A.C.I.T.(T.D.S.) RG.3(2), MUMBAI V. JET LITE (INDIA) LTD., MUMBAI

ITA 5115/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79397 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 15-05-2014
• Assessment Year: 2011-2012
• Appeal Filed On: 10-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOURYA PRATAP
• Section: 133A; 194C; 201(1); 6; 154

Judgement Text

IN THE INCO ME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ./I.T.A. NO. 4635/M/2012 ( AY: 2009 - 2010 ) ./I.T.A. NO. 4636/M/2012 ( AY: 2009 - 2010 ) ./I.T.A. NO. 5114/M/2012 ( AY: 2010 - 2011 ) ./I.T.A. NO. 5115/M/2012 ( AY: 2011 - 2012 ) ACIT (TDS) 3(2), 1012, 10 TH FLOOR, SMT. K.G.MITTAL, AYURVEDIC HOSPITA BLDG, CHARNI ROAD (W), MUMBAI - 400002. / VS. JET LITE (INDIA) LTD., S.M. ENTRE, ANDHERI KURLA ROAD, MUMBAI. ./ PAN : AADCS4480L ( / APPELLANT) .. ( / RESPONDENT ) / A PPELLANT BY : SHRI MOURYA PRATAP / RESPONDENT BY : SHRI VIJAY MEHTA / DATE OF HEARING :02.7 .2014 / DATE OF PRONOUNCEMENT : 09 .7 .2014 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE 4 APPEALS UNDER CONSIDERATION. ALL THE FOUR APPEALS ARE FILED BY THE REVENUE INVOLVING THE AYS 2009 - 10, 2010 - 11 AND 2011 - 12. SINCE, THE ISSUES INVOLVED IN ALL THESE FOUR APPEALS ARE IDENTICAL, THEREFORE, FOR THE SAKE OF CONVENIENCE, THESE FOUR APPEALS ARE CLUBBED, HEARD COMBINEDLY AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE AND GRO UND WISE ADJUDICATION IS GIVEN IN THE SUCCEEDING PARAGRAPHS. 2. FIRSTLY, WE SHALL TAKE UP THE APPEAL ITA NO.4635/M/2012 , WHICH IS FILED BY THE REVENUE ON 9.7.2012 AGAINST THE ORDER OF THE CIT (A) - 14, MUMBAI DATED 30.4.2012 FOR THE ASSESSMENT YEAR 2009 - 2010. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 2 I) THE LD CIT (A) HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW NOT APPRECIATING THE FACT THAT CARGO HANDLING CHARGES TO BE TAXED U/S 194J @ 5% INSTEAD OF 194 @ 2%. II) THE LD CIT (A) HAS ERRED ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW IN NOT APPRECIATING THE FACT THAT CARGO HANDLING REQUIRES HIGHLY MECHANIZED MACHINES AND SKILLED AND TECHNICAL COMPETENT PERSONS . III) THE LD CIT (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW IN NOT APPRECIATING THE FACT THAT PAYMENT MADE UNDER CARGO HANDLING CH ARGES CLEARLY FALLS WITHIN THE PURVIEW OF SECTION 194J AND FEES FOR TECHNICAL SERVICES IS LIABLE FOR DEDUCTION U/S 194J OF THE ACT. IV) THE L D CIT (A) HAS ERRED ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW DELETING THE DEMAND OF RS. 3,03,930/ - WITHOUT PROPERTY APPRECIATING THE FACTUAL & LEGAL MATRIX OF THE CASE AS CLEARLY BROUGHT OUT BY THE AO IN ORDER U/S 201(1) & 201(1A) OF THE ACT. 3. AT THE OUTSET, SHRI VIJAY MEHTA, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE ABOVE GROUNDS AND MENTIONED THAT THE ONLY ISSUE RAISED BY THE REVENUE IN ITS GROUNDS IS WHETHER THE CARGO HANDLING CHARGES (CHC) INCURRED BY THE ASSESSEE ARE LIABLE FOR DEDUCTION AT SOURCE AS PER PROVISIONS OF SECTION 194C OR 194J. BRIEFLY STATED RELEVANT FACTS ARE THAT THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF TRANSPORTATION OF PASSENGERS AND CARGO BY AIR. A SURVEY AC TION U/S 133A OF THE ACT WAS CONDUCTED ON 21.1.2011, CONSEQUENT TO WHICH PROCEEDINGS U/S 201(1) WERE INITIATED. DURING THE ASSESSMENT PROCEEDINGS, AO NOTED THAT THE ASSESSEE PAID CARGO HANDLING CHARGES, ON WHICH THE TAX WAS DEDUCTED U/S 194C. AO OBSERVED T HAT THE SAID CARGO HANDLING CHARGES INCLUDE X - RAY CHARGES, LOADING AND UNLOADING CHARGES AND HENCE TECHNICAL SKILL IS REQUIRED TO PERFORM THESE SERVICES. THUS, AO OPINED THAT THE SAID PAYMENT IS IN THE NATURE OF FEES FOR TECHNICAL / PROFESSIONAL SERVICES AND THEREFORE, THE TAX WAS LIABLE TO BE DEDUCTED U/S 194J OF THE ACT. ACCORDINGLY, AO PASSED ORDER U/S 201(1) ON 31.3.2011 BY HOLDING THAT THE ASSESSEE IS IN DEFAULT ON ACCOUNT OF NON DEDUCTION OF TDS ON PASSENGER SERVICE FEES (PSF) AND CARGO HANDLING C HARGES PAID TO THE EXTENT OF RS. 76,24,59,852/ - AND RS. 36,88,478/ - RESPECTIVELY AND RAISED DEMAND OF RS. 17,27,73,402/ - IN RESPECT OF PSF AND RS. 3,03,930/ - IN RESPECT OF CHC . BEFORE US, WITH REFERENCE TO THE APPLICABILITY OF TDS ON PSF, LD COUNSEL MENTI ONED THAT THE AO DID NOT RAISE THE DEMAND U/S 201(1) IN RESPECT OF THESE PAYMENTS CONSIDERING THE FACT THAT THE SAID AMOUNTS WERE OFFERED TO TAX IN THE HANDS OF THE RECIPIENT AND PAID THE TAXES. HE BROUGHT OUR ATTENTION TO THE ORDER U/S 154 OF THE ACT FOR THE AY 2009 - 2010 AND THE CONTENTS OF PARA 2 OF THE SAID ORDER CONFIRMS THE SAME. FURTHER, HE ALSO MENTIONED THAT THE TDS PROVISIONS SHOULD NOT APPLY TO THESE PSF IN VIEW OF THE ORDER OF THE 3 ITAT IN THE CASE OF ACIT VS. JET AIRWAYS (INDIA) LTD [2013] 158 TTJ 289, WHICH IS RELEVANT FOR THE PROPOSITION THAT THE AIRLINES COLLECTS PSF FROM THE PASSENGERS ON BEHALF OF THE AIRPORT AUTHORITIES AND IT DOES NOT ATTRACT THE PROVISIONS OF SECTION 194I OF THE ACT. THEREFORE, THERE IS NO ISSUE ABOUT THE PSF IN THE PRE SENT APPEAL AND THE ONLY ISSUE TO BE ADJUDICATED BY US IS WITH REFERENCE TO CHC. MATTER TRAVELLED TO THE FIRST APPELLATE AUTHORITY. DURING THE FIRST APPELLATE PROCEEDINGS CIT (A) ALLOWED THE APPEAL OF THE ASSESSEE BY HOLDING THAT THE PROVISIONS OF SECTIO N 194J ARE NOT ATTRACTED TO THE CARGO HANDLING CHARGES AS THEY ARE NOT IN THE NATURE OF PROFESSIONAL OR TECHNICAL SERVICES OR ROYALTY AS SPECIFIED U/S 194J AND THEREFORE, THE PROVISIONS OF SECTION 194C ARE APPLICABLE TO THE SAID PAYMENTS MADE BY THE ASSESS EE. ACCORDINGLY, CIT (A) DIRECTED THE AO TO DELETE THE DEMAND OF RS.3,03,930/ - WITH REGARD TO CHC . AGGRIEVED, REVENUE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE ABOVE MENTIONED GROUNDS. 4. DURING THE PROCEEDINGS BEFORE US, LD COUNSEL FOR THE ASSESSEE HEAVILY RELIED ON THE ORDER OF THE CIT (A). FURTHER, LD COUNSEL ALSO FILED A CHART SHOWING THE GROUND WISE REMARKS AND MENTIONED THAT AN IDENTICAL ISSUE WAS ADJUDICATED AND DECIDED BY THE ITAT IN FAVOUR OF THE ASSESSEE. IN THIS REGARD, HE FILED COPIES OF THE ORDERS OF THE TRIBUNAL IN THE CASES OF (I) GLAXSO SMITHKLINE CON SUMER HEALTHCARE LTD [2007 ] 12 SOT 221 (DELHI) ; (II) MERCHANT SHIPPING SERVICES PVT LTD VIDE ITA NO.192/M/2010 AND (III) GLAX O SMITHKLINE PHARMACEUTICALS LTD [ITAT, PUNE] 48 SOT 643. LD COUNSEL ALSO MENTION ED THAT SIMILAR ISSUE WAS RAISED BY THE REVENUE FOR THE AY 2008 - 2009 AND THE CIT (A) GRANTED RELIEF TO THE ASSESSEE BY DELETING THE DEMAND OF TAX U/S 201(1) IN RESPECT OF CAR GO HANDLING CHARGES VIDE HIS ORDER DATED 30.4.2002 (COPY OF THE ORDER OF THE CIT (A) WAS PLACED ON RECORD). 5. ON THE OTHER HAND, LD DR DUTIFULLY, RELIED ON THE ORDER OF THE AO. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTH ORITIES AS WELL AS THE CITED DECISIONS OF THE TRIBUNAL (SUPRA) . ON PERUSAL OF THE CITED ORDERS OF THE TRIBUNAL (SUPRA), WE FIND THAT THE ISSUE UNDER CONSIDERATION IS NOW STANDS COVERED IN PRINCIPLE BY THE SAID ORDERS OF THE TRIBUNAL. WE HAVE GONE THROU GH THE ORDER OF THE ITAT, DELHI BENCH IN THE CASE OF GLAXO SMITHKLINE CONSUMER HEALTHCARE LTD (SUPRA) AND WE FIND THAT AN IDENTICAL ISSUE WAS ADJUDICATED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE VIDE PARAS 3 TO 8 OF ITS ORDER. 4 FOR THE SAKE OF COMPLETENE SS OF THIS ORDER, THE SAID RELEVANT PARAS ARE REPRODUCED HERE UNDER: 3. WE HAVE CONSIDERED THE RIVAL CONTENTIONS CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS PROVISIONS OF THE LAW CONTAINED UNDER SECTIONS 194C AND 194J OF THE INCOME - TAX ACT, 1961. IN THE INSTANT CASE, FROM THE RECORD WE FOUND THAT THE ASSESSEE HAD ENTERED INTO CLEARING AND FORWARDING AGENCY AGREEMENTS WITH VARIOUS PERSONS. ON THE PAYMENTS MADE TO THE CLEARING AND FORWARDING AGENTS, THE ASSESSEE DEDUCTED TAX AT SOURCE UNDER SECTION 194C OF THE ACT. THE PAYMENT MADE BY THE ASSESSEE TO THE C&F AGENTS WAS FOR A CONSOLIDATED SET OF SERVICES. THE SERVICES INCLUDED RECEIPT AND DISPATCH OF GOODS, STORING THE GOODS, KEEPING ACCOUNTS/RECORDS OF THE SAME, ENSURING THE SAFETY OF THE GOODS, COMPLYING WITH FORMALITIES FOR EFFECTING RECEIPT AND DISPATC H OF GOODS, ETC. THE OBJECT OF THE AGREEMENTS WAS TO ENSURE HANDLING AND DELIVERY OF THE GOODS AS PER THE DIRECTIONS OF THE ASSESSEE. SINCE THE SERVICES INVOLVED CARRYING OUT OF 'WORK' WITHIN THE MEANING OF THE SAID TERM IN SECTION 194C OF THE ACT, THE ASS ESSEE, THEREFORE, CORRECTLY DEDUCTED TAX AT SOURCE UNDER THE SAID SECTION OUT OF THE PAYMENTS MADE TO C&F AGENTS. THE ASSESSING OFFICER HELD THAT THE SERVICES RENDERED BY THE C&F AGENTS WERE IN THE NATURE OF MANAGERIAL SERVICES AND, THEREFORE, TAX SHOULD H AVE BEEN DEDUCTED ON SUCH PAYMENTS UNDER SECTION 194J OF THE ACT. THE ASSESSING OFFICER, THUS, TREATED THE ASSESSEE AS AN ASSESSEE IN DEFAULT FOR SHORT DEDUCTION OF TAX AT SOURCE AND ACCORDINGLY COMPUTED TAX PAYABLE UNDER SECTION 201(1) OF THE ACT. ACTION OF THE ASSESSING OFFICER WAS CONFIRMED BY THE CIT (APPEALS). 4. WE HAVE CAREFULLY GONE THROUGH THE AGREEMENT ENTERED INTO BY THE ASSESSEE WITH C&F AGENTS AND PERUSED THE TERMS RELATING TO SERVICES TO BE RENDERED BY C&F AGENTS. WE FOUND THAT THE C&F AGENTS WAS REQUIRED TO STORE, DISPOSE, DELIVER OR REDELIVER GOODS AS MAY BE DETERMINED AND NOTIFIED TO SUCH C&F AGENTS BY THE ASSESSEE. THE C&F AGENTS WAS REQUIRED TO STORE THE GOODS BY THE ASSESSEE WITH ALL CARE, PRUDENCE AND RESPONSIBILITY SO THAT SUCH GOODS AR E FREE FROM RISKS AS THEFT, PILFERAGE AND DAMAGES. HE SHALL HAVE FULL RESPONSIBILITY IN RESPECT OF CLEARING CONSIGNMENT, LOADING/UNLOADING, CARRIAGE, CARTAGE TO AND FOR THE WAREHOUSE AND GODOWN OF THE AGENTS, STAKING OR STORING. HE SHALL PUT SUCH MARK OR M ARKS IN THE WAREHOUSE TO DISTINGUISH THE GOODS OF THE ASSESSEE FROM THE GOODS THAT SUCH AGENTS MAY RECEIVE FROM ANY OTHER PERSON. HE SHALL INDEMNIFY THE ASSESSEE AGAINST ANY LOSS IN RESPECT OF THE GOODS IN ITS CUSTODY. FURTHERMORE, THE C&F AGENTS UNDERTAKE TO DELIVER THE GOODS OR CONSIGNMENT TO SUCH PERSONS OR PARTIES AS NOMINATED BY THE ASSESSEE, MAINTAIN AND RENDER PROPER ACCOUNT OF GOODS OR CONSIGNMENTS RECEIVED, STORED, AND DELIVERED PERIODICALLY AND SUBMIT SUCH STATEMENT TO THE ASSESSEE FROM TIME TO TI ME. 5. WE ALSO FOUND THAT C&F AGENTS WAS LIABLE FOR ALL DAMAGES, PILFERAGE AND OTHER LOSSES INCURRED DUE TO NEGLIGENCE, ETC., AND UNDERTAKE TO PAY ON DEMAND IN WRITING MADE BY THE ASSESSEE WITHOUT PROTEST THE MARKET VALUE OF THE GOODS ENTRUSTED TO SUCH AGE NTS. THE GOODS OF THE ASSESSEE WAS TO BE RECEIVED AND HELD BY THE C&F AGENTS AS BAILEE/TRUSTEE, FOR AND ON BEHALF OF THE ASSESSEE. THE AGREEMENT ENTITLED THE AGENTS FOR REIMBURSEMENT OF ALL APPROVED EXPENSES INCURRED ON BEHALF OF THE ASSESSEE. 6. THUS, IT IS CRYSTAL CLEAR FROM THE TERMS OF THE AGREEMENT THAT PAYMENT WAS MADE BY THE ASSESSEE TO THE C&F AGENTS, WAS FOR CONSOLIDATED SET OF SERVICES WHICH HAVE BEEN BROADLY DESCRIBED ABOVE. THE MAIN OBJECT OF THE AGREEMENT WAS TO ENSURE CORRECT HANDLING AND DELIVERY OF GOODS AS PER THE TERMS OF THE ASSESSEE . WE FOUND THAT AS PER THE NATURE OF SERVICES RENDERED, THE SAME ARE IN PARI MATERIA TO THE SERVICES AS CONTEMPLATED UNDER SECTION 194C, AND THE SAME WAS NOT FOR ANY PROFESSIONAL OR TECHNICAL SERVICES A S MENTIONED UNDER SECTION 194J OF THE ACT. AS PER SECTION 194J(1) OF THE ACT, ANY PERSON, NOT BEING AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY, WHO IS RESPONSIBLE FOR PAYING TO A RESIDENT ANY SUM BY WAY OF ( A ) FEE FOR PROFESSIONAL SERVICES, OR ( B ) FEES FOR TECHNICAL SERVICES, SHALL, AT THE TIME OF 5 CREDIT OF SUCH SUM TO THE ACCOUNT OF THE PAYEE OR AT THE TIME OF PAYMENT THEREOF IN CASH OR BY ISSUE OF A CHEQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEVER IS EARLIER, DEDUCT AN AMOUNT OF EQUAL TO FIVE PER CENT OF SUCH SUM AS INCOME - TAX ON INCOME COMPRISED THEREIN. EXPLANATION ( A ) AND ( B ) TO SECTION 194J OF THE ACT DEFINES 'PROFESSIONAL SERVICES' AND 'FEES FOR TECHNICAL SERVICES' RESPECTIVELY. THE SAME READS AS UNDER : ' EXPLANATION . FOR THE PURPOSES OF THIS SECTION : ( A )' PROFESSIONAL SERVICES' MEANS SERVICES RENDERED BY A PERSON IN THE COURSE OF CARRYING ON LEGAL, MEDICAL, E NGINEERING OR ARCHITECTURAL PROFESSIONAL OR THE PROFESSION OF ACCOUNTANCY OR TECHNICAL CONSULTANCY OR INTERIOR DECORATION OR ADVER TISING OR SUCH OTHER PROFESSION AS IS NOTIFIED BY THE BOARD FOR THE PURPOSES OF SECTION 44AA OR OF THIS SECTION ; ( B )' FEES FOR TECHNICAL SERVICES' SHALL HAVE THE SAME MEANING AS EXPLANATION 2 TO CLAUSE ( VII ) OF SUB - SECTION (1) OF SECTION 9. EXPLANATION 2 TO SECTION 9(1)( VII ) OF THE ACT 'FEES FOR TECHNICAL SERVICES' TO MEAN ANY CONSIDERATION (INCLUDING ANY LUMP SUM CONSIDERATION) FOR THE RENDERING OF ANY MANAGERIAL, TECHNICAL OR CONSULTANCY SERVICES (INCLUDING THE PROVISIONS OF SERVICES OF TECHNICAL OR OTHER PERSONNEL) BUT DOES NOT INCLUDE CONSIDERATION FOR ANY CONSTRUCTION, ASSEMBLY, MINING OR LIKE PROJECT UNDERTAKEN BY THE RECIPIENT OR CONSIDERATION WHICH WOULD BE INCOME OF THE RECIPIENT CHARGEABLE UNDER THE HEAD 'SALARIES'.' 7. THUS, IT IS CRYSTAL CLEAR FROM THE PROVISIONS OF SECTION 194J THAT SERVICES OF THE AGENTS ARE NEITHER PROFESSIONAL SERVICES NOR TECHNICAL SERVICES. SUCH S ERVICES ARE ALSO CLEARLY NOT IN THE NATURE OF TECHNICAL, CONSULTANCY OR MANAGERIAL SERVICES, THEREFORE, TAX IN RESPECT OF THESE SERVICES ARE NOT TO BE DEDUCTIBLE UNDER SECTION 194J OF THE ACT . C.B.D.T. IN ITS CIRCULAR NO. 720, DATED 30 - 8 - 1995 HAD ALSO PROVIDED THAT VARIOUS PROVISIONS OF CHAPTER XVII RELATING TO DEDUCTION OF TAX AT SOURCES ARE MUTUALLY EXCLUSIVE AND THAT CHAPTER XVI I DEALS WITH A PARTICULAR KIND OF PAYMENT TO THE EXCLUSION OF ALL OTHER SECTIONS IN THIS CHAPTER. THUS, ANY PAYMENT OF ANY SUM SHALL BE LIABLE FOR DEDUCTION OF TAX ONLY UNDER ONE SECTION, THEREFORE, PAYMENT IS ALSO LIABLE FOR TAX DEDUCTION ONLY UNDER ONE S ECTION, AS WARRANTED BY THE NATURE OF SERVICES STIPULATED THEREIN. COMBINED READING OF PROVISIONS OF SECTIONS 194C AND 194J VIS - A - VIS C.B.D.T. CIRCULAR NO. 720 MAKES IT ABUNDANTLY CLEAR THAT IN THE INSTANT CASE PAYMENT MADE BY THE ASSESSEE TO THE C&F AGENT S, WAS FOR THE SERVICES WHICH WAS PRE - DOMINANTLY FOR 'CARRYING OUT WORK', INTER ALIA, RELATING TO STORAGE DISPATCH , TRANSPORTATION, LOADING AND UNLOADING OF GOODS, ETC. THUS, THE ASSESSEE HAS RIGHTLY DEDUCTED TAX AT SOURCE UNDER SECTION 194C OF THE ACT. 8. IN VIEW OF THE ABOVE DISCUSSION, WE ARE INCLINED TO AGREE WITH THE LEARNED AR THAT ASSESSEE WAS NOT IN DEFAULT FOR DEDUCTION OF TAX AS PER PROVISIONS OF SECTION 194C AT THE RATE OF 2 PER CENT AND THAT LOWER AUTHORITIES WERE NOT JUSTIFIED FOR TREATING THE SERVICES RENDERED TO THE ASSESSEE AS FALLING UNDER SECTION 194J OF THE ACT AND THEREBY LIABLE FOR DEDUCTION OF TAX AT 5% . 7. WE HAVE ALSO PERUSED THE ORDER OF THE CIT (A) FOR THE ASSESSMENT YEAR 2009 - 2010 AND FIND THAT THE PARA 5.2 AND 5.3 OF THE SAID ORDER OF THE CIT (A) , DATED 30.04.2012 ARE RELEVANT HERE AND THE SAME READ AS UNDER: 5.2. IN REGARD TO THIS ISSUE, ALSO, THE APPELLANT HAS GIVEN VARIOUS ARGUMENTS AND MADE SUBMISSIONS WHICH ARE DISCUSSED IN DETAIL IN MY APPELLATE ORDER OF EVEN DATE FOR AY 2008 - 09. AFTER THE SAID DISCUSSION, I HAVE IN AY 2008 - 2009 HELD AS UNDER: 5.7. I HAVE CONSIDERED THE FACTS OF THE CASE, THE SUBMISSIONS ON BEHALF OF THE APPELLANT AS WELL AS THE AOS ORDER ON THIS ISSUE. I AGREE WITH THE CONTENTION THAT THE CARGO HANDL ING CHARGES PAID BY THE APPELLANT COMPANY ARE NOT IN THE NATURE OF PROFESSIONAL OR TECHNICAL SERVICES OR ROYALTY AS SPECIFIED U/S 194J. FURTHER, THE DECISION OF THE HONBLE DELHI ITAT RELIED BY THE APPELLANT IS SQUARELY ON THE SAME ISSUE AND IS APPLICABLE TO THE CASE OF THE APPELLANT. HENCE, I HOLD THAT THE PROVISIONS OF SECTION 194J ARE NOT ATTRACTED TO THE CARGO HANDLING CHARGES PAID BY THE APPELLANT . I AM ALSO OF THE CONSIDERED OPINION THAT THE PROVISIONS OF TDS U/S 6 194C ARE APPLICABLE TO THE PAYMENTS IN RESPECT OF CARGO HANDLING CHARGES . THUS, THE DEMAND OF TAX UNDER SECTION 201(1) OF THE ACT OF RS. 30,480/ - IN RESPECT OF CARGO HANDLING CHARGES IS HEREBY DIRECTED TO BE DELETED. 5.3. SINCE, THE FACTS IN THE CURRENT YEAR ARE SAME, I ACCORDINGLY HOLD THAT THE PROVISIONS OF SECTION 194J ARE NOT ATTRACTED TO THE CARGO HANDLING CHARGES PAID BY THE APPELLANT. I AM ALSO OF THE CONSIDERED OPINION THAT THE PROVISIONS OF TDS U/S 194C ARE APPLICABLE TO THE PAYMENTS IN RESPECT OF CARGO HANDLING CHARGES. THUS, THE DEMAND OF TAX UNDER SECTION 201(1) OF THE ACT AT RS. 3,03,930/ - IN RESPECT OF CARGO HANDLING CHARGES IS HEREBY DIRECTED TO BE DELETED. 8. FROM THE ABOVE , WE FIND THAT WHILE DECIDING THE ISSUE OF WHETHER THE CARGO HANDLING CHARGES PAID BY THE ASSESSS EE ATTRACTS THE PROVISIONS OF SECTION 194C OR 194J , THE CIT (A) HAS RIGHTLY ADJUDICATED THE ISSUE BY FOLLOWING THE EARLIER YEARS ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE ORDER OF THE ITAT, DELHI IN THE CASE OF GLAXO SMITHKLINE CONSUMER HEALTHCARE LTD (SUPRA). CONSIDERING THE SETTLED POSITION OF THE ISSUE AND RESPECTFULLY FOLLOWING THE ORDER OF THE ITAT, DELHI BENCH , WE OF THE OPINION THAT THE DECISION TAKEN BY THE CIT (A) IN DELETING THE DEMAND OF TAX U/S 201(1) OF THE ACT IN RESPECT OF CARGO HAND LING CHARGES IS FAIR AND REASONABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, GROUNDS NO. (I) TO (IV) RAISED BY THE REVENUE ARE DISMISSED. 9. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ITA NO.4636/M/2012 (AY 2009 - 2010) 10. THIS APPEAL FILED BY THE REVENUE ON 9.7.2012 IS AGAINST THE ORDER OF THE CIT (A) - 14, MUMBAI DATED 30.4.2012. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (A) ERRED IN DELETING THE INTEREST CHARGES U/S 201(1A) ON SHORT DEDUCTION OF TAX ON PASSENGER SERVICE FEE AND CARGO HANDLING CHARGES WITHOUT APPRECIATING THE FACT THAT INTEREST U/S 2 01(1A) WAS MANDATORY AS THE ASSESSEE DID NOT DEDUCT TDS U/S 194I ON PASSENGER SERVICE FEE AND U/S 194J ON CARGO HANDLING CHARGES. 2. THE LD CIT (A) HAS ERRED IN FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY ALLOWING RELIEF OF INTEREST U/S 201(1A) O F RS. 1,32,07,423/ - WHICH IS LEVIED FOR DELAY OF DEDUCTION OF TDS ON PASSENGER SERVICE FEES (PSF) & CARGO HANDLING CHARGES U/S 194I & 194J, WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAD FAILED TO DEDUCT THE TAX & THE SUBSEQUENT PAYMENT OF TAX BY THE RESPECTIVE PAYEES DOES NOT ABSOLVE THE ASSESSEE FROM THE DEFAULT COMMITTED U/S 201(1A) FOR DELAY OF PAYMENT OF TAX LIABILITY. 3. THE LD CIT (A) HAS ERRED IN FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW IN DELETING THE DEMAND OF INTEREST OF RS. 1,32,07,42 3/ - WITHOUT PROPERLY APPRECIATING THE FACTUAL AND LEGAL MATRIX OF THE CASE AS CLEARLY BROUGHT OUT BY THE LEARNED AO IN ORDER U/S 201(1A) OF THE ACT. 7 4. THE LD CIT (A) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW ERRED IN NOT APPRECIATING THE FACT THAT ASSESSEE COMPANY IS CHANGING @ 2.5% FOR COLLECTING PSF AND NOT MERELY ACTING AS A COLLECTING AGENCY WITHOUT ANY OBLIGATION, IN OTHER WORDS, WITHOUT DERIVING ANY MONETARY BENEFITS. 11. ALL THE ABOVE GROUNDS RAISED BY THE REVENUE IN THIS APPEAL ARE REGARDING THE INTEREST CHARGES U/S 201(1A) OF THE ACT. WHILE ADJUDICATING THE ISSUE OF DEMAND RAISED BY THE AO U/S 201(1) OF THE ACT, WITH REGARD TO THE DEDUCTION OF TDS U/S 194C, WE HELD THAT THE THERE IS NO LIABILITY TO DEDUCT THE TAX AT SOURCE U/S 194J OF THE ACT AND THEREFORE, THE DECISION TAKEN BY THE CIT (A) BY DELETING THE DEMAND RAISED BY THE AO IS FAIR AND REASONABLE. ALTHOUGH, THERE IS A COMBINED GROUND RAISED COVERING BOTH THE ISSUES OF CHC AND PSF, CONSIDERING THE FACT EVENTUALLY THERE IS NO DEM AND RAISED U/S 201(1) IN RESPECT OF PSF, THE GROUNDS REQUIRES AMENDMENT TO THAT EXTENT. THEREFORE, THAT PART OF THE GROUND IS DISMISSED AS IRRELEVANT. CONSIDERING THE SAME , SINCE THE DEMAND RAISED BY THE AO U/S 201(1) IS DELETED WITH REFERENCE TO CHC , THE ADJUDICATION OF THE ISSUE OF INTEREST CHARGES U/S 201(1A) BECOMES ACADEMIC . ACCORDINGLY, GROUNDS RAISED BY THE REVENUE IN THE I NSTANT APPEAL ARE DISMISSED AS ACADEMIC . 12. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ITA NO.5114/M/2012 (AY 2010 - 2011) 13. THIS APPEAL FILED BY THE REVENUE ON 10.8.2012 IS AGAINST THE ORDER OF THE CIT (A) - 14, MUMBAI 10.5.2012 FOR THE ASSESSMENT YEAR 2010 - 11. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: I) THE LD CIT (A) HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW IN BY NOT TREATING PASSENGER SERVICE FEES (PSF) AS RENT AS DEFINED UNDER SECTION 194I OF THE ACT AS THE SAME IS PAID FOR THE USE OF AIRPORT PREMISES, VARIOUS EQUIPMENT INSTALLED AND VARIOUS OTHER FACILITI ES PROVIDED TO THE PASSENGERS. II) THE LD CIT (A) HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY DELETING SHORT DEDUCTION OF RS. 30,77,571/ - , WITHOUT APPRECIATING THE FACT THAT THE PASSENGER SERVICE FEE IS NOTHING BUT RENT CHARGED FROM THE PASSENGERS TO USE THE AIRPORT PREMISES , VARIOUS EQUIPMENT INSTALLED AND VARIOUS OTHER FACILITIES PROVIDED TO THE PASSENGERS AND PAID TO THE AIRPORT OPERATOR. III) THE LD CIT (A) HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY DELETING SH ORT DEDUCTION OF RS. 7,18,380/ - WITHOUT APPRECIATING THE FACT THAT CARGO HANDLING CHARGES ARE FEES FOR PROFESSIONAL OR TECHNICAL SERVICES IN NATURE AND COVERED U/S 194J OF THE AND NOT OF THE NATURE OF CONTRACT COVERED UNDER SECTION 194C OF THE ACT. 8 IV) THE LD CIT (A) HAS ERRED ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY NOT APPRECIATING THE FACT THAT CARGO HANDLING REQUIRES TECHNICALLY COMPETENT AND SKILLED PERSONS TO HANDLE HIGHLY COMPLICATED AND MECHANIZED MACHINERY. V) THE LD CIT (A) ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW BY DELETING INTEREST LEVIED UNDER SECTION 201(1A) OF THE ACT AMOUNTING TO RS. 1,98,24,565/ - BY HOLDING THAT PASSENGER SERVICE FEE IS NOT SUBJECT TO DEDUCTION OF TAX AT SOURCE UNDER THE ACT. VI) TH E LD CIT (A) HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY DELETING THE INTEREST AMOUNTING TO RS. 2,44,250/ - LEVIED U/S 201(1A) OF THE ACT BY HOLDING THAT CARGO HANDLING CHARGES DO NOT FALL WITHIN THE PURVIEW OF SECTION 194J BUT FALL WITHI N THE PURVIEW OF SECTION 194C OF THE ACT. 14. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE ABOVE GROUND NOS.(I) & (II) AND MENTIONED THAT BOTH THESE GROUNDS RELATE TO THE TREATMENT OF PASSENGER SERVICE FEE (PSF) PAID BY THE ASSESSEE ON BEHALF OF ITS CUSTOMERS AND WHETHER IT ATTRACTS THE PROVISIONS OF SECTION 194I OF THE ACT OR NOT. IN THE REGARD, LD COUNSEL BROUGHT OUR ATTENTION TO THE ORDER OF THE ITAT, MUMBAI IN THE CASE OF ACIT VS. JET AIRWAYS (INDIA) LTD [20 13] 158 TTJ 289 AND MENTIONED THAT AN IDENTICAL ISSUE WAS CAME UP BEFORE THE TRIBUNAL , WHEREIN THE ISSUE WAS ADJUDICATED IN FAVOUR OF THE ASSESSEE BY HOLDING THAT ASSESSEE - AIRLINES COLLECTS PASSENGER SERVICE FEES FROM THE PASSENGERS FOR AND ON BEHALF OF TH E AIRPORT AUTHORITY / OPERATOR AND, THEREFORE, PSF PAID BY THE ASSESSEE TO THE AIRPORT AUTHORITY OF INDIA ON BEHALF OF ITS CUSTOMERS DOES NOT ATTRACT THE PROVISIONS OF SECTION 194I. LD COUNSEL ALSO MENTIONED THAT CONSIDERING THE ORDER OF THE TRIBUNAL (SUPR A) THE ISSUE IS CO VERED IN FAVOUR OF THE ASSESSEE, THEREFORE, THE ORDER OF THE CIT (A) NEED NOT BE DISTURBED. 15. ON THE OTHER HAND, LD DR RELIED ON THE ORDER OF THE AO. 16. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED ORDER OF THE TRIBUNAL IN THE CASE OF JET AIRWAYS (INDIA) LTD (SUPRA), DATED 23.10.2013. ON PERUSAL OF THE SAID ORDER OF THE TRIBUNAL, WE FIND THE PARAS 12 TO 14 ARE RELEVANT IN THIS REGARD AND THE SAME ARE REPRODUCED HERE UNDER: 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE RELEVANT MATERIAL EVIDENCE BROUGHT ON RECORD. LET US FIRST SEE THE CAUSE OF PSF, CAUSE LIES IN RULE 88 OF THE INDIAN AIRCRAFT RULES, 1937, WHICH PROV IDES AS UNDER : 'THE LICENSEE IS ENTITLED TO COLLECT FEES TO BE CALLED AS PASSENGERS SERVICES FEES(PSF) FROM THE EMBARKING PASSENGERS AT SUCH RATE AS THE CENTRAL GOVERNMENT 9 MAY SPECIFY AND IS ALSO LIABLE TO PAY FOR SECURITY COMPONENT TO ANY SECURITY AGENC Y DESIGNATED BY THE CENTRAL GOVERNMENT FOR PROVIDING THE SECURITY SERVICES' A PERUSAL OF THE AFOREMENTIONED RULE CLEARLY SHOWS THAT IT IS A STATUTORY LIABILITY FOR EVERY LICENSEE TO COLLECT PSF. SINCE IT IS A STATUTORY LIABILITY AND THE MEANING GIVEN BY TH E STATUTE HAS TO BE CONSIDERED AND IN THIS CASE THE INDIAN AIRCRAFT RULES, 1937 HAS USED THE TERM 'FEES', THEREFORE, SAME MEANING HAS TO BE GIVEN WHILE CONSIDERING THE PSF. IT IS NOT IN DISPUTE THAT THE ASSESSEE IS ONLY ACTING AS A CONDUIT BETWEEN THE EMBA RKING PASSENGERS AND THE CENTRAL GOVERNMENT AGENCY. THIS VIEW IS ALSO FORTIFIED BY THE FACT THAT OUT OF RS.200/ - , RS.130/ - IS THE SECURITY COMPONENT, WHICH IS DEPOSITED IN A SEPARATE ESCROW ACCOUNT, WHICH IS OPERATED AND CAN BE UTILIZED BY AIRPORT CONCERNE D ONLY TO MEET THE SECURITY RELATED EXPENSES OF THAT AIRPORT. 13. FURTHER IT IS PERTINENT TO NOTE THAT THE CBDT IN ITS OFFICE MEMORANDUM DATED 30 - 06 - 2008 HAS CLEARLY STATED THE FACT THAT THE LICENSEE OF THE AIRPORT I.E. THE AIRPORT OPERATOR, IS REQUIRED TO COLLECT THE PSF IS INITIALLY COLLECTED BY THE CONCERNING AIRLINES FROM THE PASSENGERS AND THEN HANDED OVER TO THE RESPECTIVE AIRPORT OPERATOR/AUTHORITY. THUS, IT IS ABSOLUTELY CLEAR THAT THE ASSESSEE ONLY COLLECTS THE PSF FROM THE PASSENGERS FOR AND ON BE HALF OF THE AIRPORT AUTHORITY/OPERATOR AND PASSES THE SAME TO THE AIRPORT AUTHORITY/OPERATOR. THIS VIEW WOULD ALSO BE MADE VERY CLEAR BY THE ANSWER TO QUESTION NO.24 GIVEN BY THE CBDT IT IS CIRCULAR NO.715, DATED 8TH AUGUST, 1995, WHICH RELATES TO CLARIFIC ATION OF VARIOUS PROVISIONS RELATING TO TAX DEDUCTION AT SOURCE. QUESTION NO.24 READS AS UNDER : 'QUESTION 24 : WHETHER IN A CASE OF COMPOSITE ARRANGEMENT FOR USER OF PREMISES AND PROVISION OF MANPOWER FOR WHICH CONSIDERATION IS PAID AS A SPECIFIED PERCEN TAGE OF TURNOVER, SECTION 194 - I OF THE ACT WOULD BE ATTRACTED ? ANSWER : IF THE COMPOSITE ARRANGEMENT IS IN ESSENCE THE AGREEMENT FOR TAKING PREMISES ON RENT, THE TAX WILL BE DEDUCTED UNDER SECTION 194 - I FROM PAYMENTS THEREOF.' THE FACTS UNDER CONSIDERATIO N SHOW THAT THE PSF IS A STATUTORY LIABILITY WITHOUT DEMARCATING/EARMARKING THE AREA TAKEN ON RENT , NOR IT IS A CASE OF SYSTEMATIC USE OF LAND SPECIFIED FOR CONSIDERATION UNDER AN ARRANGEMENT, WHICH CARRIES THE CHARACTERISTICS OF LEASE OR TENANCY. A MERE USE OF THE LAND AND PAYMENT CHARGED, WHICH IS NOT FOR THE USE OF THE LAND BUT FOR MAINTENANCE OF THE VARIOUS SERVICES INCLUDING TECHNICAL SERVICES WOULD NOT TECHNICALLY BRING THE TRANSACTION AND THE CHARGES WITHIN THE MEANING OF EITHER LEASE OR SUB - LEASE O R TENANCY OR ANY OTHER AGREEMENT OR ARRANGEMENT OR ANY NATURE OF LEASE OR TENANCY AND RENT. FOR THESE OBSERVATIONS, WE DRAW SUPPORT FROM THE DECISION OF THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT V. SINGAPORE AIRLINES LTD. [2012] 209 TAXMAN 581/24 TAXMANN.COM 200. 14. IT WOULD NOT BE OUT OF PLACE TO CONSIDER THE CBDT CIRCULAR NO.1/2008, DATED 10TH JANUARY, 2008 RELATING TO THE CLARIFICATION REGARDING THE APPLICABILITY OF PROVISIONS OF SECTION 194 - I OF THE ACT TO PAYMENTS MADE BY THE CUSTOMERS ON ACC OUNT OF COOLING CHARGES TO THE COLD STORAGE OWNERS, WHEREIN THE CBDT HAD THE OCCASION TO CONSIDER THE REPRESENTATIONS IN RESPECT OF THE ISSUE, WHETHER THE CUSTOMER HIRES THE BUILDING, PLANT AND MACHINERIES ETC., WITHOUT PACKAGES FOR RESERVATION FOR A REQUI RED PERIOD ARE KEPT IN COLD STORAGE AFTER PAYING COOLING CHARGES. THE CBDT, THUS, CLARIFIED THAT THE CUSTOMER IS ALSO NOT GIVEN ANY RIGHT TO USE ANY DEMARCATED SPACE/PLACE OR THE MACHINERY OF THE COLD STORAGE AND THUS DOES NOT BECOME A TENANT. THEREFORE, T HE PROVISIONS OF 194 - I IS NOT APPLICABLE TO THE COOLING CHARGES PAID BY THE CUSTOMERS OF THE COLD STORAGE. APPLYING THE SAME ANALOGY, THE PSF CHARGES PAID BY THE ASSESSEE ON BEHALF OF ITS CUSTOMERS, DO NOT ATTRACT THE PROVISIONS OF SECTION 194 - I OF THE ACT . 17. FURTHER, WE HAVE ALSO PERUSED THE ORDER OF THE CIT (A) IN GENERAL AND PARA 4.3 IN PARTICULAR. ON PERUSAL OF THE SAID PARA 4.3, WE FIND THE SAME IS RELEVANT HERE AND THE SAME READS AS UNDER: 10 4.3. SINCE, THE FACTS IN THE CURRENT YEAR ARE SAME, I ACC ORDINGLY HOLD THA THE PAYMENTS IN REGARD TO THE PASSENGER SERVICE FEE (PSF) ARE NOT IN THE NATURE OF RENT AND ALSO THAT THE APPELLANT WAS NOT LIABLE TO DEDUCT TDS ON THE PSF PAYMENTS TO AIRPORT OPERATORS WHICH ARE COLLECTED BY THE APPELLANT FROM THE PASSEN GERS ON BEHALF OF AIRPORT OPERATORS. ACCORDINGLY, THE DEMAND OF TAX UNDER SECTION 201(1) AND INTEREST U/S 201(1A) OF THE ACT AGGREGATING TO RS. 2,29,02,139/ - IN RESPECT OF PSF PAYMENTS IS HEREBY DIRECTED TO BE DELETED. 18. FROM THE ABOVE IT IS CLEAR THAT THE ISSUE UNDER CONSIDERATION IS SQUARELY COVERED BY THE ORDER OF THE TRIBUNAL IN THE CASE OF JET AIRWAYS (INDIA) LTD (SUPRA). THEREFORE, CONSIDERING THE SAME AND RESPECTFULLY FOLLOWING THE SAID ORDER OF THE TRIBUNAL (SUPRA) , WE ARE OF THE OPINION THAT THE DECISION TAKEN BY THE CIT (A) IS FAIR AND REASONABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, GROUNDS NO.(I) & (II) RAISED BY THE REVENUE ARE DISMISSED. 19. GROUND NO.(III) & (IV) RELATE TO THE CARGO HANDLI NG CHARGES . THIS ISSUE IS ALREADY DISCUSSED AND DECIDED BY US IN THE ABOVE PARAGRAPHS OF THIS ORDER WHILE ADJUDICATING THE APPEAL ITA NO.4635/M/2012 (AY 2009 - 2010). SINCE, THE FACTS ARE IDENTICAL, THEREFORE, THE A DJUDICATION GIVEN BY US GIVEN IN THE SAID APPEAL FOR THE AY 2009 - 10 APPLIES TO THE INSTANT GROUND NOS.(III) & (IV) TOO. ACCORDINGLY, GROUNDS NO. (III) & (IV) RAISED BY THE REVENUE ARE DISMISSED. 20. GROUND NO. (V) & (VI) RELATE TO THE INTEREST CHARGES U/S 201(1A) ON ACCOUNT OF PASSENGER SERVICE FEE (GROUND NO. V) AND CARGO HANDLING CHARGES (GROUND NO.VI). SINCE , THE GROUNDS RAISED BY THE REVENUE U/S 201(1) ARE DISMISSED, THE ADJUDICATION OF THE GROUNDS PERTAINING TO INTEREST CHARGES U/S 201(1A) BECOMES ACADEMIC. CONSIDERING THE CONSEQUENTIAL AN D ACADEMIC NATURE OF THE INSTANT GROUNDS, THE SAME ARE DISMISSED AS ACADEMIC. 21. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ITA NO.5115/M/2012 (AY 2011 - 2012) 22. THIS APPEAL FILED BY THE REVENUE ON 10.8.2012 IS AGAINST THE ORDER OF THE CIT (A) - 14, MUMBAI 10.5.2012 FOR THE ASSESSMENT YEAR 2011 - 12. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: I) THE LD CIT (A) HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW IN BY NOT TREATING PASSENGER SERVICE FEES (PSF) AS RENT AS DEFINED UNDER SECTION 194I OF THE ACT AS THE SAME IS PAID FOR THE USE OF AIRPORT PREMISES, VARIOUS EQUIPMENT INSTALLED AND VARIOUS OTHER FACILITIES PROVIDED TO THE PASSENGERS. 11 II) THE LD CIT (A) HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY DELETING SHORT DEDUCTION OF RS. 76,24,127/ - WITHOUT APPRECIATING THE FACT THAT THE PASSENGER SERVICE FEE IS NOTHING BUT RENT CHARGED FROM THE PASSENGERS TO USE THE AIRPORT PREMISES , VARIOUS EQUIPMENT INSTALLED AND VARIOUS OTHER FACILITIE S PROVIDED TO THE PASSENGERS AND PAID TO THE AIRPORT OPERATOR. III) THE LD CIT (A) HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY DELETING SHORT DEDUCTION OF RS. 7 9,86,488 / - WITHOUT APPRECIATING THE FACT THAT CARGO HANDLING CHARGES ARE F EES FOR PROFESSIONAL OR TECHNICAL SERVICES IN NATURE AND COVERED U/S 194J OF THE ACT AND NOT OF THE NATURE OF CONTRACT COVERED UNDER SECTION 194C OF THE ACT. IV) THE LD CIT (A) HAS ERRED ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY NOT APPRE CIATING THE FACT THAT CARGO HANDLING REQUIRES TECHNICALLY COMPETENT AND SKILLED PERSONS TO HANDLE HIGHLY COMPLICATED AND MECHANIZED MACHINERY. V) THE LD CIT (A) ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW BY DELETING INTEREST LEVIED UNDER SEC TION 201(1A) OF THE ACT AMOUNTING TO RS. 1, 76,99,772 / - BY HOLDING THAT PASSENGER SERVICE FEE IS NOT SUBJECT TO DEDUCTION OF TAX AT SOURCE UNDER THE ACT. VI) THE LD CIT (A) HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY DELETING THE INTERE ST AMOUNTING TO RS. 2, 26,900 / - LEVIED U/S 201(1A) OF THE ACT BY HOLDING THAT CARGO HANDLING CHARGES DO NOT FALL WITHIN THE PURVIEW OF SECTION 194J BUT FALL WITHIN THE PURVIEW OF SECTION 194C OF THE ACT. 23. ALL THE ABOVE GROUNDS ARE EXACTLY IDENTICAL TO THAT OF THE GROUNDS RAISED BY THE REVENUE FOR THE AY 2010 - 2011 VIDE ITA NO.5114/M/2012 AND THE ONLY DIFFERENCE IS IN FIGURES. THE SAID APPEAL WAS ADJUDICATED BY US IN THE ABOVE PARAGRAPHS OF THIS ORDER. SINC E, THE FACTS ARE IDENTICAL, THE ADJUDICATION GIVEN BY US IN THE SAID APPEAL FOR THE AY 2010 - 11 SQUARELY APPLIES TO THE INSTANT APPEAL TOO. THEREFORE, THE GROUNDS RAISED BY THE REVENUE IN THE PRESENT APPEAL ARE DISMISSED. 24. IN THE RESULT, APPEAL OF THE R EVENUE IS DISMISSED. ORDER PRONO UNCED IN THE OPEN COURT ON 09 TH JULY, 2014. SD/ - SD/ - (SANJAY GARG ) (D. KARUNAKARA RAO ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; 09 /07/2014 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 12 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI