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Income Tax Appellate Tribunal, NAGPUR BENCH, NAGPUR
Before: SHRI D. KARUNAKARA RAO, AM & SHRI VIKAS AWASTHY, JM
2 to 125/NAG/2015 आदेश / ORDER PER D. KARUNAKARA RAO, AM : There are six appeals by the Revenue under consideration. All these six appeals are filed by the Revenue against a composite order of the CIT(A) for the assessment years 2012-13, 2013-14 and 2014-15 commonly order dated 05.01.2015. Since the facts and issues are common in all these six appeals, therefore, they were heard together and are being disposed of by this composite order.
Since the issues are common in all these six appeals, therefore, the appeal in ITA No.120/NAG/2015 for the assessment year 2012–13 taken as the lead case. ITA No.120/NAG/2015 (A.Y. 2012–13) 3. The grounds raised
by the assessee in this appeal are as under :- “1. Whether on the facts and in the circumstances of the case the ld. CIT(A) was justified in deleting demand of Rs.41,21,303/- raised for A.Y.2012-13 u/s 201(1)/201(1A) of the IT Act?
2. Whether on the facts and in the circumstances of the case the ld. CIT(A) was justified in relying on Circular No.681 dt. 8.3.1994, which has been held as illegal and without jurisdiction by the Hon’ble 3 to 125/NAG/2015 Bombay High Court in the case of Bombay Goods Transport Association vs. CBDT 76 Taxman 334 (BOM)? 3. Whether on the facts and in the circumstances of the case the ld. CIT(A) was justified in ignoring the ratio laid down by the Hon’ble Bombay High Court in the case of Bombay goods transport Association vs CBDT that the word “transportation” means mere carriage of goods and do not include any other services like loading and unloading etc.
4. Whether on the facts and in the circumstances of the case the ld. CIT(A) was justified in admitting the claim of the assessee that PAN of deductee was provided to A.O. who was duty bound to verify the issue of double taxation, even though such claim was not made before the A.O. nor an opportunity in this regard was provided to A.O.? 5. Whether on the facts and in the circumstances of the case the ld. CIT(A) was justified in not appreciating that as per newly inserted proviso to section 201(1) w.e.f. 1.7.2012, mere providing of PAN is not sufficient but the assessee has to claim the benefit of double taxation through a specified procedure which the assessee failed to do? 6. Whether on the facts and in the circumstances of the case the ld. CIT(A) was justified in ignoring the fact that the nature of contract between the assessee and the deductee was a composite contract consisting of not only transport but other services mentioned in the contract as laid down in the contract documents? 7. Any other ground that may be taken at the time of hearing.”
From the above extracted grounds, it is evident that the issue of applicability of the provisions of section 194C(6) of the Act to the facts of the case is the solitary issue in these set of appeals.
The background facts of the impugned issue include that the assessee made certain payments without making TDS. However, the Assessing Officer invoked the provisions of section 194C(1) of the Act and passed impugned order u/s 201(1) r.w.s. 201(1A) of the Act. In 4 to 125/NAG/2015 the said order, the Assessing Officer analyzed the scope of the services rendered by the contractors and extracted the same at page 2 of the assessment order (“different services”) and held that the services were not covered by the provisions of section 194C(6) of the Act. After considering the written submissions of the assessee dated 28.01.2014, the Assessing Officer took an adverse view against the assessee and passed an order u/s 201(1) r.w.s. 201(1A) of the Act. For the sake of completeness of this order, the relevant paras from the order of the Assessing Officer are extracted hereunder :- “I have carefully gone through the above submission put forth by the assessee, which is not found tenable for below mentioned reasons: As per provision of section 194C(6), no deduction shall be made from the contractors during the course of business of plying, hiring, or leasing goods carriages, on furnishing of his PANs to the deductor. As per annexure ‘1’ as above of the agreement of the transporters, it is seen that they are not doing the business of plying, hiring, or leasing goods carriages with the assessee deductor but they are carrying out work as per agreement/ annexure-A above. The plain meaning of contract of transportation means the only transportation work. But as per the agreement made by the assessee with the transporters, transporter has to work or to give services as per annexure ‘1’ as above, which in any case cannot be treated as business of plying, hiring, or leasing goods carriages only. It means that assessee has entered into the agreement with the transporters for doing works or for providing service as per annexure ‘1’ as above, which is covered under the provision of section 194C(1) and not under the provision of section 194C(6) of the I.T. Act, 1961. As per decision of the Hon’ble Supreme Court in Associated Cement Company Ltd’s case (supra) any work means any work and not a work contract, work covers any work which the organization specified can get carried out through a contractor under contract and further it includes obtaining supply of labour for carrying out any work. In this case assessee deductor entered into the contract with the transporters to carry out many activities besides 5 to 125/NAG/2015 transportation of goods as specified in annexure’1’ of the agreement. For example, the contracts provide for loading and unloading also. The services of loading/unloading of goods is not transportation work. As per the decision of Bombay goods transport association v. CBDT, 76 Taxman 334 (BOM), the word transport means only transport of goods/persons and nothing else. Had the deductor engaged separate contractors for loading/unloading services, then the assessee is liable to deduct tax on such payments. In order to escape for making TDS on such payments the assessee under the garb of transportation work has included all such services and claims that such payments fall U/s 194C(6) of the I.T. Act. Since the contracts entered into by the deductor are not transportation contract but contracts covering other services also, the case of deductor falls U/s 194C(1) of the I.T. Act. In view of this, assessee dedutor has failed to deduct the TDS as per the provisions of section 194C(1) of the I.T. Act, 1961 from the various transport contractors as per annexure B of this order. Therefore as per the provisions of section 201(1), assessee deductor is deemed to be assessee in default in respect of such tax as per annexure B of Rs.3217161/- not deducted from transport contractors as above. Accordingly, as per provisions u/s 201(1A(i) of the Act, the amount of interest is calculated at Rs.739937/- as per Annexure-B attached. Accordingly, demand of Rs.3957098/- is raised on this account. Assessee was also asked the reason for non-deduction of TDS of Rs.133500/- U/s 194J during F.Y. 2011-12 as per Annexure-11 of the audit report in Form No.3CB dated 29.09.2012. Assessee has stated in its reply that the audit fees and expenses is paid on completion on audit that too in the next financial year. As per audit report auditor has clearly mention the amount of tax deductible but not deducted Rs.133500/- and therefore assessee’s submission is not tenable and therefore as per the provisions of section 201(1), assessee deductor is deemed to be the assessee in default in respect of the tax of Rs.133500/- not deducted U/s 194J. Accordingly, as per provisions u/s 201(1A)(i) of the Act, the amount of interest is calculated at Rs.30705/- on it.”
During the first appellate proceedings, the CIT(A) considered the submissions of the assessee and held that the payments are made for 6 to 125/NAG/2015 “transportation charges” and upheld the assessee’s claim of applicability of the provisions of sub-section (6) of section 194C of the Act. Thus, CIT(A) dismissed the Assessing Officer’s contention that the provisions of section 194C(1) do not apply. The contents of para 6.1 onwards of the order of the CIT(A) are relevant in this regard. In para 6.19, the CIT(A) deleted the addition made by the Assessing Officer and upheld the assessee’s claim of applicability of the said provisions of sub-section (6) of section 194C of the Act. For the sake of completeness, the said para 6.19 of the order of the CIT(A) is extracted hereunder :- “6.19 In conclusion it can be stated that, effective from 1-10-2009, sub- section (6) is categorical that on furnishing PAN by the transport contractor, no deduction as per subsection (1) of section 194C of the Act shall be made from any sum credited or paid to the account of a transport contractor. Also, in the case under consideration, the contract entered into by the appellant with the transport operators is a transport contract and provides certain ancillary services does not in any manner change the nature of the contract as such services are part of the activity of transport. While fulfilling the contract of transportation, the contractor has to perform the various duties described in Annexure-I. All such responsibilities are facilitation and necessities for performing the activity of transportation of goods. All the activities taken together are transportation of goods and nothing else. In such circumstances, part of such activities cannot be isolated from the contract of transportation to bring on the obligation to deduct tax at source. All the activities enumerated in the contract can be summed up as transportation of goods from godown to godown at the place of destination. The contract is a transport contract only and in view of the same the appellant was never required to deduct any TDS as per section 194C of the Act. In such facts, the action of the ld. A.O. of raising the demand for tax and interest on the appellant u/s. 201(1)/201(1A) of the Act is held to be erroneous and is therefore directed to be deleted.”
Before us, ld. DR for the Revenue relied heavily on the order of the Assessing Officer and submitted that the services received by the assessee for which the payments are made, are for the contract of transportation and the same is covered under the provisions of sub- section (1) of section 194C of the Act and not under the provisions of sub-(6) of section 194C of the Act. The Assessing Officer is carried away by the name ‘transportation charges’ and did not appreciate the actual services rendered by the contractors.
On the other hand, ld. Counsel for the assessee relied heavily on the order of the CIT(A). Bringing our attention to the details of the services received by the assessee from the contractors, ld. Counsel submitted that the ‘transportation charges’ is misnomer and the payments were only made for various allied services enumerated in Annexure-1 relating to the scope of services (Transportation & Forwarding). The ld. AR read out the details of the said services. 9. We have heard both the parties and read out the details of these allied services. For the sake of completeness, we proceed to extract the said services, which are as under :- “Annexure 1 : Scope of Services 8 to 125/NAG/2015 Transportation & Forwarding 1. Tallying the quantities in terms of number of packages, with the accompanying documents. 2. Reporting Discrepancy, if any, found to BGPPL. 3. Checking external packing of Goods and reporting on any damages. 4. Dispatch and Delivery of Goods to destination (Door Delivery) as advised by BGPPL. 5. Ensuring proper documentation. 6. Loading of Goods in Goods carrier/Truck under adequate supervision. 7. Ensuring proper handling of Goods while loading to avoid any damage to Goods. 8. Dispatch and Shipment of Goods to the specified destination (Door Delivery) at the rates and within the agreed timelines. 9. Payment of enroute statutory charges including Octroi payable at Octroi check posts. 10. Timely and safe delivery/dispatch of Goods to the destination in good condition along with all relevant connected documents such as consignment note, invoice etc. 11. Reporting any loss or damage caused to Goods in transit to BGPPL as soon as practicable. 12. Submitting discrepancy/damage certificate for such damage loss to BGPPL for lodging claim with the Insurer. 13. Generating regular reports. 14. Reporting on pre agreed formant and frequency.” 10. Considering the above contractual obligations of the payee to render the above allied services to the assessee, in our considered view, the said services cannot be considered strictly as the contract of 9 to 125/NAG/2015 transportation, thereby, attracting the provisions of sub-section (1) of section 194C of the Act. Further, we find the contractor furnished the PAN details as per the mandate given in provisions of sub-section (6) of section 194C of the Act. It is not the case of the Assessing Officer that the conditions specified in sub-section (6) of section 194C of the Act are not met by the assessee. Therefore, we are of the opinion, the order of the CIT(A) is fair and reasonable on this limited issue and it does not call for any interference. Accordingly, the grounds raised
by the Revenue are dismissed.
11. In the result, the appeal of the Revenue in ITA No.120/NAG/2015 for the assessment year 2012–13 is dismissed.