M/s Kribhco Shyam Fertilizers Ltd., Shahjahanpur V. Income Tax Officer (TDS), Bareilly

MA 153/LKW/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4089 (ITAT-LUCKNOW)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-02-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 21-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R B SHUKLA
• Section: 194C; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER M.A S . NO . 153 & 154 /LKW/201 5 [ARISING OUT OF ITA NOS.78 & 79/LKW/2013] ASSESSMENT YEAR S : 20 08 - 09 & 2009 - 10 M/S KRIBHCO SHYAM FERTILIZERS LTD. V. & PO PIPROLA, SHAHJAHANPUR, PAN :AACCK 6999 B V. INCOME TAX OFFICER (TDS), BAREILLY. PAN ALGPS 8949 B (APP LIC ANT) (RESPONDENT) APP LIC ANT BY: SHRI R.B. SHUKLA , ADVOCATE RESPONDENT BY: SHRI A MIT NIGAM , DR DATE OF HEARING: 26 0 2 201 6 DATE OF PRONOUNCEMENT: 18 0 3 201 6 O R D E R PER SUNIL KUMAR YADAV: THESE MISCELLANEOUS APPLICATIONS ARE FILED BY THE A SSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 25.06.2013 WITH THE SUBMISSION THAT GROUND NOS. 11, 12 AND 15 REMAINED TO BE ADJUDICATED BY TH E TRIBUNAL. THE TRIBUNAL HAS ADJUDICATED THE ISSUE OF APPLICABILITY PROVISIO NS OF SECTION 194C OF THE ACT. IT HAS NOT GIVEN ANY FINDING WITH REGARD TO A PPLICABILITY OF PROVISIONS OF SECTION 194I OF THE ACT. 2. LD. DR OF THE REVENUE DID NOT DISPUTE THIS FACT. 3. HAVING CAREFULLY EXAMINED THE GROUNDS RAISED BEF ORE THE TRIBUNAL AND THE ORDER OF THE TRIBUNAL, WE FIND THAT THE TRI BUNAL HAS ADJUDICATED THE ISSUE OF NON DEDUCTION OF TDS OF PAYMENT OF TRANSM ISSION CHARGES U/S 194C OF THE ACT AND CHARGEABILITY OF INTEREST U/S 201(1A ) OF THE ACT. GROUND NOS. 11, 12 AND 15 RELATING TO DEDUCTION OF TDS U/S 194I OF THE ACT ESCAPED THE :-2-: ATTENTION OF THE TRIBUNAL AND REMAINED TO BE ADJUDI CATED. WE, THEREFORE, FIX THESE APPEALS FOR HEARING ON 14.04.2016 TO ADJUDICA TE THESE GROUNDS NO. 11, 12 AND15 WHICH ARE AS UNDER:- 11. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) ERRED IN HOLDING THE ENTIRE AMOUNT PAID / CREDITED AS PER FORM 16A ISSUED TO BIHAR STATE WAREHOUSING CORPORATION AS RE NT & THUS HOLDING THAT SUCH ENTIRE AMOUNT IS SUBJECTED TO TDS U/S 194I IGNORING THE FACT THAT AMOUNT PAID/CREDITED TO BIHA R STATE WAREHOUSING CORPORATION INCLUDED RAKE HANDLING CHAR GES & HANDLING & TRANSPORTATION (H&T) CHARGES WHICH COULD BE SUBJECTED TO TDS U/S 194C AND NOT UNDER SECTION 194 1. 12. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) ERRED IN HOLDING THAT THE RENT SO PAID TO BIHAR STA TE WAREHOUSING CORPORATION WAS SUBJECT TO TDS U/S 194I AT THE RATE UNDER THAT SECTION IGNORING THE FACT THAT THERE WAS AN ORDER U /S 197 ISSUED BY THE ACIT (TDS), PATNA FOR DEDUCTION OF TAX AT A LOW ER RATES INSTEAD OF RATES PRESCRIBED U/S 194C & 1941 RESPECTIVELY. 15. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) ERRED IN IGNORING FOLLOWING FACTS MATERIAL FOR THE DECISION: (I) OWNERSHIP OVER THE GAS DOES NOT PASS TO THE ASSESSE E DURING TRANSMISSION PERIOD. IT PASSES TO THE ASSESSEE ONLY AFTER TRANSMISSION AT THE DELIVERY POINT AND TILL THEN, O WNERSHIP AND RISK OVER THE GAS REMAINS WITH GAIL. (II) THE TRANSPORTATION OF GAS BY GAIL WAS STEP FOR WARD TOWARDS EXECUTION OF CONTRACT FOR SALE AND THERE WAS NO CON TRACT FOR CARRIAGE OF GOODS. (III) THERE WAS NO RELATIONSHIP OF CONTRACTOR AND C ONTRACTEE BETWEEN GAIL AND ASSESSEE. (IV) THERE IS NO EXPRESS OR IMPLIED WORK CONTRACT B ETWEEN THE ASSESSEE AND GAIL. (V) VAT IS CHARGED WHEN THE PROPERTY IN GOODS PASSE S TO THE PURCHASER MEANING THEREBY THAT PAYMENT OF TRANSMISS ION CHARGES IS PART OF PURCHASE PRICE OF THE GOODS (I.E . GAS), (VI) THE PAYEE (I.E. GAIL) HAS INCLUDED ALL THE PAY MENT RECEIVED FROM THE ASSESSEE AS SALE PRICE OF THE GAS (INCLUDI NG :-3-: TRANSMISSION CHARGES), IN ITS RETURN OF INCOME AND HAS PAID TAXES THEREON AND THEREFORE NO FURTHER TAX CAN BE R ECOVERED FROM THE ASSESSEE. (VII) CERTIFICATE U/S 197 ISSUED BY THE ACIT(TDS), PATNA FOR DEDUCTION OF TDS AT A LOWER RATES THAN PRESCRIBED U /S 194C & 194I ON THE AMOUNT PAID TO BIHAR STATE WAREHOUSING CORPORATION. 4. ACCORDINGLY, REGISTRY IS DIRECTED TO INFORM THE PARTIES ABOUT THE NEXT DATE OF HEARING. 5. IN THE RESULT, MISCELLANEOUS APPLICATIONS OF THE ASSESSEE ARE ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18 TH MARCH, 2016 AKS COPY FORWARDED TO: 1. APPLICANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR