT AS PAID FOR TAKING MINE ON LEASE AND HOLDING THAT IT WAS COVERED BY SECTION 194-I OF THE ACT. LD CIT(A) EVEN THOUGH HELD THAT THE AMOUNT WAS PAID AS PREMIUM FOR TRANSFER OF MINING L EASE AND NOT AS MINING LEASE RENT, BUT UPHELD THE ASSESSING OFFICERS FINDINGS THAT IT WAS MINING LEASE RENT AND TDS WAS DEDUCTIBLE U/S.194-I OF THE ACT. THESE FINDINGS OF LD CIT(A) ARE CONTRADICTORY. 6. OUR ATTENTION WAS DRAWN TOWARDS PARA-7 OF THE I MPUGNED ORDER AND, THEREFORE, IT WAS REQUESTED THAT SINCE THERE ARE CONTRADICTORY FINDIN GS GIVEN BY LD CIT(A), THE MATTER BE RESTORED TO HIS FILE FOR FRESH ADJUDICATION. IT WAS ALSO SU BMITTED THAT IN THE ASSESSMENT YEARS 2007-08, 2008-09 & 2009-2010 ALSO, THE ASSESSEE HAD PAID FOL LOWING AMOUNTS AS LEASE RENTAL CHARGES FOR 5 I.T.A. NO.152/CTK/2014: ASSESSMENT YEAR:2007-08 I.T.A. NO.153/CTK/2014: ASSESSMENT YEAR:2008-09 I.T.A. NO.154/CTK/2014: ASSESSMENT YEAR:2009-10 HEAVY EARTH MOVING MACHINERY (HEMM) TO M/S. JINDAL STEEL & POWER LTD., (JSPL) AND TDS HAS BEEN DEDUCTED AS PER THE PROVISIONS OF SECTION 194- I OF THE ACT.: ASST. YEAR AMOUNT 2007-08 RS. 96,95,500/- 2008-09 RS.2,48,70,000/- 2009-2010 RS.2,55,70,750/- 7. IT WAS FURTHER SUBMITTED THAT FOR THE ASSESSMEN T YEAR 2007-08, THIS PAYMENT INCLUDES A SUM OF RS.5,25,182/- AND RS.64,80,994/- TO JSPL FOR SUPPLY OF SPARES FOR THE MACHINERIES. SIMILARLY, FOR THE ASSESSMENT YEAR 2008-09, PAYMENT OF RS.10,33,30,000/- PAID TO JSPL WAS AS PER WORKS CONTRACT. FOR THE ASSESSMENT YEAR 2009-2 010, A SUM OF RS.12,49,65,972/- WAS PAID TO JSPL AS PER WORKS CONTRACT. SO FAR AS THE SUPPL Y OF SPARES IS CONCERNED, PAYMENT WAS NOT SUBJECT TO THE PROVISIONS OF DEDUCTION OF TAX AT SO URCE. SO FAR AS THE PAYMENT MADE FOR WORKS CONTRACT IS CONCERNED, THE ASSESSEE HAS DEDUCTED TA X FOR ASSESSMENT YEAR 2008-09 AND 2009- 2010 AS PER THE PROVISIONS OF SECTION 194-C OF THE ACT. 8. LD CIT(A) UPHELD THE ORDER OF THE ASSESSING OFF ICER APPLYING THE PROVISIONS OF SECTION 194-I OF THE ACT WITHOUT GIVING ANY CONCRETE FINDIN GS. FOR THIS OUR ATTENTION WAS DRAWN TOWARDS PAGES-11 & 12 OF THE IMPUGNED ORDER FOR THE ASSESSM ENT YEAR 2007-08, PAGE-6 FOR THE ASSESSMENT YEAR 2008-09 AND PAGE 6 FOR THE ASSESS MENT YEAR 2009-2010 . THE EVIDENCES SUBMITTED BY THE ASSESSEE WERE JUST BRUSHED ASIDE. 9. IN RESPECT OF THE NEXT ISSUE INVOLVED WHICH IS COMMON TO ALL THE ASSESSMENT YEARS, IT WAS SUBMITTED THAT THE HIRING OF THE EQUIPMENTS WI TH MINERALS MANAGEMENT SERVICES INDIA LTD., AND WITH G.S.ATWAL WERE AS PER SEPARATE WORKS CONTRACT. THE CONTRACTS WERE FOR CARRYING 6 I.T.A. NO.152/CTK/2014: ASSESSMENT YEAR:2007-08 I.T.A. NO.153/CTK/2014: ASSESSMENT YEAR:2008-09 I.T.A. NO.154/CTK/2014: ASSESSMENT YEAR:2009-10 OUT CERTAIN MINING WORKS AND INVOLVED USE OF MAN, M ACHINE AND MATERIALS. THESE WERE WORKS CONTRACT AND, ACCORDINGLY, THE ASSESSEE MADE DEDUCT ION AT SOURCE AS PER PROVISIONS OF SECTION 194-C OF THE ACT, WHILE THE LD CIT(A) UPHELD THE AC TION OF THE AO APPLYING THE PROVISIONS OF SECTION 194-I OF THE ACT. 10. ALTERNATIVELY, IT WAS SUBMITTED THAT SINCE THE DEDUCTEE HAS DULY COMPUTED THE TAX WHILE FILING THE RETURNS AND THE COPY OF THE TAX RETURNS OF THE DEDUCTEE AND THE CONFIRMATION THEREOF HAS DULY BEEN FILED BEFORE THE LOWER AUTHORITIES FO R WHICH PAPER BOOK HAS BEEN SUBMITTED AND SINCE THE SAME HAS NOT BEEN PROPERLY APPRECIATED, THE MATTER BE SET ASIDE AND RESTORED TO THE FILE OF THE AO SO THAT THE ASSESSEE CAN ADDUCE NECE SSARY EVIDENCE IN RESPECT OF ITS CLAIM AND TAX BE RECOVERED IN CASE THE DEDUCTEE FAILED TO PAY THE TAX AND INTEREST BE CHARGED U/S.201(1A) TILL THE TAX IS PAID BY THE DEDUCTEE. 11. ON THE OTHER HAND, LD DEPARTMENTAL REPRESENTATI VE VEHEMENTLY RELIED ON THE ORDERS OF LD CIT(A). 12. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFUL LY CONSIDERED THE SAME. SO FAR AS THE FIRST ISSUE INVOLVED IN ASSESSMENT YEAR 2007-08 IS CONCERNED, RELATING TO GROUND NOS.2,3,4, WE NOTED THAT LD CIT(A) HAS DISPOSED OFF THIS ISSUE UN DER PARA-7 AS UNDER: I HAVE CONSIDERED THE MATTER CAREFULLY. I HAVE AL SO GONE THROUGH THE PAPER BOOK FILED, AOS REMAND REPORT AND THE DETAILED FIN DINGS DISCUSSED IN THE ORDER OF THE AO. FROM THE FACTS BROUGHT ON RECORD, IT IS CL EAR THAT PAYMENTS MADE TO M/S. SLML SARDA & OTHERS ARE RELATING TO TRANSFER O F MINING LEASE. SINCE MINING LEASE BETWEEN PRIVATE PARTIES CANNOT BE TRANSFERRED FOR A CONSIDERATION, THE APPELLANT SEEMS TO HAVE SHOWN THE PAYMENTS AS LEASE EXPENDITURE AND FOR PURCHASE OF ASSETS WHEN ACTUALLY THE PAYMENTS ARE I N THE NATURE OF PREMIUM PAID TO GET THE MINING LEASE TRANSFER. THE FACTS A RE CLEARLY BROUGHT OUT BY THE AO IN THE ORDER AND ALSO IN THE REMAND REPORT WHICH DEMOLISHES THE APPELLANTS SUBMISSION THAT THE PAYMENTS WERE FOR MINING LEASE EXPENDITURE AND FOR 7 I.T.A. NO.152/CTK/2014: ASSESSMENT YEAR:2007-08 I.T.A. NO.153/CTK/2014: ASSESSMENT YEAR:2008-09 I.T.A. NO.154/CTK/2014: ASSESSMENT YEAR:2009-10 PURCHASE OF ASSETS. IN VIEW OF THE SAME, THE AO HA S CORRECTLY CONCLUDED THAT THE APPELLANT HAS FAILED TO DEDUCT TAX AT SOURCE U/ S.194-I ON THE AMOUNT OF RS.9,45,43,340/-. 13. FROM THE ABOVE FINDINGS OF LD CIT(A), WE NOTED LD CIT(A) EVEN THOUGH HAS ACCEPTED THAT THE PAYMENTS SHOWN BY THE ASSESSEE AS LEASE EXPENDI TURE AND FOR PURCHASE OF THE ASSETS WHEN ACTUALLY THE PAYMENTS ARE IN THE NATURE OF PREMIUM PAID TO GET THE MINING LEASE TRANSFER BUT LD CIT(A) HAS NOT GIVEN FINDING HOW THE PROVISIONS OF SECTION 194-I ARE APPLICABLE IN THIS CASE. HOW THE AMOUNT PAID BY THE ASSESSEE FALL WITHIN THE TERM RENT SO THAT THE ASSESSEE MAY BE LIABLE TO DEDUCT TDS. WE, THEREFORE, SET ASIDE THI S ISSUE AND RESTORE THE SAME TO THE FILE OF LD CIT(A) WITH THE DIRECTION THAT LD CIT(A) SHALL DECI DE THIS ISSUE AFRESH AFTER APPRECIATING THE EVIDENCES FILED BY THE ASSESSEE ALONGWITH THE PROVI SIONS OF SECTION 194-I AND PASS A SPEAKING ORDER HOW THE PROVISIONS OF SECTION 194-I ARE APPLI CABLE AND HOW THE PAYMENTS MADE BY THE ASSESSEE TO M/S. SLML SARDA & OTHERS ARE TO BE REGA RDED AS RENT FALLING WITHIN THE PROVISION OF SECTION 194-I OF THE ACT. 14. NOW COMING TO THE ISSUE INVOLVED IN GROUND NOS. 5,6,7 & 8 FOR THE ASSESSMENT YEAR 2007-08 AND GROUND NOS.2,3 FOR A.Y. 2008-09 AND GRO UND NOS.3,4 & 5 FOR ASSESSMENT YEAR 2009-2010, SINCE INVOLVED COMMON ISSUE AND RELATE T O THE DISPUTE WHETHER THE PAYMENTS MADE BY THE ASSESSEE ARE SUBJECT TO THE PROVISIONS OF TD S U/S.194-C OR 194-I OF THE ACT. 15. AFTER HEARING THE RIVAL SUBMISSIONS, WE NOTED T HAT THE AO IN RESPECT OF SUPPLY OF SPARES FOR A SUM OF RS.5,25,182/- AND RS.64,80,994/- HAS G IVEN A FINDING WHICH IS APPARENT THAT THESE PAYMENTS HAVE BEEN MADE FOR THE SUPPLY OF SPARE PAR TS OF THE MACHINERIES FOR MAINTENANCE OF HEAVY EARTH MOVING MACHINERY TAKEN ON LEASE BY THE ASSESSEE AND THE AO HAS TAKEN IT AS TO THE PART OF RENT. SINCE THE CONSIDERATION IS FOR S UPPLY OF MACHINERY, THEREFORE, IN OUR OPINION, THIS SUPPLY IN RESPECT OF WHICH PAYMENT OF RS.70,06 ,176/- WAS MADE BY THE ASSESSEE CANNOT 8 I.T.A. NO.152/CTK/2014: ASSESSMENT YEAR:2007-08 I.T.A. NO.153/CTK/2014: ASSESSMENT YEAR:2008-09 I.T.A. NO.154/CTK/2014: ASSESSMENT YEAR:2009-10 BE REGARDED TO BE THE RENT AND, THEREFORE, WE SET A SIDE THE ORDER OF LD CIT(A) ON THIS ISSUE AND ALLOW GROUND NO. 5 FOR A.Y. 2007-08. IN RESPECT O F OTHER PAYMENTS BEING MADE FOR THE ASSESSMENT YEARS, 2007-08, 2008-09 AND 2009-2010 TO M/S. JSPL, WHERE THE CONTENTION OF THE ASSESSEE IS THAT PAYMENT OF RS.10,33,30,000/- AND R S.12,49,65,972/- REPRESENTING THE PAYMENT MADE TOWARDS WORKS CONTRACT, WE NOTED THAT ON THESE TRANSACTIONS, THE ASSESSEE HAS DULY DEDUCTED THE TDS U/S.194-C AND HAS ALSO GIVEN THE COPY OF WORKS ORDER. THEREFORE, FROM THESE WORKS ORDERS, IT IS APPARENT THAT THESE ARE M ERELY AN EXPANSION OF THE WORKS ORDER DATED 31.8.2006 FOR ENGAGING THE MINING EQUIPMENTS AS AND WHEN REQUIRED. COPIES OF THESE AGREEMENTS HAVE BEEN FURNISHED BY THE ASSESSEE AND ALSO INCORPORATED BY THE AO IN THE RESPECTIVE ASSESSMENT ORDERS AND WERE FILED BEFORE LD CIT(A) ALSO. LD CIT(A), IN OUR OPINION, HAS NOT EXAMINED THE ISSUE IN DETAIL BUT HAS SIMPLY UNDER PARA 7 FOR THE ASSESSMENT YEAR 2008- 09 AND UNDER PARA -7 FOR ASSESSMENT YEAR 2009-2010 DECIDED THE ISSUE. IN THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH THE PARTIES, WE SET A SIDE THE ORDER OF LD CIT(A) AND RESTORE THIS ISSUE TO HIS FILE WITH THE DIRECTION THAT LD CIT(A) SHALL RE-DECIDE THIS ISSUE BY GIVING A DETAILED FINDINGS AFTER GOING THROUGH THE AGREEMENTS THAT HO W IT WILL BE A WORKS CONTRACT. SIMILARLY, IN RESPECT OF PAYMENTS MADE TO M/S. G.S.ATWAL IN GROUN D NO.3 IN A.Y. 2008-09 AND 2009-2010 AND GROUND NO.6 FOR A.Y. 2007-08, WE NOTED THAT EVE N THOUGH THE COPY OF THE AGREEMENTS ENTERED INTO BY THE ASSESSEE WITH M/S. MINERALS SER VICES INDIA LTD., AND WITH G.S.ATWAL WERE DULY FILED BUT THEY WERE NOT EXAMINED IN DETAIL SO THAT A CONCRETE FINDING CAN BE GIVEN. THE ISSUE HAS SIMPLY BEEN DECIDED IN A PARAGRAPH ALONGW ITH PAYMENTS MADE TO M/S. JSPL. WE, THEREFORE, SET ASIDE THIS ISSUE ALSO AND RESTORE TH E SAME TO THE FILE OF LD CIT(A) WITH THE DIRECTION THAT LD CIT(A) SHALL REDECIDE THIS ISSUE AFRESH AFTER APPRECIATING AND GIVING DETAILED 9 I.T.A. NO.152/CTK/2014: ASSESSMENT YEAR:2007-08 I.T.A. NO.153/CTK/2014: ASSESSMENT YEAR:2008-09 I.T.A. NO.154/CTK/2014: ASSESSMENT YEAR:2009-10 FINDINGS HOW THE PAYMENTS MADE BY THE ASSESSEE FALL UNDER THE PROVISIONS OF SECTION 194-I AND NOT UNDER THE PROVISIONS OF SECTION 194-C OF THE AC T. 16. AS REGARDS TO ALTERNATIVE GROUND THAT SINCE THE DEDUCTEE HAS DULY COMPUTED THE TAX WHILE FILING THE RETURNS, WE MAY DIRECT THE LD CIT( A) THAT HE SHOULD DISPOSE OFF THE PLEA OF THE ASSESSEE THAT IN CASE THE DEDUCTEE HAS PAID THE TAX , DEMAND SHOULD NOT BE RAISED AGAINST THE ASSESSEE AND SIMULTANEOUSLY THE INTEREST U/S 201(1) /201(1A) OF THE ACT BE CHARGED IN ACCORDANCE WITH THE DECISION OF HONBLE SUPREME COU RT IN THE CASE OF CIT VS. ELI LILLLY & CO. (INDIA) (P) LTD., 312 ITR 225 (SC). WE MAY ALSO P OINT OUT THAT SO FAR THE TAX HAS NOT TO BE RECOVERED FROM THE DEDUCTOR IS CONCERNED, THE HONB LE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE (P) LTD VS. CIT, 293 ITR 267 (SC ) HAS CATEGORICALLY HELD THAT ONCE THE TAX HAS BEEN PAID BY THE DEDUCTEE, IT CANNOT BE CHARGED FROM THE DEDUCTOR. WE AGREE WITH LD COUNSEL FOR THE ASSESSEE THAT BOTH THE DECISIONS OF HONBLE SUPREME COURT WILL HAVE BEARING ON THE DETERMINATION OF THE LIABILITY OF THE ASSESSEE U/S.201(1)/201(1A) OF THE ACT. WE, ACCORDINGLY, SET ASIDE THE ORDERS OF LD CIT(A) FOR ALL THE ASSESSMENT YEARS UNDER CONSIDERATION AND RESTORE ALL THESE ISSUES TO THE FILE OF LD CIT( A) WITH THE DIRECTION TO RE-DECIDE SAME AFRESH IN ACCORDANCE WITH LAW AND AFTER AFFORDING PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. 17. IN THE RESULT, APPEALS FILED BY THE ASSESSEE AR E ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN PURSUANCE WITH RULE 34(4) BY P UTTING THE COPY OF THE SAME ON NOTICE BOARD ON 3/3/2015 SD/- SD/- (D.T.GARASIA) (P.K.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, PANAJI 3 / 3 /2015 10 I.T.A. NO.152/CTK/2014: ASSESSMENT YEAR:2007-08 I.T.A. NO.153/CTK/2014: ASSESSMENT YEAR:2008-09 I.T.A. NO.154/CTK/2014: ASSESSMENT YEAR:2009-10 B.K.PARIDA, SR. PS COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT: SARADA MINES PVT. LTD., BLOCK B, TH AKURANI IRON, PO: BARBIL, DIST: KEONJHAR 2. THE RESPONDENT: ACIT, (TDS-II), BHUBANESWAR 3. THE CIT, BHUBANESWAR 4. THE CIT(A), BHUBANESWAR 5. DR, CUTTACK BENCH 6. GUARD FILE. TRUE COPY// BY ORDER ASST. REGISTRAR, ITAT, CUTTACK