M/s. Lalitpur Power Generation Co. Ltd., Noida V. ACIT (TDS), Noida

ITA 2924/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3229 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: misc
• Appeal Filed On: 23-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: GUDRUN MEHAR
• Section: 133A; 194C; 201(1)

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C : NEW DELHI BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 2922 TO 2924 /DEL/2016 (ASSESSMENT YEAR: 2012 - 13 TO 2014 - 15 ) LALITPUR POWER GENERATION CO. LTD, B - 10, SECTOR - 3, NOIDA PAN AABCL6739M VS. ACIT(TDS), A - 2D, FIRST FLOOR, ROOM NO. 110, SECTOR - 24, NOIDA (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PIYUSH KAUSHIK, ADV SHRI KVSR KRISHNA, CA SHRI NIRESH GARG, ADV SHRI AMAN GOEL, FCA REVENUE BY: SHRI GUDRUN MEHAR, SR. DR DATE OF HEARING 20/02 / 2017 DATE OF PRONOUNCEMENT 20 / 0 2 / 201 8 O R D E R PER PRASHANT MAHARISHI , A. M. 1. THESE THREE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST THE COMMON ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) I, NOIDA FOR ASSESSMENT YEAR 2012 - 13 TO 2014 - 15 CONFIRMING THE ORDER OF THE LD. ACIT(TDS) PASSED U/S 201 (1) AND 201(1A) OF THE INCOME TAX ACT ON 15/ 0 1/2015. 2. AT THE TIME OF THE HEARING OF THE APPEAL THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT HE DOES NOT WANT T O PRESS APPEAL FOR ASSESSMENT YEAR 2012 13. IN VIEW OF THIS ITA NO. 2922/DEL/2016 IS DISMISSED. 3. COMING TO THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2013 - 14 IN ITA NO. 2923/DEL/2016 THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT HE DOES NOT WANT T O PRESS GROUND N O. 3, 4, 5 AND 6 OF THE APPEAL. THEREFORE , THESE GROUNDS OF APPEAL ARE DISMISSED AS NOT PRESSED. 4. GROUND NO. 1 OF THE APPEAL OF THE ASSESSEE IS GENERAL IN NATURE AND THEREFORE SAME IS ALSO DISMISSED 5. THIS LEAVES US WITH THE ONLY GROUND NO. 2 OF APPEAL WHEREIN THE ASSESSEE IS AGGRIEVED THAT THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS OF THE CASE LALITPUR POWER GENERATION CO. LTD VS. ACIT(TDS), ITA NO. 2922 TO 2924/DEL/2016 (ASSESSMENT YEAR: 2012 - 13 TO 2014 - 15) PAGE | 2 BY CONFIRMING THAT THE T DS AT THE RATE OF 10% UNDER SECTION 194J OF THE INCOME TAX ACT 1961 IS REQUIRED TO BE DEDUCTED ON THE SERVICES OF TESTING AND COMMISSIONING RECEIVED FROM THE BHEL AND THAT APPELLANT HAS WRONGLY DEDUCTED TAX AT SOURCE AT THE RATE OF 2% UNDER SECTION 194C OF THE INCOME TAX ACT 1961 ON SUCH SERVICES THEREBY CONFIRMING THE DEMAND OF RS. 22704170/ . 6. THE BRIEF FACTS SHOWS THAT ASSESS EE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF GENERATION OF POWER BY SETTING UP OF A SUPERCRITICAL THERMAL POWER PLANT IN UP. IT IS A SPECIAL PURPOSE VEHICLE BY THE GOVERNMENT OF UTTAR PRADESH FOR IMPLEMENTATION OF THE POWER PROJECT. SURVEY UNDER SEC TION 133A OF THE INCOME TAX ACT 1961 WAS CONDUCTED ON 19/6/2014 WHEREIN THE STATEMENT OF THE VP OF THE ASSESSEE COMPANY WAS RECORDED. BASED ON THIS IT WAS FOUND THAT ASSESSEE HAS CONTRACTED SOME OF THE WORK TO BHEL . ONE OF THE CONTRACT INVOLVED WAS THE SER VICE OF TRANSPORTATION, INSURANCE, ERECTION, INSTALLATION, TESTING AND COMMISSIONING OF RS. 689 CRORES. ON THE ABOVE SUM THE ASSESSEE HAS DEDUCTED TAX AT SOURCE UNDER SECTION 194C OF THE INCOME TAX ACT . THE LD. ASSISTANT COMMISSIONER OF INCOME TAX (TDS) WA S OF THE VIEW THAT SERVICES PROVIDED BY THE BHARAT HEAVY ELECTRICALS LTD TO THE ASSESSEE ARE IN THE NATURE OF FEES FOR TECHNICAL SERVICES ON WHICH TAX SHOULD BE DEDUCTED UNDER SECTION 194J OF THE INCOME TAX ACT AND NOT UNDER SECTION 194C OF THE ACT AS DE DUCTED BY THE ASSESSEE. THEREFORE , ON 3/12/2014 HE ASKED THE ASSESSEE TO SHOW CAUSE THAT WHEN ASSESSEE HAS INCURRED AN EXPENDITURE OF RS. 299.84 CRORES AND RS. 187.69 CRORES FOR FINANCIAL YEAR 2011 12 AND FINANCIAL YEAR 2012 13 RESPECTIVELY TOWARDS THE SERVICE OF CIVIL CONSTRUCTION , ERECTION, INSTALLATION AND TESTING AND COMMISSIONING ETC. TAX SHOULD BE DEDUCTED U/S 194J OF THE ACT. ASSESSEE WAS ALSO ASKED TO GIVE BIFURCATION OF THE EXPENDITURE WITH RESPECT TO THE NATURE OF THE SERVICES AND TO SHOW CAUS E AS TO WHY TAX DEDUCTION AT SOURCE SHOULD NOT HAVE BEEN MADE AT THE RATE OF 10% UNDER SECTION 194J OF THE INCOME TAX ACT . LALITPUR POWER GENERATION CO. LTD VS. ACIT(TDS), ITA NO. 2922 TO 2924/DEL/2016 (ASSESSMENT YEAR: 2012 - 13 TO 2014 - 15) PAGE | 3 7. IN RESPONSE TO THE SHOW CAUSE NOTICE ASSESSEE FILED ITS REPLY ON 15/12/2014 STATING THAT ABOVE SERVICES ARE FALLING UNDER THE PROVISI ONS OF SECTION 194C OF THE INCOME TAX ACT AND TAX IS NOT REQUIRED TO BE DEDUCTED UNDER PROVISIONS OF SECTION 194J OF THE ACT . WITH RESPECT TO THE ERECTION AND INSTALLATION SERVICES IT WAS STATED THAT IT HAS BEEN SPECIFICALLY EXCLUDED FROM THE DEFINITION OF FEES FOR TECHNICAL SERVICES UNDER SECTION 9 OF THE INCOME TAX ACT AS IT IS INVOLVING CONSTRUCTION, ASSEMBLY, MINING, LIKE PROJECT UNDERTAKEN. 8. THE LD. ASSESSING OFFICER CONSIDERED THE EXPLANATION OF THE ASSESSEE AND HELD THAT THE TESTING ETC IS A COMPLEX W ORK THAT INVOLVED TESTING OF VARIOUS COMPONENTS FROM THE COMMENCEMENT OF STRUCTURE SYSTEM OR COMPONENT TO ENSURE THAT THE CONSTRUCTION IS THE OF THE APPROPRIATE QUALITY AND THE EQUIPMENT IS IN A FIT STATE FOR COMMISSIONING TO BE STARTED . THEREFORE , SERVICE S OF TESTING AND COMMISSIONING IS SPECIALISED TECHNICAL WORK PERFORMED BY THE TECHNICALLY COMPETENT MANPOWER AND THEREFORE THEY ARE ' FEES FOR TECHNICAL SERVICES U / S 194J OF THE INCOME TAX ACT ON WHICH TAX AT THE RATE OF 10% SHOULD HAVE BEEN DEDUCTED AT SO URCE. AS THE ASSESSEE COULD NOT PROVIDE THE VALID JUSTIFICATION WITH RESPECT TO THE QUANTUM OF WORK INVOLVED OF AFORESAID SERVICES , HE BIFURCATED THE EXPENSES ON THE BASIS OF THE QUANTUM OF WORK INVOLVED AND HELD THAT 40% OF OVERALL EXPENSES ARE INCURRED T OWARDS ERECTION, INSTALLATION , INSURANCE , TESTING AND COMMISSION AND BALANCE 60% ARE FOR OTHER WORKS, SERVICES. BASED ON THIS FOR FINANCIAL YEAR 2012 13 HE CONSIDERED THAT ASSESSEE HAS PAID A SUM OF RS. 222841520/ TOWARDS TESTING AND COMMISSIONING CHARGES ON WHICH TAX SHOULD HAVE BEEN DEDUCTED AT THE RATE OF 10% AMOUNTING TO RS . 22284152/ WHEREAS THE ASSESSEE HAS DEDUCTED IT APPLYIN G THE RATE OF 2% AMOUNTING TO RS . 4456830/ . THEREFORE HE WORKED OUT THE SHORT DEDUCTION OF TAX OF RS. 178273 2 2/ AND CALCULA TED THE INTEREST UNDER SECTION 201(1A) AT THE RATE OF 1% AMOUNTING TO RS. 4876848/ AND WORKED OUT THE TOTAL DEMAND UNDER SECTION 201 (1) AND 201(1A) OF RS. 22704170/ . LALITPUR POWER GENERATION CO. LTD VS. ACIT(TDS), ITA NO. 2922 TO 2924/DEL/2016 (ASSESSMENT YEAR: 2012 - 13 TO 2014 - 15) PAGE | 4 CONSEQUENTLY THE ORDER UNDER SECTION 201 (1) TRADING AND SECTION 201(1A) WAS PASSED. 9. AGGR IEVED WITH THE ORDER OF THE LD. ASSESSING OFFICER THE ASSESSEE CHALLENGED THE SAME BEFORE THE LD. CIT (A). HOWEVER BEFORE THE LD. CIT (A) THE ASSESSEE DID NOT MAKE ANY SUBMISSION AND HENCE THE LD. CIT (A) PASSED AN ORDER ON 16/3/2016 CONFIRMING THE FINDING OF THE LD. ASSESSING OFFICER THAT TAX SHOULD HAVE BEEN DEDUCTED BY THE ASSESSEE ON SERVICES OF TESTING AND COMMISSIONING AT THE RATE OF 10% U /S 194J OF THE INCOME TAX ACT. THEREFORE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF THE LD. 1 ST APPELLATE AUTHORITY HAS PREFERRED AN APPEAL BEFORE US. 10. THE LD. AUTHORISED REPRESENTATIVE EXPLAINED THE NATURE OF WORK GOT DONE BY THE ASSESSEE AND SUBMITTED THAT THE ASSESSEE HAS CORRECTLY DEDUCTED TAX AT THE RATE OF 2% AS IT IS THE CONTRACT WORK FOR CONS TRUCTION OF POWER PLANT. HE FURTHER OBJECTED TO THE BIFURCATION OF GROSS RECEIPT BY THE ASSESSEE BETWEEN ALL SERVICES SUCH AS TESTING AND COMMISSIONING FEES AND OTHER SERVICES. ON THE MERITS HE SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE PUNJAB AND HARYANA HIGH COURT IN 390 ITR 322 IN PR. CIT VS. BHARAT HEAVY ELECTRICALS LTD WHEREIN ON THE IDENTICAL FACTS AND CIRCUMSTANCES THE PAYMENTS MADE FOR CONTRACT WAS HELD TO BE WORK U/S 194C OF THE ACT. HE FU RTHER REFERRED TO THE PARA NO. 7 OF THAT PARTICULAR ORDER WHEREIN THE ACTIVITIES FOR WHICH THE PAYMENT WAS MADE IN THAT CASE WAS DISCUSSED. HE SUBMITTED THAT THE SERVICES AVAILED BY THE ASSESSEE ARE EXACTLY THE SAME. HE FURTHER REFERRED TO THE PARA NO. 21 - 23 OF THAT PARTICULAR ORDER WHEREIN IT HAS BEEN HELD THAT THE SERVICES ARE NOT COVERED UNDER THE PROVISIONS OF SECTION 194J OF THE INCOME TAX ACT. IN VIEW OF THIS , HE SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THAT DECISION. 11. THE LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. SHE SUBMITTED THAT THE COMMISSIONING AND TESTING SERVICES FALLS WITHIN THE PROVISIONS OF SECTION 194J OF THE ACT AND NOT UNDER SECTION 194C OF THE ACT BECAUSE OF THE REASON THAT THE SERVICES ARE LALITPUR POWER GENERATION CO. LTD VS. ACIT(TDS), ITA NO. 2922 TO 2924/DEL/2016 (ASSESSMENT YEAR: 2012 - 13 TO 2014 - 15) PAGE | 5 HIGHLY TECHNICAL. S HE FURTHER REFERRED TO THE PROVISIONS OF SECTION 9 WHERE THE FEES FOR TECHNICAL SERVICES ARE DEFINED TO SHOW THAT THE SERVICES RECEIVED BY THE ASSESSEE ARE FALLING UNDER THAT CATEGORY. 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTION AND ALSO PERUSED THE ORDERS OF THE LOWER AUTHORITIES. IN THE PRESENT CASE THE ISSUE INVOLVED IS WHETHER ON THE SERVICES AVAILED BY THE ASSESSEE OF ERECTION, INSTALLATION , TESTING AND COMMISSIONING CHARGES ARE COVERED UNDER THE PROVISIONS OF SECTION 194C OF THE INCOME TAX ACT AS PER THE VERSION OF THE ASSESSEE OR UNDER SECTION 194J OF THE INCOME TAX ACT AS PER THE VERSION OF THE LD. ASSESSING OFFICER . IDENTICAL ISSUE HAS BEEN DECIDED BY THE HONBLE PUNJAB AND HARYANA HIGH COU RT IN PR. CIT VS. BHARAT HEAVY ELECTRICALS LTD 390 ITR 322 AND UNDER: - 7. THE ASSESSING OFFICER HELD AS FOLLOWS : THE CONTRACTS WERE NOT ONLY FOR THE ERECTION AND INSTALLATION WORK, BUT ALSO FOR THE COMMISSIONING, TESTING AND TRIAL OPERATION OF THE VARIOUS EQUIPMENT AND OTHER RELATED MACHINERY AND THAT UNDER THE TERMS OF THE CONTRACT IT IS THE DUTY OF THE CONTRACTOR TO PROVIDE ALL TYPES OF LABOUR, SUPERVISORS, ENGINEERS, INSPECTORS, MEASURING AND TESTING EQUIPMENT, TESTING AND COMMISSIONING FOR THE E XECUTION OF THE PROJECT AS PER THE SPECIFICATIONS OF THE RESPONDENT. UNDER CLAUSE 38.1 OF THE SPECIAL CONDITIONS OF CONTRACT, THE CONTRACTOR WAS TO DEPLOY ALL THE SKILLED WORKMEN TO CARRY OUT THE WORK AS PER THE SPECIFICATIONS. THEREFORE, THE CONTRACTORS W ERE REQUIRED TO EMPLOY QUALIFIED ENGINEERS AND HIGHLY SKILLED MANPOWER TO EXECUTE CERTAIN ACTIVITIES SO AS TO PROVIDE FAULT - FREE SERVICES TO THE RESPONDENT. THE CONTRACTORS WERE, THEREFORE, PROVIDING TECHNICAL SERVICES TO THE RESPONDENT WHICH ATTRACT THE P ROVISIONS OF SECTION 194J. THIS CONCLUSION WAS IN VIEW OF THE PROVISIONS OF THE CONTRACT WHICH REQUIRE TESTING, TRIAL OPERATION AND COMMISSIONING. THE NATURE OF THE TRIAL OPERATION WAS SUCH THAT IT COULD NOT BE HANDLED BY LABOURERS AND COULD ONLY BE HANDLE D BY QUALIFIED ENGINEERS, SUPERVISORS AND TECHNICIANS. THUS, THE LEVEL OF HUMAN INTERVENTION WAS HIGH AND SOPHISTICATED. HE ACCORDINGLY HELD THE RESPONDENT TO BE AN ASSESSEE IN DEFAULT UNDER SECTION 201(1A) OF THE ACT FOR HAVING FAILED TO DEDUCT THE TAX AT SOURCE AND INVOKED THE PROVISIONS OF SECTIONS 200 AND 201 READ WITH RULE 30 OF THE INCOME - TAX RULES, 1962. 8. THE COMMISSIONER OF INCOME - TAX (APPEALS) CONSTRUED THE PROVISIONS OF THE CONTRACT AND CAME TO THE CONCLUSION THAT IT LALITPUR POWER GENERATION CO. LTD VS. ACIT(TDS), ITA NO. 2922 TO 2924/DEL/2016 (ASSESSMENT YEAR: 2012 - 13 TO 2014 - 15) PAGE | 6 WAS IN THE NATURE OF A CONTR ACT FOR WORK AND LABOUR TO BE CARRIED OUT UNDER THE SUPERVISION OF THE RESPONDENT'S OFFICERS AND EMPLOYEES. IT WAS FURTHER HELD AS FOLLOWS. THE SCOPE OF THE WORK GIVEN TO THE SUB - CONTRACTORS IS FOR ERECTION, TESTING, COMMISSIONING AND TRIAL OPERATION AND H ANDING OVER OF BOILER UNITS, ELECTROSTATIC PRECIPITATORS ETC WHICH INVOLVED CONSTRUCTION WORK, WELDING, ERECTION, ALIGNMENT, TRANSPORTATION OF EQUIPMENT AND MATERIALS WITH THE HELP OF MACHINES WHICH DID NOT FALL WITHIN THE SCOPE OF TECHNICAL SERVICES AS DE FINED IN EXPLANATION 2 TO SECTION 9(1)(VII) OF THE ACT. THE SERVICES OF QUALIFIED ENGINEERS AND SKILLED MANPOWER WERE UTILIZED FOR THIS PURPOSE WHICH WAS INEVITABLE. WHAT THE RESPONDENT WAS TO GET FROM THE CONTRACTOR WAS A PHYSICAL OUTPUT, THE TANGIBLE STR UCTURE AND NOT MERELY THE SERVICES OF THE QUALIFIED ENGINEERS/STAFF. THE WORD 'MERELY' APPEARS TO BE INADVERTENT. WHAT WAS MEANT IS THAT THE SERVICES WERE REQUIRED IN CONNECTION WITH THE WORKS CONTRACT. MERELY BECAUSE TECHNICAL PERSONNEL ARE EMPLOYED IN TH E EXECUTION OF THE CONTRACT IT DOES NOT FOLLOW THAT THE CONTRACT IS ONE FOR TECHNICAL SERVICES. THE COMMISSIONER OF INCOME - AX (APPEALS) ALSO HELD IN FAVOUR OF THE RESPONDENT ON THE ALTERNATIVE CONTENTION. THE TRIBUNAL IN EFFECT CONFIRMED THESE FINDINGS. 9 . MR. PUTNEY, LEARNED COUNSEL APPEARING ON BEHALF OF THE APPELLANT, FIRSTLY SOUGHT TO DEMONSTRATE THAT THE CONTRACT FALLS WITHIN THE AMBIT OF SECTION 194J. HE FURTHER 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 194J. SECTION 194C IS NOT A RESIDUARY CLAUSE. THE RESPONDENT WOULD, THEREFORE, BE ENTITLED TO SUCCEED EVEN IF IT IS ESTABLISHED THAT THE C ONTRACT DOES NOT FALL WITHIN THE AMBIT OF SECTION 194J. IF 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 APPROPRIATE, 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 ENTERED INTO BETWEEN THE RESPONDENT AND THE CONTRACTORS RELIED 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 A ND THE CONTRACTORS ARE IDENTICAL. CLAUSE 1 PROVIDES THAT THE CONTRACTORS ARE TO EXECUTE THE WORK OF ERECTION, TESTING, COMMISSIONING AND TRIAL OPERATION OF POWER CYCLE PIPING, BOILER AND LP PIPING PACKAGES FOR UNITS IN HARYANA LALITPUR POWER GENERATION CO. LTD VS. ACIT(TDS), ITA NO. 2922 TO 2924/DEL/2016 (ASSESSMENT YEAR: 2012 - 13 TO 2014 - 15) PAGE | 7 AND IN ACCORDANCE WITH AND SU BJECT TO THE TERMS AND CONDITIONS CONTAINED IN THE CONTRACT AND THE DOCUMENT INCORPORATED THEREIN SUCH AS THE INSTRUCTIONS TO TENDERERS, GENERAL CONDITIONS OF CONTRACT AND SPECIAL CONDITIONS. CLAUSE 5 PROVIDES THAT IN CONSIDERATION OF THE PAYMENTS MADE BY THE RESPONDENT, THE CONTRACTOR UNDERTOOK TO EXECUTE, CONSTRUCT AND COMPLETE THE WORKS IN CONFORMITY IN ALL RESPECTS WITH THE TERMS AND CONDITIONS SPECI FIED IN THE AGREEMENT. CLAUSE 7 REQUIRES THE CONTRACTOR TO COMPLETE THE EXECUTION OF THE WORKS TO THE EN TIRE SATISFACTION OF THE RESPONDENT AND WITHIN THE PERIOD STIPULATED IN THE CONTRACT. THE RELEVANT PROVISIONS OF THE GENERAL CONDITIONS OF CONTRACT ARE ALSO RELEVANT IN THIS REGARD. A RATE SCHEDULE IS ALSO FOR THE MATERIAL AND NOT FOR THE SUPPLY OF ANY TEC HNICAL SERVICES. THERE IS A SCHEDULE 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 FOR 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 THE RESPONDENT. THEY WERE IN FACT ENGAGED BY THE CON TRACTOR ITSELF FOR ITS OWN BENEFIT FOR EXECUTING THE CONTRACT AS REQUIRED BY THE TERMS AND CONDITIONS THEREOF. 11. THE SPECIAL CONDITIONS OF CONTRACT ARE ALSO RELEVANT. THEY ALSO ENUMERATE THE LIST OF MAJOR TOOLS AND PLANTS TO BE PROVIDED BY THE CONTRACTOR AT ITS OWN COST. THERE IS NO REFERENCE TO THE CONTRACT BEING FOR ONE OF P ROVIDING TECHNICAL SERVICES. THERE IS A DETAILED REFERENCE IN CLAUSE 40 WHICH AGAIN ENUMERATES THE EQUIPMENT THAT IS TO BE SUPPLIED. THERE IS NO SIMILAR CLAUSE IN RESPECT OF THE DEPLOYMENT OF TECHNICAL PERSONNEL. THERE IS A SIMILAR SCHEDULE FOR THE DEPLOYM ENT OF MANPOWER AS THE ONE UNDER THE GENERAL CONDITIONS OF CONTRACT. CLAUSE 46 OF THE SPECIAL CONDITIONS CONTAINS DETAILED PROVISIONS REGARDING THE TESTING, PRE - COMMISSIONING, COMMISSIONING AND POST - COMMISSIONING IN RESPECT OF THE EQUIPMENT TO BE SUPPLIED. MR. PUTNEY HAD RELIED UPON CLAUSE 46.13 WHICH WE WILL REFER TO LATER WHILE DEALING WITH HIS SUBMISSIONS. 12. THE CONTRACT READ AS A WHOLE, THEREFORE, IS FOR THE PURPOSES SET OUT IN CLAUSE 1 THEREOF ITSELF, NAMELY, ERECTING, COMMISSIONING, TESTING AND TRIA L OPERATION OF THE SAID EQUIPMENT IN ACCORDANCE WITH AND SUBJECT TO THE TERMS AND CONDITIONS OF THE CONTRACT. ALL THE OTHER PROVISIONS ARE WITH A VIEW TO ENSURING THE SAME. IN OTHER WORDS, THE OTHER PROVISIONS LALITPUR POWER GENERATION CO. LTD VS. ACIT(TDS), ITA NO. 2922 TO 2924/DEL/2016 (ASSESSMENT YEAR: 2012 - 13 TO 2014 - 15) PAGE | 8 OF THE CONTRACT ARE TO ENSURE THAT THE CONTRAC TORS ERECT, TEST, COMMISSION AND CONDUCT TRIAL OPERATION OF THE EQUIPMENT IN ACCORDANCE WITH THEIR OBLIGATIONS UNDER THE CONTRACT. ONCE THAT IS SEEN, IT IS CLEAR THAT THE RELIANCE UPON THE TERMS AND CONDITIONS ON BEHALF OF THE APPELLANT TO CONTEND TO THE C ONTRARY IS NOT WELL FOUNDED. 13. MR. PUTNEY FIRSTLY RELIED UPON THE FOLLOWING CLAUSE : '4. M/S. PCP CONFIRMED THAT THE MANPOWER DEPLOYMENT PLAN SUB MITTED BY THEM ALONG WITH THE OFFER AND SUBSEQUENTLY VIDE LETTER NO. PCP/TND/960, DATED JUNE 26, 2009 IS TENTATIVE AND RECONFIRMED THAT THE ADEQUATE MANPOWER INCLUDING SUPERVISORS WILL BE DEPLOYED AT SITE FOR TIMELY COMPLETION OF WORK. BHEL FURTHER POINTED OUT THAT MAN POWER AND QUALIFIED SUPERVISORS FOR BHEL'S USE AS PER CLAUSE NO. 56.2 OF THE NIT HAVE NOT B EEN INCLUDED IN THEIR DEPLOYMENT PLAN. M/S. PCP CONFIRMED THAT THEY WILL DEPLOY MANPOWER AS PER CLAUSE NO. 56.2 FREE OF COST EXCLUSIVELY FOR BHEL'S SERVICES. FURTHER, M/S. PCP HAS ALSO CONFIRMED THAT THEY WILL BE DEPLOYING ADDITIONAL MANPOWER, IF REQUIRED AT NO EXTRA COST TO BHEL, FOR TIMELY COMPLETION OF WORK.' 14. THE DEPLOYMENT OF MANPOWER IS PRECISELY FOR THE PURPOSES STATED IN CLAUSE 4, NAMELY, 'FOR TIMELY COMPLETION OF WORK'. THE WORK IS THE ERECTION, TESTING, COMMISSIONING AND TRIAL OPERATION OF THE EQUIPMENT. IN OTHER WORDS, THE CONTRACT IS NOT FOR THE PROVISION OF TECHNICAL SERVICES. THAT THE EQUIPMENT REQUIRES INPUTS FROM TECHNICAL PERSONNEL IS ANOTHER MATTER ALTOGETHER. THAT INPUT IS ENTIRELY FOR AND ON BEHALF OF THE CONTRACTOR AND NOT ON BEHALF O F THE RESPONDENT. THE INPUT IS NOT TO ENABLE THE RESPONDENT TO RUN THE MACHINERY ON ITS OWN, BUT TO ENABLE THE CONTRACTOR TO SUPPLY THE REQUISITE EQUIPMENT. 15. CLAUSE 19.17, RELI ED UPON BY MR. PUTNEY, READS AS FOLLOWS : '19.17 'WORK' OR 'CONTRACT WORK' SH ALL MEAN AND INCLUDE SUPPLY OF ALL CATEGORIES OF LABOUR, SPECIFIED CONSUMABLES, TOOLS AND TACKLES REQUIRED FOR COMPLETE AND SATISFACTORY SITE TRANSPORTATION, HANDLING, STACKING, STORING, ERECTING, TESTING AND COMMISSIONING OF THE EQUIP MENT TO THE ENTIRE S ATISFACTION OF BHEL.' THUS, THE SUPPLY OF LABOUR, MATERIAL AND EQUIPMENT IS FOR THE SATIS FACTORY SITE TRANSPORTATION, HANDLING, STACKING, STORING, ERECTING, TESTING AND COMMISSIONING OF THE EQUIPMENT TO THE RESPONDENT'S SATISFACTION. IN OTHER WORDS, THE L ABOUR, EMPLOYEES, TOOLS AND TACKLES ARE NOT SUPPLIED UNDER THE LALITPUR POWER GENERATION CO. LTD VS. ACIT(TDS), ITA NO. 2922 TO 2924/DEL/2016 (ASSESSMENT YEAR: 2012 - 13 TO 2014 - 15) PAGE | 9 CONTRACT, BUT FOR THE PURPOSE OF EXECUTING THE CONTRACT AS PER THE CONTRAC TUAL STIPULATIONS. 16. MR. PUTNEY THEN RELIED UPON CLAUSE 27.4 WHICH READS AS UNDER : '27.4 ALL ELECTRICAL EQUIPMENT, CONNECTIONS AND WIRING FOR CONSTRUC TION POWER, IT'S DISTRIBUTION AND USE SHALL CONFORM TO THE REQUIREMENTS OF THE INDIAN ELECTRICITY ACT AND RULES. ONLY ELECTRICIANS LICENSED BY THE APPROPRIATE STATUTORY AUTHORITY SHALL BE EMPLOYED BY THE CONTRAC TOR TO C ARRY OUT ALL TYPES OF ELECTRICAL WORKS. ALL ELECTRICAL APPLIANCES INCLUDING PORTABLE ELECTRIC TOOLS USED BY CONTRACTOR SHALL HAVE SAFE PLUGGING SYSTEM TO SOURCE OF POWER AND BE APPROPRIATELY EARTHED.' 17. HE RELIED UPON THE PROVISION THAT ONLY ELECTRICIANS WITH CERTAIN QUALIFICATIONS AND LICENCES SHALL BE EMPLOYED BY THE CONTRACTOR. THIS IS A CONTRACTUAL STIPULATION INSISTED UPON BY THE RESPONDENT TO ENSURE THAT THE EQUIPMENT SUPPLIED BY THE CONTRACTOR IS OF THE REQUISITE QUALITY AND SPECIFICATIONS. IT IS T O ENSURE THAT THE CONTRACTOR COMPLIES WITH ITS OBLIGATIONS UNDER THE CONTRACT. IT DOES NOT PROVIDE FOR THE PROVISION OF TECHNICAL ASSISTANCE TO THE RESPONDENT. 18. HE THEN RELIED UPON CLAUSES 39.1, 39.2, 39.5 AND 39.11 WHICH READ AS UNDER : '39.0 SUPERVISO RY STAFF AND WORKMEN 39.1 THE CONTRACTOR SHALL DEPLOY ALL THE SKILLED WORKMEN LIKE MILL WRIGHT FITTERS, WELDERS, CRANE - OPERATORS, DRIVERS, GAS CUTTERS, RIGGERS, SARANGS, MASONS, CARPENTERS, ELECTRICIANS, HELPERS AND INSTRUMENT TECHNICIANS TO CARRY OUT THE WORKS AS PER SPECIFICATIONS. IN ADDITION TO SKILLED, SEMI - SKILLED AND UNSKILLED WORKMEN REQUIRED FOR ALL THE WORKS, SUITABLE WORKMEN REQUIRED FOR HANDLING AND TRANSPORTING OF EQUIPMENT FROM SITE STORAGE TO ERECTION SITE, ERECTION, TESTING AND COMMISSIONIN G AS CONTEMPLATING UNDER THIS SPECIFICATION SHALL BE DEPLOYED. ONLY FULLY TRAINED AND COMPETENT MEN WITH PREVIOUS EXPE RIENCE ON THE JOB SHALL BE EMPLOYED. THEY SHALL HOLD VALID CERTIFICATES WHEREVER NECESSARY. BHEL RESERVES THE RIGHT TO DECIDE ON THE SUIT ABILITY OF THE WORKERS AND OTHER PERSONNEL WHO WILL BE DEPLOYED BY THE CONTRACTOR. BHEL RESERVES THE RIGHT TO INSIST ON REMOVAL OF ANY EMPLOYEE/WORKMAN OF THE CONTRACTOR AT ANY TIME, IF THEY FIND HIM UNSUITABLE. THE CONTRACTOR SHALL REMOVE HIM FORTHWITH. LALITPUR POWER GENERATION CO. LTD VS. ACIT(TDS), ITA NO. 2922 TO 2924/DEL/2016 (ASSESSMENT YEAR: 2012 - 13 TO 2014 - 15) PAGE | 10 39.2 THE SUPERVISORY STAFF INCLUDING QUALIFIED ENGINEERS DEPLOYED BY THE CONTRACTOR SHALL ENSURE PROPER OUT - TURN OF WORK AND DISCIPLINE ON THE PART OF THE LABOUR PUT ON THE JOB BY THE CONTRACTOR. THEY SHOULD IN GENERAL SEE AND ENSURE THAT THE WORKS ARE CAR RIED OUT IN A SAFE AND PROPER MANNER AND IN CO - ORDINATION WITH OTHER LABOUR AND STAFF DEPLOYED DIRECTLY BY BHEL OR OTHER CONTRACTORS OF BHEL OR BHEL'S CLIENT/OTHER AGENCY. CONTRACTOR HAS TO ARRANGE FOR AN EXPE RIENCED ELECTRICAL ENGINEER CONVERSANT WITH EL ECTRONIC CIRCUITS FOR OPERATION AND MAINTENANCE OF INDUCTION HEATING MACHINES FOR P/T - 91 WELDING. 39.5 THE CONTRACTOR SHALL DEPLOY THE NECESSARY NUMBER OF QUALIFIED AND APPROVED FULL TIME ELECTRICIANS AT HIS COST TO MAINTAIN HIS TEM PORARY ELECTRICAL INSTA LLATION TILL THE COMPLETION OF WORK. 39.11 THE CONTRACTOR HAS TO ENSURE DEPLOYMENT OF QUALIFIED LEVEL - 2 NDT ENGINEERS AND WELDING ENGINEERS EXCLUSIVELY FOR THE WELDING WORKS ENVISAGED UNDER THE PACKAGE WORKS.' 19. BY CLAUSE 39.1, THE RESPONDENT REQUIRED TH E CONTRACTOR TO DEPLOY SKILLED WORKMEN AND TECHNICIANS NOT UNDER A CONTRACT FOR THE SUPPLY OF TECHNICAL SERVICES, BUT, AS THE CLAUSE ITSELF STATES, 'TO CARRY OUT THE WORKS AS PER THE SPECIFICATIONS'. THE CONTRACTOR WAS BOUND TO CARRY OUT THE WORK AS PER TH E SPECIFICATIONS TO SAFEGUARD AGAINST ANY DEFECTIVE WORK AND TO ENSURE THAT THE WORK IS OF THE REQUISITE QUALITY. THE RESPONDENT WAS ENTITLED TO INSIST UPON THE CONTRACTOR CARRYING IT OUT IN THE CORRECT MANNER WHICH WOULD INCLUDE THE WORK OF THE CONTRACTOR ITSELF BEING DONE AND SUPERVISED BY QUALIFIED PERSONNEL. BY CLAUSE 39. 2, THE RESPONDENT REQUIRED THE CONTRACTOR TO DEPUTE SUPERVISORY STAFF INCLUDING QUALIFIED ENGINEERS NOT UNDER A CONTRACT FOR THE SUPPLY OF SUCH STAFF, BUT AS STATED IN THE CLAUSE ITSEL F BY ENSURING 'PROPER OUT - TURN OF WORK AND DISCIPLINE ON THE PART OF THE LABOUR PUT ON THE JOB BY THE CONTRACTOR'. THE CLAUSE ALSO REQUIRED THE CONTRACTOR'S SUPERVISORY STAFF TO ENSURE THAT THE WORK IS CARRIED OUT IN A PROPER MANNER AND IN CO - ORDI NATION W ITH THE RESPONDENT'S PERSONNEL. THE CONTRACTOR IS ALSO REQUIRED BY THE CLAUSE TO ARRANGE FOR THE EXPERIENCED ELECTRICAL ENGINEERS. THESE REQUIREMENTS ARE ALSO NOT UNDER THE CONTRACT FOR THE SUPPLY OF SUCH PER SONNEL, BUT FOR THE PERSONNEL TO ENSURE THAT TH E CONTRACTOR EXECUTES THE WORK IN A TIMELY AND A PROPER MANNER. FOR THE SAME REASON, CLAUSES 39.5 AND 39.11 ARE ALSO OF NO ASSISTANCE TO THE APPELLANT FOR THEY MERELY REQUIRE THE DEPLOYMENT OF THE NECESSARY NUMBER OF QUALIFIED ELECTRICIANS AND QUALIFIED EN GINEERS. THE DEPLOYMENT OF THE PERSONNEL IS NOT LALITPUR POWER GENERATION CO. LTD VS. ACIT(TDS), ITA NO. 2922 TO 2924/DEL/2016 (ASSESSMENT YEAR: 2012 - 13 TO 2014 - 15) PAGE | 11 UNDER A CONTRACT FOR THE SUPPLY OF SERVICES/TECHNICAL SERVICES, BUT TO ENSURE THE DUE AND PROPER EXECUTION OF THE WORK BY THE CONTRACTOR. 20. MR. PUTNEY THEN RELIED UPON CLAUSES 46.4, 46.13, 46.16 AND 46.18 W HICH READ AS UNDER : '46.0 TESTING, PRE - COMMISSIONING, COMMISSIONING AND POST - COM MISSIONING. 46.4 THE CONTRACTOR SHALL MAKE ALL NECESSARY ARRANGEMENTS INCLUD ING MAKING OF TEMPORARY CLOSURES ON PIPING/EQUIPMENT FOR CARRYING OUT THE HYDRO - STATIC TESTING ON ALL PIPING EQUIPMENT COVERED IN THE SPECIFICATION AT NO ADDITIONAL COST. THE CONTRACTOR SHALL CARRY OUT THE REQUIRED TEST ON THE PIPELINES SUCH AS HYDRAULIC TEST (AS PER IBR REQUIREMENT/INSTRUCTION OF BHEL), OF VARIOUS PIPING SYSTEMS, ULTRA SONIC TEST FOR WELD DEFECTS AND FINDING THICKNESS, DYE PENETRANT TEST, MAGNETIC PARTICLES TEST FOR WELD DEFECTS AND MATERIALS DEFECTS ETC. ALL FACILITIES (MANPOWER, MATERIALS, EQUIPMENT, CONSUMABLES, ETC.) INCLUD ING PROPER APPROACHES WHEREVER REQUIRED SHALL BE PROVIDED BY THE CONTRACTOR FOR SATISFACTORY CONDUCTION OF ABOVE TEST. SPECIAL EQUIP MENT SUCH AS MAGNETIC PARTICLE TESTER, METELASCOPE FOR ANALYSIS OF WELD MATERIAL OF T/P - 91 PIPINGS, ULTRASONIC TEST KIT AND ENGINEERS REQUIRED FOR THESE TESTS SHALL BE ARRANGED BY THE CONTRACTOR ALONG WITH QUALIFIED TECHNICIAN WITHIN FINALLY ACCEPTED RATES. ALL REQUIRED TESTS (MECHANICAL AND ELECTRICAL) INDICATED BY BHEL AND THEIR CLIENTS FOR SUCCESSFUL COMMISSIONING ARE INCLUDED IN THE SCOPE OF THESE SPECIFICATIONS. THESE TESTS/ACT IVITIES MAY NOT HAVE BEEN LISTED IN THESE SPECIFICATIONS. 46.13 THE CONTRACTOR SHALL CARRY OUT ANY OTHER TESTS AS DESIRED BY BHEL ENGINEERS ON ERECTED EQUIPMENT COVERED IN THE SCOPE OF THIS CONTRACT DURING TESTING AND COMMISSIONING TO DEMONSTRATE THE SATIS FACTORY COMPLETION OF ANY PART OR WHOLE OF WORK PERFORMED BY THE CONTRACTOR. 46.16 DURING THIS PERIOD THOUGH THE BHEL'S/CLIENT'S STAFF WILL ALSO BE ASSOCIATED IN THE WORK, THE CONTRACTOR'S RESPONSIBILITY WILL BE TO ARRANGE FOR THE COMPLETE REQUIREMENT OF SUPERVISION, CONSUMABLES, LABOUR, T AND P AND IMTES REQUIRED TILL SUCH TIME THE COMMISSIONED UNITS ARE TAKEN OVER BY THE BHEL'S CUSTOMER. 46.18 IT SHALL BE THE RESPONSIBILITY OF THE CONTRACTOR TO PROVIDE WORKMEN OF VARIOUS CATEGORIES IN SUFFICIENT NUMBERS ALONG WITH ENGI NEERS/SUPERVISORS INCLUDING NECESSARY CONSUMABLES, T AND LALITPUR POWER GENERATION CO. LTD VS. ACIT(TDS), ITA NO. 2922 TO 2924/DEL/2016 (ASSESSMENT YEAR: 2012 - 13 TO 2014 - 15) PAGE | 12 P, IMTES ETC. DURING PRE - COMMISSIONING, COMMISSIONING AND POST COMMIS SIONING PERIOD TO ASSIST IN COMMISSIONING OF EQUIPMENT AND ATTENDING ANY PROBLEM IN EQUIPMENT ERECTED BY THE CONT RACTOR TILL HANDING OVER. THE RATES QUOTED SHALL INCLUDE ALL THESE CONTINGENCIES ALSO. ASSOCIATION OF BHEL'S/CLIENT'S STAFF DURING ABOVE PERIOD WILL NOT ABSOLVE CONTRACTOR FROM ABOVE RESPONSIBILITIES.' 21. THESE ARE USUAL CLAUSES IN SUCH CONTRACTS. THE TES TING, PRE - COMMISSIONING, COMMISSIONING AND POST - COMMISSIONING ARE REQUIRED TO BE CARRIED OUT BY A CONTRACTOR TO SATISFY THE CUSTOMER THAT THE WORK HAS BEEN EXECUTED IN A PROPER MANNER ; THAT THE EQUIPMENT HAS BEEN INSTALLED AS REQUIRED AND THAT ITS PERFORM ANCE MEETS THE PARAMETERS SPECIFIED IN THE CONTRACT. THE PERSONNEL THAT ARE REQUIRED TO TEST AND COMMISSION THE PLANT AND EQUIPMENT PERFORM THEIR FUNCTIONS NOT UNDER A CONTRACT FOR THE SUPPLY OF TECHNICAL SERVICES TO THE CUSTOMER, BUT TO SATISFY THE CUSTOM ER ON BEHALF OF THE CONTRACTOR THAT THE PLANT AND EQUIPMENT HAS BEEN DULY SUPPLIED AS PER THE CONTRACTUAL SPECIFICATIONS. INDEED, THIS ENTIRE EXERCISE WOULD REQUIRE THE DEPLOYMENT OF TECHNICAL PERSONNEL, BUT WHAT IS IMPORTANT TO NOTE IS THAT THE TECHNICAL PERSONNEL ARE DEPLOYED NOT FOR AND ON BEHALF OF THE CUSTOMER, BUT FOR AND ON BEHALF OF THE CONTRACTOR ITSELF WITH A VIEW TO ENSURING THAT THE CONTRACTOR HAS SUPPLIED THE EQUIPMENT AS PER THE CONTRACTUAL SPECIFICATIONS. EVERYTHING DONE IN THIS REGARD IS TO THIS END AND NOT TO SUPPLY TECHNICAL SERVICES TO THE CUSTOMER. 22. THE CONTRACT ENTERED INTO BETWEEN THE RESPONDENT AND EACH OF THE CONTRACTORS, THEREFORE, DID NOT INVOLVE THE SUPPLY OF PROFESSIONAL OR TECHNICAL SERVICES AT LEAST WITHIN THE MEANING OF SECT ION 194J. THE CONSIDERATION PAID UNDER THE CONTRACTS, THEREFORE, WAS NOT FOR THE PROFESSIONAL OR TECHNICAL SERVICES RENDERED BY THE CONTRACTORS TO THE RESPONDENT. SECTION 194J IS, THEREFORE, NOT APPLICABLE TO THE PRESENT CASE. 23. IT IS NOT NECESSARY TO CO NSIDER MR. PUTNEY'S SUBMISSION THAT THE CONTRACTS DO NOT FALL UNDER SECTION 194C. THE SUBMISSION IF ACCEPTED WOULD BE SELF DESTRUCTIVE OF THE REVENUE FOR THEN THE ASSESSEE WOULD NOT HAVE BEEN LIABLE TO DEDUCT TAX AT SOURCE AT ALL AND WOULD, THEREFORE, BE E NTITLED TO A REFUND. AS WE MENTIONED EARLIER, SECTION 194J IS NOT A RESIDUARY CLAUSE. IN OTHER WORDS, IT IS NOT THAT IF A CONTRACT DOES NOT FALL WITHIN THE AMBIT OF SECTION 194C, IT MUST BE DEEMED TO FALL WITHIN THE AMBIT OF SECTION 194J. SECTIONS 194C AND 194J ARE INDEPENDENT PROVISIONS. IN VIEW OF OUR FINDING THAT THE CONTRACT DOES NOT FALL WITHIN SECTION 194J, THE DISMISSAL OF THE APPEAL WOULD FOLLOW IN LALITPUR POWER GENERATION CO. LTD VS. ACIT(TDS), ITA NO. 2922 TO 2924/DEL/2016 (ASSESSMENT YEAR: 2012 - 13 TO 2014 - 15) PAGE | 13 ANY EVENT. THE RESPONDENT HAS NOT DENIED THAT THE PRESENT CASE FALLS UNDER SECTION 194C. HAD THE RESPO NDENT CONTENDED THAT SECTION 194C IS ALSO NOT APPLICABLE, IT WOULD HAVE BEEN NECESSARY TO CONSIDER WHETHER THE CONTRACT FALLS WITHIN THE AMBIT OF SECTION 194C. AS THE RESPONDENT HAS ACCEPTED THAT IT FALLS WITHIN SECTION 194C AND HAS COMPLIED WITH ITS OBLIG ATIONS THEREUNDER, WE REFRAIN FROM DECIDING THE ISSUE AS TO WHETHER IT FALLS WITHIN SECTION 194C. 13. THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT POINT OUT THAT HOW THE SERVICES ARE DIFFERENT FROM THE NATURE OF SERVICES CONSIDERED BEFORE THE HONBLE HIGH C OURT . NO OTHER CONTRARY DECISION WAS ALSO POINTED OUT BEFORE US. IN VIEW OF THIS RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE PUNJAB AND HARYANA HIGH COURT IN 390 ITR 322 WE REVERSE THE FINDING OF THE LOWER AUTHORITIES AND CANCEL ORDER PASSED BY THE LD. ASSESSING OFFICER UNDER SECTION 201 (1) AND SECTION 201 (1A) FOR ASSESSMENT YEAR 2013 - 14. IN VIEW OF THIS GROUND NO. 2 OF THE APPEAL OF THE ASSESSEE IS ALLOWED. 14. IN THE RESULT APPEAL OF THE ASSESSEE IN ITA NO. 2923/ DEL/ 2016 FOR ASSESSMENT YEAR 2013 14 IS PARTLY ALLOWED. 15. THE ASSESSEE HAS RAISED IDENTICAL GROUNDS OF APPEAL IN ITA NO. 2924/ DEL /2016 FOR ASSESSMENT YEAR 2014 15. 16. THE ASSESSEE HAS SUBMITTED THAT GROUND NO. 1 IS GENERAL IN NATURE AND FURTHER GROUND NO. 3 6 ASSESSEE DOES NOT WANT TO PRESS. TH EREFORE ALL THESE GROUNDS ARE DISMISSED. 17. THIS LEAVES US WITH THE ONLY 2 ND GROUND OF APPEAL WHEREIN THE ASSESSEE IS AGGRIEVED BY THE ORDER OF THE LD. CIT (A) IN HOLDING THAT SERVICES OF TESTING AND COMMISSIONING RECEIVED FROM BHEL AND BIDCO ARE SUBJECT TO W ITHHOLDING TAX AT THE RATE OF 10% UNDER SECTION 194J OF THE INCOME TAX ACT AGAINST THE DEDUCTION MADE BY THE ASSESSEE UNDER SECTION 194C OF THE INCOME TAX ACT AND THEREBY THE DEMAND OF RS. 7 391 5934/ UNDER THE PROVISIONS OF SECTION 201 (1) AND 201 (1A) O F THE ACT IS RAISED BY ORDER DATED 16/3/2016. LALITPUR POWER GENERATION CO. LTD VS. ACIT(TDS), ITA NO. 2922 TO 2924/DEL/2016 (ASSESSMENT YEAR: 2012 - 13 TO 2014 - 15) PAGE | 14 18. BOTH THE PARTIES SUBMITTED THAT FACTS INVOLVED IN THIS GROUND OF APPEAL ARE IDENTICAL TO THE FACTS THAT WERE INVOLVED IN GROUND NO. 2 OF THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2013 14. THEY FURTHER SU BMITTED THAT THEIR ARGUMENTS ARE ALSO SAME. 19. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTION AND ALSO PERUSED THE ORDERS OF THE LOWER AUTHORITY AND FIND THAT THE ABOVE GROUND OF APPEAL IN THIS APPEAL IS IDENTICAL TO THE GROUND NO. 2 OF THE APPEAL OF THE A SSESSEE FOR ASSESSMENT YEAR 2013 14. WE HAVE ALREADY DECIDED GROUND NO. 2 OF THAT APPEAL FOR ASSESSMENT YEAR 2013 14 CANCELLING THE ORDER PASSED BY THE LD. ASSESSING OFFICER U /S 201(1) READ WITH SECTION 201(1A) OF THE INCOME TAX ACT RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE PUNJAB AND HARYANA HIGH COURT. THEREFORE , FOR THE SIMILAR REASONS , WE ALSO DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE HOLDING THAT THE LOWER AUTHORITIES ARE NOT CORRECT IN HOLDING THAT ASSESSEE SHOULD HAVE DEDUCTED TAX AT SOURCE ON TESTING AND COMMISSIONING CHARGES AT THE RATE OF 10% UNDER SECTION 194J OF THE ACT. ACCORDINGLY WE ALLOW GROUND NO. 2 OF THE APPEAL OF THE ASSESSEE. 20. IN THE RESULT APPEAL OF THE ASSESSEE IN ITA NO. 2924/ DEL /2016 FOR ASSESSMENT YEAR 2014 15 IS PARTLY A LLOWED. 21. IN THE RESULT APPEAL OF THE ASSESSEE IN ITA NO. 2922/DEL/2016 FOR ASSESSMENT YEAR 2012 - 13 IS DISMISSED AS NOT PRESSED AND APPEALS FOR ASSESSMENT YEARS 2013 - 14 AND 2014 - 15 IN ITA NO. 2923 AND 2924/DEL/2016 ARE PARTLY ALLOWED. ORDER PRONOUNCED IN TH E OPEN COURT ON 2 0 / 0 2 / 2018 . - S D / - - S D / - ( AMIT SHUKLA ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 0 / 0 2 / 2018 A K KEOT COPY FORWARDED TO 1. APPLICANT LALITPUR POWER GENERATION CO. LTD VS. ACIT(TDS), ITA NO. 2922 TO 2924/DEL/2016 (ASSESSMENT YEAR: 2012 - 13 TO 2014 - 15) PAGE | 15 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI