2012 (7) TMI 175 - AT - Income Tax

Default u/s 201(1) for not deducting tax at source u/s 194C - supply of plant and machinery of windmill, for civil/electrical works and erection and commission of windmill, is a composite work contract - Held that - As the assessee has given order for supply of machinery separately and has paid a separate amount for cost of civil work/electrical work and erection of the machines at the place of assessee. Therefore, though it is a single order but it has to be taken separate i.e. on account of supply of machinery and on account of cost of civil work/electrical work and erection work. The supplier has effect a separate sale bill in respect of supply of machines. The assessee has given C form to the supplier on account of purchase of machinery and on remaining amount the assessee has deducted TDS i.e. on account of erection work and civil work contract - as the assessee purchased machinery and the supplier was supposed to erect the machinery at the factory premises of the assessee after completing the civil work and erection work and the assessee has already deducted TDS on account of services rendered the provisions of section 194C are not applicable on account of purchase of machinery - in favour of assessee.

Issues Involved:
1. Applicability of TDS under Section 194C on composite contracts for supply and installation of windmills.
2. Determination of whether the contracts were composite work contracts or separate contracts for supply and services.
3. Liability of the assessee under Section 201(1) and interest under Section 201(1A) for non-deduction of TDS.

Detailed Analysis:

1. Applicability of TDS under Section 194C on Composite Contracts:
The primary issue was whether the assessee's contracts with Enercon (India) Ltd. and RRB Energy Ltd. for the supply of plant and machinery, civil/electrical works, and erection/commissioning of windmills constituted a composite work contract liable for TDS under Section 194C.

The Assessing Officer (AO) and CIT (A) held that the contracts were composite turnkey projects, thus requiring TDS on the entire value. The AO cited various clauses from the contracts and brochures indicating that the contracts offered comprehensive services, including site selection, regulatory clearances, and financing assistance, thus forming a composite deal.

The Tribunal, however, disagreed, noting that the primary intention was to purchase machinery, with civil and erection works being incidental. The Tribunal referenced similar cases, such as Rajasthan Rajya Vidhyut Utpadan Nigam Ltd. and Karnataka Power Transmission Corporation Ltd., where it was held that separate contracts for supply and services did not attract TDS under Section 194C.

2. Determination of Contract Nature:
The AO argued that the contracts were deliberately split to avoid TDS on the supply part, citing Circular No. 13 of 2006 and Supreme Court rulings that installation and commissioning are integral parts of a composite contract. The CIT (A) supported this view, stating that the real intention was to install windmills, making it a single work contract.

The Tribunal found that the contracts should be treated separately for supply and services. It emphasized that the assessee issued separate purchase orders and deducted TDS on civil and erection works, not on machinery supply. The Tribunal referenced the Finance Act, 2009, which clarified that contracts for manufacturing or supplying products using materials purchased from third parties do not fall under Section 194C.

3. Liability under Section 201(1) and Interest under Section 201(1A):
The AO did not raise a TDS demand under Section 201(1) due to the Supreme Court's ruling in M/s. Hindustan Coca Cola Beverage Pvt. Ltd. but raised interest demands under Section 201(1A) for the alleged non-deduction of TDS on supply payments.

The CIT (A) confirmed the interest demands, interpreting the contracts as composite work contracts. However, the Tribunal overturned this, stating that since the contracts were not composite, the assessee was not in default under Section 201(1), and thus, interest under Section 201(1A) was not applicable.

Conclusion:
The Tribunal allowed the assessee's appeals, concluding that the contracts for the supply of machinery and services were separate and not composite work contracts. Therefore, TDS under Section 194C was not applicable on the supply part, and the assessee was not liable under Section 201(1) or for interest under Section 201(1A). The Tribunal's decision was based on detailed analysis and precedents from similar cases, emphasizing the primary intention of the contracts and the nature of the transactions.

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