Income Tax Officer (TDS), Bareilly V. M/s Kribhco Shyam Fertilizers Ltd., Shahjahanpur

ITA 269/LKW/2013

• Counselvise Citation: 26923714 RSA 2013
• Duration Of Justice: 1 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-02-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 16-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PUNIT KUMAR
• Assessee Lawyers: R B SHUKLA
• Keywords: Capital asset; Opportunity of being heard; Cost of acquisition; Condonation of delay
• Section: 194C; 201(1); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.269 TO 271/LKW/2013 ASSESSMENT YEAR:2007-08 TO 2009-10 INCOME TAX OFFICER (TDS) BAREILLY V. M/S KRIBHCO SHYAM FERTILIZERS LTD. VILL. & POST PIPROLA, SHAHJAHANPUR TAN/PAN:LKNKO5720B (APPELLANT) (RESPONDENT) ITA NO.603/LKW/2014 ASSESSMENT YEAR:2010-11 INCOME TAX OFFICER (TDS) BAREILLY V. M/S KRIBHCO SHYAM FERTILIZERS LTD. VILL. & POST PIPROLA, SHAHJAHANPUR TAN/PAN:LKNKO5720B (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. PUNIT KUMAR, D.R. RESPONDENT BY: SHRI. R. B. SHUKLA, ADVOCATE DATE OF HEARING: 18 02 2014 DATE OF PRONOUNCEMENT: 26 02 2015 O R D E R PER SUNIL KUMAR YADAV: THESE APPEALS ARE PREFERRED BY THE REVENUE AGAINST THE RESPECTIVE ORDER OF THE LD. CIT(A) ON A COMMON ISSUE. THEREFORE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF THROUGH THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. WE, HOWEVER, PREFER TO ADJUDICATE THESE APPEALS ONE AFTER THE OTHER. I.T.A. NO. 269 TO 271/LKW/2013: :- 2 -: 2. THROUGH THESE APPEALS, THE RESPECTIVE ORDER OF THE LD. CIT(A) IS CHALLENGED BY THE REVENUE ON COMMON GROUNDS EXCEPT THE DIFFERENCE IN QUANTUM. FOR THE SAKE OF REFERENCE, WE EXTRACT THE GROUNDS RAISED IN I.T.A. NO. 269/LKW/2013 AS UNDER:- 1. THE LD. CIT (APPEAL), BAREILLY HAS ERRED IN FACTS AND LAW BY DELETING THE AMOUNT OF TDS LIABILITY OF RS.15,12,10,582/- FOR A.Y.2007-08 DETERMINED BY THE ITO(TDS) U/S 1941 OF THE IT. ACT, 1961 ON TRANSPORTATION CHARGES PAID TO GAIL BY HOLDING THAT LIABILITY FOR TAX DEDUCTION AT SOURCE WAS U/S 194C AND NOT U/S 1941. 2. WHILE DOING SO, THE CIT (A) HAS FURTHER ERRED IN HOLDING THAT THE TRANSPORTATION CHARGES IS A PART OF COMPOSITE CONTRACT U/S 194C AND NOT IN THE NATURE OF RENT U/S 1941, THEREBY OVERLOOKED THE FACTS THAT PIPELINES WERE CAPITAL ASSET OF GAIL AND EXCLUSIVELY USED FOR SUPPLY OF GAS TO THE DEDUCTOR M/S KRIBHCO SHYAM FERTILIZERS LTD. 3. FURTHER THE LD. CIT (A) HAS FAILED TO DISCUSS ON THE MERIT THE ORDER OF THE ITO(TDS) TREATING TRANSPORTATION CHARGES AS RENT, WHILE OVER EMPHASIZING ON THE APPLICABILITY OF SECTION 194C, WHICH WAS NOT THE MAIN ISSUE RAISED BY THE ASSESSING OFFICER. 4. THAT THE ORDER OF THE LD. CIT (APPEAL), BAREILLY BEING ERRONEOUS IN LAW AND ON FACTS BE VACATED AND ORDER OF THE ASSESSING OFFICER BE RESTORED. 3. THESE APPEALS ARE FILED LATE BY 14 DAYS AND THE REVENUE HAS MOVED APPLICATIONS FOR CONDONATION OF DELAY IN FILING OF THE APPEAL STATING THEREIN THAT THE DELAY WAS CAUSED ON ACCOUNT OF NON-RECEIPT OF SCRUTINY REPORTS FORWARDED BY THE OFFICE OF THE ASSESSING OFFICER TO THE LD. COMMISSIONER OF INCOME-TAX. THEREFORE, THE DELAY IN FILING OF APPEAL WAS ON ACCOUNT OF BONA-FIDE REASONS AND HENCE THE DELAY IN FILING OF THE APPEALS MAY BE :- 3 -: CONDONED. FINDING FORCE IN THE CONTENTIONS OF THE REVENUE, WE CONDONE THE DELAY IN FILING OF THE APPEALS AND ADMIT THE APPEALS FOR HEARING. 4. DURING THE COURSE OF HEARING, OUR ATTENTION WAS INVITED TO THE FACT THAT THE ASSESSEES APPEALS FOR THE IMPUGNED ASSESSMENT YEARS (2007-08 TO 2009-10) AGAINST THE SAME ORDER OF THE LD. CIT(A), IN WHICH THE ISSUE WITH REGARD TO DEDUCTION OF TDS WAS RAISED WAS DISPOSED OF BY THE TRIBUNAL VIDE ITS ORDER DATED 25.6.2013 HOLDING THAT THE TRANSMISSION CHARGES PAID BY THE ASSESSEE TO GAIL ATTRACT PROVISIONS OF SECTION 194C OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') HAVING NOTED THAT THE ASSESSEE HAS ALSO PURCHASED GAS FROM OTHER SELLERS I.E. M/S RELIANCE INDUSTRIES LIMITED APART FROM GAIL, BUT THE SAME WAS TRANSPORTED BY GAIL AND THE ASSESSEE HAD PAID TRANSMISSION CHARGES TO GAIL AND ALSO DEDUCTED TDS ON PAYMENT. THE TRIBUNAL ACCORDINGLY DIRECTED THE ASSESSING OFFICER TO RE- EXAMINE THE ISSUE AFRESH IN TERMS INDICATED IN THE ORDER OF THE TRIBUNAL AND IF IT IS FOUND THAT THE ASSESSEE HAS DEDUCTED TDS ON THE TRANSMISSION CHARGES PAID TO GAIL FOR TRANSMISSION OF GAS PURCHASED FROM OTHER AGENCIES, NO DISALLOWANCE CAN BE MADE; OTHERWISE THE ASSESSING OFFICER IS REQUIRED TO ACT IN ACCORDANCE WITH LAW. WHILE DISPOSING OF THE APPEALS, THE TRIBUNAL WAS ALSO OF THE VIEW THAT WHERE THE GAS IS TRANSPORTED BY THE SELLER TO THE POINT OF DELIVERY, THE TRANSPORTATION CHARGES OF GAS WOULD EMBEDDED IN THE COST OF GAS, THOUGH TRANSPORTATION CHARGES ARE CLAIMED SEPARATELY OR ALONG WITH THE COST OF GAS IN SALE BILL AND THE NATURE OF SUCH CONTRACT, WOULD BE A CONTRACT FOR SALE AND NOT A WORKS CONTRACT AS ENVISAGED IN SECTION 194I OF THE ACT. 5. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS EMPHATICALLY ARGUED THAT ONCE THE NATURE OF PAYMENT TO GAIL FOR TRANSPORTATION CHARGES HAS BEEN DECIDED BY THE TRIBUNAL FOR THE SAME ASSESSMENT YEAR IN THE ASSESSEES OWN APPEAL, NO CONTRARY VIEW CAN BE TAKEN IN THESE REVENUES APPEALS. COPY OF THE ORDER OF THE TRIBUNAL IN THE :- 4 -: ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2007-08 TO 2009-10 IS ON RECORD AT PAGES NO.124 TO 145 OF THE COMPILATION OF THE ASSESSEE. 6. THE LD. D.R. HAS SIMPLY PLACED RELIANCE UPON THE ORDER OF THE ASSESSING OFFICER. 7. HAVING CAREFULLY EXAMINED THE ISSUE RAISED IN THESE APPEALS AND THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2007-08 TO 2009-10 AND THE ORDERS OF THE LOWER AUTHORITIES, WE FIND THAT THE ASSESSING OFFICER HAS HELD THE ASSESSEE TO BE IN DEFAULT ON NON-DEDUCTION OF TDS AS PER PROVISIONS OF SECTION 194I OF THE ACT AND ALSO CHARGED INTEREST UNDER SECTION 201(1A) OF THE ACT. WHEN THE MATTER REACHED TO THE LD. CIT(A), THE LD. CIT(A) HAS HELD THAT TDS WAS REQUIRED TO BE DEDUCTED UNDER SECTION 194C ON THE PAYMENT OF TRANSMISSION CHARGES, FOLLOWING THE BOARD CIRCULAR DATED 17.10.2012. HE ACCORDINGLY PARTLY ALLOWED THE APPEAL OF THE ASSESSEE, AS ON ACCOUNT OF REDUCED RATE OF TAX, DEDUCTION OF TAX WAS REDUCED. AGAINST THE ORDER OF THE LD. CIT(A), ASSESSEE PREFERRED AN APPEAL BEFORE THE TRIBUNAL CONTENDING THEREIN THAT TRANSMISSION CHARGES ARE EMBEDDED IN THE COST OF GAS THOUGH TRANSPORTATION CHARGES OR TRANSMISSION CHARGES ARE CLAIMED SEPARATELY ALONG WITH COST OF GAS IN THE SALE BILL. THEREFORE, THE NATURE OF SUCH CONTRACT REMAINED TO BE CONTRACT FOR SALE AND NOT A WORK CONTRACT AND THE ASSESSEE WAS NOT REQUIRED TO DEDUCT TDS EVEN UNDER SECTION 194C OF THE ACT. THE TRIBUNAL HAS EXAMINED THIS ASPECT IN THE LIGHT OF VARIOUS JUDICIAL PRONOUNCEMENTS AS WELL AS C.B.D.T. CIRCULAR AND THE TRIBUNAL HAS NOTED THAT THE ASSESSEE HAS NOT ONLY PURCHASED GAS FROM GAIL BUT ALSO FROM OTHER SELLERS I.E. M/S RELIANCE INDUSTRIES LIMITED AND THE TRIBUNAL WAS OF THE VIEW THAT WHENEVER GAS IS TRANSPORTED BY THE SELLER TO THE POINT OF DELIVERY, TRANSPORTATION/ TRANSMISSION CHARGES OF GAS WOULD BE EMBEDDED IN THE COST OF GAS, THOUGH TRANSPORTATION/TRANSMISSION CHARGES ARE CLAIMED SEPARATELY OR ALONG WITH COST OF GAS IN THE SALE BILL AND THE NATURE OF SUCH CONTRACT ESSENTIALLY REMAINS A CONTRACT OF SALE AND NOT WORK :- 5 -: CONTRACT. THEREFORE, TDS WAS NOT REQUIRED TO BE DEDUCTED EVEN UNDER SECTION 194C OF THE ACT, BUT WHERE TRANSPORTATION OF GAS IS MADE BY A THIRD PERSON APART FROM SELLER OF THE GAS AND THE TRANSPORTATION CHARGES/TRANSMISSION CHARGES PAID BY THE RECIPIENT/BUYER TO THE TRANSPORTER, IT WOULD BE GOVERNED BY THE PROVISIONS OF SECTION 194C OF THE ACT AND TDS WOULD BE DEDUCTIBLE ON SUCH PAYMENT TO A THIRD PARTY BY THE BUYER AT THE APPLICABLE RATES. THE TRIBUNAL, HOWEVER, SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORED THE MATTER TO THE ASSESSING OFFICER WITH A DIRECTION TO RE-EXAMINE THE ISSUE AFRESH IN TERMS INDICATED IN THE ORDER OF THE TRIBUNAL AND IF IT IS PROVED THAT THE ASSESSEE HAS DEDUCTED TDS AND TRANSMISSION CHARGES PAID TO GAIL FOR TRANSMISSION OF GAS PURCHASED FROM OTHER AGENCIES, NO DISALLOWANCE CAN BE MADE; OTHERWISE THE ASSESSING OFFICER IS REQUIRED TO ACT IN ACCORDANCE WITH LAW. THE RELEVANT OBSERVATIONS OF THE TRIBUNAL IN THIS REGARD ARE EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE:- 7. HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT THE ASSESSEE COMPANY, ENGAGED IN MANUFACTURING OF FERTILIZERS, HAD PURCHASED NATURAL GAS FROM GAIL AND THE SAME WAS TRANSPORTED TO THE MANUFACTURING UNIT OF THE ASSESSEE THROUGH THE PIPELINE OF GAIL FOR WHICH THE ASSESSEE HAD PAID THE TRANSMISSION CHARGES TO GAIL. ACCORDING TO THE ASSESSING OFFICER, THE TRANSMISSION CHARGES PAID TO GAIL ARE IN THE NATURE OF RENT AND THE ASSESSEE WAS REQUIRED TO DEDUCT TDS ON SUCH PAYMENT TO GAIL U/S194I OF THE ACT. HE ACCORDINGLY HELD THE ASSESSEE TO BE IN DEFAULT AND RAISED A DEMAND OF THE TDS U/S201(1) OF THE ACT AND ALSO CHARGED INTEREST U/S 201(1A) OF THE ACT. BEFORE THE CIT(A), THE ASSESSEE TOOK A STAND THAT THE CONTRACT FOR PURCHASE OF GAS EXECUTED BETWEEN THE ASSESSEE AND THE GAIL IS A COMPOSITE CONTRACT FOR PURCHASE OF GAS AND ITS TRANSPORTATION TO THE ASSESSEES WORKING UNIT FOR WHICH TRANSMISSION CHARGES WERE PAID TO GAIL. THEREFORE, THE :- 6 -: TRANSMISSION CHARGES ARE PART AND PARCEL OF THE SALE CONSIDERATION PAID BY THE ASSESSEE TO THE GAIL FOR PURCHASE OF GAS. THUS, THE ASSESSEE WAS NOT REQUIRED TO DEDUCT THE TDS ON PAYMENT OF TRANSMISSION CHARGES. IT WAS ALSO CONTENDED THAT THE PIPELINES PROVIDED FOR THE TRANSMISSION OF THE GAS ARE NOT EXCLUSIVELY FOR THE USE OF THE ASSESSEE, THEREFORE, THE PAYMENT ON TRANSMISSION CHARGES CANNOT BE EQUATED WITH THE RENT FOR THE PURPOSE OF DEDUCTION OF TDS U/S 194I OF THE ACT. 7.1 THE CIT(A) DID NOT AGREE WITH THE INVOCATION OF PROVISION OF SECTION 194I OF THE ACT FOR THE PURPOSE OF DEDUCTION OF TDS BUT HE WAS OF THE VIEW THAT THE TDS IS REQUIRED TO BE DEDUCTED U/S 194C OF THE ACT AS THE GAIL WAS REQUIRED TO TRANSPORT THE GAS TO THE ASSESSEE FOR WHICH TRANSMISSION CHARGES WERE PAID. THE CIT(A) ACCORDINGLY APPROVED THE ORDER OF THE ASSESSING OFFICER BUT INVOKED THE PROVISIONS OF SECTION 194C OF THE ACT FOR MAKING DEDUCTION FOR TDS ON PAYMENT OF TRANSMISSION CHARGES. THEREFORE, NOW THE ISSUE BEFORE US IS WHETHER THE TRANSMISSION CHARGES PAID BY THE ASSESSEE TO GAIL IS ONE OF THE ESSENTIAL COMPONENT OF THE SALE CONTRACT OF GAS AS PER THE CONTRACT EXECUTED BETWEEN THE ASSESSEE AND THE GAIL OR THE TRANSMISSION OF GAS IS AN INDEPENDENT CONTRACT? DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE TRIBUNAL IN THE CASE OF KRISHAK BHARATI CO-OPERATIVE LIMITED VS. INCOME TAX OFFICER, I.T.A. NO.1702 AND 1703/AHD/2007 IN WHICH THE IDENTICAL ISSUE WAS RAISED AND THE TRIBUNAL HAS HELD THAT THE TRANSPORTATION CHARGES FOR GAS SUPPLY CONTRACT ARE PART OF PURCHASE COST OF GAS. THE VIEW TAKEN BY THE TRIBUNAL WAS UPHELD BY THE HON'BLE HIGH COURT OF GUJARAT IN THE CASE OF CIT VS. KRISHAK BHARATI CO-OPERATIVE LTD. [2012] 349 ITR 68 (GUJ) IN WHICH THEIR LORDSHIPS HAVE HELD THAT THE AGREEMENT ESSENTIALLY WAS FOR PURCHASE AND SALE OF GAS AND THE TRANSPORTATION OF GAS WAS ONLY A PART OF ENTIRE SALE TRANSACTION. THE RELEVANT OBSERVATIONS OF THE HON'BLE HIGH COURT ARE EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE: :- 7 -: 17. A COMBINED READING OF THE TERMS AND CONDITIONS NOTED HEREINABOVE WOULD REVEAL THAT THE GAS HAD TO BE DELIVERED BY THE SELLER TO THE BUYER THROUGH PIPELINES AND EQUIPMENT LAID DOWN, OWNED AND MAINTAINED BY THE SELLER. THE SELLER ALSO HAD THE RIGHT TO USE SUCH PIPELINE FOR DISTRIBUTION OF GAS IN FAVOUR OF OTHER PURCHASERS. MOST SIGNIFICANTLY, PARAGRAPH 4.6 OF THE AGREEMENT PROVIDED THAT THE TITLE OF GAS SHALL PASS FROM THE SELLER TO THE BUYER AT THE POINT OF DELIVERY OF GAS. THE DELIVERY POINT SHALL BE AT THE DOWNSTREAM FLANGE OF THE PIPELINE AT THE OUTLET OF THE GAS METERING STATION. 18. IT THUS BECOMES CLEAR THAT IN THE CONTRACT ITSELF IT WAS ENVISAGED BETWEEN THE ASSESSEE AND GAIL THAT GAS WOULD BE SUPPLIED BY GAIL TO THE ASSESSEE AT THE RECEIVING POINT OF THE ASSESSEE'S FACTORY. FOR SUCH PURPOSE, GAIL WOULD BE LAYING DOWN ITS PIPELINES AND OTHER EQUIPMENT AND WOULD MAINTAIN SUCH PARAPHERNALIA. GAIL WOULD ALSO HAVE THE RIGHT TO USE SUCH PIPELINES AND EQUIPMENT FOR THE PURPOSE OF DISTRIBUTING GAS TO OTHER GAS CONSUMERS. AS ALREADY RECORDED, MOST SIGNIFICANTLY, THE OWNERSHIP OF THE GAS PASSED ON FROM GAIL TO THE ASSESSEE ONLY AT THE POINT OF DELIVERY AND NOT BEFORE. 19. IN OUR VIEW, THE AGREEMENT ESSENTIALLY WAS FOR PURCHASE AND SALE OF GAS. TRANSPORTATION OF GAS WAS ONLY A PART OF THE ENTIRE SALE TRANSACTION. LAYING DOWN THE PIPELINE AND SUPPLYING GAS THROUGH SUCH PIPELINE WERE THE STEPS IN FURTHERANCE OF THE TERMS OF SUCH A CONTRACT. CLEAR UNDERSTANDING OF THE PARTIES THAT THE OWNERSHIP OF GAS WOULD PASS ON TO THE BUYER AT THE DELIVERY :- 8 -: POINT WOULD CLEARLY SHOW THAT TRANSPORT OF GAS BY THE SELLER WAS A STEP TOWARDS EXECUTION OF CONTRACT FOR SALE OF GAS AND THERE WAS NO CONTRACT FOR CARRIAGE OF GOODS. WE ARE NOT UNMINDFUL OF THE DECISION OF THE APEX COURT IN CASE OF ASSOCIATED CEMENT CO. LTD. V. CIT REPORTED IN [1993] 201 ITR 435 (SC), WHEREIN IT WAS OBSERVED THAT SECTION 194C(1) DOES NOT REQUIRE THAT A CONTRACT TO CARRY OUT A WORK OR THE CONTRACT TO SUPPLY LABOUR TO CARRY OUT WORK SHOULD BE CONFINED TO 'WORKS CONTRACT'. HOWEVER, IN THE PRESENT CASE, WE ARE NOT FACED WITH SUCH A SITUATION. WE ONLY FIND THAT THERE WAS NO CONTRACT BETWEEN GAIL AND THE ASSESSEE FOR CARRIAGE OF GOODS. TRANSPORTATION OF GAS BY GAIL WAS ONLY IN FURTHERANCE OF CONTRACT OF SALE OF GAS. 20. IN VIEW OF THE ABOVE DISCUSSION, WE ARE OF THE OPINION THAT THE TRIBUNAL COMMITTED NO ERROR IN COMING TO THE CONCLUSION THAT THE CASE WAS NOT COVERED UNDER SECTION 194C OF THE ACT. IT MAY BE THAT THE TRANSPORTATION COMPONENT OF GAS WAS PAID SEPARATELY BY THE ASSESSEE TO GAIL. HERE ALSO THE TRANSPORTATION CHARGES DID NOT DEPEND ON THE CONSUMPTION OF QUANTITY OF GAS BUT WAS OF FIXED MONTHLY CHARGES TO BE BORNE BY THE ASSESSEE AS PART OF THE AGREEMENT BETWEEN THE PARTIES. THE OWNERSHIP OF THE GAS VESTED IN GAIL TILL IT WAS TRANSPORTED AND DELIVERED TO THE ASSESSEE'S PREMISES AT THE OUTLET OF THE GAS METERING STATION. THE PIPELINE WAS LAID DOWN BY GAIL AND WAS PERMITTED TO BE UTILIZED FOR FURTHER ONWARD TRANSPORTATION OF GAS TO OTHER CONSUMERS. :- 9 -: 21. COMBINED EFFECT OF THE ABOVE OBSERVATIONS AND CONCLUSIONS WOULD BE THAT THE ASSESSEE ENTERED INTO A CONTRACT FOR PURCHASE OF GAS AND THAT THERE WAS NO WORK CONTRACT ENTERED INTO BETWEEN THE ASSESSEE AND GAIL. APPLICATION OF SECTION 194C, THEREFORE, DOES NOT ARISE. TRIBUNAL, THEREFORE, IN OUR VIEW, COMMITTED NO ERROR. APPEAL IS, THEREFORE, DISMISSED. 7.2 CONSEQUENT TO THIS JUDGMENT OF HON'BLE GUJARAT HIGH COURT, THE CBDT HAS ISSUED A CIRCULAR NO. 9 OF 2012 DATED 17 TH OCTOBER, 2012 CLARIFYING THE CONTROVERSY ARISEN OUT OF THIS JUDGMENT OF HON'BLE GUJARAT HIGH COURT AND IT HAS BEEN CLARIFIED THAT IN CASE THE OWNER/SELLER OF THE GAS SELLS AS WELL AS TRANSPORTS THE GAS TO THE PURCHASER TILL THE POINT OF DELIVERY, WHERE THE OWNERSHIP OF GAS TO THE PURCHASER IS SIMULTANEOUSLY TRANSFERRED, THE MANNER OF RAISING THE SALE BILL (WHETHER THE TRANSPORTATION CHARGES ARE EMBEDDED IN THE COST OF GAS OR SHOWN SEPARATELY) DOES NOT ALTER THE BASIC NATURE OF SUCH CONTRACT WHICH REMAINS ESSENTIALLY A CONTRACT FOR SALE AND NOT A WORKS CONTRACT AS ENVISAGED IN SECTION 194C OF THE ACT. FOR THE SAKE OF REFERENCE WE EXTRACT THE CONTENTS OF THE CIRCULAR NO. 9 OF 2012 AS UNDER: C.B.D.T. CIRCULARS CIRCULAR NO. 9 OF 2012, DATED OCTOBER 17, 2012 SUB: DEDUCTION OF TAX AT SOURCE ON PAYMENT OF GAS TRANSPORTATION CHARGES BY THE PURCHASER OF NATURAL GAS TO THE SELLER OF GAS - REGARDING REPRESENTATIONS HAVE BEEN RECEIVED FROM VARIOUS SECTIONS OF THE INDUSTRY ON THE DIFFICULTIES FACED IN THE MATTER OF TAX DEDUCTION AT SOURCE ON GAS TRANSPORTATION CHARGES PAID BY THE PURCHASERS OF NATURAL GAS TO THE SELLERS OF GAS. :- 10 -: 2. THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT (TDS) V. KRISHAK BHARATI COOPERATIVE LIMITED IN TAX APPEAL NO. 618 OF 2010 VIDE ORDER DATED 12-7-2011, HAS HELD THAT THE QUESTION AS TO WHETHER PAYMENT OF GAS TRANSPORTATION CHARGES BY THE PURCHASERS OF NATURAL GAS TO THE GAS DISTRIBUTION COMPANIES IS COVERED UNDER THE PROVISION OF CHAPTER XVII-B OF INCOME-TAX ACT, 1961 (THE ACT) OR NOT, CAN BE ASCERTAINED ONLY ON THE BASIS OF THE TERMS OF AGREEMENT BETWEEN THE GAS DISTRIBUTING COMPANY AND THE PURCHASER OF THE NATURAL GAS. IN THE OPERATIVE PART OF THE ORDER, THE HON'BLE COURT SAYS THAT IN THE FACTS OF THE ABOVEMENTIONED CASE, THE AGREEMENT IS FOR PURCHASE AND SALE OF GAS. TRANSPORTATION OF GAS IS ONLY A PART OF THE ENTIRE SALE TRANSACTION. LAYING DOWN THE PIPELINE AND SUPPLYING GAS THROUGH SUCH PIPELINE WERE THE STEPS TAKEN IN FURTHERANCE OF SUCH A CONTRACT. THERE WAS A CLEAR UNDERSTANDING OF THE PARTIES THAT THE OWNERSHIP OF GAS WOULD PASS ON TO THE BUYER AT THE DELIVERY POINT WHICH CLEARLY SHOWS THAT TRANSPORT OF GAS BY THE SELLER WAS A STEP TOWARDS EXECUTION OF CONTRACT FOR SALE OF GAS AND THERE WAS NO CONTRACT FOR CARRIAGE OF GOODS. THE COURT ADDED THAT TRANSPORTATION OF GAS WAS ONLY IN FURTHERANCE OF CONTRACT FOR SALE OF GAS. THE HON'BLE HIGH COURT THEN DECIDED THAT IN SUCH A CASE THE SUPPLY OF GAS IS UNDER A 'CONTRACT FOR SALE' AND NOT UNDER A 'WORKS CONTRACT' AS ENVISAGED UNDER SECTION 194C OF THE ACT AND HENCE IN SUCH A CASE TDS PROVISIONS ARE NOT APPLICABLE. 3. THE MATTER HAS BEEN EXAMINED BY THE BOARD. THE MAIN STAKEHOLDERS IN THIS INDUSTRY ARE THE - OWNERS/SELLERS OF THE GAS (WHICH COULD BE A GAS DISTRIBUTION COMPANY); TRANSPORTERS OF GAS (WHICH COULD BE THE OWNERS/SELLERS OF THE GAS OR A THIRD PARTY/PARTIES) AND THE PURCHASERS/ END-USERS OF THE GAS. THE :- 11 -: OWNER/SELLER OF THE GAS MAY TRANSFER THE OWNERSHIP OF THE GAS TO THE PURCHASER EITHER AT THE POINT OF DELIVERY AT THE PREMISES OF THE PURCHASER OR AT ANY INTERMEDIATE POINT. 4. IT IS CLARIFIED THAT IN CASE THE OWNER/SELLER OF THE GAS SELLS AS WELL AS TRANSPORTS THE GAS TO THE PURCHASER TILL THE POINT OF DELIVERY, WHERE THE OWNERSHIP OF GAS TO THE PURCHASER IS SIMULTANEOUSLY TRANSFERRED, THE MANNER OF RAISING THE SALE BILL (WHETHER THE TRANSPORTATION CHARGES ARE EMBEDDED IN THE COST OF GAS OR SHOWN SEPARATELY) DOES NOT ALTER THE BASIC NATURE OF SUCH CONTRACT WHICH REMAINS ESSENTIALLY A 'CONTRACT FOR SALE' AND NOT A 'WORKS CONTRACT' AS ENVISAGED IN SECTION 194C OF THE ACT. HENCE IN SUCH CIRCUMSTANCES, PROVISIONS OF CHAPTER XVII-B OF THE ACT ARE NOT APPLICABLE ON THE COMPONENT OF GAS TRANSPORTATION CHARGES PAID BY THE PURCHASER TO THE OWNER/SELLER OF THE GAS. THE USE OF DIFFERENT MODES OF TRANSPORTATION OF GAS BY OWNER/SELLER WILL NOT ALTER THE POSITION. 5. IT IS NEEDLESS TO MENTION THAT TRANSPORTATION CHARGES PAID TO A THIRD PARTY TRANSPORTER OF GAS, EITHER BY THE OWNER/SELLER OF THE GAS OR PURCHASER OF THE GAS OR ANY OTHER PERSON, SHALL CONTINUE TO BE GOVERNED BY THE APPROPRIATE PROVISIONS OF THE ACT AND TDS SHALL BE DEDUCTIBLE ON SUCH PAYMENT TO THE THIRD PARTY AT THE APPLICABLE RATES. 8. DURING THE COURSE OF HEARING, THE LEARNED D.R. AS TRIED TO DISTINGUISH CERTAIN FACTS OF THE IMPUGNED CASE WITH THE FACTS OF KRISHAK BHARATI CO-OPERATIVE LIMITED. THE LEARNED D.R. HAS SUBMITTED THAT IN THE CASE OF KRISHAK BHARATI CO-OPERATIVE LIMITED, THE ASSESSEE WAS REQUIRED TO PAY A PARTICULAR AMOUNT REGULARLY PER MONTH AS TRANSMISSION CHARGES WHEREAS IN THE INSTANT CASE THE :- 12 -: TRANSMISSION CHARGES DEPEND UPON THE QUANTITY OF GAS. ANOTHER DISTINGUISHABLE FACTOR POINTED OUT IS THAT THE TRANSMISSION CHARGES WERE RAISED IN THE CONSOLIDATED SALE INVOICE OF GAS IN THE CASE OF KRISHAK BHARATI CO-OPERATIVE LIMITED WHEREAS IN THE INSTANT CASE THE INVOICES FOR TRANSMISSION CHARGES WERE SEPARATELY RAISED BY GAIL. THEREFORE, IN THE INSTANT CASE, THE RATIO LAID DOWN BY THE APEX COURT AND CLARIFICATION MADE BY THE CBDT THROUGH CIRCULAR NO. 9 OF 2012, WOULD NOT APPLY TO THE PRESENT CASE. 9. WE HAVE CAREFULLY EXAMINED THE VARIOUS CLAUSES OF THE AGREEMENT EXECUTED BETWEEN THE ASSESSEE AND THE GAIL IN BOTH THE CASES AND WE FIND FORCE IN THE CONTENTION OF THE REVENUE BUT IF WE READ THE JUDGMENT OF HON'BLE GUJARAT HIGH COURT ALONG WITH THE CIRCULAR ISSUED BY THE CBDT, WE FIND THAT IT HAS BEEN MADE CLEAR BY THE REVENUE THAT WHEREVER TRANSPORTATION CHARGES ARE CLAIMED BY THE SELLER OF GAS, THE TRANSPORTATION CHARGES WOULD BE EMBEDDED IN THE COST OF GAS AND IT MAKES NO DIFFERENCE WHETHER IT MAY BE SHOWN IN THE CONSOLIDATED SALE BILL OR THE INVOICES FOR TRANSPORTATION CHARGES WAS RAISED SEPARATELY. UNDISPUTEDLY, INVOICES FOR TRANSPORTATION CHARGES WERE RAISED SEPARATELY IN THE INSTANT CASE BUT IN THE LIGHT OF JUDGMENT OF HON'BLE GUJARAT HIGH COURT AND CIRCULAR OF CBDT, IT WOULD NOT MAKE MUCH DIFFERENCE AS IT WAS RAISED BY THE SELLER OF THE GAS AND TRANSPORTATION CHARGES ARE EMBEDDED IN THE COST OF GAS, THOUGH CLAIMED SEPARATELY. THROUGH, THIS CIRCULAR IT HAS BEEN MADE VERY CLEAR BY THE BOARD THAT IN CASE THE OWNER/SELLER OF THE GAS SELLS/TRANSPORTS THE GAS TO THE PURCHASER TILL THE POINT OF DELIVERY, WHERE THE OWNERSHIP OF GAS IS TRANSFERRED, THE MANNER OF RAISING THE SALE BILL (WHETHER THE TRANSPORTATION CHARGES ARE EMBEDDED IN THE COST OF GAS OR SHOWN SEPARATELY) DOES NOT ALTER THE BASIC NATURE OF SUCH CONTRACT WHICH REMAINS ESSENTIALLY A CONTRACT FOR SALE AND NOT A WORKS CONTRACT AS ENVISAGED IN SECTION 194C OF THE ACT. THROUGH THIS CIRCULAR IT HAS ALSO BEEN MADE CLEAR THAT WHEREVER THE GAS IS TRANSPORTED BY A THIRD AGENCY AND NOT BY THE SELLER, THE TRANSPORTATION CHARGES CLAIMED BY THE THIRD AGENCY SHALL BE GOVERNED BY THE APPROPRIATE PROVISIONS OF THE ACT AND IN THAT CASE THE :- 13 -: TRANSMISSION CHARGES WOULD NOT BE EMBEDDED IN THE COST OF GAS. IF CLAUSE 4 AND 5 OF THE CIRCULAR ARE READ TOGETHER, IT HAS BECOME ABUNDANTLY CLEAR THAT WHENEVER THE GAS IS TRANSPORTED BY THE SELLER TO THE POINT OF DELIVERY, THE TRANSPORTATION CHARGES OF GAS WOULD BE EMBEDDED IN THE COST OF GAS, THOUGH TRANSPORTATION CHARGES ARE CLAIMED SEPARATELY OR ALONG WITH THE COST OF GAS IN THE SALE BILL AND THE NATURE OF SUCH CONTRACT ESSENTIALLY REMAINS A CONTRACT FOR SALE AND NOT A WORKS CONTRACT BUT WHEREVER THE TRANSPORTATION OF GAS IS MADE BY THIRD PERSON APART FROM THE SELLER OF THE GAS, THE TRANSPORTATION CHARGES OR THE TRANSMISSION CHARGES PAID BY THE RECIPIENT/BUYER TO THE TRANSPORTER SHALL BE GOVERNED BY THE APPROPRIATE PROVISIONS OF THE ACT I.E. 194C OF THE ACT AND TDS SHALL BE DEDUCTIBLE ON SUCH PAYMENT TO THIRD PARTY BY THE BUYER AT THE APPLICABLE RATES. 10. IN THE INSTANT CASE, IT HAS BEEN ALSO SURFACED ON RECORD THAT THE GAIL HAS NOT ONLY SUPPLIED/TRANSPORTED THE GAS SOLD BY IT BUT ALSO THE GAS PURCHASED BY THE ASSESSEE FROM OTHER SELLERS. IN THOSE CASES THE TRANSMISSION CHARGES PAID BY THE ASSESSEE TO GAIL CERTAINLY ATTRACTS THE PROVISIONS OF SECTION 194C OF THE ACT AS PER AFORESAID CIRCULAR OF CBDT. FROM A CAREFUL PERUSAL OF THE ORDERS OF THE LOWER AUTHORITIES, WE FIND THAT THE ASSESSEE HAS ALSO ADMITTED IN HIS WRITTEN SUBMISSIONS FILED BEFORE THE CIT(A) THAT IT HAS ALSO PURCHASED THE GAS FROM OTHER SELLERS I.E. RELIANCE INDUSTRIES LTD. APART FROM THE GAIL BUT THE SAME WAS TRANSPORTED BY THE GAIL AND THE ASSESSEE HAD PAID TRANSMISSION CHARGES TO THE GAIL AND ALSO DEDUCTED TDS ON THE PAYMENT BUT THIS ASPECT HAS NOT BEEN CLARIFIED BY ANY OF THE LOWER AUTHORITIES AS THEY HAVE TREATED THE ENTIRE PAYMENT OF TRANSMISSION CHARGES AS HAS BEEN MADE U/S 194I OR 194C OF THE ACT. IN THE LIGHT OF THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT THIS ASPECT IS REQUIRED TO BE EXAMINED BY THE LOWER AUTHORITIES AS TO HOW MUCH TRANSMISSION CHARGES ARE PAID BY THE ASSESSEE TO GAIL FOR TRANSPORTATION OF THE GAS PURCHASED BY IT FROM GAIL AND ALSO THE AMOUNT OF TRANSMISSION CHARGES PAID BY THE ASSESSEE TO GAIL FOR TRANSPORTATION OF GAS PURCHASED FROM OTHER AGENCIES. ACCORDINGLY, :- 14 -: WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO REEXAMINE THE ISSUE AFRESH IN THE TERMS INDICATED ABOVE. IF IT IS PROVED THAT THE ASSESSEE HAS DEDUCTED THE TDS ON THE TRANSMISSION CHARGES PAID TO GAIL FOR TRANSMISSION OF GAS PURCHASED FROM OTHER AGENCIES, NO DISALLOWANCE CAN BE MADE, OTHERWISE THE ASSESSING OFFICER IS REQUIRED TO ACT IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION HERE, WHILE ADJUDICATING THE ISSUE, THE ASSESSING OFFICER SHALL AFFORD ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE INTEREST OF JUSTICE. 8. SINCE THE IMPUGNED ISSUE INVOLVED IN THESE APPEALS HAS ALREADY BEEN ADJUDICATED BY US IN THE ASSESSEES APPEALS, WE FIND NO JUSTIFICATION TO TAKE ANY CONTRARY VIEW IN THE APPEALS OF THE REVENUE IN THE ABSENCE OF ANY INCRIMINATING MATERIAL IN SUPPORT OF THE REVENUES CONTENTIONS. 9. OUR ATTENTION WAS ALSO INVITED TO THE ORDER OF THE ASSESSING OFFICER, BUT THE ORDER PASSED BY THE ASSESSING OFFICER HAS NOT BEEN PLACED ON RECORD. THEREFORE, WE CANNOT TAKE COGNIZANCE OF THIS FACT. WE, HOWEVER, DISPOSE OF THE APPEALS IN TERMS INDICATED IN THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE IN I.T.A. NO. 78 TO 80/LKW/2013 VIDE ORDER DATED 25.6.2013. ACCORDINGLY THESE APPEALS OF THE REVENUE STAND ALLOWED FOR STATISTICAL PURPOSES. I.T.A. NO. 603/LKW/2014: 10. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON VARIOUS GROUNDS, WHICH ARE AS UNDER:- 1. THE LD. CIT (APPEAL),. BAREILLY HAS ERRED IN FACTS AND LAW BY DELETING THE AMOUNT OF IDS LIABILITY OF RS.2,43,68,700/- FOR THE A.Y. 2010-11 DETERMINED BY THE ITO(TDS) U/S 1941 OF THE IT ACT,, 1961 ON TRANSPORTATION CHARGES PAID TO GAIL BY HOLDING THAT LIABILITY FOR TAX DEDUCTION AT SOURCE WAS U/S 194C AND NOT U/S 1941. 2. WHILE DOING SO, THE CIT(A) HAS FURTHER ERRED IN HOLDING THAT THE :- 15 -: TRANSPORTATION CHARGES IS A PART OF COMPOSITE CONTRACT U/S 194C AND NOT IN THE NATURE OF RENT U/S 1941, THEREBY OVERLOOKED THE FACTS THAT PIPELINES WERE CAP ITAL ASSET OF GAIL AND EXCLUSIVELY USED FOR SUPPLY OF GAS TO THE DEDUCTOR M/S KRIBHCO SHYAM FERTILIZERS LTD. 3. WHILE DOING SO IN POINT NO.(L) ABOVE THE LEARNED CIT (APPEAL) HAS FURTHER OVERLOOKED THE FACT THAT THERE IS NO ELEMENT OF SERVICE INVOLVED NOR THERE IS ANY CONTRACT OR ARRANGEMENT FOR RENDERING OF SERVICES IN DELIVERY OF GAS TO KRIBHCO. 4. FURTHER THE LD. CIT(A) HAS FAILED TO DISCUSS ON THE MERIT THE ORDER OF THE ITO(TDS) TREATING TRANSPORTATION CHARGES AS RENT, WHILE OVER EMPHASIZING ON THE APPLICABILITY OF SECTION 194C, WHICH WAS NOT THE MAIN ISSUE RAISED BY THE ASSESSING OFFICER. 5. THAT THE ORDER OF THE LD. CIT(APPEAL), BAREILLY BEING ERRONEOUS IN LAW AND ON FACTS BE VACATED AND ORDER OF THE ASSESSING OFFICER BE RESTORED. 6. THAT THE APPLICATION CRAVES LEAVE TO AMEND ANYONE OF MORE OF THE GROUNDS OF APPEAL AS STATED ABOVE AS AND WHEN NEED FOR DOING SO MANY ARISE. THEREFORE, THE UNDERSIGNED PRAYS THAT THE ORDER OF LD. CIT (APPEAL), BAREIILY DATED 04/03/2014 MAY BE DELETED AND ORDER OF THE A.O MAY BE RESTORED. 11. THE FACTS BORNE OUT FROM THE RECORD ARE THAT THE ASSESSING OFFICER HAS INVOKED THE PROVISIONS OF SECTION 201(1) AND 201(1A) OF THE ACT AND HELD THE ASSESSEE TO BE IN DEFAULT ON NON-DEDUCTION OF TDS ON THE PAYMENT OF TRANSMISSION CHARGES UNDER SECTION 194C OF THE ACT. LATER ON, THE ASSESSING OFFICER PASSED AN ORDER UNDER SECTION 154 OF THE ACT AND SUBSTITUTED SECTION 194C BY SECTION 194I OF THE ACT, HAVING NOTED THAT BY TYPOGRAPHICAL MISTAKE IN THE ORDER, SECTION 194C OF THE ACT WAS MENTIONED IN PLACE OF SECTION 194I OF THE ACT. HE ACCORDINGLY HELD THE ASSESSEE TO BE :- 16 -: IN DEFAULT ON ACCOUNT OF NON-DEDUCTION OF TDS UNDER SECTION 194I OF THE ACT AND ALSO CHARGED INTEREST UNDER SECTION 201(1A) OF THE ACT. 12. AN APPEAL WAS FILED BEFORE THE LD. CIT(A) AND THE LD. CIT(A) HAS DISPOSED OF THE APPEAL IN THE LIGHT OF THE ORDER OF THE TRIBUNAL PASSED FOR ASSESSMENT YEARS 2007-08 TO 2009-10 IN THE ASSESSEES OWN CASE AND THE LD. CIT(A) HAS HELD THAT IN THE LIGHT OF THE DECISION OF THE TRIBUNAL, THIS RECTIFICATION APPLICATION BECOME INFRUCTUOUS AND ACCORDINGLY HELD THAT THE ORDER PASSED UNDER SECTION 154 OF THE ACT AND INSTANT APPEAL ARE INFRUCTUOUS. THE RELEVANT OBSERVATIONS OF THE LD. CIT(A) IN THIS REGARD ARE EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE:- I HAVE GONE THROUGH THE FACTS OF THE CASE CAREFULLY. I HAVE ALSO GONE THROUGH THE EMISSIONS OF THE AR AND THE ORDER DATED 25.6.2013 OF THE HON'BLE ITAT LUCKNOW. BENCH 'A' FOR THE AYS 07-08, 08-09 AND 09-10 IN THE ASSESSEE'S OWN CASE. IT IS A SETTLED ISSUE IN THE APPELLANT'S CASE THAT THERE COULD BE NO LIABILITY IN RESPECT OF CHARGES PAID FOR TRANSPORTATION OF GAS BY GAIL PURCHASED FROM GAIL. LIABILITY TO DEDUCT THE TAX IN TERMS OF SECTION 194C WOULD BE ATTRACTED ONLY IN RESPECT OF CHARGES PAID FOR TRANSPORTATION TO GAIL FOR GAS PURCHASED FROM OTHERS. THIS ORDER UNDER APPEAL IS AN ORDER U/S 154. THE ORDER SEEKS TO RECTIFY THE AO'S ORDER DATED 28.03.2013 FOR WHICH A SEPARATE APPEAL (APPEAL NO. 79/ITO(TDS)/BLY/2013-14)HAS BEEN FILED WHICH HAS BEEN ADJUDICATED UPON BY MY ORDER OF DATE. THE AO HAS BEEN DIRECTED TO PASS AN ORDER AFTER DUE VERIFICATION OF FACTS. IN VIEW OF MY ADJUDICATION IN APPEAL NO. 79//ITO(TDS)/BLY/2013-14, THE ORDER U/S 154 AND THE INSTANT APPEAL AGAINST THE SAME BECOME INFRUCTOUS AND NO FURTHER ADJUDICATION IS REQUIRED. 13. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AND HAS SIMPLY PLACED RELIANCE UPON THE ORDER OF THE ASSESSING OFFICER. :- 17 -: 14. HAVING CAREFULLY EXAMINED THE ORDER OF THE LD. CIT(A), WE FIND THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL IN THE LIGHT OF THE TRIBUNALS ORDER FOR ASSESSMENT YEARS 2007-08 TO 2009-10, IN WHICH THE TRIBUNAL HAS GIVEN A SPECIFIC FINDING THAT TDS IS NOT REQUIRED TO BE DEDUCTED IN CASE THE PURCHASE IS MADE FROM GAIL. WITH CERTAIN DIRECTIONS, THE TRIBUNAL HAS ALSO SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORED THE MATTER TO THE ASSESSING OFFICER. IN THE LIGHT OF THESE FACTS, THE RECTIFICATION APPLICATION IS NOT SUSTAINABLE. WE ACCORDINGLY FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) AND WE CONFIRM THE SAME. 15. IN THE RESULT, APPEALS OF THE REVENUE IN I.T.A. NO. 269 TO 271/LKW/2013 ARE ALLOWED FOR STATISTICAL PURPOSES AND APPEAL IN I.T.A. NO. 603/LKW/2013 IS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:26 TH FEBRUARY, 2015 JJ:1802 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR