ACIT (TDS), Noida V. M/s. Kothari International School, Noida

ITA 243/DEL/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69331 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 08-10-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 14-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N C JOSHO
• Keywords: Charitable institution
• Section: 194C; 201(1); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI) BEFORE SHRI U. B. S. BEDI, JUDICIAL MEMBER AND SHRI B. C. MEENA, ACCOUNTANT MEMBER ITA NO. 243 / DEL/ 2013 (ASSESSMENT YEAR 2008-09 ) ACIT (TDS), VS. KOTHARI INTERNATIONAL SCHOOL, NOIDA KOTHARI CHARITABLE TRUST, B279, SECTOR 50, NOIDA PAN : MRTKO1185C (APPELLANTS) (RESPONDENTS) ASSESSEE BY : SHRI N. C. JOSHO, AR DEPARTMENT BY: SHRI VIVEK KUMAR, DR ORDER PER U B S BEDI, JUDICIAL MEMBER: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A) NOIDA, UP DATED 26.10.2012 RELEVANT TO ASSES SMENT YEAR 2008-09. 2. THE FACTS IN BRIEF INDICATE THAT WHILE EXAMINING THE DETAILS OF TDS AND ITS DEPOSIT, THE A.O. NOTED THAT THE ASSESSEE HAS M ADE PAYMENT FOR HIRING VEHICLES (BUSSES) TAKEN FROM VARIOUS PARTIES FOR TH E PURPOSE OF STUDENTS TRANSPORT. THE ASSESSEE HAS DEDUCTED TAX ON SUCH P AYMENTS @ 2% AS PER SECTION 194-C OF THE ACT. HOWEVER, THE A.O. HAS TA KEN THE VIEW THAT HIRING OF VEHICLES COMES UNDER THE AMBIT OF SECTION 194-I BECAUSE THE ASSESSEE HAS BEEN USING COLLEGE VEHICLES WHICH FALL UNDER THE DE FINITION OF PLANT AS PER I.T.A. NOS. 243 /DEL/2013 2 SUB-SECTION (3) OF SECTION 43 AND, THEREFORE, TDS S HOULD HAVE BEEN DEDUCTED @ 10% U/S 194-I AND THE A.O. ACCORDINGLY CALCULATED THE SHORT DEDUCTION OF TAX AND INTEREST THEREON AS PER SECTION 201(1) READ WITH SECTION 201(1A) OF THE ACT AND PASSED THE ORDER CREATING DEMAND. 3. AGGRIEVED BY THE ORDER OF THE A.O., ASSESSEE FIL ED APPEAL AND CONTENDED BEFORE THE FIRST APPELLATE AUTHORITY THAT A.O. HAS ERRED IN FACT AND LAW THAT PAYMENT WAS MADE TO THE TRANSPORTERS BY TH E ASSESSEE WHICH WAS ON ACCOUNT OF HIRING OF VEHICLES, WHEN IN FACT, THE AS SESSEE WAS AVAILING CORPORATE TRANSPORT SERVICES. HE FURTHER ERRED IN LAW AS WELL AS IN FACT IN CONSIDERING THE PAYMENT MADE TO THE TRANSPORTERS BY THE ASSESSEE UNDER THE COVER OF SECTION 194-I, WHEN IN FACT, THE SAME WAS COVERED UNDER SECTION 194C AND BY TAKING SUPPORT FROM CBDT CIRCULAR NO.55 8 WHICH CLARIFIES THAT CORPORATE TRANSPORT SERVICES WERE COVERED U/S 194C AND NOT U/S 194-I OF THE ACT. IT WAS PLEADED FOR DELETION OF THE ADDITI ONAL DEMAND. 4. LD. CIT(A) WHILE CONSIDERING THE ISSUE INVOLVED IN THE APPEAL IN DETAIL WHILE REFERRING TO VARIOUS CIRCULARS AND DIF FERENT PRECEDENTS INCLUDING ITAT DELHI BENCH DECISION IN I.T.A. NO. 5886/DEL/20 10 DATED 13.01.2012, LD. CIT(A) WHILE FOLLOWING THE ITAT DECISION IN ASS ESSEES OWN CASE FOR ASSESSMENT YEAR 2009-10, HAS CONCLUDED TO DELETE TH E IMPUGNED ADDITION MADE BY THE A.O. AS PER PARA 4(C) OF THE ORDER, WHI CH IS REPRODUCED BELOW FOR READY REFERENCE: IN VIEW OF ABOVE RULING IN ASSESSEES FAVOUR BY TH E ITAT IN THE APPELLANTS OWN CASE IN RESPECT OF ASSESSMENT YEAR 2009-10, I SEE NO REASON FOR NOT FOLLOWING HONBLE ITATS DECISION ON THE ISSUE UNDER CONSIDERATION IN THE INSTANT CASE. SINCE FACTS AND ISSUES INVOLVED AND ALSO THE GROUNDS RAISED BY THE APPELLANT IN THE INS TANT CASE ARE EXACTLY I.T.A. NOS. 243 /DEL/2013 3 IDENTICAL, RESPECTFULLY FOLLOWING THE DECISIONS OF CIT(A) AND ITAT, NEW DELHI ON THE ISSUE, UNDER CONSIDERATION, I DECI DE THE ISSUE IN FAVOUR OF ASSESSEE BY HOLDING THAT ASSESSEES CASE AS NOT COVERED U/S 1941 AND IS LIABLE FOR DEDUCTION OF TAX AT SOURCE U /S 194C FROM PAYMENT TO TRANSPORT SERVICE PROVIDERS. SINCE THE APPELLANT HAS RIGHTLY DEDUCTED THE TAX AT SOURCE AS PER THE PROVISIONS OF SECTION 194C OF THE ACT, THE APPELLANT SHALL NOT BE TREATED AS ASSESSE E IN DEFAULT UNDER SECTION 201(1) OF THE ACT AND ALSO NOT LIABLE FOR A NY LEVY OF INTEREST UNDER SECTION 201(1A). AS SUCH, GROUND NO.1 TO 4 I S DECIDED IN FAVOUR OF ASSESSEE. 5. AGGRIEVED BY THE ORDER OF LD. CIT(A), DEPARTMENT HAS COME UP IN APPEAL. 6. AT THE VERY OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ISSUE IS SQUARELY COVERED BY EARLIER DECISION OF ITAT IN ASS ESSES OWN CASE AND THERE ARE MANY EARLIER DECISIONS ON THE SAME ISSUE OF VAR IOUS BENCHES OF DELHI AND OTHER PLACES ARE TAKING CONSISTENT VIEW IN THIS REG ARD, THEREFORE, IT WAS PLEADED FOR CONFIRMATION OF THE IMPUGNED ORDER AND DISMISSAL OF THE APPEAL OF THE DEPARTMENT. 7. LD. D.R. SOUGHT FOR ADJOURNMENT BUT GROUND TAKEN FOR THE SAME IS NOT ADEQUATE, THEREFORE, REQUEST FOR ADJOURNMENT WAS RE JECTED AND THE LD. D.R. WAS ASKED TO ARGUE THE APPEAL WHO RELIED UPON THE O RDER OF THE A.O. AND PLEADED FOR SETTING ASIDE THE ORDER OF LD. CIT(A) A ND RESTORING THAT OF THE A.O. 8. WE HAVE HEARD BOTH THE PARTIES AND CONSIDERED TH E MATERIAL ON RECORD. THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSE SSEE AND LD. CIT(A) HAS FOLLOWED THE ORDER OF THE TRIBUNAL IN ASSESSEES OW N CASE FOR ASSESSMENT YEAR 2009-10 AND THE DEPARTMENT HAS NOT PLACED ANY CONTR ARY MATERIAL ON RECORD I.T.A. NOS. 243 /DEL/2013 4 TO SUPPORT THE PLEA RAISED IN THE APPEAL. CONSIDER ING THE ENTIRETY OF THE ACTS AND CIRCUMSTANCES AND MATERIAL ON RECORD AND FOLLOW ING THE EARLIER DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSE SSMENT YEAR 2009-10, WE UPHOLD THE IMPUGNED ORDER AND DISMISS THE APPEAL OF THE REVENUE. 9. AS A RESULT, APPEAL OF THE REVENUE STAND DISMISS ED. 10. ORDER PRONOUNCED SOON AFTER THE CONCLUSION OF T HE HEARING ON 08 TH OCTOBER 2013. SD./- SD./- (B. C. MEENA) (U.B.S.BEDI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 08.10.2013 SP. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-XXV, NEW DELHI AR, ITAT, 5. CIT(ITAT), NEW DELHI NEW DELHI