9911796707
TMI Blog2013 (11) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... y Lifters (P) Ltd. of Rs.66,46,038/- and M/s Samarth Liftners (P) Ltd of Rs.21,29,370/- and the TDS made u/s 194C rather than u/s 194-I of the Act. According to the department the TDS made under the provisions of section 194C instead of section 194-I for the financial year under consideration on payment of Rs.92,46,481/- in the above three cases and total short deduction was worked out to Rs.19,50,696/-. The AO accordingly passed the order u/s 201(1) r.w.s. 194-I and u/s 201(1A) of the Act on 24.3.2011 raising the demand of Rs.29,74,811/- including the applicable interest relying upon the decision of the Rajkot Bench of the Tribunal in the cases of Reliance Industries Ltd, Reliance Port Terminals Ltd, Reliance Petroleum Ltd and Reliance Engineering Associates Pvt.Ltd in ITA No.387,406,386, 388,407/ Raj/2009 dated 26.5.2010, for the assessment year 2007-08 in which the Tribunal held that the payments of similar nature to be covered by the provisions of section 194-I. 3. On appeal, in the impugned order, the ld. CIT(A) upheld the action of the AO holding that cargo handling charges as rent u/s 194-I in case of M/s Saurashtra Containers Pvt.Ltd. However, in respect of cargo handling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 responsible for loss/damages of the container or cargo during the transit as well as various destinations involved in cargo handling stages. 4. Both the parties were agreed for the following consolidated rate for various cargo handling work : Nature of work Rate per MT Rs. a) Handling of steel pipes from vessel hook point to port allotted yard at Kandla. 75.00 b) Handling of steel pipe and plate at vessel hook point 40.00 c) Steel coils handling: Shifting, hooking, and internal transportation at Kandla Port Reloading charges 50.00 15.00 d) Timber logs shifting for export pipes vessel at Adani Mundra port 60.00 e) Transportation of concrete pipe from Nana Kapaya to Adani Port 105.00 f) Transportation heavy packages container from Vessel to port yard at Mundra port 225.00 g) Unloading of steel pipes from trailer at Stacking yard reloading and transportation from Stacking yard to vessel hook point 80.00 5. Since par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 he addition made u/s 201(1) of the IT Act of Rs.18,80,471/- and interest charged under section 201(1A) of the IT Act of Rs.9,87,247/- in the case of Balaji Heavy Lifter (P) Ltd and Samarth Lifter's (P) Ltd by treating the payment of rent u/s 194C instead of u/s 194-I by the AO; 2. The ld. CIT(A) has erred on facts and in law in treating the cargo handling charges as work u/s 194C in the case of (i) M/s Balaji Heavy Lifter (P) Ltd and (ii) M/s Samarth Lifter's (P) Ltd whereas he himself has treated the cargo handling charges as rend u/s 194-I in the case of Saurashtra Containers Pvt.Ltd. 3. The ld. CIT(A) has erred on facts and in law that after amendment in section 194-I vide taxation laws (Amendment) Act, 206, w.e.f. 13/07/2006 TDS on payments made on hiring of machinery are covered u/s 194-I of he Act 4. On the facts and in the circumstances of the case, the ld. CIT(A) ought to have upheld the order of the AO". 4. At the time of hearing b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the Act instead of u/s 194C of the Act. 6. On the other hand, Shri D R Adhia, the ld. AR appeared on behalf of the assessee vehemently supported the order of the ld. CIT(A). The ld. AR pointed out that in respect of M/s Saurashtra Containers Pvt.Ltd, the assessee could not furnish the relevant documents, therefore, the ld. CIT(A) has held that the payment made to this party is rent and liable to deduction u/s 194-I. However, in respect of other two parties viz. M/s Balaji Heavy Lifters (P ) Ltd and M/s Samarth Lifters (P) the assessee has furnished all the relevant documents and the ld. CIT(A) after examining the relevant clauses of the agreement came to the conclusion that payment ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
