ACC Limited, Bilaspur V. ITO (TDS), Palampur

ITA 634/CHANDI/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8517 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-01-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 26-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JATINDER KUMAR
• Assessee Lawyers: HARISH AGGARWAL
• Keywords: Presumptive income; Non-deduction of tax
• Section: 2(14); 133A; 194C; 201(1); 131; 28; 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT & MS. RANO JAIN, ACCOUNTANT MEMBER ITA NOS. 634 TO 637/CHD/2014 ASSESSMENT YEARS : 2010-11 TO 2013-14 M/S ACC LIMITED, VS. THE ITO (TDS), P.O. BARMANA, PALAMPUR DISTT. BILASPUR PAN NO. PTLT 0925F (APPELLANT) (RESPONDENT) APPELLANT BY : SH. HARISH AGGARWAL RESPONDENT BY : SH. JATINDER KUMAR DATE OF HEARING : 28.01.2016 DATE OF PRONOUNCEMENT : 29.01.2016 ORDER PER H.L.KARWA, VP THESE FOUR APPEALS BY THE ASSESSEE INVOLVING COMMON ISSUES WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS COMMON ORDER BY THE SAKE OF CONVENIENCE. THE COMMON GROUNDS OF APPEALS ARE AS UNDER:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) [HERE-IN-AFTER REFERRED TO AS LD, CIT(APPEALS)] WA S NOT JUSTIFIED AND GROSSLY ERRED IN CONFIRMING THE ORDER OF THE INCOME TAX OFFICER {TDS), PALAMPUR [HERE-IN-AFTER REFERRED TO AS JTO(TDS)], TREATING THE APPELLANT A S AN ASSESSEE IN DEFAULT FUR NON-DEDUCTION OF TAX U/S 19 4C ON 2 PAYMENTS MADE TO THE BILASPUR DISTRICT TRUCK OPERAT ORS CO-OPERATIVE TRANSPORT SOCIETY LTD [HERE-IN-AFTER R EFERRED TO AS 'TRANSPORTER SOCIETY']. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF T HE CASE, THE LD. CIT(APPEALS) WAS NOT JUSTIFIED AND GROSSLY ERRE D IN CONFIRMING THE ACTION OF THE ITO(TDS) IN TREATING T HE APPELLANT AS ASSESSEE IN DEFAULT FOR NON DEDUCTION OF TAX U/S 194C DESPITE THE FACT TAX IS NOT REQUIRED TO BE DED UCTED ON PAYMENTS MADE TO THE 'TRANSPORTER SOCIETY', SINCE T HEY ARE CONTRACTORS ENGAGED IN PLYING, HIRING OR LEASING OF GOODS CARRIAGES SINCE COVERED BY SEC. 194(6) OF THE ACT. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF T HE CASE, THE LD. CIT(APPEALS) WAS NOT JUSTIFIED AND GROSSLY ERRE D IN HOLDING THAT THE 'TRANSPORTER SOCIETY' IS NOT ENGAG ED IN THE BUSINESS OF PLYING, HIRING OR LEASING OF GOODS CARR IAGES AS CONTEMPLATED IN SEC. 194C(6). 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS A PUBLIC LIMITED COMPANY ENGAGED, INTER ALIA, IN THE BUSINES S OF MANUFACTURE AND SALE OF CEMENT AND AS A PART THEREOF IS ALSO ENGAGED IN GEN ERATION OF POWER AND DEVELOPING, OPERATING AND MAINTAINING INFRASTRUCTUR E FACILITIES. IN THESE CASES, TDS SURVEY / INSPECTION U/S 133A OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') WAS CONDUCTED ON 13.9.2013 AT GAGAL UNIT. THE ASSESSING OFFICER ISSUED A NOTICE U/S 131 ON 13.9.2013 AND THE ASSESSEE WAS AS KED TO PRODUCE, AMONG OTHERS, DETAILS AND EVIDENCE OF EXPENSES ALONG WITH TAX DEDUCTED THEREON. SUBSEQUENTLY, SHOW CAUSE NOTICE DATED 4.10.2013 AND 29.10.2013 WERE ISSUED TO THE ASSESSEE VIDE WHICH THE ASSESSEE WAS ASKED TO S HOW CAUSE AS TO WHY IT SHOULD NOT BE TREATED AS AN ASSESSEE IN DEFAULT FOR NON DEDUCTION OF TAX AT SOURCE U/S 194C ON PAYMENTS MADE TO BILASPUR DISTRICT TRU CK OPERATORS CO-OP TRANSPORT SOCIETY LTD. IN RESPONSE TO THE SAME, THE ASSESSEE VIDE LETTERS DATED 19.10.2013 AND 11.11.2013 FILED THEIR DETAILED SUBM ISSIONS. DISREGARDING THE 3 SUBMISSIONS MADE BY THE ASSESSEE, THE ITO (TDS) PAL AMPUR PASSED AN ORDER U/S 201(1) / 201(1A) DATED 14.11.2013 RAISING A DEMAND OF RS. 7,94,760./-, RS. 26,66,800, RS. 90,67,947/- AND RS. 81,67,507/- (INC LUSIVE OF INTEREST U/S 201(1A) FOR THE ASSESSMENT YEARS 2010-11, 2011-12, 2012-13 AND 2013-14 RESPECTIVELY. 3. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). THE MAIN CONTEN TION OF THE ASSESSEE BEFORE THE CIT(A) WAS THAT IN ORDER TO CARRY OUT THE TRANS PORTATION OF THE CEMENT, THE ASSESSEE HAD ENTERED INTO AN AGREEMENT WITH THE BI LASPUR DISTRICT TRUCK OPERATORS CO-OP TRANSPORT SOCIETY. THE REASON FOR C REATION OF THE SOCIETY WAS ONLY TO ENSURE EQUITABLE DISTRIBUTION OF WORK AMONG ST THE INDIVIDUAL TRUCK OPERATORS. THE SAID SOCIETY IS REGISTERED UNDER HIM ACHAL PRADESH COOPERATIVE SOCIETIES ACT, 1968. IT WAS ALSO STATED THAT ONE OF THE MAIN OBJECTS OF TRANSPORT COOPERATIVE SOCIETIES IS TO CARRY OUT ALL TYPE OF T RANSPORT BUSINESS FOR TRANSPORTING OF GOODS THROUGH TRUCK, TRAILERS ETC. THE ASSESSEE ALSO CONTENDED BEFORE THE CIT(A) THAT IN TERMS OF SUB SECTION (6) OF SECTION 194C SUBSTITUTED BY FINANCE (NO.2) ACT, 2009 W.E.F. 1.10.2009, TAX IS N OT REQUIRED TO BE DEDUCTED AT SOURCE AGAINST PAYMENTS MADE TO CONTRACTORS DURING THE COURSE OF BUSINESS OF PLYING, HIRING AND LEASING GOODS CARRIAGE. SINCE, T HE TRANSPORT COOPERATIVE SOCIETY IS ENGAGED IN THE BUSINESS OF TRANSPORTATIO N OF GOODS, THE ASSESSEE W.E.F. 1.10.2009 HAS NOT DEDUCTED THE TAX ON PAYMENTS MADE TO THE SOCIETY. THE NEXT CONTENTION OF THE ASSESSEE WAS THAT OWNERSHIP OF GO ODS CARRIAGES IS NOT A PRE- CONDITION FOR APPLICABILITY OF PROVISIONS OF SUB SE CTION (6) OF SECTION 194C OF THE ACT. IT WAS EXPLAINED THAT REFERENCE TO EXPLANA TION TO SUB SECTION (7) OF SECTION 44AE IN SECTION 194C IS ONLY IN THE CONTEXT OF DEFINITION OF GOODS CARRIAGE. CLAUSE (A) OF EXPLANATION TO SUB-SECTION (7) OF SECTION 44AE DEFINES GOODS CARRIAGE AND CLAUSE (B) DEFINES DEEMED OW NERSHIP IT WAS 4 EMPHATICALLY STATED THAT CLAUSE (A) IS APPLICABLE T O BOTH SECTIONS 194C AND 44AE, HOWEVER,, CLAUSE (B) IS APPLICABLE ONLY TO SE CTION 44AE, SINCE FOR THE BENEFIT OF PRESUMPTIVE TAXATION, THE ASSESSEE SHOUL D NOT OWN MORE THAN TEN GOODS CARRIAGES. ACCORDINGLY, IT WAS SUBMITTED T HAT THE CONTENTION OF THE ITO (TDS) THAT FOR THE PURPOSE OF CLAIMING BENEFIT OF S UB SECTION (6) TO SECTION 194C, THE ASSESSEE IS ALSO REQUIRED TO SATISFY THE OWNERSHIP CRITERIA AS MENTIONED IN CLAUSE (B) TO EXPLANATION TO SUB SECTI ON (7) OF SECTION 44AE IS NOT AS PER LAW AND, HENCE, UNTENABLE. 4. THE LD. CIT(A) DID NOT ACCEPT THE ASSESSEES CO NTENTIONS STATING THAT THE COOPERATIVE SOCIETY WAS ACTING AS AGENCY FOR PROCUR ING TRANSPORT BUSINESS FOR ITS MEMBERS HAVING SEPARATE JURISTIC ENTITY WAS NOT IN THE BUSINESS OF PLYING, HIRING AND LEASING GOODS CARRIAGES. ACCORDING TO HI M, IN FACT THE MEMBERS, WHO WERE SEPARATE ASSESSEE, WERE IN THE BUSINESS OF PLY ING GOODS CARRIAGES. HE THEREFORE, HELD THAT THE ASSESSING OFFICER WAS JUST IFIED TO TREAT THE DEDUCTOR AS ASSESSEE IN DEFAULT AS PER THE PROVISIONS OF SECTIO N 201(1) AND 201(1A) OF THE ACT. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. IT IS RELEV ANT TO OBSERVE HERE THAT WE HAD DECIDED A SIMILAR ISSUE IN THE CASE OF ACIT (TD S), CHANDIGARH VS. M/S ACC LIMITED (CHANDIGARH SALES UNIT), CHANDIGARH IN ITA NOS. 651 & 652/CHD/2015 VIDE ORDER DATED 29.10.2015 FOR THE AS SESSMENT YEARS 2012-13 AND 2013-14 WHEREIN SIMILAR ISSUE WAS INVOLVED. IN THE ABOVE CASE, THE ASSESSING OFFICER PASSED ORDER U/S 201(1) READ WITH SECTION 2 01(1A) OF THE ACT ON 11.3.2014 CREATING A DEMAND OF RS. 3,54,02,834/- FO R THE ASSESSMENT YEAR 2012- 13. THE LD. CIT(A) CHANDIGARH VIDE HIS ORDER DATED 29.04.2015 DELETED THE DEMAND CREATED U/S 201(1) AND 201(1A) OF THE ACT OB SERVING AS UNDER:- 5 5. ON APPEAL, THE CIT(A) DELETED THE DEMAND CREATE D U/S 201(1) AND 201(1A) OF THE ACT, OBSERVING AS UNDER:- 5. I HAVE CONSIDERED FACTS OF THE CASE. AS THE D EMAND CREATED U/S 201(1)/(1 A) IN RESPECT OF PAYMENTS MAD E TO H.P. EX-SERVICEMEN CORPORATION HAS BEEN REDUCED TO 'NIL' , THE DISPUTE REMAINS ONLY IN RESPECT OF PAYMENTS MADE TO BILASPUR DISTRICT TRUCK OPERATORS CO-OPERATIVE TRANSPORT SOC IETY LTD. FOR APPRECIATING THE ISSUE IN PROPER PROSPECTIVE, I T WOULD BE APPROPRIATE TO REPRODUCE RELEVANT PROVISIONS OF THI S ACT. HENCE, FOR THE SAKE OF READY REFERENCE, PROVISIONS OF SECTION 194C(6) AND EXPLANATION-(II) BELOW SECTION 194C(7), PROVISIONS OF SECTION 44AE{1) AND EXPLANATION BELOW SECTION 44AE(7) OF THE ACT ARE REPRODUCED BELOW: '194C. PAYMENTS TO CONTRACTORS. ANY PERSON RESPONSIBLE FOR PAYING ANY SUM TO ANY RE SIDENT /HEREAFTER IN THIS SECTION REFERRED TO AS THE CONTR ACTOR) FOR CARRYING OUT ANY WORK (INCLUDING SUPPLY OF LABOUR F OR CARRYING OUT ANY WORK) IN PURSUANCE OF A CONTRACT B ETWEEN THE CONTRACTOR AND A SPECIFIED PERSON SHALL, AT THE TIME OF CREDIT OF SUCH SUM TO THE ACCOUNT OF THE CONTRACTOR OR AT THE TIME OF PAYMENT THEREOF IN CASH OR BY ISSUE OF A CH EQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEVER IS EARLIER, D EDUCT AN AMOUNT EQUAL TO --------------- (6) NO DEDUCTION SHALL BE MADE FROM ANY SUM CREDITE D OR PAID OR LIKELY TO BE CREDITED OR PAID DURING THE PR EVIOUS YEAR TO THE ACCOUNT OF A CONTRACTOR DURING THE COUR SE OF BUSINESS OF PLYING, HIRING OR LEASING GOODS CARRIAG ES, ON FURNISHING OF HIS PERMANENT ACCOUNT NUMBER, TO THE PERSON PAYING OR CREDITING SUCH SUM. --------------- EXPLANATION - FOR THE PURPOSES OF THIS SECTION, - ---------------- ` (II) 'GOODS CARRIAGE' SHALL HAVE THE MEANING ASSI GNED TO IT IN THE EXPLANATION TO SUB-SECTION (7) OF SECTION 44 AE;' '44AE. SPECIAL PROVISION FOR COMPUTING PROFITS AND GAINS OF BUSINESS OF PLYING, HIRING OR LEASING GOODS CARRIAG ES. 6 (1) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN SECTIONS 28 TO 43C, IN THE CASE OF AN ASSESSEE, W HO OWNS NOT MORE THAN TEN GOODS CARNAGES AT ANY TIME DURING THE PREVIOUS YEAR AND WHO IS ENGAGED IN THE BUSINESS OF PLYING, HIRING OR LEASING SUCH GOODS CARRIAGES, THE INCOME OF SUCH BUSINESS CHARGEABLE TO TAX UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS OR PROFESSION' SHALL BE DEEMED TO BE THE AGGREGATE OF THE PROFITS AND GAINS, FROM ALL THE GOODS CARNAGES OWNE D BY HIM IN THE PREVIOUS YEAR, COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SUB-SECTION (2). --------------- EXPLANATION - FOR THE PURPOSES OF THIS SECTION,- (A) THE EXPRESSION 'GOODS CARRIAGE' SHALL HAVE THE MEANING ASSIGNED TO IT IN SECTION 2 OF THE MOTOR VE HICLES ACT, 1988 (59 OF 1988); (B) AN ASSESSEE, WHO IS IN POSSESSION OF A GOODS CA RRIAGE, WHETHER TAKEN ON HIRE PURCHASE OR ON INSTALLMENTS A ND FOR WHICH THE WHOLE OR PART OF THE AMOUNT PAYABLE IS ST ILL DUE, SHALL BE DEEMED TO BE THE OWNER OF SUCH GOODS CARRI AGE.' 5.1 FROM THE ABOVE PROVISIONS, IT IS EVIDENT TH AT FOR CLAIMING BENEFIT OF PROVISIONS TO SECTION 194C(6), FOLLOWING CONDITIONS HAVE TO BE SATISFIED: THE CONTRACTOR SHOULD BE IN THE BUSINESS OF PL YING, HIRING OR LEASING OF GOODS CARRIAGE. THE TERM 'GOODS CARRIAGE' IS ASSIGNED MEANING AS PER SECTION 2(14) OF THE MOTOR VEHICLES ACT, 1988. SECTION 2(14} OF MOTOR VEHICLES ACT, 1988 DEFINES G OODS CARRIAGE AS - ''GOODS CARRIAGE 1 MEANS ANY MOTOR VEHICLE CONSTRUCTED OR ADAPTED FOR USE SOLELY FOR THE CARRI AGE OF GOODS, OR ANY MOTOR VEHICLE NOT SO CONSTRUCTED OR ADAPTED WHEN USED FOR THE CARRIAGE OF GOODS'. PAN IS FURNISHED BY THE CONTRACTOR TO THE PAYE R I.E. DEDUCTOR. THE DEDUCTOR FURNISHES BEFORE THE INCOME TAX AUTHORITY THE DETAILS PERTAINING TO THE ABOVE CONTR ACTOR IN THE PRESCRIBED FORM. 5.2 IN THE INSTANT CASE, THE APPELLANT HAD OBTA INED PAN FROM THE PAYEE AND FURNISHED THE SAME BEFORE THE PRESCRI BED 7 AUTHORITY. FURTHER, THE GOODS CARRIAGES INVOLVED ALSO SATISFIED THE DEFINITION GIVEN IN THE MOTOR VEHICLES ACT. T HEREFORE, THE ONLY ISSUE TO BE DECIDED IS WHETHER THE PAYEE I.E. BILASPUR DISTRICT TRUCK OPERATORS CO-OPERATIVE TRANSPORT SOC IETY LTD (HEREINAFTER REFERRED TO AS 'SOCIETY 5 ) WAS ENGAGED IN THE BUSINESS OF PLYING, HIRING OR LEASING OF GOODS CARRIAGE. TH E APPELLANT HAS FILED A COPY OF BYE-LAWS OF THIS SOCIETY, A PERUSAL OF WHICH REVEALS THAT THE MAIN OBJECT OF THIS SOCIETY IS TO PROVIDE GOODS AND PASSENGER CARRIAGES ON HIRE AND LEASE TO ANYONE . THIS CLEARLY IMPLIES THAT IT IS ENGAGED IN THE BUSINESS OF PLYING, HIRING AND LEASING OF GOODS CARRIAGE. AS PER CLAUSES OF THE AGREEMENT BETWEEN THE APPELLANT AND THE SOCIETY, IT WAS THE R ESPONSIBILITY OF THE SOCIETY TO HONOUR THE COMMITMENT AND OBLIGAT ION, WHICH AROSE FROM THE SAID AGREEMENT AND TO BEAR ALL RISKS ARISING THEREFROM 5.3 IT IS NOTEWORTHY THAT EXPLANATION--(II) BEL OW SECTION 194C(7) REFERS TO THE DEFINITION OF 'GOODS C ARRIAGE', TO HAVE THE SAME MEANING AS IN EXPLANATION ( A) BELOW SUB- SECTION (7) OF SECTION 44AE AND SO THE REFERENCE IS ONLY IN CONTEXT OF DEFINITION OF GOODS CARRIAGE. EXPLANATIO N-(A) BELOW SECTION 44AE(7) IS APPLICABLE TO SECTION 194C, BUT EXPLANATION- (B) BELOW SECTION 44AE{7) IS APPLICABLE ONLY TO SECTION 44AE. THEREFORE, THE INFERENCE DRAWN BY THE ASSE SSING OFFICER THAT FOR THE PURPOSES OF CLAIMING THE BENEFIT OF SU B-SECTION (6) OF SECTION 194C, THE APPELLANT IS REQUIRED TO SATISFY THE OWNERSHIP CRITERIA MENTIONED IN EXPLANATION-(B) BELOW SECTION 44AE(7) IS NOT CORRECT. 5.4 IN VIEW OF THE ABOVE, IT IS HELD THAT THE A SSESSING OFFICER WAS NOT RIGHT IN TREATING THE PERSON RESPONSIBLE AS 'ASSESSEE IN DEFAULT' FOR NOT DEDUCTING TAX ON THE PAYMENTS MADE TO THE SOCIETY AND THE DEMAND CREATED U/S 201(1)/ (1A) IS ACCORDINGLY DELETED. GROUNDS OF APPEAL TAKEN BY THE APPELLANT ARE ALLOWED. 8 6. THE REVENUE CHALLENGED THE ORDER OF CIT(A) CHAND IGARH IN APPEAL BEFORE THIS BENCH OF THE TRIBUNAL AND THE TRIBUNAL VIDE IT S ORDER DATED 29.10.2105 UPHELD THE ORDER OF THE CIT(A), OBSERVING AS UNDER :- 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE AL SO PERUSED THE MATERIALS AVAILABLE ON RECORD. THE LD. CIT(A) HAS REPRODUCED THE PROVISIONS OF SECTION 194C(6) RE AD WITH EXPLANATION (II) TO SECTION 194C OF THE ACT IN HIS ORDER. ON PERUSAL OF THESE PROVISIONS IT IS CLEAR THAT FOLLOW ING CONDITIONS ARE REQUIRED TO BE SATISFIED FOR CLAIMIN G THE BENEFIT OF SECTION 194C(6) OF THE ACT:- I) THE CONTRACTOR SHOULD BE ENGAGED IN THE BUSINESS OF PLYING, HIRING OR LEASING GOODS CARRIAGE. II) THE CONTRACTOR SHALL FURNISH ITS PAN NO. TO THE DEDUCTOR III) THE DEDUCTOR FURNISHES BEFORE THE I.T. AUTHORITIES THE DETAILS OF AMOUNT PAID TO THE CONTRACTOR IV) GOODS CARRIAGE SHALL HAVE THE SAME MEANING AS ASSIGNED IN SECTION 2(14) OF THE MOTOR VEHICLE ACT, 1988 BEFORE US, THE ASSESSEE HAS SUBMITTED A PHOTOCOPY O F THE BYE- LAWS OF THE BILASPUR DISTRICT TRUCK OPERATORS CO-OP ERATIVE TRANSPORT SOCIETIES LTD. WHEREIN THE MAIN OBJECT OF THE SOCIETY IS TO PROVIDE GOODS AND PASSENGER CARRIAGES ON HIRE OR LEASE. THE TRANSPORT CO-OPERATIVE SOCIETY HAS AL SO FURNISHED ITS PAN NUMBER TO THE ASSESSEE, A COPY OF THE SAME IS AVAILABLE AT PAGE 44 OF THE ASSESSEES PAPER BOO K. IT IS CLAIMED THAT IN TERMS OF RULE 31A(4)(V), THE ASSESS EE HAS ALSO FURNISHED PARTICULARS OF AMOUNT PAID OR CREDITED TO THE TRANSPORT COOPERATIVE SOCIETY ON WHICH TAX HAS NOT BEEN DEDUCTED IN ITS QUARTERLY TDS RETURN. SHRI SOUMEN A DAK, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE GOODS C ARRIAGE INVOLVED ALSO SATISFIES THE DEFINITION OF GOODS CA RRIAGE GIVEN IN SECTION 2(14) OF THE MOTOR VEHICLE ACT, 19 88. THE TERM GOODS CARRIAGE MEANS ANY MOTOR VEHICLE CONST RUED OR ADOPTED FOR USE SOLELY FOR THE CARRIAGE OF GOODS OR ANY MOTOR 9 VEHICLE NOT SO CONSTRUCTED OR ADAPTED WHEN USED FOR THE CARRIAGE OF GOODS. 7. IN OUR VIEW, THE LD. CIT(A) HAS CORRECTLY OBSERV ED THAT THE INFERENCE DRAWN BY THE ASSESSING OFFICER THAT F OR THE PURPOSE OF CLAIMING THE BENEFIT OF SUB SECTION (6) OF SECTION 194C, THE ASSESSEE IS REQUIRED TO SATISFY THE OWNER SHIP CRITERIA MENTIONED IN EXPLANATION (B) BELOW SECTION 44AE(7) IS NOT CORRECT . IN OUR VIEW, REFERENCE OF EXPLANATION TO SECTION 44AE(7) IN SECTION 194C IS ONLY IN THE CONT EXT OF DEFINITION OF GOODS CARRIAGE. CLAUSE (A) OF EXPL ANATION TO SECTION 44AE(7) DEFINES GOODS CARRIAGE AND CLAUSE (B) DEFINES DEEMED OWNERSHIP. THE LD. CIT(A) HAS COR RECTLY HELD THAT CLAUSE (A) IS APPLICABLE TO BOTH SECTIONS I.E. SECTION 194C AND 44 AE, CLAUSE (B) IS APPLICABLE ONLY TO SE CTION 44AE, SINCE FOR THE BENEFIT OF PRESUMPTIVE TAXATION THE ASSESSEE SHOULD NOT OWN MORE THAN TEN GOODS CARRIAG ES. THEREFORE, THE ASSESSEE IS NOT REQUIRED TO SATISFY THE OWNERSHIP CRITERIA AS MENTIONED IN CLAUSE (B) OF EX PLANATION TO SECTION 44AE (7). ON A PERUSAL OF SECTION 194C (6) READ WITH EXPLANATION (II) TO SECTION 194C, IT IS CRYST AL CLEAR THAT THE TRANSPORT CONTRACTOR IS NOT REQUIRED TO BE THE OWNER OF GOODS CARRIAGE FOR APPLICABILITY OF SECTION 194C(6) OF THE ACT. AT THIS STAGE, WE MAY OBSERVE HERE THAT AN AM ENDMENT HAS BEEN MADE VIDE FINANCE ACT, 2015 IN SECTION 194 C (6) WHEREIN IT IS SPECIFICALLY STATED THAT W.E.F. 1.6.2 015, THE BENEFIT OF NON DEDUCTION OF TAX ON PAYMENT MADE TO TRANSPORT CONTRACTORS WOULD BE APPLICABLE ONLY IF THE TRANSPO RT CONTRACTOR OWNS TEN OR LESS GOODS CARRIAGES AT ANY TIME OF THE PREVIOUS YEAR AND A DECLARATION TO THIS EFFECT IS F URNISHED. IN OUR OPINION, THE LEGISLATURE HAS INTENTIONALLY INSE RTED THE OWNERSHIP CONDITION FOR CLAIMING THE BENEFIT OF NON DEDUCTION OF TAX WHICH WAS NOT EXISTING IN THE ERSTWHILE SECT ION 194C(6) OF THE ACT. IN VIEW OF THE ABOVE DISCUSSION, THE AS SESSEE (PERSON RESPONSIBLE) CANNOT BE TREATED AS ASSESSEE IN DEFAULT FOR NOT DEDUCTING TAX ON THE PAYMENTS MADE TO THE BILASPUR DISTRICT TRUCK OPERATORS CO-OPERATIVE SOCI ETY THUS, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) AND 10 ACCORDINGLY WE UPHOLD THE SAME. THE APPEAL OF THE REVENUE IS DISMISSED. 7. THE FACTS OF THE PRESENT CASE ARE SIMILAR TO THA T OF M/S ACC LIMIT (CHANDIGARH SALES UNIT), CHANDIGARH. IT IS OBSERVE D THAT THE CIT(A) CHANDIGARH WHILE DECIDING THE CASE OF M/S ACC CEMEN T LTD (CHANDIGARH SALES UNIT), CHANDIGARH (SUPRA) HAS DELETED THE DEMAND C REATED BY THE ASSESSING OFFICER U/S 201 AND 201(1A) OF THE ACT. HOWEVER, T HE CIT(A), SHIMLA WHILE DECIDING THE ASSESSEES CASE RELATING TO GAGAL CEME NT WORKS HAS UPHELD THE DEMAND CREATED BY ASSESSING OFFICER U/S 201 AND 201 (1A) OF THE ACT. IN FACT, THE DECISIONS OF THE CIT(A), CHANDIGARH AND CIT(A), SHI MLA ON IDENTICAL FACTS AND ISSUE ARE CONTRARY AND THE ASSESSEE IS COMMON IN BO TH THE CASES. IN VIEW OF THE ORDER OF THE TRIBUNAL DATED 29.10.2015, PASSED IN C ASE OF ACIT(TDS), CHANDIGARH VS. M/S ACC LIMITED (CHANDIGARH SALES UN IT), CHANDIGARH (SUPRA), WE ARE OF THE VIEW THAT THE IMPUGNED ORDER PASSED BY CIT(A), SHIMLA IS NOT BASED ON CORRECT APPRECIATION OF THE FACTS OF THE C ASE AND LAW AND, THEREFORE, THE IMPUGNED ORDER DESERVES TO BE SET ASIDE AND CONSEQ UENTLY, WE ALLOW ALL THE APPEALS OF THE ASSESSEE AND DELETE THE DEMAND CREAT ED U/S 201 AND 201(1A) OF THE ACT. 8. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.01.2016 SD/- SD/- (RANO JAIN) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED : 29 TH JANUARY, 2016 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR