2011 (11) TMI 469 - AT - Income Tax

Tribunal classifies payments for maintenance contracts under Section 194C for TDS

The Tribunal ruled in favor of the appellant in the case, determining that Annual Maintenance Contracts (AMC) payments, Pilotage Contracts payments, and ... Annual maintenance contact, pilotage contract and vehicle hire contracts - 194C OR 194J and 194-I – Held that:-It is clear from agreement that they related to annual maintenance of machineries and not for technical services. The revenue in view of the fact that the contractors have utilized services of technical persons presumed that the assessee made payments for technical services. This presumption of revenue cannot be agreed. It may be technical services for contractor but not for the assessee. The payment to pilots is in the nature of salary as their contracts agreement were not for managerial and technical or consultancy services. Therefore, payment made to pilots is not covered by section 194J. Regarding double payment of tax, it was held in case of Hindustan Coca Cola Beverages (P.) Ltd. v. CIT (2007 (8) TMI 12 - SUPREME COURT OF INDIA) that if payee has already paid tax due on the payment received by him from the assessee, the tax could not be recovered once again from the deductor. In the vehicle hire agreement nowhere it is stated that the possession of the vehicles were given to the assessee. While dealing with Section 194I in the case of Vodafone Essar Ltd. vs DCIT (2010 (12) TMI 842 - ITAT, MUMBAI)it was held that merely making use of the facility without himself using the equipment and without taking possession the payment cannot be said to be a rent. Therefore, the payment made cannot be said to be 'rent' as provided in section 194-I of the Act – Decided in favor of assessee. Issues Involved:1. Classification of Annual Maintenance Contracts (AMC) under TDS provisions.2. Classification of Pilotage Contracts under TDS provisions.3. Classification of Taxi & Tug Hire Charges under TDS provisions.Detailed Analysis:1. Classification of Annual Maintenance Contracts (AMC) under TDS provisions:The appellant argued that the AMC payments should be subject to TDS under Section 194C and not under Section 194J, as they are maintenance contracts and not technical services. The department contended that these payments are for technical services and fall under Section 194J.The Tribunal examined the contracts and found that they were for the maintenance of machinery and not for technical services. The Tribunal referenced the definition of 'fee for technical services' under Explanation 2 to Section 9(1)(vii) and concluded that the AMC contracts did not involve managerial, technical, or consultancy services. The Tribunal also noted that the contractors might use technical personnel, but this does not change the nature of the contract for the assessee. Therefore, the Tribunal held that the AMC payments are correctly classified under Section 194C.2. Classification of Pilotage Contracts under TDS provisions:The appellant argued that payments to pilots should be subject to TDS under Section 194C, as these are work contracts. The department contended that these payments are for technical services and should fall under Section 194J.The Tribunal reviewed the pilotage contracts and found that pilots were engaged on a contractual basis for specific operations at the port. The contracts included terms similar to employment conditions, such as medical facilities and accommodation. The Tribunal concluded that the payments to pilots were not for technical services but were akin to salaries. Therefore, the Tribunal held that the payments to pilots are correctly classified under Section 194C.3. Classification of Taxi & Tug Hire Charges under TDS provisions:The appellant argued that the payments for hiring vehicles and tug boats should be subject to TDS under Section 194C and not under Section 194I, as they are work contracts and not rent payments. The department contended that these payments are for rent and should fall under Section 194I.The Tribunal examined the agreements for hiring vehicles and tug boats and found that the agreements did not transfer possession of the vehicles to the assessee. The Tribunal referenced the ITAT Mumbai Bench decision in Vodafone Essar Ltd., which held that payments for the use of a facility without taking possession do not constitute rent. Therefore, the Tribunal held that the payments for hiring vehicles and tug boats are correctly classified under Section 194C.Conclusion:The Tribunal allowed the appeals of the assessee, holding that:- AMC payments are subject to TDS under Section 194C.- Payments to pilots are subject to TDS under Section 194C.- Payments for hiring vehicles and tug boats are subject to TDS under Section 194C.