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TMI Blog2013 (11) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... 011 (1) TMI 797 - GUJARAT HIGH COURT] - Decided against Revenue. - ITA No.12/Rjt/2013 - - - Dated:- 12-4-2013 - T K Sharma and D K Srivastava, JJ. For the Appellant : Shri Avinash Kumar For the Respondent : Shri D R Adhia ORDER:- Per: T K Sharma: This appeal by the Revenue is against the order dated 25.10.2012 of CIT(A)-II, Rajkot for the assessment year 2007-08. 2. Facts in brief are that the assessee is a Private Limited Company engaged in the business of clearing and forwarding of cargo, shipping Agency and ancillary trading activities. A survey action u/s 133A(i) of the Income Tax Act, 1961 (for brevity the Act) was carried out at the business premises of the Assessee-company on 13.2.2007 for TDS verification. During the course of verification, the AO found some discrepancies regarding short deduction of tax under the various provisions of Act for the Financial Year 2006-07 relevant to the assessment year under appeal. It was noticed that the assessee company had made payment towards cargo handling charges to M/s Saurashtra Containers Pvt.Ltd of Rs.3,47,720/-, M/s Balaji Heavy Lifters (P) Ltd. of Rs.66,46,038/- and M/s Samarth Liftners (P) Ltd of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.1 In the second ground, the appellant has challenged the action of the AO for applying provisions of section 194-I in respect of payments made to M/s Balaji Heavy Lifters Pvt Ltd on work contract for cargo handing services. From the details, it is noticed that the AO s contention is not correct as is evident from the terms decided in the contract agreement executed with the said party which is filed by the appellant in paper book in page Nos.16 to 18 wherein the following terms are mentioned : 1. Party of second part will provide service as and when required by the party of the part and remains in tough for the execution of the cargo handling work under this contract; 2. The party of the second part will arrange, crane, trailers, main-power for loading, unloading, shifting transportation, stuffing, etc of the container or cargo on his own to perform all the required activities relating to cargo handling. The party of the 1st part is not at all concern with use of equipment, trailers, man-power, etc they are only concerned with the cargo handling by whatever means deemed suitable by the party of the 2nd part. 3. Party of the second part will be responsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision rendered by the Hon ble Jurisdictional High Court in the case of M/s Swayam Shipping Services Pvt. Ltd as relied upon by the appellant, the authorities have discussed this issue which mainly hinges round transportation of goods from one place to another place wherein control over trailers/cranes were not with the concerned company. Respectfully following the said decision of the Hon ble jurisdictional High Court, the action of the AO is held to be unjustified. Thus, the appeal on this ground is allowed. 6.2 In the third ground of appeal, the appellant had challenged the action of the AO involving transaction with M/s Samarth Liftners Pvt Ltd for cargo handling services, As the facts are identical as discussed in the case of M/s Balaji Heavy Lifters Pvt.Ltd. in para 6.1 above and even the terms and conditions involved are identical except for the rates for handling various kind of cargo, the appeal of the appellant is allowed for the reasons mentioned above on this ground as well. Aggrieved with the order of the ld. CIT(A), the Revenue is in appeal before this Tribunal with the following grounds : 1. The ld. CIT(A) has erred on facts and in law in deleting h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and; or (b) building (including factory building); or (c) land appurtenant to a building (including factory building); or (d) machinery; or (e) plant; or (f) equipment; or (g) furniture; or (h) fittings, whether or not any or all of the above are owned by the payee; 5. He submitted that according to the aforesaid definition of rent , the cargo handling charges are very much covered within the meaning of rent and hence aforesaid should have been treated so by the ld. CIT(A). The ld. DR further contended that in the impugned order the ld. CIT(A) has treated the same kind of payment on account of cargo handling charges as rent u/s 194-I in case of M/s Saurashtra Containers Pvt.Ltd, therefore, he is not justified in not treating the similar nature of payment as rent in the case of other two firms i.e. M/s Balaji Heavy Lifters (P) Ltd and M/s Samarth Lifters (P). Finally the ld. DR pointed out that in order to avoid the liability of deduction of tax, the assessee framed a colorful device of entering into such type of agreements which was in fact of the nature of rent and liable for deduction of tax u/s 194-I o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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