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TMI Blog2017 (10) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee i.e. H.P. Bus Stand Management Development Authority, Bus Stand, Shimla to HRTC are not liable for deduction of tax at source as per provisions of Chapter XVII of the I.T. Act, 1961? ii) Whether the Hon'ble ITAT has erred in upholding the order of ld. CIT(A) deleting the addition made by AO u/s 40(a)(ia) of the I.T. Act, 1961, especially in view of the judgment of the Hon'ble Punjab & Haryana High Court in the case of P.M.S. Diesel Vs. CIT-2, Jalandhar & others, dated 29.4.2015, (ITA No.716 of 2009)? 2. The sole issue which arises for consideration is as to whether arrangement arrived at inter se M/s. Himachal Pradesh Bus Stand Management Development Authority (hereinafter referred to as the Development Authority) and Himac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for technical services". Now when one examine the said clause, one finds "fees for technical services" to mean any consideration for rendering any managerial, technical or consultancy services, not to include consideration for any construction, assembly, mining or like projects undertaken by the recipient or consideration which would be income of the recipient chargeable under the head 'Salaries'. 5. It is in this backdrop, we proceed to examine the factual matrix. 6. The Development Authority, an entity established for development and management of bus stands within the State of Himachal Pradesh, was established w.e.f. 01.04.2000. Prior thereto, such work was being carried out by HRTC itself. Since the development authority had no indep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 for the assessment years 2009-10- to 2012-13 vide order dated 31/12/2013, on page 4 to 6 vide para 13 have allowed the appeal of the assessee. The relevant and effective part of the Tribunal's order is reproduced hereunder:- "After considering the rival submissions, we find that the assessee authority ............................. From the above, it becomes clear that the authority had some full time staff for which it was paying itself. Help of the HRTC was taken in the forum of staff and certain other facilities at pre-defined percentage of salary was reimbursed e.g. salaries of various Divisional Mangers/Regional Managers was to be reimbursed @10%. Similarly in case of Junior Engineer 50% of salary was to be reimbursed. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal assailing the order passed in proceedings pertaining to TDS, this Court disposed of the same purely on the issue of low tax effect (ITA No.25 of 2014 titled as Commissioner of Income Tax Vs. H. P. Bus Stand Management & Development Authority alongwith connected matters, decided on 21.09.2016). 12. Hence, in effect this Court is called upon to adjudicate the correctness of findings of the Commissioner, reproduced supra, as affirmed by the Tribunal, in deciding the appeal preferred by the assessee. 13. The arrangement inter se the development authority and HRTC was clear and simple. It was by way of a stop gap arrangement. Till such time the authority developed its infrastructure and recruited the staff, the work of development and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 627/2012 & ITA No.507/2013 on 15.07.2015 titled as Commissioner of Income Tax Vs. M/s. DLF Commercial Project Corporation, relevant portion of which reads as under:- "18. The assessee has correctly relied upon this Courts ruling in Industrial Engineering Projects Pvt. Ltd., (supra). A Division Bench of this Court in that case specifically held that "reimbursement of expenses can, under no circumstances, be regarded as revenue receipt" and therefore, it is not liable to income tax. The Court relied upon the Supreme Courts decision in CIT v. Tejaji Farasram Kharawalla Ltd., { 1968 } 67 ITR 95 (SC), where the Court had held that it is only the amount that exceeds the expenditure incurred by the agent that would be liable to tax. More recently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue against the High Courts decision was dismissed by the Supreme Court on 17.1.2014 (in SLC CC No. 175 of 2014). This Court is also supported in its reasoning by the text of Section 194C (TDS for "work") and Section 194J (TDS of income from "professional services"- the latter expression defined expansively by Section 194J(3) Explanation (a). Neither provision obliges the person making the payment to deduct anything from contractual payments such as those made for reimbursement of ITA Nos. 627/2012 & 507/2013 Page 11 expenses, other than what is defined as "income'. The law thus obliges only amounts which fulfill the character of "income" to be subject to TDS in such cases; for other payments towards expenses, the deduction to those entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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