M/s. N.R. Agarwal Industries Ltd., Surat V. The Income tax Officer,TDS, Valsad

ITA 3085/AHD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6927 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 05-04-2011
• Assessment Year: 2009-2010
• Appeal Filed On: 18-11-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R K DHANISTA
• Assessee Lawyers: J P SHAH
• Keywords: Scheme of amalgamation
• Section: 133A; 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE S/SHRI G. D. AGARWAL, VP AND BHAVNESH SAINI , JM) ITA NO.3082, 3083, 3084 AND 3085/AHD/2010 A. Y.: 2006-07, 2007-08, 2008-09 AND 2009-10 M/S. N. R. AGARWAL INDUSTRIES LTD., PLOT NO.901, 3 RD PHASE, GIDC VAPI VS THE INCOME TAX OFFICER (TDS), VALSAD PA NO. AAACN 7721 N (APPELLANT) (RESPONDENT) APPELLANT BY SHRI J. P. SHAH, AR RESPONDENT BY SHRI R.K. DHANISTA, DR O R D E R PER BENCH: THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST COMMON ORDER OF THE LEARNED CIT(A), VALSAD DATED 07 TH SEPTEMBER, 2010 FOR ASSESSMENT YEARS 2006-07 TO 200 9-2010, ON THE FOLLOWING GROUNDS: I. THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ORDER U/S 201/201(1A) OF THE ACT PASSED BY ITO (OSD) DETERMINING TDS PAYABLE AT RS.602119 WITHOUT APPRECIATING THE FACTS THAT PAYMENT TO VAPI WASTE & EFFLUENT MANAGEMENT CO. LTD. (VWEMCL) A MUTUAL CONCERN BEING NOT A PAYMENT FOR ANY CONTRACT, THE PROVISION OF SECTIO N 194C OF THE ACT IS NOT APPLICABLE. THE TDS LIABILIT Y DETERMINED AT RS.602119 SHOULD BE DELETED. II. THE LEARNED CIT(A) FURTHER ERRED IN DIRECTING T HE ITO (TDS) TO INVOKE THE PROVISIONS OF SECTION 194J OF THE ACT INSTEAD OF SECTION 194C OF THE ACT APPLIED BY THE AO (TDS) WITHOUT APPRECIATING THE FACTS THAT ITA NO.3082, 3083, 3084 AND 3085/AHD/2010 M/S. N. R. AGARWAL INDUSTRIES LTD. VS ACIT, ITO (TD S), VALSAD 2 PAYMENT FOR COMMON MAINTENANCE AND RUNNING OF POLLUTION CONTROL PLANT IS NOT A PAYMENT IN THE NAT URE OF FEES FOR TECHNICAL SERVICES. BOTH THE PROVISION OF SECTION 194 J AND 194 C OF THE ACT BE HELD AS NON APPLICABLE TO PAYMENT MADE TO MUTUAL CONCERN VWEMCL. III. THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND IN FACTS ENHANCING THE TAX LIABILITY U/S 194 J OF T HE ACT AS AGAINST TAX LIABILITY U/S 194 C OF THE ACT DETERMINED BY AO (TDS) WITHOUT GIVING ANY SHOW CAUSE NOTICE U/S 251 (2) OF THE ACT. THE TDS LIABILITY OF RS.602119 SHOULD BE THERE FOR BE CANCELLED. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE COMPANY HAS TWO MANUFACTURING UNITS WHICH ARE ENGAGED IN TH E MANUFACTURE OF PAPERS, PAPER BOARDS AND NEWS PRINTS. DURING THE YE AR, TWO MORE UNITS VIZ SUMAN PAPER & BOARDS LTD. AND N. R. PAPER & BOARDS LTD. WHICH ARE ENGAGED IN THE MANUFACTURING BUSINESS OF DUPLEX BOARD PAPER HAVE MERGED WITH THE ASSESSEE COMPANY PURSUAN T TO THE SCHEME OF AMALGAMATION APPROVED BY THE HONBLE BOMB AY HIGH COURT. THE AO CONDUCTED SURVEY U/S 133A OF THE IT A CT TO VERIFY WHETHER THE ASSESSEE HAD DEDUCTED TAX AT SOURCE FOR THE PAYMENTS MADE TO VWEMCL, VAPI TOWARDS THE EFFLUENT TREATMENT CHARGES. THE AO HELD THAT THE PAYMENT MADE TO VWEMCL, VAPI IS CO VERED UNDER THE PROVISIONS OF SECTION 194 C OF THE IT ACT AND A CCORDINGLY HE TREATED THE ASSESSEE AN ASSESSEE IN DEFAULT WITHI N THE MEANING OF SECTION 201 (1) OF THE IT ACT AND PASSED THE ORDERS U/S 201 (1)/201(1A) OF THE IT ACT AND RAISED DEMANDS AGAINS T THE ASSESSEE. THE IMPUGNED ORDERS WERE CHALLENGED BEFORE THE LEAR NED CIT(A) AND IT WAS SUBMITTED THAT THE HONBLE GUJARAT HIGH COUR T DIRECTED THE VAPI ITA NO.3082, 3083, 3084 AND 3085/AHD/2010 M/S. N. R. AGARWAL INDUSTRIES LTD. VS ACIT, ITO (TD S), VALSAD 3 INDUSTRIES ASSOCIATION TO IMPLEMENT COMMON EFFLUENT TREATMENT PLANT BY 20-01-1997 AND VAPI INDUSTRIES ASSOCIATION FORME D A COMPANY NAMELY VAPI WASTE & EFFLUENT MANAGEMENT CO. LTD. (V WEMCL) ON 17-1-1997 WITH NO SHARE CAPITAL. THE MEMBER UNITS O F THE ASSOCIATION ARE AUTOMATIC MEMBERS OF VWEMCL. IT WAS, THEREFORE, SUBMITTED THAT IT IS THE GROUP OF THE SAME PERSONS; THEREFORE, CON CEPT OF MUTUALITY APPLIES. IT WAS ALSO SUBMITTED THAT PROVISIONS OF S ECTION 194C OF THE IT ACT WOULD NOT APPLY IN THE CASE OF THE ASSESSEE. THE LEARNED CIT(A) AFTER RECORDING THE STATEMENT OF THE ASSESSE E IN THE IMPUGNED ORDER AND MATERIAL ON RECORD EXAMINED THE ISSUE WHE THER THE PROVISIONS OF SECTION 194 C OR 194 J OF THE IT ACT WOULD APPLY IN THE MATTER AND ULTIMATELY CONSIDERING THE ISSUE ABOVE, THE LEARNED CIT(A) PRECISELY HELD THAT THE PROVISIONS OF SECTION 194 J OF THE IT ACT WOULD APPLY INSTEAD OF SECTION 194 C OF THE IT ACT AND AC CORDINGLY, PASSED THE ORDER. HIS FINDINGS IN OPERATIVE PORTION OF THE IMPUGNED ORDER IN PARA 9.5 AND 9.6 ARE REPRODUCED AS UNDER: 9.5 DECISIO N: IN THE FOREGOING PARAGRAPHS, I HAVE ANALYZED WHAT CONSTITUTE TECHNICAL SERVICE WITH THE HELP OF INTERPRETATIONS GIVEN BY THE VARIOUS JUDICI AL AUTHORITIES. WHAT CAN BE CLEARLY DISTINGUISHABLE IS THAT VWEMCL IS RENDERING SERVICE FOR WHICH IT WAS INCORPORATED. THAT VWEMCL IS NOT A MUTUAL CONCERN. THE SERVICE PROVIDED WAS TECHNICAL SERVICE INVOLVING HUMAN ELEMENTS. THE SERVICE OF THIS NATURE INVOLVES HUMAN SKILLS AS WELL AS PLANT. IT IS NOT AUTOMATIC. THEREFORE, IT FALLS WITHIN THE PURVIEW OF THE TECHNICAL SERVICES AS PROVIDED IN SECTION 194 J R. W. S. 9 (1) (VII). THE APPELLANT P AID FEES/CHARGES FOR THE TECHNICAL SERVICE RECEIVED FRO M VWEMCL. IN VIEW OF THE FACTS AND CIRCUMSTANCES ENUMERATED IN THE FOREGOING PARAS, I AM OF THE FIRM ITA NO.3082, 3083, 3084 AND 3085/AHD/2010 M/S. N. R. AGARWAL INDUSTRIES LTD. VS ACIT, ITO (TD S), VALSAD 4 VIEW THAT THE ACTION OF THE AO DOES NOT CALL FOR INTERFERENCE. THUS THIS GROUND OF APPEAL IS DISMISSED. 9.6 DECISION: IN A NUTSHELL, MY FINDING WAS THAT THE ANNUAL PAYMENTS FOR THE EFFLUENT TREATMENT PAID TO VWEMCL, VAPI WAS COVERED U/S. 194 J OF THE ACT. HOWEVER, THE MEMBERSHIP FEES PAID AT THE TIME OF ADMISSIONS AS MEMBER A NON-REFUNDABLE AMOUNT, WILL NOT BE SUBJECTED TO PROVISIONS U/S. 194 J AND/ OR 194C. THE INSTANT CASES ALSO INVOLVE SIMILAR ISSUES AND THEREFORE, I HAVE TO HOLD SIMILAR VIEWS IN THES E CASES AS WELL. IN THIS CIRCUMSTANCE, I DIRECT THE A O TO APPLY PROVISIONS OF SEC. 194J INSTEAD OF 194C OF THE ACT AND RECOMPUTE THE TAX/INTEREST AMOUNT U/S. 201(1)/201(1A) AFRESH AFTER AFFORDING AN OPPORTUNIT Y TO THE APPELLANT. THE AO IS FURTHER DIRECTED TO EXCLUDE THE MEMBERSHIP FEES PAID TO VWEMCL, VAPI, WHILE RECOMPUTING TAX/INTEREST AMOUNT U/S. 201(1)/201(1A) OF THE ACT. THUS THE APPELLANT GETS PART RELIEF. 3. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND A LSO RELIED UPON THE DECISION OF ITAT MUMBAI D BENCH IN THE CASE O F M/S. RUBY MACONS LTD. VS DCIT IN ITA NO.4056/MUM/2008 DATED 1 1-06-2010 IN WHICH IT WAS HELD IN PARA 11 TO 16 AS UNDER: 11. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. WE HAVE ALSO CAREFULLY PERUSED THE CASE LAW RELIED UPON BY THE LEARNED COUNSEL, APPEARING ON BEHALF OF THE ASSESSEE. IN THE CASE OF CIT VS BHARTI CELLULAR LTD . (2009) 319 ITR 139 (DEL) THE HONBLE DELHI HIGH COU RT OBSERVED THAT THE EXPRESSION TECHNICAL SERVICES H AS TO BE UNDERSTOOD IN THE SENSE IN WHICH IT WAS USED IN EXPLANATION 2 TO SECTION 9 (1) (VII) OF THE ACT AND , BY ITA NO.3082, 3083, 3084 AND 3085/AHD/2010 M/S. N. R. AGARWAL INDUSTRIES LTD. VS ACIT, ITO (TD S), VALSAD 5 APPLYING THE RULE OF NOSCITUR A SOCIIS, THE WORD TECHNICAL WOULD TAKE COLOUR FROM THE ADJUNCT WORD S I.E., MANAGERIAL AND CONSULTANCY, BETWEEN WHICH IT IS SANDWICHED. SINCE THE WORDS MANAGERIAL AND CONSULTANCY INVOLVE A HUMAN ELEMENT, EVEN THE EXPRESSION TECHNICAL SERVICE HAS TO BE UNDERSTOOD AS A SERVICE WHICH PREDOMINANTLY INVOLVES HUMAN ELEMENT. IN THE SAID CASE BHARATI CELLULAR LTD. PROVIDES INTERCONNECTION BETWEEN ONE NET WORK TO TH E OTHER, WHICH ARE KNOWN AS PORTS AND PAYMENTS MADE BY THE ASSESSEE FOR SUCH INTERCONNECTIONS WERE HELD TO BE NOT INVOLVING ANY SERVICES RENDERED BY A HUMA N AND THUS IT CANNOT BE CONSIDERED AS A TECHNICAL SERVICES AS CONTEMPLATED UNDER SECTION 194J OF THE ACT. 12. IN THE CASE OF SKYCELL COMMUNICATIONS LTD. VS. DCIT (SUPRA) THE HONBLE MADRAS HIGH COURT ANALYSED THE PROVISIONS OF THE ACT TO HOLD THAT MERE COLLECT ION OF A FEE FOR USE OF A STANDARD FACILITY PROVIDED TO ALL THOSE WILLING TO PAY FOR IT DOES NOT AMOUNT TO FEE FOR TECHNICAL SERVICES. VSAT CHARGES, LEASED LINE CHARGES, BOLT CHARGES, DEMAT CHARGES ETC., PAID TO STOCK EXCHANGE WERE ALSO HELD TO BE NOT PREDOMINANTLY REQUIRING HUMAN SERVICES BUT ONLY FEES COLLECTED FOR USE OF A STANDARD FACILITY. 13. IN THE CASE OF JAIPUR VIDYUT VITRAN NIGAM LTD. VS. DCIT (SUPRA) THE QUESTION FOR CONSIDERATION WAS AS TO WHETHER PAYMENTS FOR TRANSMISSION, WHEELING AND SLDC CHARGES TO ELECTRICITY TRANSMISSION COMPANY WOULD FALL WITHIN THE MEANING OF THE EXPRESSION TECHNICAL SERVICES. THE BENCH OBSERVED THAT AS PE R THE AGREEMENT THERE WAS OPEN ACCESS TO ALL USERS WITH REGARD TO TRANSMISSION LINES. MERELY BECAUSE OPERATION AND MAINTENANCE OF TRANSMISSION LINES AND MAINTAINING ITS GRID STATION WAS WITH THE HELP OF CERTAIN WORK FORCE, IT CANNOT BE CONSIDERED THAT TH EY WERE RENDERING ANY TECHNICAL SERVICES TO THE ITA NO.3082, 3083, 3084 AND 3085/AHD/2010 M/S. N. R. AGARWAL INDUSTRIES LTD. VS ACIT, ITO (TD S), VALSAD 6 ASSESSEE SINCE THEY CAN BE SAID TO BE SIMPLY DISCHARGING THEIR FUNCTION OF OPERATING AND MAINTAINING ITS GRID STATION AND TRANSMISSION LINES . ANALYSING SECTION 194J OF THE ACT, THE BENCH FURTHE R NOTICED THAT ONLY WHEN THE TECHNOLOGY OR TECHNICAL KNOWLEDGE OF A PERSON IS MADE AVAILABLE TO OTHERS I T CAN FALL WITHIN THE EXPRESSION TECHNICAL SERVICE AND MERE PERMISSION TO USE TECHNOLOGY WOULD NOT ATTRAC T PROVISIONS OF SECTION 194J OF THE ACT. 14. WE MAY TURN TO THE FACTS OF THE CASE ON HAND S O AS TO APPRECIATE AS TO WHETHER THE SERVICES RENDERE D BY VWEMCL INVOLVES HUMAN INTERFACE OR WAS IT MERELY A STANDARD FACILITY PROVIDED TO ALL THE MEMB ERS WHO WERE JOINTLY INVOLVED IN SETTING UP AFFLUENT TREATMENT PLANT. IT IS NOT IN DISPUTE THAT THE RATE IS FIXED DEPENDING ON THE ACTUAL WATER CONSUMED BY MEMBER UNIT AND ALSO BASED ON DISCHARGE QUALITY NORMS. IT IS ALSO NOT IN DISPUTE THAT AMOUNT COLLEC TED IS ON NO PROFIT NO LOSS BASIS AND IF ANY EXCESS AMOUNT IS COLLECTED IT IS PASSED ON TO MEMBERS BY WAY OF DISCOUNT. THIS WAS ACCEPTED BY THE ASSESSING OFFICER WHILE MAKING AN ASSESSMENT UNDER SECTION 143 (3) OF THE ACT IN THE CASE OF VWEMCL. SUCH BEIN G THE CASE IT HAS TO BE CONSIDERED AS A STANDARD FACI LITY AVAILABLE TO EACH MEMBER/INDUSTRIAL UNDERTAKING; VWEMCL IS RUNNING A TREATMENT PLANT PROVIDING A STANDARD FACILITY AND IF ANY WORK FORCE IS INVOLVED IN MAINTAINING THE STANDARD FACILITY IT CANNOT BE SAID THAT A SPECIAL SKILL/ KNOWLEDGE WAS PASSED ON BY INDIVIDUALS TO THE ASSESSEE IN LIEU OF A SPECIFIC F EE COLLECTED. SUCH BEING THE CASE, WE ARE OF THE CONSIDERED OPINION THAT IT CANNOT BE CONSIDERED AS A PAYMENT IN THE FORM OF FEE FOR TECHNICAL SERVICES . IN THE CASE OF RECIPIENT COMPANY THE ASSESSING OFFICER ACCEPTED THAT CHARGES WERE RECOVERED FROM THE MEMBER UNITS BY ADOPTING MUTUALITY CONCEPT. ITA NO.3082, 3083, 3084 AND 3085/AHD/2010 M/S. N. R. AGARWAL INDUSTRIES LTD. VS ACIT, ITO (TD S), VALSAD 7 15. IN FACT, IN THE SUBSEQUENT YEARS, ASSESSING OFFICER HAS NOT INVOKED THE PROVISIONS OF SECTION 194J OF THE ACT IN ASSESSEES OWN CASE. IT APPEARS THAT THE ASSESSEE AGREED TO DEDUCT 2% TAX UNDER SECTION 194C OF THE ACT BASED UPON AN UNDERSTANDING REACHED BY ALL THE INDUSTRIAL UNDERTAKINGS IN THAT LOCALITY AND SUCH UNDERSTANDING WAS ACCEPTED BY THE REVENUE. IT MAY BE POINTED OUT THAT IN THE SUBSEQUENT YEARS THE ASSESSING OFFICER ADMITTED THA T PROVISIONS OF SECTION 194J OF THE ACT ARE NOT APPLICABLE IN RESPECT OF PAYMENTS, MADE BY MEMBER INDUSTRIAL UNDERTAKINGS TO VWEMCL, IN THE FORM OF AFFLUENT TREATMENT CHARGES. ON A CONSPECTUS OF THE MATTER, WE ARE OF THE VIEW THAT THE IMPUGNED PAYMENTS ARE NOT HIT BY THE PROVISIONS OF SECTION 194J OF THE ACT AND CONSEQUENTLY DISALLOWANCE MADE BY THE ASSESSING OFFICER UNDER SECTION 40(A)(I) OF THE ACT IS NOT IN ACCORDANCE WITH LAW. 16. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED . THE LEARNED COUNSEL FOR THE ASSESSEE BY REFERRING T O THE ABOVE DECISION ADMITTED THAT IN THE SUBSEQUENT YEAR THE M EMBERS OF THE ASSOCIATION AGREED TO DEDUCT TAX U/S 194C OF THE IT ACT ON THE UNDERSTANDING REACHED BY ALL THE INDUSTRIAL UNDERTA KINGS WHICH WAS ACCEPTED BY THE DEPARTMENT. HE HAS, THEREFORE, SUBM ITTED THAT IN PRINCIPLE IT WAS HELD THAT PROVISIONS OF SECTION 19 4 J OF THE IT ACT WILL NOT APPLY IN THE MATTER AND IN THE SUBSEQUENT YEAR PROVISIONS OF SECTION 194 C OF THE IT ACT MAY BE APPLIED AGAINST THE ASSESSEE. HE HAS ALSO SUBMITTED THAT THE LEARNED CIT(A) DID NOT GIVE ANY OPPORTUNITY/SHOW CAUSE NOTICE AS REQUIRED U/S 251 ( 2) OF THE IT ACT FOR ENHANCING THE ORDER OF THE AO, THEREFORE, EVEN ON THAT COUNT THE APPLICABILITY OF THE PROVISIONS OF SECTION 194J OF THE IT ACT WOULD NOT ITA NO.3082, 3083, 3084 AND 3085/AHD/2010 M/S. N. R. AGARWAL INDUSTRIES LTD. VS ACIT, ITO (TD S), VALSAD 8 BE SUSTAINABLE IN LAW. THE LEARNED COUNSEL FOR THE ASSESSEE, THEREFORE, SUBMITTED THAT THE ISSUE IS NOW COVERED BY THE DECISION OF ITAT MUMBAI BENCH IN THE CASE OF M/S. RUBY MACONS L TD. (SUPRA) AND THE AO SHOULD BE DIRECTED TO APPLY PROVISIONS O F SECTION 194C OF THE IT ACT IN THE ASSESSMENT YEARS UNDER APPEALS. 4. THE LEARNED DR CONCEDED THAT THE ISSUE IS COVERE D IN FAVOUR OF THE ASSESSEE BY THE ABOVE DECISION OF THE ITAT MUMB AI BENCH WITH REGARD TO NON-APPLICABILITY OF THE PROVISIONS OF SE CTION 194J OF THE IT ACT BUT THE TRIBUNAL HELD THAT IN SUBSEQUENT YEARS I.E. AFTER ASSESSMENT YEAR 2005-06, THE PROVISIONS OF SECTION 194C OF THE IT ACT WILL BE APPLIED IN THE MATTER AND THE APPEALS O F THE ASSESSEE IN ASSESSMENT YEARS UNDER APPEAL ARE SUBSEQUENT TO ASS ESSMENT YEAR 2005-06, THEREFORE, THE AO MAY BE DIRECTED TO APPLY THE PROVISIONS OF SECTION 194C OF THE IT ACT. 5. ON CONSIDERATION OF THE ABOVE FACTS IN THE LIGHT OF THE FINDINGS OF THE AUTHORITIES BELOW AND IN THE LIGHT OF THE DECIS ION OF ITAT MUMBAI BENCH IN THE CASE OF M/S. RUBY MACONS LTD. (SUPRA), WE ARE OF THE VIEW THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN H OLDING THAT THE PROVISIONS OF SECTION 194 J OF THE IT ACT WILL APP LY IN THE MATTER. THE ISSUE IS, THEREFORE, COVERED IN FAVOUR OF THE ASSES SEE BY THE DECISION OF ITAT MUMBAI BENCH IN THE CASE OF M/S. RUBY MACON S LTD. (SUPRA). FURTHER, THE LEARNED CIT(A) HAS NOT GIVEN ANY SHOW CAUSE NOTICE TO THE ASSESSEE AS REQUIRED U/S 251 (2) OF THE IT ACT BEFORE ENHANCING THE ASSESSMENT ORDER PASSED BY THE AO. WE ACCORDING LY, SET ASIDE THE ORDER OF THE LEARNED CIT(A) DIRECTING TO APPLY THE PROVISIONS OF ITA NO.3082, 3083, 3084 AND 3085/AHD/2010 M/S. N. R. AGARWAL INDUSTRIES LTD. VS ACIT, ITO (TD S), VALSAD 9 SECTION 194J OF THE IT ACE IN THE CASE OF THE ASSES SEE. HOWEVER, IN THE SAME DECISION OF THE ITAT MUMBAI BENCH IT WAS N OTED THAT THE ASSESSEES ALL THE SIMILAR INDUSTRIAL UNDERTAKINGS HAVE REACHED WITH THE UNDERSTANDING WITH THE REVENUE DEPARTMENT THAT IN SUBSEQUENT YEARS THE PROVISIONS OF SECTION 194C OF THE IT ACT WOULD APPLY. THE DECISION OF THE ITAT BOMBAY BENCH IN TH E CASE OF M/S. RUBY MACONS LTD. (SUPRA) PERTAINS TO ASSESSMENT YEA R 2005-06. HOWEVER, IN THE APPEALS BEFORE US THE ASSESSMENT YE ARS ARE 2006-07 TO 2009-10 I.E. SUBSEQUENT TO THE ASSESSMENT YEAR 2 005-06. THEREFORE, THE PROVISIONS OF SECTION 194C OF THE IT ACT WOULD APPLY TO THE MATTER IN ISSUE TO WHICH ALSO THE LEARNED COUNS EL FOR THE ASSESSEE AGREED THAT THE AO MAY BE DIRECTED TO APPL Y THE PROVISIONS OF SECTION 194C OF THE IT ACT IN THE MATTER. THE LE ARNED DR CONCEDED TO THE SAME PROPOSITION. WE ACCORDINGLY, RESTORE TH E MATTER IN ISSUE TO THE FILE OF THE AO WITH DIRECTION TO APPLY THE P ROVISIONS OF SECTION 194C OF THE IT ACT ON THE MATTER IN ISSUE IN ALL TH E ASSESSMENT YEARS UNDER APPEALS. 6. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED PARTLY. ORDER PRONOUNCED IN THE OPEN COURT ON 08-04-2011 SD/- SD/- (G. D. AGARWAL) VICE PRESIDENT (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 08-04-2011 LAKSHMIKANT/- ITA NO.3082, 3083, 3084 AND 3085/AHD/2010 M/S. N. R. AGARWAL INDUSTRIES LTD. VS ACIT, ITO (TD S), VALSAD 10 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD