The ITO,TDS, Bharuch V. Gujarat Energy Transmission Corpon.Ltd., Bharuch

ITA 70/AHD/2010

• Counselvise Citation: 7020514 RSA 2010
• Duration Of Justice: 2 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 06-11-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 08-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO.70 / AHD/2010 (ASSESSMENT YEAR 2009-10) ITO, TDS, BHARUCH VS. GUJARAT ENERGY TRANSMISSION CORPN LTD., MAKTAMPUR, BHARUCH PAN/GIR NO. : AABCG4029R (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI D K SINGH, SR. DR RESPONDENT BY: NONE (WRITTEN SUBMISSION) DATE OF HEARING: 06.11.2012 DATE OF PRONOUNCEMENT: 07.12.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDE R OF LD. CIT(A) VI, BARODA DATED 29.10.2009 FOR THE ASSESSMENT YEAR 2009-10. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THE LD. CIT(A) ERRED IN LAW AS WELL AS FACTS OF THE CASE IN DELETING THE ORDER PASSED U/S.201 (1) OF RS.2,65,27 0/- & INTEREST CHARGED U/S. 201 (1A) OF RS.29,170/- OF THE I T ACT RESPECTIVELY FOR A.Y. 2009-10 BY THE A.O. 2. THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING TH E FACT THAT AFTER 13.7.2006 THE PROVISION OF 1941 IS APPLICABLE ON HI RING CHARGES OF VEHICLE WHICH COVER USES OF PLANT AND MACHINERY AND NOT THE PROVISION OF 194C OF IT ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESS ING OFFICER. 4. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND, WHICH MAY BE NECESSARY. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE A PPOINTED DATE OF HEARING BUT WRITTEN SUBMISSIONS FILED BY THE LD. A. R. OF THE ASSESSEE M/S. I.T.A.NO. 70 /AHD/2010 2 VIJAY N TEWAR & CO. CHARTERED ACCOUNTANTS IS AVAILA BLE ON RECORD AND HENCE, WE PROCEED TO DECIDE THIS APPEAL OF THE REVE NUE AFTER CONSIDERING THE WRITTEN SUBMISSIONS OF THE ASSESSEE AND AFTER H EARING THE LD. D.R. 3. LD. D.R. SUPPORTED THE ORDER OF THE A.O. U/S 201 (1), 201(1A) OF THE INCOME TAX ACT, 1961. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. THIS ISSUE IN DISPUTE WAS DECIDED BY LD. CIT(A) AS PER PARA 4. 3 OF HIS ORDER WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE : 4.3 I HAVE CONSIDERED THE SUBMISSIONS OF THE ID. AR AND FACTS OF THE CASE. THE VEHICLES WERE HIRED BY THE A PPELLANT AS PER THE SERVICE CONTRACT. THE CONTRACTOR PROVIDES VEHIC LES WITH DRIVER. THE VEHICLES WERE PUT AT THE DISPOSAL OF THE APPELL ANT AND CHARGES WERE COLLECTED AS PER THE USAGE OF THE VEHICLES. TH E VEHICLES WERE NEVER PUT AT THE DISPOSAL OF THE APPELLANT, BUT ONL Y SERVICES, DRIVEN BY THE DRIVERS PROVIDED BY THE CONTRACTOR. THE MAIN TENANCE, FUEL EXPENSES, KEEPING THE VEHICLES IN PERFECT RUNNING C ONDITIONS ETC. WERE THE LOOK OUT OF THE CONTRACTOR, BUT NOT THAT O F THE APPELLANT. IN THE ACT, CARS OR VEHICLES WERE INCLUDED UNDER THE H EAD PLANT AND MACHINERY AND AS \SUCH THE AO MUST HAVE BEEN UNDER THE IMPRESSION THAT CARS OR VEHICLES ARE PLANT AND MACH INERY FOR THE PURPOSE OF DEDUCTING THE TAX AT SOURCE. AS COMMONLY UNDERSTOOD, PLANT OR MACHINERY HAS TO PRODUCE THINGS OR ARTICLE S AS OUTPUTS FROM INPUTS OF RAW MATERIALS, WHERE AS SUCH A THING IS NOT FOUND IN HIRING OF CARS OR VEHICLES IN THE CASE OF THE APPEL LANT. THE CARS OR VEHICLES TRANSPORT EMPLOYEES OF THE APPELLANT FROM PLACE TO PLACE, SAY, FROM RESIDENCE TO WORKPLACE AND BACK AS PER TH E TIME SCHEDULE OF THE CONTRACTEE. SINCE, THE CARS OR VEHICLES ARE PLACED AT THE DISPOSAL OF THE APPELLANT, IN ADDITION TO THE TRANS PORT OF EMPLOYEES FROM RESIDENCE TO WORKPLACE; IT MAY BE USED FOR ANY OTHER BUSINESS PURPOSE AS DEEMED NECESSARY BY THE APPELLANT. IN VI EW OF THIS FACTUAL MATRIX, THERE IS NO HESITATION IN TREATING THE ABOVE CONTRACT AS ONE FOR RENDERING SERVICES, RATHER THAN HIRE FOR VEHICLES. AS ALREADY POINTED OUT, CAR OR VEHICLE COULD BY NO STR ETCH OF IMAGINATION BE CONSIDERED AS A PLANT OR MACHINERY A S THE FACTS INVOLVED IN THIS CASE SUGGESTS. THUS, I AM OF THE O PINION THAT THE AO WAS NOT JUSTIFIED IN APPLYING THE PROVISIONS OF SECTION 1941, I.T.A.NO. 70 /AHD/2010 3 INSTEAD OF THE PROVISIONS OF SECTION 194C, AS APPLI ED BY THE APPELLANT. 5. IN THE PRESENT CASE, THE DISPUTE IS THIS THAT AS TO WHETHER IN RESPECT OF PAYMENT MADE BY THE ASSESSEE FOR VEHICLES HIRE C HARGE, WHETHER TDS IS TO BE DEDUCTED U/S 194C OF THE INCOME TAX ACT, 1 961 AS HAS BEEN DONE BY THE ASSESSEE OR IT IS TO BE DEDUCTED U/S 194I AS THE CASE MADE OUT BY THE A.O. WE FIND THAT A CLEAR FINDING IS GIVEN BY LD. CIT(A) THAT THE VEHICLES WERE PUT AT THE DISPOSAL OF THE ASSESSEE A ND CHARGES WERE COLLECTED AS PER THE USAGE OF THE VEHICLES. HE HAS ALSO GIVEN A FINDING THAT THE ASSESSEE IS GETTING ONLY SERVICES AND THE VEHICLES ARE DRIVEN BY THE DRIVERS PROVIDED BY THE CONTRACTOR. HE HAS ALS O GIVEN A FINDING THAT THE MAINTENANCE, FUEL EXPENSES, KEEPING OF THE VEHI CLES IN PERFECT RUNNING CONDITION ETC. WERE THE JOB OF THE CONTACTOR AND NO T OF THE ASSESSEE. CONSIDERING THESE FACTS, WE ARE OF THE CONSIDERED O PINION THAT THE ORDER OF LD. CIT(A) IS JUST AND PROPER AND NO INTERFERENCE I S CALLED FOR IN HIS ORDER AND HENCE, WE DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A). 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. 7. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD I.T.A.NO. 70 /AHD/2010 4 1. DATE OF DICTATION 03.12.12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 04.12.12.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 07/12/12 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.7/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 07/1 2/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .