2018 (1) TMI 549 - AT - Income Tax

TDS u/s 194J - awarding right to supply water to consumers in Haldia - scheme of sharing of amount deposited in the revenue collection account, the assessee is taking and accounting only license fee as income in its books of account - Held that - The assessee did not engage HWML to render any service. Under the said agreement, dt. 18th July, 2008, the assessee transferred to HWML, for an agreed consideration and for a specified period, its right to supply water to consumers in Haldia and conferred the right to HWML to charge and collect the charge thereto directly from the consumers. The terms & conditions of such transfer, is that HWML shall operate and maintain the existing facilities and establish, operate and maintain the new facilities at its cost. The assessee was to share 50 per cent of the cost of rehabilitation/replacement of the existing facility subject to an upper limit of ₹ 5 Crores. The assessee was also to share the increase in the power cost over the base power tariff, equally with HWML. During the currency of the agreement, the assessee was to receive only license fee and an agreed share in additional revenue from HWML. The revenue from Water Bills raised belonged to HWML. Thus there is no payment of any amount of any kind for any service by the assessee to HWML. Under these circumstances, the conclusion of the Assessing Officer that Section 194J of the Act, applies, is bad in law. - Decided in favour of assessee.

Summary

Issues Involved:

1. Applicability of Section 194J of the Income-tax Act, 1961 for non-deduction of tax on payments made to Haldia Water Management Ltd. (HWML).
2. Whether the technical fees paid by Haldia Development Authority (HDA) to HWML for water supply services were subject to TDS.
3. Consideration of the Hindustan Coca Cola Ltd. case regarding the non-default status if the payee has paid the due tax.
4. The nature of payments made by HDA to HWML and the applicability of TDS provisions.

Issue-wise Detailed Analysis:

1. Applicability of Section 194J of the Income-tax Act, 1961:

The Assessing Officer (AO) raised a demand on HDA for non-deduction of tax on payments made to HWML under Sections 201(1) and 201(1A) of the Act. The AO concluded that the payments made to HWML for operation, maintenance, and collection of water bills constituted fees for technical services and thus were subject to TDS under Section 194J. However, the Commissioner of Income Tax (Appeals) [CIT(A)] deleted the demand, which led the Revenue to appeal.

2. Technical Fees and TDS:

The AO argued that the payments made by HDA to HWML were for technical services, as HWML was responsible for the operation and maintenance of the water treatment plant and other related services. The AO noted that HWML was rendering technical services for the entire water treatment plant, thus necessitating TDS under Section 194J.

However, the CIT(A) found that HWML was operating independently under a concession agreement and was not rendering services directly to HDA. The CIT(A) noted that HWML was responsible for all expenses and operations related to water supply and collected revenue directly from consumers, remitting only the license fee to HDA. Therefore, the CIT(A) concluded that no technical services were rendered to HDA, and hence, Section 194J was not applicable.

3. Hindustan Coca Cola Ltd. Case:

The Revenue argued that even if the payment was liable for TDS, applying the ratio of the Hindustan Coca Cola Ltd. case, there would be no default if HWML had paid the due tax on the receipts. However, this argument was not addressed in detail as the primary issue was whether the payments were subject to TDS at all.

4. Nature of Payments and Applicability of TDS Provisions:

The CIT(A) examined the concession agreement and found that HWML was granted the right to operate and maintain the water supply facilities and collect charges directly from consumers. The agreement specified that HWML would bear all operational costs and only remit a license fee to HDA. The CIT(A) concluded that the payments transferred to HWML's escrow account were not for services rendered to HDA but were part of the revenue-sharing arrangement under the concession agreement.

The Tribunal upheld the CIT(A)'s findings, stating that HDA did not engage HWML to render any service but transferred its right to supply water to HWML for an agreed consideration. The Tribunal noted that during the agreement period, HWML operated independently, and the revenue from water bills belonged to HWML. Therefore, there was no payment from HDA to HWML for any services, making Section 194J inapplicable.

Conclusion:

The Tribunal found no infirmity in the CIT(A)'s order and upheld the decision, dismissing the Revenue's appeals. The Tribunal also dismissed the cross-objections filed by the assessee as infructuous, as they were only in support of the Revenue's appeals.

Judgment:

All appeals of the Revenue and the cross-objections of the assessee were dismissed as infructuous. The Tribunal confirmed that Section 194J did not apply to the payments made under the concession agreement between HDA and HWML.