2017 (2) TMI 71 - AT - Income Tax

TDS u/s 194C OR 194J - deductibility of the tax at source by the assessee to the payments made to M/s DBM Geotechnics Construction Private Limited - payments to contractors v/s payment in the nature of professional or technical services - Held that - The assessee has placed on record Form 26A to contend that the amount received has been duly considered in the return of income filed by M/s DBM Geotechnics Construction Pvt. Ltd. and all taxes were duly paid by the said M/s DBM Geotechnics Construction Pvt. Ltd. to the Revenue . This contention of the assessee needs verification by the authorities below and we are inclined to set aside this issue to the file of the AO for verification and if the contention of the assesee are found to be correct, the AO shall grant relief keeping in view ratio of decision of Hon ble Supreme Court in the case of Hindustan Coca-Cola Beverages Private Limited (2007 (8) TMI 12 - SUPREME COURT OF INDIA ). The assessee is directed to appear before the AO and file necessary evidences to support its contentions, as per our above direction

Summary

Issues Involved:
1. Applicability of Section 194J vs. Section 194C for TDS on payments made to DBM Geotechnics Construction Pvt. Ltd.
2. Interest under Section 201(1A) for lesser deduction of TDS.
3. Admission and evaluation of additional evidence regarding the nature of the contract.
4. Applicability of Section 194J vs. Section 194C for TDS on annual maintenance contracts for air conditioners, lifts, electrical fittings, fire hydrants, and pest control.

Detailed Analysis:

1. Applicability of Section 194J vs. Section 194C for TDS on payments made to DBM Geotechnics Construction Pvt. Ltd.:
The primary issue was whether the payments made to DBM Geotechnics Construction Pvt. Ltd. for marine geotechnical investigation for rock excavation in Mithi River should be subjected to TDS under Section 194C (contract work) or Section 194J (technical services). The AO initially determined that the nature of services rendered was technical, thus falling under Section 194J, and calculated the TDS liability accordingly. The CIT(A) upheld this view, stating that the contract was not for simple rock excavation but for marine geotechnical investigation, which required special technical skills. The Tribunal confirmed the lower authorities' findings, reiterating that the services were technical in nature, thereby necessitating TDS under Section 194J.

2. Interest under Section 201(1A) for lesser deduction of TDS:
The AO also imposed interest under Section 201(1A) for the shortfall in TDS deduction, calculated from the date the tax was deductible until the date of filing the return by the deductee. The CIT(A) upheld this imposition of interest. The Tribunal did not find any reason to interfere with this aspect of the AO’s and CIT(A)’s orders.

3. Admission and evaluation of additional evidence regarding the nature of the contract:
For the assessment year 2011-12, the assessee submitted additional evidence, claiming that the payments were for the construction of a retaining wall along the Mithi River and not for marine geotechnical investigation. The Tribunal admitted these additional evidences, recognizing that they went to the root of the matter. The case was remanded to the AO for re-evaluation based on the correct tender documents to determine the applicability of Section 194C or Section 194J.

4. Applicability of Section 194J vs. Section 194C for TDS on annual maintenance contracts for air conditioners, lifts, electrical fittings, fire hydrants, and pest control:
The Revenue challenged the CIT(A)’s decision, which held that the annual maintenance contracts (AMC) for air conditioners, lifts, electrical fittings, fire hydrants, and pest control did not fall under technical services (Section 194J) but under contract work (Section 194C). The Tribunal upheld the CIT(A)’s decision, referencing its earlier ruling that such maintenance work did not require technical expertise and thus was correctly subjected to TDS under Section 194C.

Conclusion:
- The Tribunal upheld the CIT(A) and AO's decision that payments to DBM Geotechnics for marine geotechnical investigation were technical services under Section 194J.
- The Tribunal admitted additional evidence for the AY 2011-12 regarding the nature of the contract and remanded the matter to the AO for re-evaluation.
- The Tribunal confirmed that AMCs for air conditioners, lifts, electrical fittings, fire hydrants, and pest control fell under Section 194C, not Section 194J.
- The appeal by the assessee for AY 2008-09 was partly allowed for statistical purposes, the appeal for AY 2011-12 was allowed for statistical purposes, and the Revenue's appeal for AY 2011-12 was dismissed.