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TMI Blog2012 (9) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... vice contract and hence applicability of Section 194C - Decided against Revenue. - ITA No. 2105 & 2189/Del/2011 - - - Dated:- 27-7-2012 - SHRI G.D. AGARWAL AND SHRI RAJPAL YADAV, JJ. Revenue by: Shri BRR Kumar, Senior DR Assessee by: Shri A. Mathur, CA ORDER PER RAJPAL YADAV : J. The present two appeals are directed at the instance of the revenue against the order of Learned CIT(Appeals) dated 16.12.2010 passed for assessment year 2007-08. Shri S. Gakhar, Income-tax Officer(TDS), Dehradun sent a letter dated 21.12.2011 addressed to the Assistant Registrar, ITAT, New Delhi. In this letter, he prayed that ITA No.2189/Del/2011 is time barred by four days. This appeal has been filed under mistake and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on an analysis of the provisions as well as instructions issued by the CBDT bearing No. 558 dated 28.3.1990 held that the assessee took the busses for transportation of the passengers. It was a service contract. It has not taken the busses on hire as a plant and machinery upon which section 194(i) of the Act is to be applied. Accordingly, Learned CIT(Appeals) quashed the demand raised by the Assessing Officer. 4. With the assistance of learned representative, we have gone through the record carefully. We find that this controversy has come up before the ITAT in a number of cases. Recently, we have considered it in ITA No. 5885/Del/2010 in the case of ACIT(TDS), Noida vs. M/s. National Capital Power Station, NTPC Ltd. The question consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also maintain the vehicle in good shape. In other words, all responsibility for plying the vehicles is of the transporters. Thus, according to the assessee, it was a service contract of transporting the passengers. It has not taken the buss on lease and used them as plant in business. The learned counsel for the assessee further contended that a similar issue in somewhat different context came up before the Hon'ble Delhi High Court in the case of CIT vs. Prasar Bharti reported in 292 ITR 580. In that case, the facts are that assessee was making certain payment to outside producer for programs under commissioned category for which the assessee had been deducting the tax at source under sec. 194C by treating them as contract payment. Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rival contentions and gone through the record carefully. The first disputed point is whether it is a payment being contract of service or a rent for hiring a plant. The emphasis of the Learned DR was that assessee has hired a bus which is akin to taking a plant on lease, therefore, the payment made by the assessee to the travel agency has to be construed as a rent paid for the bus. On the other hand, contention of the assessee is that it has availed the facility of transportation from the travel agency. It has not taken the bus in its possession. According to the contract, the travel agency has to ply the bus for a fixed number of hours. Thus, it is a simplicitor service contract for transportation of the passengers and it falls within the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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