The DCIT, TDS Circle, Ahmedabad V. M/s. Gujarat State Petronet Ltd., Gandhinagar

ITA 3534/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1514 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 06-04-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 17-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law
• Section: 194C; 201(1)

Judgement Text

I.T.A. NO . 3534 /AHD/ 20 1 5 ASSESSMENT YEAR: 200 8 - 09 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD B BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM AND S S GODARA JM ] I.T.A. NO. 3534 /AHD/ 20 1 5 ASSESSMENT YEAR : 200 8 - 09 DY. COMMISSIONER OF INCOME TAX, TDS CIRCLE, AHMEDABAD . .......... .APPELL ANT VS. M/S GUJARAT STATE PETRONET LIMITED ............ . RESPONDENT GSPL BHAVAN, E - 18, GIDC ELECT R ONI C S E S TATE, NR. K - 7, CIRCLE, SEOCTOR - 26, GANDHINAGAR 382 028. [P AN: AA BCG 1812 E ] APPEARANCES BY: R.K. GUPTA , FOR THE APPELLANT SANJ AY R. SHAH , FOR THE RESPONDENT D ATE OF CONCLUDING THE HEARING : APRIL 6 TH , 201 6 DATE OF PRONOUNCING THE ORDER : MAY 31 ST , 201 6 O R D E R PER PRAMOD KUMAR AM : 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 1 ST OCTOBER 2015 , PASSED BY THE L EARNED CIT(A) , IN THE MATTER OF ASSESSMENT UNDER SECTION 201(1A) OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR 200 8 - 09 , ON THE FOLLOWING GROUNDS : - 1. THE LD. CIT(A) ERR ED IN LAW AS WELL AS ON FACTS OF THE CASE IN DELETING THE ORDER PASSED U/S. 201(1) OF RS. 10,58,647/ - FOR SHORT DEDUCTION AND INTEREST CHARGED U/S. 201(1A) OF THE OF RS.2,01,473 / - OF THE IT ACT, RESPECTIVELY FOR A.Y. 200 8 - 09 BY THE A.O. 2. THE LD. CIT(A) ERRED IN NOT CONSIDERING THE FACT THAT AFTER 13. 0 7.2006 THE PROVISION OF 194I IS APPLICABLE ON HIRING CHARGES OF GAS TRANSPORTATION CHARGES OF RS.1,44,87,981/ - WHICH COVER USES OF PLANT AND MACHINERY AND NOT THE PROVISION OF 194C OF I.T. ACT. I.T.A. NO . 3534 /AHD/ 20 1 5 ASSESSMENT YEAR: 200 8 - 09 PAGE 2 OF 3 3. THE LD. CIT(A) ERRED IN NOT CONSIDERING THE FACT THAT AFTER THE PROVISION OF 194I IS APPLICABLE ON HIRING CHARGES OF CONNECTING CHARGES OF RS.11,21,94,929/ - WHICH COVER USES OF PLANT AND MACHINERY AND NOT THE PROVISION OF 194C OF I.T. ACT. 4. THE HON BLE HIGH COURT OF GUJARAT HAS ADMITTED THE APPEAL OF THE REVENUE ON QUESTION OF LAW RAISED BY IT DEPARTMENT WITH RESPECT TO THE APPLICABILITY OF SECTION 194I TO THE CONN E CTIVITY CHARGES AND GAS TRANSPIRATION CHARGES IN THE CASE OF ASSESSEE COMPANY FOR A.Y. 2009 - 10. 2. LEARNED REPRESENTATIVES FAIRLY AGREE THAT THE ISSUE IN APPEAL IS NOW COVERED, IN FAVOUR OF THE ASSESSEE, BY A CO - ORDINATE BENCH S DECISION IN ASSESSEE S OWN CAS E FOR THE ASSESSMENT YEAR 2009 - 10 IN ITA NO.3317/AHD/2010 AND C.O. NO.17/AHD/2011 . VI DE THIS DECISION DATED 8 TH MARCH, 2013 , THE TRIBUNAL HAS, INTER ALIA, OBSERVED AS FOLLOWS : - 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE FIRST PAYMENT NAMELY VEHICLE HIRING CHARGES HAS NOT BEEN PRESCRIBED U/S. 19 4I. VEHICLES AND CHAUFFERS SUPPLIED BY THE CONTRACTOR AND WAS UNDER THE COMPLETE CONTROL OF THE CONTRACTOR. THUS, WE CONFIRM THE ORDER OF THE CIT(A) ON THIS ISSUE. SIMILARLY, THE SECOND PAYMENT FOR CONNECTIVITY CHARGES WERE PAID TO GPSC AGAINST THE AGREEME NT FOR USING OF PIPELINE CONNECTION OF GAIL FOR GAS TRANSPORTATION. THIS PIPELINE WAS OWNED BY THE GAIL AND WAS OPENED TO SERVICE TO ITS OTHER CLIENTS ALSO, WHICH WAS IN NATURE OF CARRIAGE OF GOODS AND COVERED U/S.194C OF THE IT ACT. THUS, ON SECOND ISSUE ALSO, THE LD. CIT(A) FOUND JUSTIFIED AND WE DO NOT FIND THE REASON OF ANY INTERVENTION IN THE ORDER OF THE CIT(A) ON THIS ISSUE. THE THIRD AND LAST PAYMENT WAS GAS TRANSPORTATION CHARGES. THE APPELLANT PAID THESE PAYMENTS FOR GAS TRANSPORTATION PURPOSES TO GUJARAT GAS COMPANY LTD. AND AVAIL THEM FACILITY OF PIPELINE OF IT. THE OWNERSHIP AND COMPLETE CONTROL OF THIS PIPELINE IS OF GUJARAT GAS COMPANY LTD. THIS PIPELINE OWNED BY THE CONTRACTOR IS OPEN FOR USE FOR OTHER CLIENTS ALSO AND IT WAS A WORK PERFORMED CARRIAGE OF GOODS AS PRESCRIBED U/S.194C OF THE IT ACT. THUS, IT IS COVERED U/S. 194C AND LD. CIT(A) WAS RIGHT TO DECIDE THIS ISSUE IS AS A CONTRACT FOR THE TRANSPORTATION OF GAS. THE APPELLANT HAS ALSO SUBMITTED THE CONFIRMATION FROM THE DEDUCTEE THAT TH ESE RECEIPTS HAVE BEEN DISCLOSED IN THEIR RESPECTIVE INCOME AND ALL THE DEDUCTEES ARE LIMITED COMPANY. THUS, IN VIEW OF THE HON BLE SUPREME COURT DECISION IN CASE OF HINDUSTAN COCA COLA BEVERAGES PVT. LTD (SUPRA) AND THE ASSESSEE CANNOT BE TREAT AS DEEMED DEFAULTER WITHIN U/S. 201(1) OF THE IT ACT. ACCORDINGLY, WE DISMISS THE APPEAL OF THE REVENUE AND ALLOW THE C.O. OF THE APPELLANT. I.T.A. NO . 3534 /AHD/ 20 1 5 ASSESSMENT YEAR: 200 8 - 09 PAGE 3 OF 3 3. WE SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MATTER THAN THE VIEW SO TAKEN BY THE CO - ORDINATE BENCH . 4. RESPECTFULLY FOLLOWING THE SAID DECISION OF THE TRIBUNAL DATED 8 TH MARCH, 2013 IN ASSESSEE S OWN CASE (SUPRA), WE MUST APPROVE THE ORDER OF THE L EARNED CIT(A) AND DECLINE TO INTERFERE IN THE MATTER . LEARNED CIT(A) HAS ONLY FOLLOWED THE ORDER DA T ED 8 TH MARCH, 2013, IN ASSESSEE S OWN CASE FOR THE ASSESSMENT YEAR 2009 - 10, BY A CO - ORDINATE BENCH OF THIS TRIBUNAL. THE APPROACH OF THE LEARNED CIT(A) CANNOT BE FAULTED. IN A NY CASE, WE ARE IN RESPECTFUL AGREEMENT WITH THE CO - ORDINATE BENCH, WE ADOPT TH E IR REASONING AND WE, T HEREFORE, CONFIRM THE ORD E R OF THE LEARNED CIT(A). 5 . IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMISSED . PRONOUNCED IN THE OPEN COURT TODAY ON THE 31 ST DAY OF MAY , 2016. SD/ - SD/ - S S GODARA PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: THE 31 ST DAY OF MAY , 2016. COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLAT E TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD