NAVI MUMBAI MUNCIPAL CORPORATION (NMMC), NAVI MUMBAI V. ITO (TDS) 2(4), MUMBAI

ITA 1617/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7773 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 07-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Section: 194C; 201(1); 6; 11

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNNAL MUMBAI BENCH B, MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI ASHWANI TANEJA ( ACCOUNTANT MEMBER) I.T.A.NO.1617 /MUM/2014 - AY 2006-07 I.T.A.NO.1618/MUM/2014 - AY 2007-08 I.T.A.NO.1619/MUM/2014 - AY 2008-09 I.T.A.NO.1620/MUM/2014 - AY 2009-10 NAVI MUMBAI MUNICIPAL CORPORATION (NMMC), BELAPUR BHAVAN, GROUND FLOOR, CBD BELAPUR, MUMBAI-14 V/S ITO (TDS) 2(4), MUMBAI PAN :AAALC0296J APPELLANT RESPONDENT APPELLANT BY MS AASIFA KHAN RESPONDENT BY SHRI SUMAN KUMAR DATE OF HEARING 09-03-2017 DATE OF ORDER 17.03.2017 O R D E R PER ASHWANI TANEJA, AM:- THESE APPEALS PERTAIN TO SAME ASSESSEE FOR DIFFERENT YEARS INVOLVING IDENTICAL ISSUES, THEREFORE, THESE WERE HEARD TOGET HER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. FIRST, WE SHALL TAKE UP APPEAL FOR AY 2006-07 IN IT A NO.1617/MUM/2014 FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY C OMMISSIONER OF INCOME-TAX 2 (APPEALS)-14, MUMBAI [HEREINAFTER CALLED CIT(A)] DA TED 13-12-2013 AGAINST THE ORDER U/S 201(1) / 201(1A) OF THE INCOME-TAX ACT, 1 961 DATED 25-03-2011, ON THE FOLLOWING GROUNDS:- 1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -1 4, MUMBAL ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW ERRED IN CONFIRMING THE ORDER OF ITO TDS 2(4), IN PASSING THE ORDER U/S. 201(1)/201(1A) RAISING A DEMAND OF RS. 9 0,598/- BEING SHORT FALL OF TDS OBSERVING THAT THE APPELLANT IS R EQUIRED TO DEDUCT TAX AT SOURCE IN TERMS OF SECTION 194J OF TH E ACT AS AGAINST TAX DEDUCTED U/S. 194C OF THE ACT ON PAYMEN TS MADE TO MANGAL ANAND HEALTHCARE LTD OF RS. 26,88,335. 2) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -1 4, MUMBAI ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW ERRED IN OBSERVING THAT THIS CONTRACTS CANNOT B E THE CONTRACTS IN ROUTINE OR NORMAL MANNER BUT FOR WHICH TECHNICAL SERVICE HAS BEEN RENDERED AND PROVISIONS OF SECTION 194 R.W.S . (1)(VII) OF EXPLANATION -2 ARE ATTRACTED. 2. SIMILARLY IN REMAINING THREE APPEALS, I.E. FOR AYS 2007-08, 2008-09 AND 2009-10 ALSO, THE ASSESSEE HAS TAKEN IDENTICAL GROU NDS FOR AGITATING THE ACTION OF LOWER AUTHORITIES IN HOLDING THAT ASSESSEE OUGHT TO HAVE DEDUCTED TAX AT SOURCE U/S 194J AND NOT U/S 194C AS HAS BEEN DEDUCT ED BY THE ASSESSEE WITH RESPECT TO FOLLOWING PAYMENTS:- NAME OF THE PARTY NATURE OF WORK A.Y. 2006-07 A.Y. 2007-08 A.Y. 2008- 09 A.Y. 1009-10 MANGAK ANAND HEALTH CARE LTD FOR PROVIDING SONOGRAPH X-RAY MACHINES OWNED BY THEM TO THE HOSPITAL OWNED BY THE APPELLANT INCLUDING SUPPLY OF OPERATING MANPOWER AND MATERIAL / CONSUMABLES AND COMPREHENSIVE ANNUAL 26,88,335 33,36,869 21,92,160 NIL 3 MAINTENANCE CONTRACT. GHARPURE ENGG & CONSTRN (P) LTD FOR CONTRACT WORK ON TURNKEY BASIS INCLUDING CIVIL CONSTRUCTION , DESIGNING, CONSTRUCTING AND ERECTING AND COMMISSIONING OF SEWERAGE TREATMENT PLAN INCLUDING OPERATION AND MAINTENANCE AT NERUAL, NAVI MUMBAI. NILL 47,73,66,795 25,82,15,045 30,33,651 HN BHATT & CO FOR CONTRACT WORK ON TURNKEY BASIS INCLUDING CIVIL CONSTRUCTION, DESIGNING, CONTRUCTING AND ERECTING AND COMMISSION OF SEWERAGE TREATMENT PLAN INCLUDING OPERATION AND MAINTNENANCE AT VASHI NAVI MUMBAI. NILL 55,62,24,358 14,36,11,380 4,19,95,163 RAMKY INFRASTRUCTURE LTD FOR CONTRACT WORK ON TURNKEY BASIS INCLUDING CIVIL CONSTRUCTION, DESIGNING, CONTRUCTING AND ERECTING AND COMMISSION OF SEWERAGE TREATMENT PLAN INCLUDING OPERATION AND MAINTENANCE AT AIROLI NAVI MUMBAI NILL 27,80,00,250 26,30,34,887 NILL 4 3. DURING THE COURSE OF HEARING, LD.COUNSEL OF THE AS SESSEE ARGUED THE CASE VEHEMENTLY AND SUBMITTED THAT THE NATURE OF AC TIVITIES CARRIED OUT BY THE RECIPIENT WOULD SHOW THAT PAYMENT MADE BY THE ASSES SEE WAS ON ACCOUNT OF WORK ARISING OUT OF CONTRACTUAL OBLIGATIONS. IT IS NOT THE CASE OF RENDERING OF TECHNICAL OR PROFESSIONAL SERVICES. THEREFORE, PRO VISIONS OF SECTION 194J ARE NOT APPLICABLE. IT WAS SUBMITTED THAT THESE JOBS WERE COMPOSITE ACTIVITIES. THESE JOBS WERE NOT PERFORMED BY TECHNICAL EXPERTS ONLY. MAJORITY OF THE ACTIVITIES WERE CARRIED OUT BY UNSKILLED LABOURER ALSO. COMPR EHENSIVE CONTRACT SERVICES WERE RENDERED BY TECHNICAL AND NON TECHNICAL PERSON S. UNDER THESE CIRCUMSTANCES, INVOKING OF PROVISIONS OF SECTION 19 4J WAS NOT JUSTIFIED. LD.COUNSEL TOOK US THROUGH VARIOUS PAGES OF THE PA PER BOOK WHICH COMPRISE OF WORK ORDER ISSUED BY THE ASSESSEE TO AFORESAID P ARTIES. VARIOUS BILLS ISSUED BY THESE PARTIES SHOWING THAT THESE BILLS WERE RAIS ED FOR THE WORK PERFORMED BY THEM AS PART OF CONTRACTUAL OBLIGATIONS. IN SUP PORT OF THE CLAIM, THE LD. COUNSEL RELIED UPON THE FOLLOWING JUDGEMENTS:_ PCIT VS SENIOR MANAGER, FINANCE, BHARAT HEAVY ELECT RICALS LTD 390 ITR 322 (P&H) DDRC, SRL DIAGNOSTIC PVT LTD VS ITO 157 ITD 92 MORADABAD CHARTERED ACCOUNTANTS VS CBDT 132 TAXMAN. COM 284 264 ITR 374 (ALL) BHARAT FORGE LTD VS DEPARTMENT OF INCOME-TAX, ITAT, PUNE BENCH, ORDER DATED 31-01-2013 SKY CELL COMMUNICATION LTD 251 ITR 54 (MAD) PARASRAMPURIA SYNTHETIC LTD 20 SOT 248 (ITAT, DELHI ) GUJARAT STATE ELECTRICITY CORPORATION LTD VS ITO 82 TTJ 456 (ITAT, AHMEDABAD) ITO VS FINO FINTECH FOUNDATION (ITAT,MUMBAI ITA NOS 595 & 5952/MUM/2014 ORDER DATED 22-06-2016 5 CIT VS M/S DELHI TRANSCO LTD (DELHI HC) ORDER DATED 06-08-2015 4. ON THE BASIS OF AFORESAID JUDGEMENTS, LD. COUNSEL V EHEMENTLY ARGUED THAT THE AFORESAID JUDGEMENTS MADE BY THE ASSESSEE WOULD FALL IN THE DEFINITION OF WORK AS DEFINED U/S 194C AND WOULD NOT FALL WITHIN THE SCOPE OF SECTION 194J. 5. PER CONTRA, LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES AND SUBMITTED THAT THE ACTIVITIES PERFO RMED BY THE PAYEES WERE IN THE NATURE OF TECHNICAL SERVICES RENDERED BY THEM A ND WOULD, THEREFORE, ATTRACT PROVISIONS OF SECTION 194J. THUS, ASSESSEE OUGHT TO HAVE DEDUCTED TAX U/S 194J. THEREFORE, REQUESTED FOR CONFIRMING THE ORDER OF LD. CIT(A). 6. WE HAVE GONE THROUGH THE ORDERS PASSED BY THE LOWER AUTHORITIES AND EVIDENCES PRODUCED BEFORE US AND ALSO PERUSED THE J UDGEMENTS CITED BY BOTH THE PARTIES. WE HAVE EXAMINED THE NATURE OF PAYMEN TS MADE BY THE ASSESSEE AND THE ACTIVITIES PERFORMED BY THE PAYEES WITH THE HELP OF WORK ORDERS ISSUED TO THEM BY THE ASSESSEE AS WELL AS COPIES OF BILLS ISSUED BY THEM NARRATING DETAILS OF WORK DONE BY THEM. 7. THE BRIEF BACKGROUND OF THE ASSESSEE IS THAT ASSESS EE IS A LOCAL SELF- GOVERNED BODY WHICH CAME INTO FORCE UNDER MUMBAI MU NICIPAL PROVINCIAL ACT, 1949. IT HAS BEEN NOTED BY THE AO IN THE ORDER PAS SED BY HIM THAT SINCE ASSESSEE IS A LOCAL AUTHORITY, IT DOES NOT HAVE ANY OBJECT OF CARRYING OUT A BUSINESS TO MAKE PROFITS. HOWEVER, IT COLLECTS VAR IOUS TAXES / FEE, ETC TO MEET OUT ITS EXPENSES FOR PROVISIONING OF CIVIC SERVICES . UNDER THESE CIRCUMSTANCES, IT HAS MADE PAYMENT FOR VARIOUS PURPOSES AND DEDUCT ED TAX U/S 194C. THE AO WAS OF THE OPINION THAT TAX SHOULD HAVE BEEN DEDUCT ED U/S 194J. 6 8. IN THE CASE OF PAYMENT TO MANGAK ANAND HEALTHCARE, MUMBAI, WORK ORDER WAS ISSUED BY THE ASSESSEE DATED 09-01-2004 W HEREIN CONTRACT WAS AWARDED TO THE SAID PERSON BY THE ASSESSEE FOR RUNN ING X-RAY AND SONOGRAPHY SERVICES IN ALL FOUR MCH CENTRE FOR A PERIOD OF 5 Y EARS FROM THE DATE OF SIGNING OF THE AGREEMENT. THUS, THE SAID PARTY WAS TO PROV IDE AFORESAID SERVICES OF X- RAY AND SONOGRAPHY, ETC. AT THE HOSPITALS RUN BY TH E ASSESSEE. THE RATES WERE FIXED BY THE ASSESSEE IN THE WORK ORDER ON PER PATI ENT BASIS. OUR ATTENTION WAS ALSO DRAWN UPON THE AGREEMENT ENTERED WITH THE SAID PARTY FOR PROVIDING THESE SERVICES. PERUSAL OF THE SAID AGREEMENT SHOW S THAT ASSESSEE ENTERED INTO A CONTRACT WITH THE SAID PARTY FOR PROVIDING THESE SERVICES DURING THE CONTRACT PERIOD AT THE PRE-DEFINED RATES. THE AFOR ESAID CONTRACT WAS DRAFTED IN SUCH A MANNER THAT OBLIGES THE SAID PARTY TO PROVID E VARIOUS SERVICES ON COMPREHENSIVE BASIS. IT IS NOTED FROM PERUSAL OF P ARA 12 OF THE SAID CONTRACT THAT THE SAID PARTY WOULD EMPLOY SKILLED, SEMI-SKIL LED AND UNSKILLED PERSONNEL IN SUFFICIENT NUMBERS TO CARRY OUT ITS SERVICES AT THE REQUIRED RATE OF PROGRESS AND OF QUALITY TO ENSURE WORKMANSHIP OF THE DEGREE SPECIFIED IN THE CONTRACT FOR TIMELY FULFILLING THE OBLIGATIONS OF THE SAID P ARTY UNDER THE CONTRACT. VARIOUS OTHER CLAUSES OF THIS AGREEMENT CLEARLY SUGGEST THA T THERE WAS OBLIGATION OF CARRYING OUT WORK BY THE SAID PERSON IN RETURN OF A PRE-DECIDED RATES PAYABLE BY THE ASSESSSEE. THE OVERALL TERMS AND CONDITIONS OF THE CONTRACT AND OTHER FACTS BROUGHT BEFORE US INDICATE THAT IT WOULD FALL WITHIN THE NATURE OF WORK AS STIPULATED IN SECTION 194C. 9. SIMILARLY, WITH RESPECT TO THE OTHER PARTIES ALSO, VIZ. GHARPURE ENGINEERING & CONSTRUCTION (P) LTD AND RAMKY INFRAS TRUCTURE LTD ALSO, PERUSAL OF THEIR BILLS, WORK ORDERS AND AGREEMENTS CLEARLY INDICATE THAT ASSESSEE ASSIGNED THEM CONTRACT WORK ON TURNKEY BASIS FOR CA RRYING OUT VARIETY OF JOBS OF CIVIL CONSTRUCTION, ETC. NONE OF THE JOBS CARRI ED OUT BY THESE PERSONS WOULD 7 FALL IN THE SCOPE OF SECTION 194J. THE ACTIVITIES PERFORMED BY THESE PARTIES WOULD CLEARLY FALL WITHIN THE DEFINITION OF WORK AS STATED IN SECTION 194C. OUR VIEW IS SUPPORTED BY THE JUDGEMENT OF HONBLE PUNJA B & HARYANA HIGH COURT IN THE CASE OF PCIT VS SENIOR MANAGER, FINANCE, BHARAT HEAVY ELECTRICALS LTD (SUPRA), WHEREIN SIMILAR AGREEMENTS AND CONTRACTS W ERE ANALYSED BY THE HONBLE HIGH COURT AND IT WAS HELD THAT SUCH CASE W OULD FALL WITHIN THE DEFINITION OF WORK AS ENVISAGED IN SECTION 194C A ND WOULD NOT FALL U/S 194J. RELEVANT PORTION OF THE JUDGEMENT IS REPRODUCED BEL OW:- 9. MR. PUTNEY, LEARNED COUNSEL APPEARING ON BEHALF OF THE APPELLANT FIRSTLY SOUGHT TO DEMONSTRATE THAT THE CO NTRACT FALLS WITHIN THE AMBIT OF SECTION 194J. HE FURTHE R SOUGHT TO ESTABLISH THAT THE CONTRACT DOES NOT FALL UNDER SECTION 194C. IT MUST BE NOTED HERE THAT IF A CONTRACT DOES NOT FALL UNDER SECTION 194C IT DOES NOT FOLLOW THAT IT FALLS WITHIN THE AMBIT OF SECTION L94J. SECTION L94C IS NOT A RE SIDUARY CLAUSE. THE RESPONDENT WOULD THEREFORE BE ENTITLED TO SUCCEED EVEN IF IT IS ESTABLISHED THAT THE CONTRACT DOES NOT FILL WITHIN THE AMBIT OF SECTION 194J. 11 , THE CONTRACT ALSO DOES NOT FALL UNDER SECTION 194C THERE WOULD BE NO LIABILITY ON THE PART OF THE RESPONDENT TO DEDUCT TAX AT SOURCE AT ALL. THE RESPONDENT HAS, HOWEVER, NOT CONTENDED THAT THE CON TRACT DOES NOT FALL WITHIN SECTION 194C. IT WOULD BE APPR OPRIATE, THEREFORE TO FIRST EXAMINE WHETHER THE CONTRACT FALLS WITHIN SECTION 194J. IN OUR VIEW IT DOES NOT 10. BEFORE REFERRING TO THE CLAUSES IN THE CONTRACTS EN TERED INTO BETWEEN THE RESPONDENT AND THE CONTRACTORS REL IED UPON BY MR. PUTNEY IN SUPPORT OF HIS CONTENTION THAT IT FALLS WITHIN THE AMBIT OF SECTION 194J, IT IS NECESSARY TO REFER TO SOME OF THE OTHER PROVISIONS THEREOF AS WELL. THE VARIOUS CONTRACTS ENTERED INTO BETWEEN THE RESPONDENT AND THE CONTRAC TORS ARE IDENTICAL. CLAUSE I PROVIDES THAT THE CONTRACT ORS ARE TO EXECUTE THE WORK OF ERECTION, TESTING, COMMISSIONIN G AND TRIAL OPERATION OF POWER CYCLE PIPING, BOILER AND L P PIPING PACKAGES FOR UNITS IN HARYANA AND IN ACCORDANCE WIT H AND SUBJECT TO THE TERMS AND CONDITIONS CONTAINED IN TH E 8 CONTRACT AND THE DOCUMENT INCORPORATED THEREIN SUCH AS THE INSTRUCTIONS TO TENDERERS GENERAL CONDITIONS OF CONTRACT AND GENERAL CONDITIONS TO OF CONTRACT AND SPECIAL CONDI TIONS. CLAUSE 5 PROVIDES THAT IN CONSIDERATION OF THE PAYM ENTS MADE BY THE RESPONDENT THE CONTRACTOR UNDERTOOK TO EXECU TE, CONSTRUCT AND COMPLETE THE WORKS, IN CONFORMITY IN ALL RESPECTS WITH THE TERMS AND CONDITIONS SPECIFIED IN THE AGR EEMENT. CLAUSE 7 REQUIRES THE CONTRACTOR TO COMPLETE THE EX ECUTION OF THE WORKS TO THE ENTIRE SATISFACTION OF THE RESPOND ENT AND WITHIN THE PERIOD STIPULATED IN THE CONTRACT. THE R ELEVANT PROVISIONS OF THE GENERAL CONDITIONS OF CONTRACT AR E ALSO RELEVANT IN THIS REGARD. A RATE SCHEDULE IS ALSO FOR THE MATERIAL AND NOT FOR THE SUPPLY OF ANY TECHNICAL SERVICES. THERE IS A SCHEDU LE FOR THE DEPLOYMENT OF MANPOWER. MANY OF THEM WE WILL ASSUME ARE TECHNICAL PERSONNEL. WHAT IS IMPORTANT IS THAT THE SCHEDULE IS ONE OF DEPLOYMENT OF THESE PERSONNEL AT THE SITE FO R EXECUTING THE WORK, NAMELY, THE WORK OF ERECTION, TESTING COMMISSIONING AND TRIAL OPERATION. IN OTHER WORDS, THEIR SERVICES WERE NOT ENGAGED PER SE FOR THE BENEFIT OF RESPONDENT. THEY WERE IN FACT ENGAGED BY THE CONTR ACTOR ITSELF FOR ITS OWN BENEFIT FOR EXECUTING THE CONTRA CT AS REQUIRED BY THE TERMS AND CONDITIONS THEREOF. 11 THE SPECIAL CONDITIONS OF CONTRACT ARE ALSO RELE VANT. THEY ALSO ENUMERATE THE LIST OF MAJOR TOOLS AND PLA NTS TO BE PROVIDED BY THE CONTRACTOR, AT ITS OWN COST. THERE IS NO REFERENCE TO THE CONTRACT BEING OR ONE OF PROVIDING TECHNICAL SERVICES. THERE IS A DETAILED REFERENCE IN CLAUSE 4 0 WHICH AGAIN ENUMERATES THE EQUIPMENT THAT IS TO BE SUPPLI ED. THERE IS NO SIMILAR CLAUSE IN RESPECT OF THE DEPLOY MENT OF TECHNICAL PERSONNEL. THERE IS A SIMILAR SCHEDULE FO R THE DEPLOYMENT OF MANPOWER AS THE ONE UNDER THE GENERAL CONDITIONS OF CONTRACT. CLAUSE 46 OF THE SPECIAL CO NDITIONS CONTAINS DETAILED PROVISIONS REGARDING THE TESTING PRE- COMMISSIONING COMMISSIONING AND POST COMMISSIONING IN 9 RESPECT OF THE EQUIPMENT TO BE SUPPLIED. MR. PUTNEY HAD RELIED UPON CLAUSE 46.13 WHICH WE WILL REFER TO LAT ER WHILE DEALING WITH THIS SUBMISSIONS. 12. THE CONTRACT READ AS A WHOLE, THEREFORE, IS FOR THE PURPOSES SET OUT IN CLAUSE I THEREOF ITSELF, NAMELY, ERECTING, C OMMISSIONING TESTING AND TRIAL OPERATION OF THE SAID EQUIPMENT IN ACCORD ANCE WITH AND SUBJECT TO THE TERMS AND CONDITIONS OF THE CONTRACT . ALL THE OTHER PROVISIONS ARE WITH A VIEW TO ENSURING THE SAME. I N OTHER WORDS, THE OTHER PROVISIONS OF THE CONTRACT ARE TO ENSURE THAT THE CONTRACTORS ERECT TEST COMMISSION AND CONDUCT TRIAL OPERATION O F THE EQUIPMENT IN ACCORDANCE WITH THEIR OBLIGATIONS TINDER THE CONTRA CT. ONCE THAT IS SEEN, IT IS CLEAR THAT THE RELIANCE UPON THE TERMS AND CONDITIONS ON BEHALF OF THE APPELLANT TO CONTEND TO THE CONTRARY IS NOT WILL FOUNDED, 13. MR. PUTNEY FIRSTLY RELIED UPON THE FOLLOWING CL AUSE:- '4. MIS; PCP CONFIRMED THAT THE MANPOWER DEPLOYMEN T PLAN SUBMITTED BY THEM ALONGWITH THE OFFER AND SUBSEQUE NTLY VIDE LETTER NO. PCP/TNDI9GU DATED 26.06.2009 IS TENTATIVE AND RECONFIRMED THAT THE ADEQUATE MANPOWER INCLUDING SUPERVISORS W ILL BE DEPLOYED AT SITE FOR TIMELY COMPLETION OF WORK. BH EL FURTHER POINTED OUT THAT MANPOWER AND QUALIFIED SUPERVISORS (OR BE EL'S USE AS PER CLAUSE NO. 56.2 OF THE NIT HAVE NOT BEEN INCLUDED I N THEIR DEPLOYMENT PLAN. M/S. PCP CONFIRMED THAT THEY WILL DEPLOY MANPOWER AS PER CLAUSE NO 502 FREE OF COST EXCLUSI VELY FOR BHEL SERVICES. FURTHER. M/S PCP HAS ALSO EQUIPMENT THAT THEY WILL BE DEPLOYING ADDITIONAL MANPOWER IF REQUIRED AT NO EX TRA COST TO BHEL FOR TIMELY COMPLETION OF WORK. 14. THE DEPLOYMENT MANPOWER IS PRECISELY FOR THE PU RPOSES STATED IN CLAUSE 4, NAMELY, FOR TIMELY COMPLETION OF WORK. TH E WORK IS THE ERECTION, TESTING, COMMISSIONING AND TRIAL OPERATIO N OF THE EQUIPMENT. IN OTHER WORDS, THE CONTRACT IS NOT FOR THE PROVISION OF TECHNICAL SERVICES. THAT THE EQUIPMENT REQUIRES INP UTS FROM TECHNICAL PERSONNEL IS ANOTHER MATTER ALTOGETHER: THAT INPUT IS ENTIRELY FOR AND ON BEHALF OF THE CONTRACTOR AND NOT ON BEHALF OF TH E RESPONDENT. THE INPUT IS NOT TO ENABLE THE RESPONDENT TO RUN THE MA CHINERY ON ITS OWN, BUT TO ENABLE THE CONTRACTOR TO SUPPLY THE REQUISIT E EQUIPMENT. 15. CLAUSE 19.17, RELIED UPON BY MR PUTNEY. READS A S FOLLOWS:-- '19.17 'WORK' OR 'CONTRACT WORK' SHALL MEAN AND INCLUDE SUPPLY OF ALL CATEGORIES OF LABOUR. SPECIF IED 10 CONSUMABLES, TOOLS AND TACKLES REQUIRED FOR COMPLE TE SITE TRANSPORTATION HANDLING, STACKING, STORING ERECTIN G,' TESTING AND COMMISSIONING OF THE EQUIPMENT TO THE ENTIRE SATISFACTION OF BHEL. THUS THE SUPPLY OF LABOUR, MATERIAL AND EQUIPMENT I S FOR THE SATISFACTORY SITE TRANSPORTATION HANDLING, STACKING , STORING, ERECTING, TESTING AND COMMISSIONING OF THE EQUIPMEN T TO THE RESPONDENTS SATISFACTION. IN OTHER WORDS, THE LABOU R, EMPLOYEES. TOOLS AND TACKLES ARE NOT SUPPLIED UNDER THE CONTRA CT BUT FOR THE PURPOSE OF EXECUTING THE CONTRACT AS PER THE CONTRA CTUAL STIPULATIONS. 10. SIMILARLY, IDENTICAL VIEW HAS BEEN TAKEN IN THE OTH ER JUDGEMENTS RELIED UPON BY THE LD.COUNSEL. THUS, TAKING INTO ACCOUNT ALL THE FACTS AND CIRCUMSTANCES OF THE CASE AND JUDGMENTS RELIED UPON BY THE PARTIES BEFORE US, WE ARE OF THE OPINION THAT TDS U/S 194C HAS RIGHTLY BEEN DEDUCTED BY THE ASSEESSEE. TDS WAS NOT REQUIRED TO BE DEDUCTED U/S 194J. AS A RESULT, GROUNDS RAISED BY THE ASSESSEE IN ALL THE FOUR APPEALS ARE ALLOWED. 11. IN THE RESULT, ALL THE APPEALS ARE ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 17 TH MARCH, 2017. SD/- SD/- (MAHAVIR SINGH) (ASHWANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 17.03.2017 PK/- COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE , B,BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES