ITO (TDS), UDAIPUR V. M/s. Chetak Enterprises Ltd., NIMBAHERA

ITA 528/JODH/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7855 (ITAT-JODHPUR)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-09-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 18-11-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: G K GARGIEYA; DINESH SHRIMALI
• Keywords: Rule of consistency
• Section: 194C; 201(1); 10

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO S . 503, 528 & 529 /JODH/2013 (A.Y S . 200 9 - 1 0 , 2007 - 08 & 2008 - 09 ) ACIT, CIRCLE - 1 , UDAIPUR. VS. M/S. CHETAK ENTERPRISES LTD., 396/11, HIRAN MAGARI, UDAIPUR. (APPELLANT) PAN NO. AACCC 1498 H (RESPONDENT) ASSESSEE BY : SHRI G.K. GARGIEYA & SHRI DINESH SHRIMALI. DEPARTMENT BY : SHRI MAHESH KUMAR - D.R. DATE OF HEARING : 0 8 / 0 9 /201 4 . DATE OF PRONOUNCEMENT : 22 /0 9 /201 4 . O R D E R PER N.K. SAINI, A.M THESE THREE APPEALS BY THE DEPARTMENT ARE DIRECTED AGAINST THE OR D ER DATED 02/ 0 8/2013 FOR THE A.Y. 2009 - 10 AND COMMON ORDER OF THE EVEN DATE FOR THE A.YS. 2007 - 08 & 2008 - 09 OF THE LD. CIT(A) , UDAIPUR . SINCE, THE ISSUES INVOLVED IN THESE APPEALS ARE COMMON AND THE APPEALS WERE HEARD TOGETHER, SO THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE: - 2 2 FIRST WE WILL DEAL WITH THE I.T.A.NO. 503/JODH/2013 . THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: ON THE FACTS AND IN THE PRESENT CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN: - 1. (A) DELETING THE DISALLOWANCE OF RS. 29,07,300/ - MADE U/S. 40(A)(IA) OF THE I.T. ACT, ON ACCOUNT OF NON - DEDUCTION OF TDS ON CONSULTANCY CHARGES IGNORING THE FACT THAT PAYMENT IS PURELY FOR CONSULTANCY & NOT REIMBURSEMENT OF THE EXPENSES. 1 . (B) IGNORING THE FACT THAT ALTERNATIVELY EVEN FROM ASSESSEES CONTENTION IT IS THE PAYMENT AGAINST CONTRACT/AGREEMENT & THUS STILL LIABLE FOR TDS. 2 . DELETING THE DISALLOWANCE OF RS. 25,36,788/ - MADE U/S. 40(A)(IA) OF THE I.T. ACT, ON ACCOUNT OF NON - DEDUCTION OF TDS ON HIRE CHARGES IGNORING THE FACT THAT ASSESSEE HI MSELF HAS DEBITED THIS EXPENDITURE UNDER THE HEAD HIRE CHARGES & ACTUALLY ALSO THESE ARE HIRE CHARGES, THUS ATTRACTING THE PROVISIONS OF SECTION 194 I OF THE I.T. ACT. 3. DELETING THE DISALLOWANCE OF RS. 29,40,805/ - MADE U/S. 40(A)(IA) OF THE I.T. ACT, ON ACCOUNT OF NON - DEDUCTION OF TDS ON PAYMENTS FOR SIGN BOARDS. THAT THE APPELLANT CRAVES TO ADD, AMEND, ALTER, DELETE OR MODIFY ANY OR ALL THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. AS REGARDS TO THE GROUND NO. 1 RELATING TO THE DELETION OF DISALLOWANCE MADE BY THE ASSESSING OFFICER U/S. 40(A)(IA) OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) ON ACCOUNT OF NON - DEDUCTION OF TDS ON CONSULTANCY CHARGES. 4. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS ISSUE HAS ALREADY BEEN ADJUDICATED BY THIS BENCH OF THE TRIBUNAL FOR THE A.Y. 2008 - 09 IN I.T.A.NO. 205/J O DH/2013 VIDE ORDER DATED 22/11/2013 WHEREIN BY 3 FOLLOWING THE EARLIER ORDER DATED 22/03/2013 FOR THE A.Y. 2006 - 07 & 2007 - 08 IN I.T.A .NO. 206 & 207/JODH/2012 , T HE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE . 5. LEARNED D.R. IN HIS RIVAL SUBMISSIONS ALTHOUGH SUPPORTED THE ORDER OF THE ASSESSING OFFICER, BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE. 6 . AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL ON RECORD, IT IS NOTICED THAT AN IDENTICAL ISSUE HAVING SIMILAR FACTS HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE DEPARTMENT IN I.T.A.NO. 205/JODH/2013 FOR THE A.Y. 2008 - 09 WHEREIN VIDE ORDER DATED 22/11/2013 IT HAS BEEN HELD AS UNDER: - 4. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL ON RECORD, IT IS NOTICED THAT AN IDENTICAL ISSUE WAS SUBJECT MATTER OF THE DEPARTMENTAL APPEAL FOR THE A.Y. 2007 - 08, WHEREIN THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE AND TH E RELEVANT FINDING HAS BEEN GIVEN IN PARA 8.2 , WHICH READS AS UNDER: - 8.2 BEFORE US BOTH PARTIES HAVE REITERATED THEIR EARLIER STAND TAKEN BY THEM ON THIS ISSUE. AFTER GOING THROUGH THE ENTIRE RECORD AND THE RELEVANT DOCUMENTS, WE HAVE NOTICED THAT THE AMOUNT OF RS. 1,31,125/ - WAS PAID TO M/S. PYRAMID CONSULTANTS SERVICES, FOR FINANCIAL SYNDICATION IN THE F.Y. 2004 - 05 AND TDS WAS DEDUCTED THEREON. IN THIS REGARD PROOF IS ENCLOSED AT PAGE 64 OF PAPER BOOK. THE ASSESSEE HAS ONLY REIMBURSED THE AMOUNT OF RS. 12,15,000/ - AS PER THE AGREEMENT AND PAGE 60 OF THE WRITTEN SUBMISSION IS RELEVANT IN THIS REGARD. AS PER THE AGREEMENT ENTERED INTO BY THIS ASSESSEE WITH THE CONCERNED 4 AUTHORITY IT IS A COMPULSORY PAYMENT TO BE MADE AS A REIMBURSEMENT. ON THIS AMOUNT, OBVIOUSLY SECTION 194J IS NOT APPLICABLE. WE DONT FIND ANY INFIRMITY IN THIS FINDING OF LD. CIT(A) AS WELL. IN A.Y. 2007 - 08, WE HAVE TO TAKE THE SIMILAR VIEW BECAUSE FACTS ARE THE SAME AND CONNECTED. THEREFORE, WE DISMISS GROUND NO. 3 OF THE REVENUES APPEAL IN BOTH THE YEARS UNDER CONSIDERATION. SO, RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDER DATED 22/03/2013, WE DO NOT SEE ANY MERIT IN THIS GROUND OF THE DEPARTMENTAL APPEAL. 7 . SINCE THE FACTS FOR THE YEAR UNDER CONSIDERATION ARE IDENTICAL TO THE FACTS INVOLVED IN THE A.Y. 2008 - 09 , SO BY RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDER DATED 22/11/2013 , WE DO NOT SEE ANY MERIT IN THIS GROUND OF THE DEPARTMENT AL A PPEAL. 8 . AS REGARDS TO THE GROUND NO. 2 RELATING TO THE DELETION OF DISALLOWANCE OF RS. 25,36,788/ - MADE BY THE ASSESSING OFFICER U/S. 40(A)(IA) OF THE ACT ON ACCOUNT OF NON - DEDUCTION OF TDS ON HIRE CHARGES . 9 . THE CONTENTION OF BOTH THE PARTIES WERE SIMILAR AS WAS IN RESPECT OF GROUND NO. 1 (SUPRA) . 10 . AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL ON RECORD, IT IS NOTICED THAT THIS ISSUE HAS ALREADY BEEN ADJU DIC ATED VIDE ORDER DATED 22/11/2013 FOR THE A.Y. 2008 - 09 AND THE RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA 7 & 8 OF THE SAID ORDER WHICH READ AS UNDER: - 5 7. AFTER CONSIDERING THE SUBMISSIONS OF BOT H THE PARTIES AND MATERIAL ON RECORD, IT IS NOTICED THAT A SIMILAR ISSUE HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THIS BENCH OF THE TRIBUNAL VIDE AFORESAID ORDER DATED 22/03/2013, WHEREIN RELEVANT FINDING HAS BEEN GIVEN IN PARA 18, WHICH READS AS UNDER: - IN ASSESSEES APPEAL GROUND NO. (1) IS IN RELATION TO ADDITIONS OF TWO AMOUNTS, I.E. RS. 1,98,000/ - AND RS. 3,31,564/ - U/S SEC. 40(A)(IA) R.W.S 194C OF THE ACT. THE ASSESSEE MADE ENTIRE PAYMENT BEFORE 31/03/2007 TOWARDS HIRING OF TRUCKS FOR THE SHIFTING OF PLANT FROM ONE PLACE TO ANOTHER PLACE. THE ABOVE FACTS ARE NOT IN DISPUTE. IN SUCH CIRCUMSTANCES PROVISIONS OF SECTION 194C ARE NOT APPLICABLE IN VIEW OF THE SPECIAL BENCHS DECISION IN THE CASE OF MERILYN SHIPPING & TRANSPORTS VS. ACIT REPORTED IN 136 ITD 23 (VISAKHAPATNAM) WHEREIN IT HAS BEEN HELD THAT PROVISIONS OF SECTION 40(A)(IA) OF THE ACT ARE APPLICABLE ONLY TO AMOUNTS OF EXPENDITURE WHICH ARE PAYABLE AS ON 31 ST MARCH OF EVERY YEAR AND IT CANNOT BE INVOKED TO DISALLOW EXPENSES WHI CH HAVE BEEN ACTUALLY PAID DURING THE PREVIOUS YEAR WITHOUT DEDUCTION OF TDS. ACCORDINGLY, GROUND NO.(1) OF ASSESSEES APPEAL IS ALLOWED. 8. IN THE PRESENT CASE ALSO, LEARNED CIT(A) MADE THE ADDITION BY FOLLOWING THE DECISION OF THE ITAT, SPECIAL BENCH IN THE CASE OF MERILYN SHIPPING & TRANSPORT VS. ACIT REPORTED IN 136 ITD 23. THEREFORE, THE VIEW TAKEN BY THE LEARNED CIT(A) IS IN CONSONANCE WITH THE VIEW TAKEN BY THIS BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN THE PRECEDING YEAR VIDE ORDER DATED 2 2/03/2013 IN I.T.A.NO. 215/JODH/2012. SO, BY RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDER, WE DO NOT SEE ANY MERIT IN THIS APPEAL OF THE DEPARTMENT. IT IS RELEVANT TO POINT OUT THAT THE VIEW WAS TAKEN IN THE AFORESAID CASE ON THE BASIS OF THE VIEW TAKEN BY THE SPECIAL BENCH IN THE CASE OF MERILYN SHIPPING & TRANSPORT VS. ACIT (SUPRA) , THE SAID VIEW HAS BEEN AFFIRMED BY THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. 6 VECTOR SHIPPING SERVICES (P) LTD. VIDE JUDGMEN T DATED 09/07/2013 IN I.T.A.NO. 122/ JODH/ 13 . AGAINST THE SAID JUDGMENT, SLP FILED BY THE REVENUE DEPARTMENT HAS BEEN DISMISSED BY THE HON'BLE SUPREME COURT IN C.C.NO. 8068/14 VIDE O R DER DATED 02/07/2014 , COPY OF WHICH WAS FURNISHED BY THE LEARNED COUNSEL FOR THE ASSESSEE AND IS PLACED ON RECORD. 11 . WE, THEREFORE, BY FOLLOWING THE AFORESAID REFERRED TO ORDER DATED 22/11/2013 OF THIS BENCH OF THE TRIBUNAL IN I.T.A.NO. 205/ JODH/2013 FOR THE A.Y. 2008 - 09 (SUPRA) , DO NOT SEE ANY MERIT IN THIS GROUND OF THE DEPARTMENTAL APPEAL. 12. THE NEXT ISSUE VIDE GROUND NO. 3 RELATES TO THE DELETION OF DISALLOWANCE OF RS. 29,40,805/ - MADE BY THE ASSESSING OFFICER U/S. 40(A)(IA) OF THE ACT ON ACCOUNT OF NON - DEDUCTION OF TDS PAYMENT FOR SIGN BOARDS. 13 FACTS RELATING TO THIS ISSUE, IN BRIEF, ARE THAT THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS , NOTICED THAT THE ASSESSEE HAD DEBITED A SUM OF RS. 31,10,739/ - UNDER THE HEAD PAYMENT ON ACCOUNT OF PURCHASE OF SIGN BOARDS AND THE PAYMENTS HAD BEEN MADE WITHOUT DEDUCTION OF TAX AT SOURCE . THE ASSESSING OFFICER REQUIRED THE 7 ASSESSEE TO SHOW - CAUSE AS TO WHY THE PAYMENT OF RS. 29,40, 805/ - MADE WITHOUT DEDUCTION OF TAX AT SOURCE , ON ACCOUNT OF SIG N BOARDS SHOULD NOT BE DISALL OWED U/S. 40(A)(IA) OF THE ACT. IN RESPONSE , THE ASSESSEE SUBMITTED THE DETAILS OF PURCHASE OF THE SIGN BOARDS AND STATED THAT THE MATERIAL PURCHASED AMOUNTING TO RS. 28,04,634.20 AND VAT/CST THEREON AMOUNTING TO RS. 1,18,405/ - TOTAL AGGREGATING TO RS. 29,23,039/ - COMPRISES OF INFORMATIVE SIGN BOARD, CAUTION BOARDS ETC. WHICH ARE UNIVERSALLY ACCEPTED AND PRESCRIBED SIGNS AND SYMBOLS BY THE ROAD CONGRESS AND ACCORDINGLY SUPPLIER OF THE SAME KEPT PRE - MANUFACTURED AND FABRICATED ST OCK OF THE SAME AND WHENEVER PURCHASE ORDER WAS RECEIVED FROM THE CUSTOMER , SAME WERE DELIVERED TO THE PARTY AFTER CHARGING NECESSARY VAT/CST THEREON, HENCE, IT WAS NOT A WORK CONTRACT, BUT PURCHASE OF MATERIAL FROM VARIOUS PARTIES ON WHICH PROVISIONS OF SECTION 194C WERE NOT APPLICABLE. IT WAS FURTHER STATED THAT ON THE BALANCE AMOUNT OF RS. 1,87,700/ - , (RS. 31,10,739/ - ( - ) RS. 29,23,039/ - ) TDS WAS DEDUCTED ON RS. 1,49,400/ - AMOUNTING TO RS. 3,217/ - , BUT NO TDS WAS DEDUCTED ON THE COST OF MATERIAL PURCHASED AMOUNTING TO RS. 38,300/ - . THEREFORE, THE PROVISIONS OF SECTION 194C WERE NOT APPLICABLE . HOWEVER, THE ASSESSING OFFICER DID NOT FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE AND HELD THAT THE PAYMENTS MADE BY THE ASSESS EE AMOUNTING TO RS. 8 29,40,805/ - WERE IN THE NATURE OF CONTRACT AND THEREFORE, TDS ON SUCH PAYMENTS WERE LIABLE TO BE DEDUCTED AS PER THE PROVISIONS OF SECTION 194C OF THE ACT , WHICH T HE ASSESSEE FAILED TO DEDUCT . HE, THEREFORE, DISALLOWED THE SAID AMOUNT U/S. 40(A)(IA) OF THE ACT AND ADDED IT TO THE INCOME OF THE ASSESSEE. 14 BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED AS UNDER: - 'THAT THE ID. A.O. DEAL WITH THE ASPECT OF EXPENSES INCURRED ON ACCOUNT OF SIGN BOARD CHARGES AT PAGE NO. 23, 24, 25, 26, 27 AND ALSO REFER WRITTEN SUBMISSION MADE BY THE ASSESSEE AT PAGE NO. 24 IN REGARD PURCHASE OF SIGN BOARD AND FILED COMPLETE DETAIL THEREOF, DATE WISE AND BILL - WISE WHICH APPEAR AT A.O. ORDER AT PAGE NO. 25, 26, 27. THAT THE ID. A.O AT PAGE NO. 28 POINT NO. 6.5 HELD THAT PAYMENT TO THE EXTENT OF RS. 29,40,805/ - WERE MADE TO SEVEN PARTIES, PAYMENT SO MADE IS ABOVE RS. 20,000/ - THEREFORE, LIABLE TO BE ADDED TO THE TOTAL INCOME BY INVOKING PROVISION OF SECTION 40(A)(IA). THAT SO FAR POINT IN ISSUE WHETHER EXPENSES INCURRED FOR PURCHASE OF SIGN BOARD IS COVERED UNDER THE DEFINITION OF WORKS CONTRACT AS PER SECTION 194 - C OF THE I.T ACT, THE POSITION STAND EXPLAINED IN THE PRECEDING PARAGRAPH WHICH CLEARLY SPEAK THAT IT IS PURCHASE OF GOODS. SIR, TO STRENGTHEN THE POINT IN ISSUE, WE WOULD LIKE TO BRING ON RECORD THE COMPLETE DETAIL OF SIGN BOARD EXPENSES INCURRED AT DIFFERENT PLACES AS UNDER: A) AT NEEMUCH SITE RS. 1215417/ - B) AT MANDSAUR SITE RS. 397 599/ - C) PMGSY CONSTRUCTION SITE RS. 1857022/ - WE ARE SUBMITTING HEREWITH COPY OF LEDGER ACCOUNT OF RESPECTIVE PARTIES FROM WHOM GOODS WERE PURCHASED, PHOTOCOPY OF BILLS ISSUED BY THE SAID PARTIES WHICH CLEARLY SPEAK THAT PARTY CHARGED VAT (ALTERNATE FOR SA LES TAX). FOR EXAMPLE M/S ADARSH ENTERPRISES, LOHAR COLONY, AYAD, UDAIPUR, FROM 9 WHOM MAXIMUM PURCHASE OF SIGN BOARD WERE MADE IS A REGISTERED DEALER HAVING TIN NUMBER, THEY ISSUED BILL AND CHARGED VAT. ANOTHER VAT INVOICE IS OF HAYAT TRADERS, ARAVALI STEEL FABRICATION, MULTANI IRON SUPPLIERS ETC. RESPECTED SIR, ATTENTION IS BEING INVITED THAT SUCH TYPE OF ADDITION WERE MADE IN A.Y. 2006 - 07, A.Y. 2007 - 08 AND IN A.Y. 2008 - 09 AND THE ADDITION SO MADE FOR ALL THESE THREE ASSESSMENT YEARS HAS BEEN DELETED BY CI T(APPEALS) AND MORE PARTICULARLY IN APPEAL ORDER OF CIT(A) FOR A.Y. 2006 - 07, A.Y. 2007 - 08, DISCUSSED MATTER LENGTHY AND ON BEING SATISFIED THAT EXPENSES INCURRED ON PURCHASE OF SIGN BOARD IS NOT COVERED UNDER THE DEFINITION OF 'WORKS CONTRACT AS PER PROVISION OF SECTION 194 - C OF THE I.T ACT AND THIS REPRESENT PURCHASE OF GOODS AS PER SPECIFICATION GIVEN BY ASSESSEE. GOODS WERE PURCHASED FROM THE PARTIES HAVING THEIR IDENTIFICATION, SALES TAX/TIN NUMBER AND ARE REGISTERED DEALER. THEY ISSUED BILL WHICH FURTHER SPEAK THAT IN FACT THEY HAVE CHARGED SALES TAX AS APPLICABLE, PAYMENT HAS BEEN MADE THROUGH ACCOUNT PAYEE CHEQUE ETC. SO IN VIEW OF THE FINDING GIVEN BY THE CIT(A) IN ALL THESE YEARS APPEAL ORDER PARTICULARLY IN A.Y. 2007 - 08 AND HONBLE ITAT ALSO ALLOWED THE SAME FOR A.Y. 2006 - 07 WHERE THE TOTAL EXPENDITURE INCURRED IS OF RS. 13082370/ - WHICH ALSO INCLUDE CAPITALIZATION OF EXPENDITURE AMOUNTING TO RS. 12866535/ - . THE HONBLE ITAT SENT BACK THE FILE TO A.O. FOR CERTAIN DIRECTION. HE HAS PRINCIPALLY AGREED THAT IF IT IS CASE OF PURCHASE, NO TDS ARE REQUIRED TO BE DEDUCTED. THEREFORE IT IS PRAYED THAT ENTIRE ADDITION SO MADE AT GROUND NO. 1, GROUND NO. 2 AND GROUND 3 WHICH ARE SUBJECT MATTER OF APPEAL, ASSESSEE IS ENTITLED FOR THE COMPLETE RELIEF. PRA YER RESPECTED SIR, HAVING REGARD TO THE MATERIAL ON RECORD I.E. WRITTEN SUBMISSION AND DETAILS FAILED ON ALL THE AFORESAID GROUNDS OF APPEAL COUPLED WITH THE DECISION OF THE CIT(A) UDAIPUR FOR THE A.Y. 2006 - 07, A.Y. 2007 - 08, A.Y. 2008 - 09 AND RECENT DECISIO N OF HON'BLE ITAT FOR THE A.Y. 2006 - 07, A.Y. 2007 - 08, THE ENTIRE ADDITION WHICH IS SUBJECT MATTER OF AFORESAID THREE GROUNDS AND ADDITION MADE DESERVES TO BE DELETED EVEN ON THE PRINCIPLE OF CONSISTENCY IN VIEW OF THE DECISION OF HONBLE SUPREME COURT CASE OF RADHA SWAMI SAT SANG.' 15 THE LEARNED CIT(A), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, DELETED THE DISALLOWANCE BY OBSERVING IN PARA 4.3 OF THE IMPUGNED ORDER WHICH READS AS UNDER: - 10 4.3 I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT AS WELL AS THE FINDINGS GIVEN IN THE ASSESSMENT ON THIS ISSUE. IT IS AN UNDISPUTED FACT THAT THE COPIES OF BILLS FURNISHED BY THE APPELLANT FOR THE PURCHASE OF SIGN BOARDS BEAR THE COLLECTION OF VAT/CST ETC. IT IS ALSO NOT A CASE OF THE A.O. SUCH PAYMENTS HAV E BEEN MADE TO SINGLE PARTY AND THE SAID PARTY HAS GOT THE WORK COMPLETED THROUGH OTHER PARTIES BY SUBLETTING THE SAID WORK. THERE IS NOTHING ON RECORD TO SHOW THAT THE APPELLANT HAS GOT THE WORK OF SIGN BOARD COMPLETED ON CONTRACT BASIS. MERE PURCHASING T HE COMPLETED SIGN BOARDS FROM SOME PARTICULAR PARTIES DOES NOT CONSTITUTE SUCH PURCHASES AS A CONTRACT. THUS, IN MY VIEW, THE A.O. IS NOT JUSTIFIED IN TREATING THE PAYMENTS MADE AND CLAIMED UNDER THE HEAD EXPENDITURE ON ACCOUNT OF SIGN BOARDS AS COVERED U/ S.194C AND CONSIDERING SUCH PAYMENTS FOR DISALLOWANCE U/S.40(A)(IA) FOR NOT COMPLYING WITH THE PROVISIONS OF SECTION 194 C OF THE ACT. FURTHER, SIMILAR ISSUE HAS BEEN CONSIDERED IN DETAIL IN APPEAL FOR THE ASSESSMENT YEARS 2006 - 07, 2007 - 08 AND 2008 - 0 9 BY ID . CIT (A) AND THE DISALLOWANCE MADE U/S.40(A)(IA) OF THE ACT IN THESE YEARS HAS BEEN DELETED VIDE APPELLATE ORDER DATED 12.3.2012, 14.3.2012 AND 22.1.2013 IN APPEAL NO.26/IT/UDR/2008 - 09, 159/IT/UDR/2009 - 10 AND 121/I/UDR/2010 - 11 RESPECTIVELY, AS THE FACTS O F THE CASE FOR THE ASSESSMENT YEAR UNDER APPEAL LEADING TO THE DISALLOWANCE ARE EXACTLY THE SAME AND THE A.O. HAS NOT BROUGHT ANY NEW MATERIAL/EVIDENCE ON RECORD WHICH NEEDS SPECIFIC FINDINGS, I DO NOT SEE ANY REASON FOR DEVIATING FROM THE FINDINGS GIVEN I N THE APPELLATE ORDERS OF EARLIER YEARS MENTIONED SUPRA AND IT IS THEREFORE HELD THAT THE PAYMENTS MADE TOWARDS SIGN BOARDS IS NOT LIABLE FOR DEDUCTION OF TAX AND THEREFORE PROVISIONS OF SECTION 40(A)(IA) IS HELD TO BE NOT APPLICABLE ON SUCH PAYMENTS. THER EFORE, THE DISALLOWANCE OF RS.29,40,805/ - MADE BY THE A.O. U/S.40(A)(IA) DESERVES TO BE DELETED AND I ORDER ACCORDINGLY. THIS GROUND OF APPEAL IS ALLOWED. NOW THE DEPARTMENT IS IN APPEAL. 16 LEARNED D.R. STRONGLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND REITERATED THE OBSERVATIONS MADE IN THE ASSESSMENT ORDER DATED 28/12/2011 . 11 17 IN HIS RIVAL SUBMISSIONS, LEARNED COUNSEL FOR THE ASSESSEE STRONGLY SUPPORTED THE ORDER OF THE L D. CIT(A) AND FURTHER SUBMITTED THAT THE SIMILAR DISALLOWANCE MADE BY THE ASSESSING OFFICER FOR THE A.Y. 2008 - 09 AMOUNTING TO RS. 59,54,199/ - WAS DELETED BY THE LD. CIT(A) IN APPEAL NO. 121/IT/UDR/2010 - 11 ORDER DATED 22/10/2012 AND THE DEPARTMENT HAS NOT FI LE D ANY APPEAL AGAINST THE SAID O R DER. IT WAS FURTHER STATED THAT SIMILAR ADDITION WAS DELETED BY THE ITAT IN ASSESSEES OWN CASE FOR THE A.Y. 2006 - 07 . THEREFORE, ON ACCOUNT OF PRINCIPLES OF CONSISTENCY , THE DEPARTMENT OUGHT NOT TO HAVE FILED APPEAL ON THIS ISSUE. 18 WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IT IS RELEVANT TO POINT OUT THAT IN THE ORAL AS WELL AS IN WRITTEN SUBMISSIONS , THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT DEPARTMENT HAS NOT FILED APPEAL AGAINST THE ORDER OF THE LD. CIT(A) FOR THE A.Y. 2008 - 09 ON THIS IS S U E , IS WRONG BECAUSE APPEAL IN I.T.A.NO. 529/JODH/2013 HAS BEEN FILED FOR THE SAID ASSESSMENT YEAR AND T HE ITAT ALSO VIDE ORDER DATED 22/03/2013 FOR THE A.Y. 2006 - 07 HAS NOT DELETED THIS ADDITION RATHER THE ISSUE HAS BEEN REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER. IN THE PRESENT CASE, IT IS NOTICED THAT A SIMILAR I SSUE HAVING IDENTICAL FACTS IN ASSESSEES OWN CASE WAS SUBJECT MATTER OF APPEAL BEFORE THE ITAT, 12 JODHPUR BENCH FOR THE A.Y. 200 6 - 0 7 WHEREIN VIDE PARA 9 . 2 OF THE ORDER DATED 22/0 3 /2013 IN APPEAL NO. 206 / JODH/ 201 2 , THE ISSUE HAS BEEN SET ASIDE TO THE ASSESSING OFFICER BY MAKING THE FOLLOWING OBSERVATION: - 09.2 BEFORE US SIMILAR ARGUMENTS HAVE BEEN REITERATED BY BOTH THE PARTIES. AFTER CONSIDERING THE RIVAL STANDS, IT IS NOTICED THAT THE MAIN DISPUTE INVOLVED IN THIS ISSUE IS AS TO WHETHER THIS PAYME NT IS TOWARDS A WORKS - CONTRACT OR NOT. AS PER THE A.O., THIS PAYMENT IS TOWARDS WORKS CONTRACT ON WHICH TDS WAS TO BE DEDUCTED. THE A.O. HAS ALSO MENTIONED THAT THESE PAYMENTS ARE NOT SAVED UNDER THE UMBRELLA OF CIRCULAR NO. 681 DATED 8.3.1994. HE HAS A LSO MENTIONED THAT THIS PAYMENT IS NOT TOWARDS PURCHASE OF GOODS BECAUSE THE BOARDS ARE MADE AS PER THE SPECIFICATION SUPPLIED BY THE ASSESSEE AND THE ENTIRE WORK HAS BEEN DONE BY THE PAYEE ACCORDINGLY. THE LD. CIT(A) HAS OBSERVED THAT THERE IS NO EVIDE NCE ON RECORD TO SHOW THAT THESE PAYMENTS ARE NOT FOR CONTRACT FOR SALE AND ARE FOR CONTRACT FOR WORK. IN OUR CONSIDERED OPINION, THE FINDING OF THE LD. CIT(A) IS CURSORY AND HE HAS MAINLY RELIED ON THE NARRATION ON THE BILLS BUT HE HAS NOT GONE INTO T HE REAL ASPECT OF THE CONTROVERSY. ON THE OTHER HAND, THE A.O. HAS EXAMINED THIS ISSUE IN DEPTH AND HAS FOUND THAT THIS IS NOTHING BUT A WORKS - CONTRACT BETWEEN THE ASSESSEE AND THE PAYEE. BUT STILL WE ARE OF THE OPINION THAT THIS ISSUE HAS NOT BEEN CORRE CTLY INVESTIGATED INTO AND EXAMINED BY THE A.O. THIS TRIBUNAL BEING THE FINAL FACT - FINDING BODY, IT BECOMES IMPERATIVE TO GET FULL AND FINAL FACTS OF THIS ISSUE. FOR THAT PURPOSE, WE NEED TO RESTORE THIS ISSUE TO THE FILE OF THE A.O. FOR FRESH ADJUDICATIO N AS PER LAW AND KEEPING IN VIEW THE RELEVANT CIRCULAR AND THE PRECEDENTS WHICH ARE AVAILABLE. THEREFORE, WE RESTORE THIS ISSUE BACK TO THE FILE OF THE A.O. WITH THE DIRECTION THAT HE SHALL DECIDE THIS ISSUE AFRESH AFTER ACCORDING PROPER OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. GROUND NO. 4 OF THE REVENUES APPEAL IS THEREFORE, AL LOWED FOR STATISTICAL PURPOSES. 19 SINCE THE FACTS FOR THE YEAR UNDER CONSIDERATION RELATING TO THIS ISSUE ARE SIMILAR TO THE FACTS INVOLVED FOR THE A.Y. 2006 - 07, SO 13 RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDER DATED 22/03/2013 IN I.T.A.NO. 206/JODH/2012 , THIS IS S U E IS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER TO BE DECIDED AS DIRECTED FOR THE A.Y. 2006 - 07. 20 IN I.T.A.NO. 528/JODH/2013, THE GROUNDS RAISED BY THE DEPARTMENT ARE AS FOLLOW S: - 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSESSEE IS NOT LIABLE TO DEDUCT TDS ON PAYMENT OF PLANT SHIFTING CHARGES OF RS. 1,98,000/ - AND RS. 3,31,564/ - WITHOUT GOING INTO THE NATURE OF EXPENSES. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSESSEE IS NOT LIABLE TO DEDUCT TDS ON PAYMENT OF HIRE CHARGES OF RS. 62,43,096/ - WITHOUT GOING INTO THE NATURE OF EXPENSES. 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSESSEE IS NOT LIABLE TO DEDUCT TDS ON PAYMENT OF EXPENSES ON SIGN BOARD OF RS. 15,43,097/ - WITHOUT GOING INTO THE NATURE OF EXPENSES. 4. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CANCELLING THE ORDE R U/S. 201(1) OF THE I.T. ACT. 21 IN I.T.A.NO. 529/JODH/2013 ALSO SIMILAR GROUNDS HAVE BEEN RAISED AS WERE IN 528/JODH/2013 AND READ AS UNDER: - 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSESSEE IS NOT LIABLE TO DEDUCT TDS ON PAYMENT OF SQC FEES FOR CONSULTANCY OF RS. 26,74,200/ - WITHOUT GOING INTO THE NATURE OF EXPENSES. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HO LDING THAT THE ASSESSEE IS NOT LIABLE TO DEDUCT TDS ON PAYMENT OF HIRE CHARGES OF RS. 38 , 19 , 669 / - WITHOUT GOING INTO THE NATURE OF EXPENSES. 14 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSESSEE IS NOT LIABLE TO DEDUCT T DS ON PAYMENT OF EXPENSES ON SIGN BOARD OF RS. 5 9 , 5 4, 1 9 9 / - WITHOUT GOING INTO THE NATURE OF EXPENSES. 4. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CANCELLING THE ORDER U/S. 201(1) OF THE I.T. ACT. 22. THE ISSUES INVOLVED IN GROUND NOS. 1 TO 3 IN BOTH THE ABOVE APPEALS ARE IDENTICAL TO THE ISSUES INVOLVED IN I.T.A.NO. 503/JODH/2013 FOR THE A.Y. 2009 - 10 . THEREFORE, THE FINDINGS GIVEN IN FORMER PART OF THIS ORDER SHALL APPLY MUTATIS - MUTANDIS FOR THESE APPEALS ALSO. IN THAT VIEW OF THE MATTER , WE DO NOT SEE ANY MERIT IN GROUND NOS. 1 & 2 OF BOTH THE APPEALS AND ISSUE INVOLVED IN GROUND NO. 3 IS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW. 2 3 ANOTHER GROUND AGITATED BY THE DEPARTMENT IN BOTH THESE APPEALS RELAT ES TO THE CANCELLATION OF ORDER U/S. 201(1) OF THE ACT. 2 4 FACTS RELATING TO THIS ISSUE, IN BRIEF, ARE THAT WHILE COMPLETING THE ASSESSMENT FOR THE A.Y. 2007 - 08 & 2008 - 09 , IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE COMPANY PAID THE FOLLOWING PAYMENTS ON ACCOUNT OF EXPENDITURE WITHOUT DEDUCTION OF TDS AS REQUIRED BY THE RELEVANT PROVISIONS OF THE ACT: - 15 A.Y. 2007 - 08 I. PAYMENT OF PLANT S HIFTING C HARGE RS. 01,98,000/ - II. PAYMENT OF PLANT SHIFTING CHARGE RS. 03,31,564/ - III HIRE CHARGE RS. 62,43,09 6 / - IV EXPENSES ON SIGN BOARD RS. 15,43,097/ - A.Y. 2008 - 09 I. SQC FEES FOR CONSULTANCY CHARGES RS. 26 ,74,200/ - II HIRE CHARGES RS. 38,19,669/ - III. PAYMENT OF SIGN BOARD CHARGES RS. 59,54,199 SUBSEQUENT TO THE COMPLETI ON OF THE ASSESSMENTS OF THE ABOVE SAID ASSESSMENT YEAR S, THE ASSESSING OFFICER REFERRED THE ISSUE OF NON - DEDUCTION OF TAX AT SOURCE FROM THE ABOVE PAYMENTS TO THE ITO (TDS), UDAIPUR F O R TAKING ACTION UNDER THE TDS PROVISIONS. THEREAFTER , THE ITO (TDS) UDAIPUR ISSUED NOTICE TO THE ASSESSEE TO SHOW - CAUSE AS TO WHY IT SHOULD NOT BE HELD AS THE ASSESSEE IN DEFAULT WITHIN THE MEANING OF SECTION 201(1) OF THE ACT FOR NON - DEDUCTION OF TDS U/S. 194C, 194I & 194J OF THE ACT . IN RESPONSE TO THIS, THE ASSESSEE SUBMITTED THAT THE ASSESSMENT ORDER S FOR BOTH THE YEARS WERE SUBJECT MATTER OF APPEAL BEFORE THE LD. CIT(A) AND THEREFORE, THE ISSUE SHOULD BE KEPT ABEYANCE TILL THE ORDER OF THE APPEAL , BUT THE ASSESSING OFFICER DID NOT EXCEED TO THE REQUEST OF THE ASSESSEE AND TREATED THE ASSESSEE AS AN ASS ESSEE IN DEFAULT WITHIN THE MEANING OF SECTION 201(1) OF THE ACT FOR BOTH THE ASSESSMENT YEARS I.E. A.Y. 2007 - 08 & 2008 - 09 AND CREATED A DEMAND OF RS. 12,91,245/ - BY PASSING THE ORDER U/S. 201(1) OF THE ACT. 16 2 5 BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED AS UNDER: - ' THAT ON PERUSAL OF THE ORDER SO PASSED BY THE CONCERNED TDS OFFICER, IT WOULD BE OBSERVED THAT CERTAIN PAYMENTS WERE MADE DURING THE COURSE OF BUSINESS FOR THE PU RPOSE OF BUSINESS WHICH PRECISELY DETAILED AS BELOW: A.Y. 2007 - 08 I PAYMENT OF PLANT SHIFTING CHARGE RS.01,98,000/ - II PAYMENT OF PLANT SHIFTING CHARGE RS.03,31,564/ - III HIRE CHARGE RS.62,43,09 6 / - I V) EXPENSES ON SIGN BOARD RS.15,43,097/ - A.Y.2008 - 09 I SQC FEES FOR CONSULTANCY CHARGES RS.26,74,200/ - II HIRE CHARGES RS.38,19,669 / - III PAYMENT OF SIGN BOARD CHARGES RS.59,54,199 / - THAT IN COMPLIANCE TO NOTICE ISSUED, APPELLANT FILED A DETAILED REPLY ON 21.3.2011 AND ALONGWITH THE REPLY SUBMITTED WRITTEN SUBMISSION MADE BEFORE THE A.O. ON THE POINT IN ISSUE FOR THE A.Y. 2007 - 08, WHETHER PAYMENT SO MADE IS COVERED U/S.40(A)(IA) OF THE I.T ACT AND LIABLE TO BE DISALLOWED ON ACCOUNT OF FAILURE ON THE PART OF ASSESSEE THAT HEARING OF THE APPEAL ALSO BEEN FIXED AND EARLIER LETTER DATED 11.5.2011 FILED TO THE OFFICE OF THE CIT (APPEALS) WAS OF THE VIEW THAT APPEAL SO FILED REQUIRED TO BE ADJOURNED AS THE QUANTUM APPEAL IN RESPECT OF THE AFORESAID ADDITION BY INVOKING PROVISIO N OF SECTION 40(A)(IA) IS PENDING. SIR, NO HEARING OF THE SAME HAS BEEN FIXED AND ATTENTION IS BEING INVITED TO: A) COPY OF ORDER PASSED BY CIT (APPEALS) IN APPEAL NO. 159/IT/UDR/2009 - 10 DATED 14.3.2012 WHEREIN CIT (APPEALS) DELETED THE ADDITION MADE ON HIRE CHARGES RS.62,43,096 AND EXPENSES ON SIGN BOARD RS.15,43,097 AND ON BEING SECOND APPEAL BY REVENUE, TRIBUNAL ALSO CONFIRMED THE ORDER OF CIT (APPEALS) AND DISMISSED THE APPEAL SO FILED BY THE REVENUE. SO FAR ANOTHER ITEM IN REGARD EXPENSES INCURRED FO R PLANT SHIFTING CHARGES RS.1,98,000 AND RS.3,31,564 WHICH WERE CONFIRMED BY CIT (APPEALS) IN APPEAL ORDER OF A.Y. 2007 - 08 IN APPEAL FILED BY THE ASSESSEE FOR THE A.Y. 2007 - 08 IN ITA NO.215/JODH/2012 VIDE ORDER DATED 22.3.2013, THE HONOURABLE TRIBUNAL DELE TED THE ADDITION OF 17 RS.1,98,000 AND RS.3,31,564 SO MADE BY THE A.O. AND SUBSEQUENTLY CONFIRMED BY CIT (APPEALS). THAT IN VIEW OF THE FACT OF THE CASE, SO FAR A.Y. 2007 - 08 IS CONCERNED IT IS SUBMITTED THAT ADDITION SO MADE AS MENTIONED HEREIN ABOVE OPENING PARAGRAPH NO MORE SURVIVE AFTER THE ORDER OF THE TRIBUNAL. SO QUESTION OF TREATING OF ASSESSEE AS DEFAULTER U/S.201(1) OF THE ACT DOES NOT ARISE AT ALL AND PENALTY IMPOSED FOR THIS ASSESSMENT YEAR DESERVES TO BE DELETED . THAT SO A.Y. 2008 - 09 IS CONCERNED, RECENTLY ORDER WAS PASSED BY HON'BLE CIT (APPEALS), UDAIPUR RANGE, UDAIPUR IN APPEAL NO.121/IT/UDR/2010 - 11 AND CIT (APPEALS) HAS DELETED THE ENTIRE ADDITION WHICH HAS BEEN MADE BY INVOKING PROVISION OF SECTION 40(A)(IA) OF THE I.T ACT. SINCE THE ADDITION WHICH IS SUBJECT MATTER OF 201(1) ORDER HAS BEEN DELETED AND NOT SURVIVE ORDER SO PASSED U/S.201(1) ALSO NOT SURVIVE IN THE EYE OF LAW. SO, IN THE LIGHT OF THIS FACT OF THE CASE, IT IS HUMBLY PRAYED THAT ENTIRE PENALTY IMPOSED U/S.201(1) AGGREGATING TO RS. 12,91,245 TREATING ASSESSEE AS DEFAULTER FOR NON DEDUCTING OF TDS ON CERTAIN PAYMENT NOT SURVIVE IN THE EYE OF LAW. 2 6 THE LEARNED CIT(A), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, OBSERVED THAT THE ITO (TDS), UDAIPUR TREATED THE ASSESSEE AS A N ASSESSEE IN DEFAULT U/S. 201(1) OF THE ACT MAINLY ON THE BASIS OF DISALLOWANCE MADE BY THE ASSESSING OFFICER U/S. 40(A)(IA) OF THE ACT. HE FURTHER OBSERVED THAT THE DISALLOWANCE MADE BY THE ASSESSING OFFICER U/S. 40(A)(IA) OF THE ACT FOR THE A.Y. 2007 - 08 UNDER THE HEAD HIRE CHARGES AMOUNTING TO RS. 62,43,096/ - AND EXPENSES ON SIGN BOARD AMOUNTING TO RS. 15,43,097/ - HAD BEEN DELETED BY THE FIRST APPELLATE AUTHORITY VIDE ORDER IN APPEAL NO. 159/IT/UDR/2009 - 10 DATED 14/03/2012 HOLDING THAT TDS PROVISIONS WERE NOT APPLICABLE ON SUCH PAYMENTS . ANOTHER 18 DISALLOWANCE OF RS. 5,29,564/ - ON ACCOUNT OF EXPENDITURE INCURRED UNDER THE HEAD PLANT SHIFTING THOUGH SUCH DISALLOWANCE HAD BEEN CONFIRMED BY THE FIRST APPELLATE AUTHORITY, BUT THE SAME HAD BEEN DELETED BY THE ITAT VIDE ORDER DATED 22/03/2013 IN I.T.A.NO. 215/JODH/2012 . HE ALSO POINTED OUT THAT THE DISALLOWANCES MADE FOR THE A.Y. 2008 - 09 ON ACCOUNT OF CONSULTANCY CHARGES , HIRE CHARGES , PAYMENT OF SIGN BOARD CHARGES HAD ALSO BEEN DELETED BY THE FIRST APPELLATE AUTHORITY, THEREFORE, THE TDS PROVISIONS WERE NOT APPLICABLE FOR THE ABOVE PAYMENTS AND THERE WAS NO CASE FOR TREATING THE ASSESSEE AS A N ASSESSEE IN DEFAULT U/S. 201(1) OF THE ACT. ACCORDINGLY, THE DEMAND CREATED BY THE ASSESSING OFFICER WAS CANCELLED. NOW THE DEPARTMENT IS IN APPEAL. 2 7 LEARNED D.R. SUPPORTED THE ORDER OF THE ASSESSING OFFICER WHILE THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE DISALLOWANCES MADE BY THE ASSESSING OFFICER WERE DELETED BY THE LD. CIT(A) AS WELL AS ITAT. IT WAS FURTHER STATED THAT THOSE DISALLOWANCES WERE MADE BY THE ASSESSING OFFICER BY HOLDING THAT THE ASSESSEE WAS LIABLE TO DEDUCT THE TDS BUT NOW THERE REMAI NED NO DISALLOWANCE IN EXISTENCE ON ACCOUNT OF NON - DE D UCTION OF TDS AS SUCH THE DEMAND CREATED BY THE ASSESSING OFFICER U/S. 201(1) OF THE ACT WAS RIGHTLY DELETED BY THE LD. CIT(A) . 19 28 WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT ITO (TDS), UDAIPUR CREATED THE DEMAND UNDER 201(1) OF THE ACT ONLY ON THIS BASIS THAT THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDERS FOR THE ASSESSMENT YEARS UNDER CONSIDERATION HELD THAT THE ASSESSEE WAS LIABLE TO DEDUCT TDS ON ACCOUNT OF PLANT SHIFTING CHARGES, CONSULTANCY CHARGES, HIRE CHARGES ETC. H OWEVER, THOSE DISALLOWANCES MADE BY THE ASSESSING OFFICER WERE DELETED UPTO THE LEVEL OF ITAT AND AT PRESENT NO SUCH DISALLOWANCES ARE IN EXISTENCE , T HEREFORE, LD. CIT(A) WAS FULLY JUSTIFIED IN DELETING THE DEMAND CREATED BY THE ITO (TDS), UDAIPUR U/S. 201(1) OF THE ACT . WE DO NOT SEE ANY INFIRMITY IN THE IMPUGNED ORDER ON THIS ISSUE . ACCORDINGLY, WE DO NOT SEE ANY MERIT IN THE APPEALS OF THE DEPARTMENT FOR THE A.YS. 2007 - 08 & 2008 - 09 ON THIS ISSUE. 29 IN THE RESULT, APPEAL S OF THE DEPARTMENT ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRONOUNCED IN THE COURT ON 22 ND SEPTEMBER , 201 4) . S D/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 22 ND SEPTEMBER , 201 4 . 20 VR/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R SR. PRIVATE SECRETARY , ITAT, JODHPUR .