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TMI Blog2012 (11) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... to and from only for convenience sake & after the specified period of use, the buses are kept under the control of the operators and not of the appellant organization, thus it implies that the main object is transportation of passengers and not complete hiring of the particular vehicle, thus the payment made to the traveling agencies for vehicle hiring is covered by the provisions of section 194-C and not by the provision of section 194-I - in favour of assessee. - ITA No. 4913/Del/2011 - - - Dated:- 26-7-2012 - SHRI SHAMIM YAHYA, JJ. Assessee by : Sh. Raman Chawla, Adv. Department by : Dr. B.R.R. Kumar, Sr. D.R. ORDER This appeal by the Revenue is directed against the order of the Ld. Commissioner of Income Tax (Appeals), Ghaziabad dated 30.8.2011 pertaining to assessment year 2008-09. 2. The grounds of appeal read as under:- 1.1 The Ld. CIT(A) has erred on facts and in law in cancelling the order dated 31.03.2009 passed by the ITO(TDS), Noida and in directing that provisions contained in section 194C is applicable on the payment made by M/s Idea Cellular Limited for hiring of buses, ignoring the fact of the case that the deductor company is lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be deducted u/s. 194 I for F.Y. 2007-08. 4. Upon assessee s appeal Ld. Commissioner of Income Tax (A) considered the assessee s submission. In this regard, Ld. Commissioner of Income Tax (A) referred to his decision of M/s APJ School (Appeal No. 130 131/2009-10/GZB-Noida dated 24.9.2010). From the above case, Ld. Commissioner of Income Tax (A) quoted as under:- "5.1. The only issue in this appeal is against the action of the AO in applying the provisions of section 194-I on payment made to the Bus owners for the Buses hired from the said parties as against assessee's claim that the said payment is hit by the provision of section 194-C of I.T. Act. 5.2. A similar issue was involved in another case of Noida, namely, "Kothari International School, B-279, Sector-5O, Noida for A.Y. 2008-09 and 2009-10, wherein also the AO had applied provisions of section 194-I on payment made to Bus Owners. In appeal, the undersigned, vide orders passed in appeal NO.132J2009I10/GZB-Noida and 133/200 10/GZBNoida dated 08.09.2010, has decided the issue in favour of that assessee. The relevant paras of the appellate order, referred to above, is reproduced hereunder:- 5.1 Ground No. 1 to 4:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinning and Weaving Mills Ltd (2004) 27 J 1TR 460 (Raj) (ii) C.I.T. vs. Prasar Bharati (Broadcasting Corp. of India) (2007) 292 ITR 580 (Del.). 5.1.3. In its Circular No. 558 dated 28.03.1990, the CBDT has, after deeply examining-the terms of contract between a State Road Transport Corporation and bus owners, held that transport contract between the State Road Transport Corporation and bus owners are actually service contracts and not hire contract and, therefore, covered u/s 194C. Since, the CBDT has already decided that transport contracts between a State Road Transport Corporation and bus owners are not hire contracts, such contracts are outside the purview of section 194-I. 5. To harmonious is not to destroy any statutory provision or to render it otiose (Sultana Begum v. Prem Chand Jain, (1997) 1 SCC 373, 381-82 The following case laws delinate the above principles: 1. Gulzari Lal Agarwal v. Accounts Officer (1996) 10 SC 590, 596. 2. State of Rajasthan v. Gopi Kishan Sen AIR (1992) SC 1754, 1756. 3. Jagdish Singh v. Lt. Gave or Delhi, Jt. (1997) SC 671, 978. If an interpretation that in this case tax was deductible u/s 194-I is adopted, it will render the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the buses are kept under the control of the operators and not of the appellant organization. It is not the case of the department that these buses: vehicles have been given by the transporters, on hire to the appellant, for control and use 24 hours 365 days. To that extent this distinction is very important to understand that the buses have been hired by the appellant only for limited specific purpose of transportation of the students and staff. It implies that the main object is transportation of passengers and not complete hiring of the particular vehicle. (c) The specific rate of TDS in respect of the relevant clause of section 194-I has itself been amended w.ef 01.10.2009; the rates are being brought down from 10% to only 2%. Therefore also the ambiguity if at all exists only of a year and half. (d) The AO's action in covering such hiring of buses u/s 194-I is, undisputedly, is only indirectly with the help of section 43; there is no specific mention in the amended clause of section 194-I. 5.1.9. In view of the specific provisions contained in section 194C plethora of case laws, CBDT Circulars and Instructions and their binding nature, intention of the legislature and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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