SKIL INFRASTRUCTURE LTD, MUMBAI V. ITO TDS 3(3), MUMBAI

ITA 3420/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55720 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 27-10-2011
• Assessment Year: 2008-2009
• Appeal Filed On: 30-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C MAURYA
• Assessee Lawyers: S K MUTSADDI
• Keywords: Depreciation
• Section: 194C; 201(1); 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'E' BENCH, MUMBAI BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO. 3419 & 3420/MUM/2010 (ASSESSMENT YEARS: 2007-08 & 2008-09) M/S. SKIL INFRASTRUCTURE LTD. INCOME TAX OFFICER - TDS 3(3) 209, SKIL HOUSE, BANK STREET K.G. MITTAL AYURVEDIC HOSPITAL CROSS LANE, FORT, MUMBAI 400023 VS. CHARNI ROAD, MUMBAI PAN - AABCS 7689 F APPELLANT RESPONDENT APPELLANT BY: SHRI S.K. MUTSADDI RESPONDENT BY: SHRI P.C. MAURYA DATE OF HEARING: 27.10.2011 DATE OF PRONOUNCEMENT: 31.10.2011 O R D E R PER B. RAMAKOTAIAH, A.M. THESE APPEALS BY THE ASSESSEE ARE AGAINST THE ORDER OF THE CIT(A) XIV, MUMBAI DATED 25.10.2010. 2. THE SHORT CONTROVERSY IN THIS CASE IS REGARDING THE APPLICABILITY OF PROVISIONS OF SECTION 194-C OR 194 I FOR THE PAYMEN TS MADE BY ASSESSEE TO THE SERVICE PROVIDERS WHILE HIRING HELICOPTER/AIR C RAFT SERVICES. THE GROUND RAISED BY ASSESSEE IN BOTH THE YEARS ARE COMMON AND IS AS UNDER: - ON FACTS & CIRCUMSTANCES OF THE CASE AND IN LAW, T HE LEARNED CIT(A) HAS ERRED IN HOLDING THAT THE CONTRACT FOR TRANSPOR TATION IN RESPECT OF CHARTERING A HELICOPTER/AIRCRAFTS ATTRACTS TDS U/S. 194 I OF THE INCOME TAX ACT, AS AGAINST SECTION 194 C OF THE INCOME TAX ACT. 3. BRIEFLY STATED, ASSESSEE IS A LIMITED COMPANY ENGAG ED IN THE BUSINESS OF FORMING INFRASTRUCTURE VENTURES. A SURVEY WAS CO NDUCTED DURING WHICH IT WAS FOUND THAT ASSESSEE PAID HIRE CHARGES AMOUNTING TO ` 31,54,139/- TO VARIOUS PARTIES UNDER THE HEAD HIRE CHARGES ON WH ICH TDS AT 2% WAS MADE UNDER SECTION 194C IN A.Y. 2007-08. IN A.Y. 2008-09 ASSESSEE PAID AN AMOUNT OF ` 40,13,818/-TO VARIOUS PARTIES AND DEDUCTED TAX UNDE R SECTION 194C AS APPLICABLE. IT WAS ASSESSING OFFICERS CONT ENTION THAT HIRING OF ITA NO. 3419/MUM/2010 M/S. SKIL INFRASTRUCTURE LTD. 2 HELICOPTERS/AIR CRAFTS WOULD COME UNDER THE DEFINIT ION OF RENT UNDER SECTION 194I AND TAX SHOULD HAVE BEEN DEDUCTED AT 2 2.44% IN A.Y. 2007-08 AND 10.3% IN A.Y. 2008-09 AND ACCORDINGLY HE RAISED A DEMAND UNDER SECTION 201(1) AND 201(1A) IN THE RESPECTIVE ASSESS MENT YEARS. ASSESSEES SUBMISSION THAT THEY HAVE AVAILED THE SERVICES OF V ARIOUS AIRLINES FOR TRANSPORTATION FROM PLACE TO PLACE AND PAID THE CHA RGES AS PER THE FLYING HOURS WAS NOT ACCEPTED AS THE A.O. HELD THAT THE PA YMENT HAS BEEN MADE FOR HIRE OF AIRCRAFT/HELICOPTER/ VEHICLE WHICH ATTR ACTS TDS UNDER SECTION 194I AS PER AMENDMENT ACT NO. 2 OF 2006. ASSESSEE RELIED ON THE CBDT CIRCULAR NO.715 DATED 08.08.1995 TO CLARIFY THAT THE SERVICE S FOR UTILISING TRANSPORTATION SERVICES FALLS UNDER SECTION 194C. R EJECTING THE ABOVE CONTENTIONS OF THE ASSESSEE AND RELYING ON THE EXPL ANATION TO SECTION 194I THE A.O. RAISED THE DEMAND. 4. BEFORE THE CIT(A) IT WAS SUBMITTED THAT ASSESSEE HA S AVAILED THE SERVICES OF HELICOPTERS/AIRCRAFTS FOR TRANSPORTATIO N FROM PLACE TO PLACE AND PAID THE AMOUNTS AND FURNISHED THE DETAILS AS UNDER : - AY 2007-08 SR. NO. PARTICULARS AMOUNT ( ` ) TDS DEDUCTED U/S. 194C TDS TO BE DEDUCTED AS PER THE AO U/S. 194 I 1 RAYMOND LTD. AVIATION DIVISION CHARTER OF A HELICOPTER PAN: AAACR 4896 A 65,000/- 1,458/- 14,586/- 2 EXECUTIVE AIRWAYS PVT. LTD. CHARTER OF TWIN ENGINE AIRCRAFT THE BILL WAS OF ` 10,000/- PAID INTO TWO PARTS OF ` 2,85,000/- & ` 25,000/- RESPECTIVELY, PAN AAACE 1302 Q 2,85,000/- 25,000/- 6,395/- 561/- 63,954/- 5,610/- 3 A.R. AIRWAYS, FOR CHARTER OF AIRCRAFT PAN AAECA 9007 A 7,25,000/- 16,269/- 1,62,690/- 4 A.R. AIRWAYS, FOR CHARTER OF AIRCRAFT PAN AAECA 9007 A 7,90,000/- 17,728/- 1,77,276/- 5 A.R. AIRWAYS, FOR CHARTER OF AIRCRAFT PAN AAECA 9007 A 10,00,000/- 22,440/- 2,24,400/- 6 OTHERS 2,64,139/- 5,927/- 59,272/- TOTAL 31,54,139/- 70,778/- 7,07,788/- ITA NO. 3419/MUM/2010 M/S. SKIL INFRASTRUCTURE LTD. 3 AY 2008-09. SR. NO. PARTICULARS AMOUNT ( ` ) TDS DEDUCTED U/S. 194C TDS TO BE DEDUCTED AS PER THE AO U/S. 194 I 1 RAYMOND LTD. AVIATION DIVISION CHARTER OF A AIRCRAFT PAN: AAACR 4896 A 23,60,000/- 52,958/- 2,43,080/- 2 EXECUTIVE AIRWAYS PVT. LTD. CHARTER OF TWIN ENGINE AIRCRAFT PAN AAACE 1302 Q 11,58,485/- 25,996/- 2,59,964/- 3 OTHERS 4,95,333/- 11,115/- 1,11,152/- TOTAL 40,13,818/- 90,069/- 6,14,196/- 5. IT WAS FURTHER SUBMITTED THAT THE CHARGES PAID AR E IN THE NATURE OF TRANSPORTATION CONTRACTS AND BY FOLLOWING THE CBDT CIRCULAR NO. 651 DATED 08.08.1995 ASSESSEE HAS DEDUCTED TAX APPLYING THE P ROVISIONS OF SECTION 194C OF THE I.T. ACT. COPIES OF THE BILLS ISSUED AN D CONTRACTS ENTERED INTO WITH THE PARTIES AS LISTED ABOVE WERE FILED BEFORE THE CIT(A) TO SUBMIT THAT THESE ARE PURELY TRANSPORTATION CONTRACTS IN WHICH OPERATING CREW AND FUEL HAS BEEN PROVIDED BY THE TRANSPORT COMPANY. WITHOUT PREJUDICE TO THE ABOVE IT WAS ALSO SUBMITTED THAT THE PARTIES TO WHOM THES E PAYMENTS HAVE BEEN EFFECTED ARE PARTIES OF REPUTE AND THEY ARE ALSO AS SESSED TO TAX AND THEREFORE, AS PER PROVISIONS OF SECTION 191 ASSESSEE CANNOT BE HELD RESPONSIBLE FOR DEFAULT FOR INTEREST UNDER SECTION 201, RELYING ON THE PRINCIPLES ESTABLISHED BY THE HON'BLE SUPREME COURT IN THE CASE OF HINDUST AN COCO COLA BEVERAGE PVT. LTD. VS. CIT 163 TAXMAN 365. THE CIT(A), AFTER CONSIDERING THE SUBMISSIONS HAVE DISMISSED ASSESSEES CONTENTIONS A S UNDER, WHILE DIRECTING THE A.O. TO EXAMINE WHETHER THE DEDUCTEE HAS PAID DUE TAX. THE ORDER OF THE CIT(A) IS AS UNDER: - 6. I HAVE GONE THROUGH THE ABOVE SUBMISSIONS VERY CAREFULLY AND FACTS ON RECORD AS WELL AS ORDER OF THE ASSESSING O FFICER. IN THIS CASE, THE APPELLANT HIRED HELICOPTER AND AIRCRAFT AND MAD E PAYMENT OF RS.31,54,139/- ON WHICH THE APPELLANT HAD DEDUCTED TDS AS PER THE PROVISIONS OF SECTION 194C WHEREAS THE ASSESSING OF FICER HAS HELD THAT THE TAX SHOULD HAVE BEEN DEDUCTED AS PER PROVI SIONS OF SECTION ITA NO. 3419/MUM/2010 M/S. SKIL INFRASTRUCTURE LTD. 4 194 I. I FIND THAT THE APPELLANT HAS HIRED HELICOPT ER/AIRCRAFTS/VEHICLE AFTER THE AMENDMENT BROUGHT IN SECTION 194 I OF THE I.T. ACT. AS PER AMENDMENT ACT 2 OF 2006 THE SAID EXPENSES ARE COVER ED U/S. 194 I AS THE VEHICLE IS ALSO COVERED UNDER THE PAYMENT OF RENT. THE VEHICLE IS COVERED UNDER PLANT AND MACHINERY. IT IS VERY CLEAR FROM THE FACTS OF THE CASE THAT THE APPELLANT HAS HIRED VEHI CLE, THE VEHICLE IS AT THE DISPOSAL OF THE APPELLANT. THE APPELLANT HAS NO T TAKEN SERVICES OF CARRYING PASSENGERS OR GOODS WHICH IS COVERED U/S. 194C. AFTER THE ABOVE AMENDMENT, IN MY OPINION, THE CASE OF THE APP ELLANT IS ALSO NOT COVERED UNDER THE CBDT CIRCULAR NO. 714 FOR DEDUCTI ON OF TAX U/S. 194C. 6.1 IN VIEW OF THE ABOVE FACTS, THE ACTION OF THE A SSESSING OFFICER APPEARS TO BE JUSTIFIED. HENCE, CONFIRMED. HOWEVER, THE ASSESSING OFFICER IS DIRECTED TO VERIFY WHETHER THE DEDUCTEE HAS PAID THE DUE TAXES ON THIS PAYMENT IN HIS RETURN OF INCOME. IF T HE DEDUCTEE HAS PAID THE TAX ON THE AMOUNT RECEIVED, THE RECOVERY O F TAX CANNOT BE ENFORCED IN VIEW OF THE DECISION OF THE HON'BLE SUP REME COURT IN THE CASE OF HINDUSTAN COCO COLA BEVERAGE PVT. LTD. VS. CIT 163 TAXMAN 355. HOWEVER, THIS WILL NOT ALTER THE LIABILITY TO CHARGE INTEREST U/S 201(1A) OF THE INCOME-TAX ACT TILL THE DATE OF PAYM ENT OF TAXES BY THE DEDUCTEE ASSESSEE. THEREFORE, THE ASSESSING OFFICER IS DIRECTED TO CHARGE INTEREST ACCORDINGLY. 6. THE LEARNED COUNSEL REFERRED TO THE PAPER BOOK, PAR TICULARLY THE PAYMENT VOUCHERS AND BILLS ISSUED IN THIS REGARD TO SUBMIT THAT ASSESSEE HAS AVAILED SERVICES OF AIRCRAFTS/HELICOPTERS FOR T RANSPORTING ITS EXECUTIVES FROM ONE PLACE TO ANOTHER AND THERE IS NO HIRING OF THE HELICOPTER AS SUCH. IT WAS UTILIZATION OF TRANSPORT SERVICES FOR WHICH HIR E CHARGES ARE PAID ON HOURLY BASIS FOR VARIOUS SERVICE PROVIDERS. HE SUBM ITTED THAT THE CIT(A) WRONGLY CONSIDERED THE BILLS AS HIRE OF THE VEHICLE S WHEREAS ASSESSEE HAS ONLY HIRED THE SERVICES OF TRANSPORTATION. FURTHER THE LEARNED COUNSEL RELIED ON THE FOLLOWING ORDERS OF THE ITAT WHERE SIMILAR I SSUE WAS CONSIDERED: - I. ACIT VS. ACCENTURE SERVICES (P.) LTD. 44 SOT 290 (M UM) II. TATA AIG GENERAL INSURANCE CO. LTD. VS. ITO 43 SOT 215 (MUM) III. AHMEDABAD URBAN DEVELOPMENT AUTHORITY VS. ACIT ITA NO. 1637/AHD/2010 DATED 10.03.2011 RELYING OF THE ABOVE ORDERS IT WAS SUBMITTED THAT A SSESSEE HAS CORRECTLY DEDUCTED TAX UNDER SECTION 194C. 7. THE LEARNED D.R., HOWEVER, SUBMITTED THAT AS PER PR OVISIONS OF SECTION 194 I AS DISCUSSED BY THE A.O. AND CIT(A) IN THE OR DER, ASSESSEES PAYMENT ITA NO. 3419/MUM/2010 M/S. SKIL INFRASTRUCTURE LTD. 5 OF HIRE CHARGES FALL WITHIN THE DEFINITION OF RENT AS PROVIDED IN SECTION 194I AND ACCORDINGLY THE ORDERS OF THE CIT(A) ARE TO BE UPHELD. HE FURTHER SUBMITTED THAT ASSESSEE HIRED HELICOPTER/AIRCRAFT, THEREFORE, HIRING OF MACHINERY COMES WITHIN THE DEFINITION OF RENT UNDER SECTION 194 I. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND EXAMIN ED THE INVOICES PLACED ON RECORD IN THE PAPER BOOK. AS FAR AS THE F ACTUAL ASPECT OF THE MATTER IS CONCERNED THE OBSERVATION OF THE CIT(A) T HAT ASSESSEE HAS HIRED HELICOPTER/AIR CRAFT/VEHICLE IS NOT CORRECT. ASSESS EE HAS NEVER HIRED HELICOPTER/ AIRCRAFT AS SUCH EITHER ON A PERIODIC B ASIS OR ON DAY-TO-DAY BASIS. WHAT THE ASSESSEE HAS HIRED IS THE TRANSPORT SERVICES BEING PROVIDED BY THE REPUTED AIRLINES FOR TRANSPORTATION OF ITS E XECUTIVES FROM PLACE TO PLACE. FOR EXAMPLE, EXECUTIVE AIRLINES P. LTD. PROV IDED KING AIR C 90 TURBO PROPELLER AIR CRAFT AT THE RATE OF ` 60,000/- PER HOUR ON 18.12.2006 FOR SECTOR MUMBAI-RAJKOT-MITHAPUR-MUMBAI AT A CHARTER COST OF ` 2,85,000/-. THE ULTIMATE INVOICE WAS FOR ` 3,10,000/- INCLUDING AVIATION SERVICES RENDERED AND LANDING CHARGES AT MITHAPUR A IRPORT. THIS INVOICE INDICATES THAT THE AIRCRAFT WAS USED BY EXECUTIVE A IRWAYS TO PROVIDE AVIATION SERVICES TO TRANSPORT EXECUTIVE ON A 5-SEATER AIRCR AFT FOR WHICH CHARTER COST WAS ` 60,000/- PER HOUR FOR 4.45 HOURS AND INCLUDING LAND ING CHARGES AT MITHAPUR AIRPORT. THE TOTAL BILL WAS FOR ` 3,10,000/-. SIMILAR IS THE BILL OF CHARTER OF CESSNA CITATION II FROM M/S. AR. AIRWAYS (P) LTD. ALL THESE INVOICES DO INDICATE THAT ASSESSEE HAS ONLY AVAILED THE TRANSPORTATION SERVICES OF THE RESPECTIVE AIRCRAFT SERVICE PROVIDE RS AND THE CHARGES ARE PAID ON THE BASIS OF FLYING HOURS, COST OF LANDING CHARG ES AND REFUELLING CHARGES, ETC. THIS INDICATES THAT ASSESSEE HAS ENTERED INTO A TRANSPORTATION CONTRACT FOR TRANSPORTATION OF ITS EXECUTIVES FROM PLACE TO PLACE AND NOT THE AIRCRAFT/ HELICOPTER WHICH ARE NOT PLACED AT THE DISPOSAL OF ASSESSEE. THE CREW, FUEL, MAINTENANCE OPERATION LICENCES, ETC. WERE ALL UNDER THE CONTROL OF THE SAID SERVICE PROVIDERS BUT NOT UNDER THE CONTROL OF THE ASSESSEE. ASSESSEE HAS ONLY UTILISED THE TRANSPORT SERVICES BEING PROVIDED . THEREFORE THE FINDINGS OF THE A.O. AND THE CIT(A) THAT ASSESSEE HAS HIRED MA CHINERY BY WAY OF HELICOPTER/AIRCRAFT IS NOT CORRECT. ITA NO. 3419/MUM/2010 M/S. SKIL INFRASTRUCTURE LTD. 6 9. BE IT AS IT MAY, EVEN PROVIDING TRANSPORT SERVICES WAS ALSO CONSIDERED BY THE COORDINATE BENCHES ON THE ISSUE WHETHER TDS HAS TO BE MADE UNDER SECTION 194 C OR 194 I. IN THE CASE OF ACIT VS. ACC ENTURE SERVICES (P) LTD. 44 SOT 290 (MUM) (WHEREIN ONE OF US, THE J.M. IS A PAR TY) THE ISSUE WAS CONSIDERED IN DETAIL AS UNDER: - 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND R ELEVANT RECORD. THE SHORT CONTROVERSY IN THIS CASE IS REGARDING THE APPLICABILITY OF THE PROVISIONS OF SECTION 194C OR 194 I FOR THE PAYMENT MADE BY THE ASSESSEE TO THE TRANSPORT SERVICE PROVIDER. THE ASS ESSEE HAS ENTERED INTO AGREEMENTS WITH THE VARIOUS TRANSPORT SERVICE PROVIDERS. AS PER THE AGREEMENT WITH JANANI TOURS AND RESORTS PVT. LT D. AND MAHINDRA AND MAHINDRA LIMITED, IT IS TO BE NOTED THAT THE TE RMS AND CONDITIONS OF THE AGREEMENT ARE IDENTICAL. AS PER THE CLAUSES (A), (B) AND (C) OF THE AGREEMENT, IT HAS BEEN AGREED BETWEEN THE PARTI ES THAT THE SERVICE PROVIDER HAS PROVIDED THE TRANSPORT SERVICE S AT A PARTICULAR LOCATIONS FOR TRANSPORTATION OF ASSESSEES EMPLOYEE S TO DIFFERENT DESTINATION AND AT DIFFERENT LOCATIONS AS MENTIONED IN ANNEXURE D. IT IS CLEAR FROM THE AGREEMENT THAT THE TRANSPORT S ERVICE PROVIDER HAS TO PROVIDE THE VEHICLE ALONG WITH THE REQUISITE STA FF AND RELEVANT FACILITIES, FULL MAINTENANCE AND REPAIRS OF THE VEH ICLES ETC. THUS, THE ASSESSEE WAS NOT REQUIRED TO PROVIDE ANYTHING BUT W AS AVAILING THE SERVICES OF THE TRANSPORT FOR PICKING UP AND DROPPI NG OF ITS EMPLOYEES FROM ITS OFFICES AT DIFFERENT LOCATIONS TO THE PLAC ES OF ITS CLIENTS. THOUGH AS PER THE AGREEMENT THE VEHICLES PROVIDED F OR THE REQUIREMENTS OF THE ASSESSEE WERE DEDICATED BUT IT IS NOT A CASE OF HIRING OF VEHICLES ONLY WITHOUT OTHER FACILITIES. I N THE CASE IN HAND ALL THE FACILITIES ALONGWITH THE VEHICLES WERE TO BE PR OVIDED BY THE TRANSPORT SERVICE PROVIDER AND HE WAS UNDER THE OBL IGATION TO REPLACE THE VEHICLES AS WELL AS THE DRIVER AND OTHER STAFF AFTER RUNNING CERTAIN HOURS. WE FURTHER NOTE THAT EACH VEHICLE WAS PROVID ED APPROPRIATE NUMBER OF DRIVERS TO COMPLY WITH THE WORKING TIME D IRECTIVES AND ENABLE THE VEHICLE TO BE OPERATED 24 HOURS DAY AND 7 DAYS PER WEEK. THE SERVICE PROVIDER WAS RESPONSIBLE FOR ENSURING A LL LEGAL AND OPERATIONAL OBLIGATIONS. THUS, IT WAS A KIND OF WET LEASE, WHEREIN THE ASSESSEE WAS UTILIZING THE TRANSPORT SERVICES PROVI DED BY THE SERVICE PROVIDER WITHOUT MAKING ANY ARRANGEMENT OF ITS OWN BUT ALL THE ARRANGEMENTS WERE THE RESPONSIBILITY AND OBLIGATION OF SERVICE PROVIDER. THE CBDT HAS CLARIFIED IN CIRCULAR NO. 68 1, DATED 8-3-1994 AS UNDER: 7 .. (I) THE PROVISIONS OF SECTION 194 SHALL APPLY TO A LL TYPES OF CONTRACTS FOR CARRYING OUT ANY WORK INCLUDING TRANSPORT CONTRACT, SERVICE CONTRACTS, ADVERTISEMENT CONTRACTS, BROADCASTING CONTRACTS, TE LECASTING CONTRACTS, LABOUR CONTRACTS, MATERIALS CONTRACTS AND WORKS CON TRACT; (II) .... (III) .... ITA NO. 3419/MUM/2010 M/S. SKIL INFRASTRUCTURE LTD. 7 (IV) .... (V) . SERVICE CONTRACTS WOULD BE COVERED BY THE PR OVISIONS OF THIS SECTION SINCE SERVICE MEANS DOING ANY WORK AS EXPLAINED ABO VE IT WAS FURTHER CLARIFIED IN SUB-PARA (II) OF PARAGR APH 8 OF CIRCULAR NO. 681 (II) THE TERM TRANSPORT CONTRACTS WOULD, IN ADD ITION TO CONTRACTS FOR TRANSPORTATION AND LOADING/UNLOADING OF GOODS, ALSO COVER CONTRACTS FOR PLYING OF BUSES, FERRIES, ETC., ALONG WITH STAF F (E.G, DRIVER, CONDUCTORS, CLEANER ETC.) REFERENCE IN THIS REGARD IS ALSO INVITED TO BOARDS CIRCULAR NO. 558, DATED 28-3-1990 8. THUS, IT IS MADE CLEAR BY THE BOARD THAT THE PRO VISIONS OF SECTION 194-C SHALL APPLY TO ALL TYPES OF CONTRACTS FOR CAR RYING OUT ANY WORK INCLUDING TRANSPORT CONTRACT, SERVICE CONTRACT ETC. UNDER SUBPARAGRAPH (IT) OF PARAGRAPHS 8 OF CIRCULAR, IT W AS FURTHER CLARIFIED THAT THE TRANSPORT CONTRACT WOULD BE IN ADDITION TO CONTRACT FOR TRANSPORTATION OF LOADING AND UNLOADING OF GOODS AL SO COVER CONTRACTS FOR PLYING BUSES, FERRIED ETC., ALONG WITH THE STAF F (E.G., DRIVER, CONDUCTORS, CLEANER ETC.). THE BOARD HAS ALSO CONSI DERED THIS ISSUE IN CIRCULAR NO. 558, DATED 28-3-1990 IN PARAGRAPH 3 AS UNDER: 3. THE MATTER HAS BEEN EXAMINED IN CONSULTATION WI TH THE MINISTRY OF LAW. THE BOARD HAVE BEEN ADVISED THAT THE APPLICABILITY OF THE PROVISIONS OF SECTION 194C WILL HAVE TO BE EXAMINED WITH REFERENC E TO THE TERMS AND CONDITIONS OF EACH CONTRACT. IN A CASE WHERE THE BO ARD HAD OCCASION TO EXAMINE THIS ISSUE, THE TERMS AND CONDITIONS GOVERN ING THE CONTRACT BETWEEN THE OWNER OF THE BUSES AND THE STATE ROAD T RANSPORT CORPORATION WERE, INTER ALIA AS FOLLOWS: (I) THE OWNER OF THE BUS SHALL GIVE HIS BUS ON HIR E TO THE CORPORATION FOR PLYING ON NOTIFIED ROUTES; (II) THE OWNER SHALL PROVIDE A DRIVER, WITH A VALI D LICENCE AND PS BADGE FOR THE VEHICLE SUPPLIED BY HIM, WHO SHALL FOLLOW THE I NSTRUCTIONS OF THE AUTHORIZED OFFICIALS OF THE CORPORATION; (III) THE OWNER SHALL MAKE AVAILABLE THE BUS FOR 14 HOURS A DAY AND COMPLETE THE SCHEDULES GIVEN TO HIM FOR THE DAY; (IV) THE OWNER SHALL KEEP THE BUS ROAD WORTHY IN T ERMS OF CHAPTER V OF THE MOTOR VEHICLES ACT, 1939, AND RULES MADE THEREUNDER , FROM TIME TO TIME BY CARRYING OUT NECESSARY MAINTENANCE AND REPA IRS; (V) THE CORPORATION SHALL PROVIDE A CONDUCTOR FOR THE OPERATION OF SERVICES WITH NECESSARY EQUIPMENT FOR ISSUING TICKETS TO THE PASSENGERS AS WELL AS LUGGAGE; (VI) THE OWNER SHALL SUBMIT HIS CLAIM TWICE IN A M ONTH, ONCE FOR THE PERIOD FROM 1ST TO 15TH AND THE OTHER FOR THE REMAINING PA RT OF THE MONTH, ACCOMPANIED BY A CERTIFICATE ISSUED BY THE TRAFFIC SUPERVISOR OF THE DEPOT WITH REGARD TO THE DISTANCE OPERATED DURING T HE RESPECTIVE PERIOD; (VII) THE CORPORATION SHALL PAY THE OWNER AT THE R ATE OF RS.. .. AS FIXED COST PER DAY IN ADDITION TO RS. PER KM OPERATED AS VARIA BLE COST, ETC. ON THE BASIS OF THE THESE TERMS AND CONDITIONS, THE BOARD HAVE BEEN ADVISED THAT ALTHOUGH THE CONTRACT MAY APPEAR TO BE A SIMPLE HIRE CONTRACT, ITA NO. 3419/MUM/2010 M/S. SKIL INFRASTRUCTURE LTD. 8 IT IS ACTUALLY A SERVICE CONTRACT (FOR CARRYING OUT ANY WORK) ENTERED INTO BETWEEN THE STATE ROAD TRANSPORT CORPORATION AND TH E OWNER OF THE BUS FOR PLYING CERTAIN BUSES ON CERTAIN ROUTES AND SUBJECT TO CERTAIN CONDITIONS. IN SUCH CASES, THE PROVISIONS OF SECTION 194C ARE APPL ICABLE AND TAX WILL HAVE TO BE DEDUCTED AT SOURCE FROM THE PAYMENT MADE TO T HE PRIVATE BUS OWNER. IT MAY, THEREFORE, BE KEPT IN MIND THAT THE APPLICA BILITY OF THE PROVISIONS OF SECTION 194 IN SUCH CASES MAY BE CONSIDERED ON MERI TS IN THE LIGHT OF THE AFORESAID OBSERVATIONS, AND TO THIS EXTENT THE CLAR IFICATION GIVEN IN QUESTION NO. 5 IN BOARDS CIRCULAR NO. 98, DATED SEPT. 26, 1 972 STANDS MODIFIED FURTHER IN CIRCULAR NO. 715, DATED 8-8-1982, THE BO ARD HAS AGAIN CLARIFIED IN ANSWER TO IN QUESTION NO. 6 AS UNDER: Q.NO. 6 WHETHER PAYMENT UNDER A CONTRACT FOR CARRI AGE OF GOODS OR PASSENGERS BY ANY MODE OF TRANSPORT WOULD INCLUDE P AYMENT MADE TO A TRAVEL AGENT FOR PURCHASE OF A TICKETS OR PAYMENT M ADE TO A CLEARING AND FORWARDING AGENT FOR CARRIAGE OF GOODS? A. THE PAYMENTS MADE TO A TRAVEL AGENT OR AN AIRLIN ES FOR PURCHASE OF A TICKETS FOR TRAVEL SHOULD NOT BE SUBJECTED TO TAX D EDUCTION AT SOURCE AS THE PRIVITY OF THE CONTRACT IS BETWEEN THE INDIVIDUAL P ASSENGER AND THE AIRLINES/TRAVEL AGENT, NOTWITHSTANDING THE FACT THA T THE PAYMENT IS MADE BY AN ENTITY MENTIONED IN SECTION 194C(L). THE PROVISI ONS OF SECTION 194C SHALL, HOWEVER, APPLY WHEN A PLANE OR A BUS OR ANY OTHER M ODE OF TRANSPORT IS CHARTERED BY ONE OF THE ENTITIES MENTIONED IN SECTI ON 1 94C OF THE ACT 9. THE MAIN CONTENTION OF THE REVENUE IS THAT AS PE R RULE 5 OF THE INCOME-TAX RULES, 1962, THE VEHICLE ON HIRE IS INCL UDED UNDER PLANT AND MACHINERY AND THEREFORE, THE SAME SHALL BE TREA TED AS PLANT AND MACHINERY FOR THE PURPOSE OF DEDUCTION OF TAX AND F ALLS UNDER THE PROVISIONS UNDER SECTION 1 94-I. IT IS TO BE NOTED THAT THE CLASSIFICATION OF THE ASSETS FOR THE PURPOSE OF DEPRECIATION UNDER SECTION 32, THE MOTOR VEHICLES USED FOR THE BUSINESS OF RUNNING THE M ON HIRE IS INCLUDED IN THE CLASS OF PLANT AND MACHINERY FOR AP PLYING THE RATE OF DEPRECIATION AS PER APPENDIX-I. THESE CLASSIFICATIO NS DOES NOT PER SE CHANGE THE NATURE OF THE SERVICE PROVIDED BY THE SE RVICE PROVIDER WHO IS RUNNING THE VEHICLE ON HIRE. THERE IS NO DISPUTE THAT THE SERVICE PROVIDED BY THE PERSON WHO IS RUNNING THE VEHICLES ON HIRE WOULD CLAIM THE DEPRECIATION ON THE VEHICLE AT THE RATE W HICH IS PROVIDED UNDER THE APPENDIX FOR PLANT AND MACHINERY. BUT THA T CLASSIFICATION CANNOT BE STRETCHED TO DETERMINE THE NATURE OF SERV ICES PROVIDED WHICH IS OTHERWISE CLEAR FROM THE AGREEMENT BETWEEN THE PARTIES. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF IN DIAN NATIONAL SHIP OWNERS ASSOCIATION (SUPRA) HAS HELD THAT THE DEFIN ITION OF PLANT UNDER RULE 5 OF THE INCOME-TAX RULES APPEARS TO BE ONLY FOR THE PURPOSE OF SECTIONS 28 TO 41 OF THE ACT. THE OBSERV ATIONS OF THE HONBLE HIGH COURT IN PARAGRAPHS 13, 14 AND 15 ARE AS UNDER: 13. HAVING HEARD RIVAL PARTIES, PRIMA FACIE, IT AP PEARS THAT SECTION 194 I IS ATTRACTED ONLY IN RESPECT OF RENT FOR LAND OR BUILD ING (INCLUDING FACTORY BUILDING), FURNITURE, FITTINGS OR ANY OTHER MACHINE RY ATTACHED THERETO AND NOT FOR ANYTHING ELSE LIKE SHIPS, TRANSPORT VEHICLES (I NCLUDING RAILWAYS) AND FREIGHT/CHARTER HIRE PAYMENTS THERETO. THE DEFINITI ON OF PLANT APPEARS TO BE ONLY FOR THE PURPOSE OF SECTIONS 28 TO 41 OF THE ACT. THEREFORE, THE FACT THAT THE SAID DEFINITION HAS BEEN FOUND NECESSARY M EANS THAT IN NORMAL ITA NO. 3419/MUM/2010 M/S. SKIL INFRASTRUCTURE LTD. 9 PARLANCE PLANT DOES NOT INCLUDE SHIP EVEN SECTI ONS 32A AND 33 OF THE ACT CLEARLY DIFFERENTIATE SHIPS, MACHINERY AND PLAN T. 14. HAVING EXAMINED CLAUSE(C ) EXPLANATION-ILL OF S ECTION 194-C, IT, PRIMA FACIE, CLARIFIES THAT THE EXPRESSION WORK MEANS C ARRIAGE OF GOODS AND PASSENGERS BY ANY MODE OF TRANSPORT OTHER THAN BY R AILWAYS AND FREIGHT PAYMENTS HAVE TO BE DEDUCTED UNDER THIS SECTION AND NOT UNDER SECTION 194 I. 15. APART FROM THE ABOVE, RESPONDENTS THEMSELVES IN CONSONANCE WITH THE ABOVE INTERPRETATION OR VIEW HAVE ISSUED CERTIFICAT E UNDER SECTION 197-I OF THE ACT IN RELATION TO THE DEDUCTION OF TAX IN FAVO UR OF ONE OF THE MEMBERS OF THE FIRST PETITIONER. ASSOCIATION, I.E., M/S VARUN SHIPPING COMPANY LTD. ACCEPTING THE CONTENTIONS WHICH THE PETITIONER HAVE ADVANCED IN THIS CASE, NEEDLESS TO MENTION THAT THE DEPARTMENT CANNOT MAKE DISCRIMINATION BETWEEN THE SIMILARLY CIRCUMSTANCES SHIPPING COMPAN IES 10. THE EXPLANATORY NOTE ON PROVISIONS RELATING TO FINANCE ACT, 2007 VIDE PARAGRAPHS 56.2 AND 56.3 OF CIRCULAR NO. 3 OF 2008 DATED 12-3- 2008 HAS EXPLAINED THAT AS AMENDED BY THE TAX LAWS, THE AMENDMENT ACT, 2006 W.E.F. FROM 13-7-2006, THE DEFI NITION OF RENT ON THREE NEW ITEMS PLANT, MACHINERY AND EQUIPMENT HAS BEEN INSERTED. SUBSEQUENTLY, AS PER THE FINANCE ACT, 2007 THE RATE OF DEDUCTION OF TAX AT SOURCE WAS REDUCED 15 PER CENT TO 10 PER CEN T IN RESPECT OF INCOME PAYABLE BY WAY OF RENT FOR USE OF ANY MACHIN ERY OR PLANT OR EQUIPMENT. THUS, IT IS CLEAR THAT THE PROVISIONS OF SECTION 194 I IS CONFINED TO THE PAYMENT FOR RENT ON HIRING OF LAND OR BUILDING INCLUDING FACTORY BUILDING, FURNITURE OR FITTINGS B UT NOT FOR THE TRANSPORT VEHICLE AND OTHER MODE OF TRANSPORTATION PARTICULARLY WHEN THE SAME IS IN THE NATURE OF PROVIDING AND AVAILING THE TRANSPORT SERVICES. IN THE CASE OF NATIONAL PANASONIC INDIA ( P.) LTD. (SUPRA) (DELHI) BENCH OF THE TRIBUNAL IN PARAGRAPH 6 HAS HE LD AS UNDER: 6. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS A ND THE MATERIAL ON RECORD. SECTION 194 I OF THE ACT MANDATES PERSON, O THER THAN AN INDIVIDUAL OR AN HINDU UNDIVIDED FAMILY (HUF), PAYING RENT TO A RESIDENT TO DEDUCT TAX AT SOURCE AT THE TIME OF CREDIT OR PAYMENT, WHICHEV ER IS EARLIER CLAUSE (1) OF THE EXPLANATION TO SECTION 194 I GIVES THE MEANING OF RENT TO BE A PAYMENT UNDER ANY LEASE, SUB-LEASE, TENANCY OR ANY OTHER AG REEMENT OR ARRANGEMENT FOR THE USE OF ANY LAND OR ANY BUILDING C INCLUDING FACTORY BUILDING ), TOGETHER WITH FURNITURE, FITTINGS AND THE LAND APPU RTENANT THERETO, WHETHER OR NO SUCH BUILDING IS OWNED BY THE PAYEE. THUS, R ENT FOR THE PURPOSE OF SECTION 194 I, IS ESSENTIALLY A PAYMENT FOR THE USE OF ANY LAND OR BUILDING. IN OTHER WORDS, THE AGREEMENT OR ARRANGEMENT WHICH GIV EN RISE TO THE PAYMENT OF RENT, MUST NECESSARILY BE AN AGREEMENT OR ARRANG EMENT PREDOMINANTLY FOR THE USE OF LAND OR BUILDING. HOWEVER, WHERE THE AGREEMENT IS NOT PREDOMINANTLY FOR THE USE OF LAND OR BUILDING, BUT FOR SOMETHING ELSE, THEN PAYMENT UNDER THAT AGREEMENT WILL NOT CONSTITUTE RE NT EVEN IF THAT SOMETHING ELSE INVOLVES THE USE OF LAND OR BUILDI NG AS AN INTEGRAL PART OF OR INCIDENTAL TO THE PREDOMINANT OBJECTIVE OF THE A GREEMENT. LET US CONSIDER THE FACTS OF THE CASE BEFORE US IN THE LIGHT OF THE BASIC CONCEPT OF RENT 11. EVEN IF THE AMENDMENT IN THE PROVISIONS OF SECT ION 194 I HAS INCLUDED THE PLANT AND MACHINERY THE EXPRESSION PLA NT AND MACHINERY USED IN THE EXPLANATION TO SECTION 194 I REFERS TO ONLY THE ITA NO. 3419/MUM/2010 M/S. SKIL INFRASTRUCTURE LTD. 10 PLANT AND MACHINERY USED BY THE ASSESSEE IN ITS BUS INESS BY HIRING THEM BUT NOT THE HIRING OF TRANSPORT SERVICE. WE AL SO FIND FORCE IN THE ALTERNATIVE CONTENTION OF THE LD. AR THAT THE ASSES SING OFFICER CANNOT DEMAND UNDER SECTION 201(1) WHEN THE ENTIRE TAX HAS BEEN PAID BY THE RECIPIENT OF THE AMOUNT BY WAY OF ADVANCE TAX A ND TDS TO THE REVENUE. IN VIEW OF THE VARIOUS DECISIONS AS REFERR ED BY THE LEARNED AR IT IS CLEAR THAT ONCE THE REVENUE HAS COLLECTED THE TAX ON THE PAYMENT THEN NO DEMAND CAN BE RAISED UNDER SECTION 201(1) OTHERWISE IT WILL AMOUNT TO DOUBLE TAXATION. THE CI T(A) HAS DECIDED THE ISSUE IN PARAGRAPH 6. TO 6.7 AS UNDER: 6. I HAVE GONE THROUGH THE FACTS, OF THE CASE, MAT ERIAL ON RECORD, SUBMISSIONS MADE BY THE APPELLANT AND ALSO THE ORDE R OF THE ASSESSING OFFICER. I HAVE ALSO ANALYZED THE SAMPLE COPIES OF THE AGREEMENT ENTERED BY THE APPELLANT WITH ITS TRANSPO RT SERVICE PROVIDERS. AS PER THE TERMS OF THE AGREEMENT, THE C ONTRACT ENTERED BY THE APPELLANT WITH ITS TRANSPORT SERVICE PROVIDERS. AS PER THE TERMS OF THE AGREEMENT, THE CONTRACT ENTERED BY THE APPELLAN T WITH THE TRANSPORT SERVICE PROVIDER IS PRIMARILY IN THE NATU RE OF TRANSPORT CONTRACT FOR THE TRANSPORTATION OF ITS EMPLOYEES. T HE TERMS OF THE TRANSPORT CONTRACT CLEARLY PROVIDE THAT AS SUCH VEH ICLE IS NOT AT THE DISPOSAL OF THE APPELLANT AND THE APPELLANT HAS TO RUN THE VEHICLES ON PREDETERMINED ROUTES ONLY. THE AGREEMENT ALSO MAKES THE TRANSPORT SERVICE PROVIDERS RESPONSIBLE FOR THE PROVISIONS OF DERIVERS, RUNNING AND MAINTENANCE OF THE VEHICLE (E.G., PETROL) INSUR ANCE LICENSE, PERMIT). THE DRIVERS FOR VEHICLES WORK UNDER THE SU PERVISION AND CONTROL OF THE TRANSPORT SERVICE PROVIDERS. THE APP ELLANT IS NOT RESPONSIBLE FOR THE DAMAGE/ACCIDENT OF ANY OF THE V EHICLES AND THE ENTIRE RESPONSIBILITY OF THE VEHICLES IS THAT OF TH E TRANSPORT SERVICE PROVIDER. THE TRANSPORT CONTRACT ALSO PROVIDES THAT TRANSPORT SERVICE PROVIDER CHARGES ARE ON PER KILOMETER BASICS. 6.1 BASED ON THE ABOVE, IT IS AMPLY CLEAR THAT THE CONTRACT ENTERED BY THE APPELLANT WITH THE TRANSPORT SERVICE PROVIDER IS IN THE NATURE OF SERVICE CONTRACT ONLY. I AGREE WITH THE CONTENTION OF THE A PPELLANT THAT SINCE THE APPELLANT DOES NOT ENJOY THE CONTROL OVER THE VEHIC LES OF THE TRANSPORT SERVICE PROVIDERS AND ALSO THE RUNNING AND MAINTENA NCE EXPENDITURE IS BORNE BY THE TRANSPORT SERVICE PROVIDERS, THE NATUR E OF CONTRACT ENTERED CANNOT BE TERMED AS CONTRACT FOR HIRING OF THE VEHI CLES. I DO NOT AGREE WITH THE OBSERVATION OF THE ASSESSING OFFICER THAT USE O F VEHICLES ON A REGULAR BASIS RENDERS THE ARRANGEMENT AS A CONTRACT FOR HIR ING OF THE VEHICLES. I AM OF THE OPINION THAT MERE FACT THAT VEHICLES ARE USE D REGULARLY BY THE APPELLANT CANNOT TAKE AWAY THE PRIMARY NATURE OF AG REEMENT ENTERED BY THE APPELLANT AS THE AGREEMENT HAS TO BE CONSIDERED IN ITS ENTIRELY; 6.2 FURTHER, I HAVE GONE THROUGH THE CIRCULARS AND THE JUDGMENTS WHICH HAVE BEEN BROUGHT TO MY NOTICE BY THE APPELLANT; 6.3 THE NATURE OF ARRANGEMENT ENTERED BY THE APPELL ANT FOR TRANSPORTATION OF ITS EMPLOYEES BETWEEN RESIDENCE TO OFFICE IS SIMILA R TO THE ARRANGEMENT MENTIONED IN THE CIRCULAR NO. 558, DATED 28TH MARCH 1990, ISSUED BY THE CBDT REGARDING THE APPLICABILITY OF THE PROVISIONS OF SECTION L94C OF THE ACT TO THE HIRE CHARGES PAID TO BUS OWNERS. APARTMENT F ROM THIS, OTHER CIRCULARS (I.E., CIRCULAR NUMBER 681 DATED MARCH, 8, 1994, CI RCULAR NO. 713 DATED ITA NO. 3419/MUM/2010 M/S. SKIL INFRASTRUCTURE LTD. 11 AUGUST 2, 1995 AND CIRCULAR NUMBER 715 DATED AUGUST 8, 1995) HAVE SPECIFICALLY PROVIDED THAT THE PROVISIONS OF SECTIO N 194C OF THE ACT SHALL APPLY IN CASE WHERE BUS OR ANY OTHER MODE OF TRANSP ORT IS CHARTERED. BASED ON THE READING OF THE CIRCULARS, I AM OF THE OPINIO N THAT PAYMENTS MADE BY THE APPELLANT ARE OF SIMILAR NATURE AND HENCE TAX S HOULD BE DEDUCTIBLE UNDER SECTION 194C OF THE ACT; 6.4 I HAVE ALSO GONE THROUGH THE JUDGMENT IN CASE O F INDIAN NATIONAL SHIP OWNERS ASSOCIATION RELIED ON BY THE APPELLANT AND I AM OF THE VIEW THAT THE SAME IS APPLICABLE TO THE APPELLANTS CASE IN WHICH IT HAS BEEN HELD THAT THE PROVISIONS OF SECTION 194 I OF THE ACT ARE NOT APPL ICABLE IN CASE OF HIRE PAYMENTS MADE FOR THE HIRING OF TRANSPORT VEHICLE. 6.5 THE CARRIAGE OF GOODS AND PASSENGERS BY ANY MOD E OF TRANSPORT OTHER THAN RAILWAY ARE SPECIFICALLY COVERED BY THE EXPRES SION WORK AS DEFINED IN THE EXPLANATION III TO SECTION 194C OF THE ACT. THE CONTRACTS ENTERED BY THE APPELLANT WITH THE TRANSPORT SERVICE PROVIDERS ARE FOR THE TRANSPORTATION OF ITS EMPLOYEES. HENCE THE SAME SHOULD BE COVERED BY THE EXPLANATION III TO SECTION 194C OF THE ACT; 6.6 THUS, IN VIEW OF THE ABOVE FACTS, I AGREE WITH THE CONTENTION OF THE APPELLANT AND HOLD THAT THE PAYMENTS MADE TO THE TR ANSPORT SERVICE PROVIDER FALL WITHIN THE AMBIT OF THE PROVISIONS OF SECTION 194C OF THE ACT; 6.7 AS HELD ABOVE, SINCE THE APPELLANT HAS RIGHTLY DEDUCTED TAXED AS PER THE PROVISIONS OF SECTION 194C OF THE ACT, THE ASSESSEE SHALL NOT BE TREATED AS ASSESSEE IN DEFAULT UNDER SECTION 201(1) OF THE A CT 10. SIMILAR VIEW WAS ALSO EXPRESSED BY THE COORDINATE BENCHES IN TATA AIG GENERAL INSURANCE CO. LTD. VS. ITO 43 SOT 215 ( MUM) AND AHMEDABAD URBAN DEVELOPMENT AUTHORITY VS. ACIT ITA NO. 1637/A HD/2010 DATED 10.03.2011. RESPECTFULLY FOLLOWING THE ABOVE, WE HO LD THAT ASSESSEE HAS CORRECTLY DEDUCTED TAX UNDER SECTION 194C AND THERE IS NO LIABILITY TO DEDUCT TAX UNDER SECTION 194 I AS THE SAID PROVISIONS ARE NOT APPLICABLE TO THE HIRE CHARGES PAID FOR UTILISATION OF TRANSPORT SERVICES FROM THE RESPECTIVE SERVICE PROVIDERS. IN VIEW OF THIS, IMPUGNED ORDERS OF THE A.O. LEVYING TAX UNDER SECTION 201(1) AND INTEREST UNDER SECTION 201(1A) A RE HEREBY SET ASIDE. 11. IN THE RESULT, ASSESSEES APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER 2011. SD/- SD/- (VIJAY PAL RAO) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 31 ST OCTOBER 2011 ITA NO. 3419/MUM/2010 M/S. SKIL INFRASTRUCTURE LTD. 12 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XIV, MUMBAI 4. THE CIT (TDS), MUMBAI CITY 5. THE DR, E BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.