TaxTMI 
TaxTMI 
2013 (11) TMI 1237
X X X X Extracts X X X X
X X X X Extracts X X X X
....d any fee for such work but paid for executing the work as per contract. 3. The Authorities below have seriously erred in law and in facts while misinterpreted the provisions of Section 194J of the I.T. Act and ignored the definition of the term 'fee for technical services' in Explanation 2 to section 9(1)(vii) of the Income-tax Act, 1961 read with Instruction No. 1862, dated 22/10/1990, issued by Hon'ble CBDT and uphold the applicability of the Provision of Section 194J instead of Section 194C of the I.T. Act, without any tenable basis and/or reason in the facts and circumstances of the case. 4. The Authorities below have erred in law and in facts while applying provisions of Section 194I of the I.T. Act, instead of Section 194C on certain payments to contractors for Hiring of Crane fitted of Motor Vehicle, particularly when such payments are duly covered by Section 194C of The I.T. Act, without any tenable basis and/or reason in the facts and circumstances of the case. 5. That We may kindly be permitted, to reserve the right to amend, modify, alter and/or add new ground/s of the appeal at the time of hearing." 3. The assessee has also raised an additional groun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of fees for technical services because the same were made for carrying out simple works contract and accordingly TDS on such payments was rightly made u/s 194C of the Act. The Assessing Officer, however, was of the view that the provisions of section 194J of the Act were applicable for the following reasons:- "(i) Section II of contract No. RPF/2016 dated 27.09.2005 with M/s HLS Asia Ltd., Noida showed that the deductee provided wire line logging, perforation and data processing services. (ii) Under para 2, 2.1 & 2.2 of contract No. RPI/2091 dated 10.08.2005 the deductee, M/s Mercantile Associates, Dibrugarh was to provide man management services as also personnel to carry out normal drilling operations. (iii) Under para 3.1 & 3.2 of contract No. RPI/2091 dated 10.08.2005 the deductee, M/s Purvanchal Banijiya Vikas, Guwahati was to provide trained and well experienced personnel to carry out drilling operations. (iv) Under para 4 (4.1 to 4.5) of contract No. RPI/2095 dated 24.12.2004 the deductee, M/s Exploroil Otech India Pvt. Ltd., New Delhi was to provide manpower and requisite equipment to carry out normal drilling operations." The Assessing Officer was of the view th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stated that as a part of its mining activities, the company had a Project Office in Rajasthan at Jodhpur where the assessee engaged contractors from time to time for different oilfield services, such as Seismic Survey, Hiring of Drilling Rigs, Wire Line Logging Services, Mud Logging Services, Hiring of Crane, Transportation by Trucks/Trailers, Man Management Services, Cementing Services etc. towards achievement of its objectives. It was contended that the assessee at Jodhpur, in line with the practices followed in its other offices/projects as also in other upstream oil & gas companies under Ministry of Petroleum and Natural Gas (MOPNG), had consistently been collecting TDS from the contractors (recipients) u/s 194C of the Act and depositing the same with the Government Authorities. The assessee explained in detail the activities involved in mining of Oil & Gas as follows :- "Step-1 Obtain Environmental Clearance - In order to obtain Environmental Clearance a study called Environmental Impact Studies (EIA) was required to be done through contractors who had experience in conducting EIA Studies. Asia Consulting Engineers was engaged to carry out EIA Studies. Since, EIA was a pre....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 4. Putting mixed cement in gaps between the earth and the casing wall for packing with the help of a pump. 5. Packing it with the help of a hydraulic packer. (c) Mud Engineering Services: At the time of boring the hole sub-surface pressure of different intensity was encountered. To neutralize the down-hole pressure a mixture of different chemicals (called mud) was prepared and pumped in to the hole through Bit (it had openings) and Drill Pipes with the help of an equipment called Mud Pump. The services included (This Contract was awarded to Exploroil Otech (I) (P) Ltd.) 1. Operation and Maintenance of Mud Pump and Mud Plant. 2. Ascertaining the proportion of different chemicals on the basis of well profiles. 3. Mixing the chemicals in the Mud Plant. 4. Pumping the Mud in the hole with the help of the Mud Pump. (d) Wire line Logging Services: It was a technique to ascertain the well status. This was done with the help of equipment called Logging Truck. The essential services included (This Contract was awarded to HLS India Ltd)- 1. Supply, operation and maintenance of the Logging Truck, Tools and Cables and required numbers of logging crews. 2. There were diffe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ngineers. (g) Transportation: Hired trailers and Trucks were extensively used for transporting different equipments (The contract was awarded to RR Enterprise). (h) Crane: Cranes were used for loading, unloading, Rig Assembling and Dismantling and other services during drilling as described above (The contract was awarded to Choudhary Transport). (i) Security: Since huge items of equipments and other materials were stored in the drilling site, necessary arrangements were required to be made for security to prevent theft of the said materials (The contract was awarded to Hindustan Purva Sainik Cooperative Society Ltd). Step 4 Production." It was further stated that TDS u/s 194C of the Act was deducted in consonance with the past accepted history of assessee's own case as well as other similar cases. It was further stated that the TDS returns in respect of such TDS made u/s 194C were regularly submitted for past several years and no objection was ever raised by the Department. Therefore, the order u/s 201/201(A) of the Act had been passed in apparent disregard of the accepted past history of assessee's own case and other similar cases in violation of the Rule of Co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....258 (Del.). It was further submitted that as per the provisions of section 44BB of the Act, the presumptive income which was subject to Income Tax under Income Tax Act, 1961, was only 10% of the gross receipts, though the said Section was not applicable to resident contractors, yet it could reasonably be inferred that taxable income (profit) of the contractors engaged in similar mining activities was 10% of the gross receipts and if the chargeable presumptive income in case of non residents for executing similar mining contracts was 10% of the gross receipts as per section 44BB of the Act, then deduction of tax u/s 194J would tantamount to deduction of tax equivalent to the entire chargeable income of the recipients and such an action was grossly in violation of law and the principles of fair play, equity and justice. The reliance was placed on the following case laws: (i) Director of Income-tax Vs. Jindal Drilling and Industries Ltd. 320 ITR 104 (Delhi) (ii) Geofizyka Torun SP. Z.O.O., In re 320 ITR 268 (AAR) (iii) Seabird Exploration FZ LLC, in re 320 ITR 286 (AAR) (iv) Wavefield Inseis ASA, In re 320 ITR 290 (AAR) (v) Oil India Limited Vs. CIT 212 ITR 225 (Ori.) (vi) Comm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y the assessee company, if presumed to be considered as fee for technical services, even than the said payments were specifically excluded from the definition of fee for technical services by virtue of exclusion clause in Explanation 2 to section 9(1)(vii) of the Act, read with Instruction No. 1862, dated 22/10/1990, issued by CBDT in respect of definition of fee for technical services and duly supported by various Hon'ble courts decision and the said payments were out of purview of section 194J of the Act and the assessee company had correctly deducted the TDS u/s 194 C of the Act. 8.1 The learned CIT(A), after considering the submissions of the assessee, observed that the res judicata is not applicable in taxation matters, therefore, the contentions of the assessee that the Assessing Officer had ignored the past history, were not tenable. He further observed that the doctrine of res judicata rests on the principle that no one should be taxed twice for the same cause and there should be finality of litigation but for taxation matters, each assessment year is final only for that year and does not cover later years because it determine only tax for a particular period. He furth....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d engineering services (page 135 of P.B.). Even in the definition clause of the contract the work had been defined to mean each and every activity required for the successful performance of the services described under this contract. The appellant was paying the deductee consideration for the provision of services. The services were spelt out in detail in Annexure-1 of the contract. The contractor was to provide experienced personnel for the services. The price schedule also mentioned payment of mobilization charges. 8.2 On the basis of the above, the learned CIT(A) held that the contractors (deductees) were providing technical services to the assessee and were not simply executing any work and that they were not engaged in any mining activity as such it could not be said that both were covered within explanation 2 to section 9(1)(vii) of the Act and Instruction No. 1862. The learned CIT(A) also observed that the differential treatment between the resident and non resident contractors u/s 44BB was not tenable because the same does not govern the applicability or otherwise of the TDS provisions. The learned CIT(A) upheld the action of the Assessing Officer by observing that the ass....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... head fittings on the wells. The function of this equipment is control the well pressure and flow of Oil/Gas from the well (Mine). (D) Installation of different kinds of valves to control the flow of Oil/Gas. (E) Installation of Sucker Rod Pump (SRP) for lifting Oil from the well (MINE). (F) Installation of Heater-Separator Unit for separation of Oil, Gas and formation of water. (G) Operation and Maintenance of the OCS/GGS and other plants & equipments such as SRP, Heater Separator Unit. (H) Installation, Operation and Maintenance of Chemical Dozing Plant. This is used to inject different chemicals into the fluid produced from Oil/Gas wells (Mines) for separation of Oil, Gas and water in the Heater Separator Unit. (I) Operation and Maintenance of Flow lines and long distance pipelines. (J) Work-over Operation (i.e. servicing the well) for steady production of Oil/Gas. (K) Installation of flow meter and check meter for measuring the delivery of Oil/Gas to the customers. (L) Periodical reading of Flow Meters/Check Meters. (M) Well stimulation services to maintain/ enhance production of Oil and Gas. (N) Monitoring Oil and Gas well (Mine) pressure. [20] (O) Inst....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e to deduct tax u/s. 1941 in respect of Choudhary Transport (Page 22 of the impugned order). Crane hired is machinery (Page 25 of the impugned order). Same is for R.R. Enterprises (Page 26); (iii) No deduction certificate for M/s. Hindustan Purv Sainik Human Welfare Multi Purpose Co-Op. Society is not for the relevant year. (Page 26); (iv) As per the evidences filed, the deductees, viz. the contractors had filed their respective returns of income for the period under consideration wherein the taxes have been paid by them. In view of the above said decisions no TDS is recoverable from the appellant when the deductees have filed their returns of income and paid taxes. (Page 31); and (v) Since all the details are now available, the AO is directed to recalculate the interest, as found chargeable from the due date of deduction to the date of payment of taxes by them." 11. It was stated that the Assessing Officer during the course of appellate proceedings before the learned CIT(A), collected relevant material from some of the Assessing Officers of the deductee contractors which revealed that some of the contractors claimed refund to him. The payments were made by the assessee and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s placed on the following case laws: (i) Director of Income-tax vs. Jindal Drilling and Industries Ltd. [2010] 320 ITR 104 (Delhi) (ii) Geofizyka Torun SP.Z.O.O., In re [2010] 320 ITR 268 (AAR) (iii) Seabird Exploration FZ LLC , In re [2010] 320 ITR 286 (AAR) (iv) Wavefield Inseis ASA, In re [2010] 320 ITR 290 (AAR) (v) Oil India Limited vs. CIT [1995] 212 ITR 225 (Ori.) (vi) CIT vs. Oil and Natural Gas Commission [2002] 255 ITR 413 (Raj.) (vii) CIT & Anr. Vs. O.N.G.C. [2003] 264 ITR 340 (Uttaranchal) (viii) Jaipur Vidyut Vitran Nigam Ltd. vs. DCIT [2009] 123 TTJ 888 (JP) (ix) Gujarat State Electricity Corporation Ltd. vs. Income Tax Officer, Ahmedabad "C" Bench [2004] 82 TTJ (Ahd) 456 [2004] 3 SOT 368 (Ahd.) (x) Radhaswami Satsang Vs. CIT (1992) 193 ITR 321 (S.C.) [24] It was further stated that Instruction No. 1862, dated 22/10/1990, issued by CBDT for definition of fee for technical services and explanation in respect of scope of Mining or like project in respect of rendering services for carrying out drilling operation in connection with extraction of mineral oil is very important and the scope of mining or like project in respect of 'mining' 'prospecting....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d been rightly deducted u/s 194C of the Act and as was done in the past. He accordingly prayed to delete the demand of tax and interest sustained by learned CIT(A). 12. In his rival submissions, the learned CIT, D.R. strongly supported the orders of the authorities below and further submitted that during the course of survey conducted u/s 133A of the Act carried out on 4/3/2009 & 5/3/2009 at the business premises of the assessee, it was found that the certain payments were in the nature of fees for technical services rendered to the assessee company, but the assessee treated them as payments towards simple work contracts and accordingly deducted tax at source as per the provisions of section 194C of the Act instead of the provisions section 194J of the Act. It was stated the assessee company had made payments of Rs. 11,42,72,865/- during the Financial Year 2007-08 for obtaining technical services as per the following details:- S. No. Name and Address of the deductees Amount of payment (Rs.) 1. Mercantile Associates, Dibrugarh (Assam) 3,79,16,220 2. Purvanchal Banijya Vikas, Guwahati (Assam) 12,86,024 3. HLS Asia Ltd. Noida (UP) 6,91,45,621 4. Expldroil Otech (India) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ated with the well drilling and completion programme to be furnished by Company before commencement of work. All rig equipment/tools/accessories well consumable sand crane service will be provided by Company. Company will also provide Mud engineering, Mud Logging, Cementing and Wire line Logging and Perforation Services including respective Engineers and equipment/tools required in connection with the drilling operations through separate service contracts. 3. M/s Purvanchal Banijya Vikas, Guwahati (Assam) M/s Purvanchal Banijya Vikas Guwahati has provided the service Of installation/dismantling and maintenance of bulk handling plant. Service of Installation of the field storage silos, cutting pods compressors etc. at every drilling location were also provided. For these purposes necessary trained and well experienced personnel as per operational requirement for the job at company's drilling location were also deputed. Company has undertaken the operation and all maintenance work required for the Bulk Handling Plants, Compressors. 4. M/s Exploroil Otech (India) Pvt. Ltd. New belhi This company has rendered mud Engineering services with manpower and requisite equipment ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mp), welder, mechanical engineer, instrumentation technician, radio operator etc. etc. Contractor Purvanchal Banijya Vikas, Guwahati was required to carry out installation/ dismantling, operation and maintenance of bulk handling plant. Under this contract company was required to conduct following activities/tasks:- (i) After Initial inspection at first drilling location the contractor will install the BHP (Bulk Handling Plant) to make it ready for feeding of the field storage silos through cutting pods. (ii) Installation of the field storage silos, cutting pods, compressors etc. at every drilling location including hooking up lines and fittings for pumping cement/barites/bentonite to the rig system. (iii) Dismantling of field storage silos, cutting pods, compressors lines and fittings etc. at drilling locations at the end of operation. (iv) To inspect filter pads of all the silos and surge tanks for accumulation of cement etc. and any other materials on the exposed surface and arrange to clean these periodically either with brushes or through compressed air agitation. (v) To clean, charge, discharge and vent lines of the silos and surges tanks blowing compressed air pre....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... above quoted extracts from the relevant agreements. None of the above said technical services providers can be said to have carried out any construction or assembling or mining or like projects for the company. These service providers also did not receive any payment in the nature of salary from the company in respect of any such services. The entire discussion made so far in the above paras proves that services given by all the aforesaid service providers clearly fall in the purview of section 194J of the Act being in the nature of technical services rendered to the company. Therefore all the arguments advanced by the assessee company in support of its contention that these services fall in the purview of section 194C are not acceptable. Accordingly, it is established that for the payment made in Financial Year 2007-08 and 2008-09 the company was liable to deduct tax at source, on the payments made to these deductees as per the provisions of section 194J of the Act instead of section 194C which is clearly non applicable to such payments." 13. We have considered the submissions of both the parties and carefully gone through the material available on record. In the instant cas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y in the invoice; or (ii) on the whole of the invoice value, if the value of material is not mentioned separately in the invoice. (4) No individual or Hindu undivided family shall be liable to deduct income-tax on the sum credited or paid to the account of the contractor where such sum is credited or paid exclusively for personal purposes of such individual or any member of Hindu undivided family. (5) No deduction shall be made from the amount of any sum credited or paid or likely to be credited or paid to the account of, or to, the contractor, if such sum does not exceed [twenty] thousand rupees : Provided that where the aggregate of the amounts of such sums credited or paid or likely to be credited or paid during the financial year exceeds [fifty] thousand rupees, the person responsible for paying such sums referred to in sub-section (1) shall be liable to deduct income-tax under this section. (6) No deduction shall be made from any sum credited or paid or likely to be credited or paid during the previous year to the account of a contractor during the course of business of plying, hiring or leasing goods carriages, on furnishing of his Permanent Account Number, to the p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l purchased from such customer, but does not include manufacturing or supplying a product according to the requirement or specification of a customer by using material purchased from a person, other than such customer.] 13.1 From the plain reading of the above provisions, it is crystal clear that these are applicable for carrying out any work. The definition of the work as per clause (iv) of the explanation appended to this section is an inclusive definition which includes advertising, broadcasting, carriage of goods or passengers by any mode of transport other than by railways, catering, manufacturing or supplying a product according to the requirement or specification of a customer by using material purchased from such customer, but exclude manufacturing or supplying a product according to the requirement or specification of a customer by using material purchased from a person, other than such customer. The definition of the work for the purpose of section 194C of the Act has been analysed by the Hon'ble Apex Court in the case of Associated Cement Ltd. Vs. CIT 201 ITR 43 (SC) wherein it has been held as under: "When the percentage amount required to be deducted under the s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....been stated to be not a contract for technical services in Explanation (2) to section 9(1)(vii) of the Act, which reads as under: "Explanation [2].--For the purposes of this clause, "fees for technical services" means any consideration (including any lump sum consideration) for the rendering of any managerial, technical or consultancy services (including the provision of services of technical or other personnel) but does not include consideration for any construction, assembly, mining or like project undertaken by the recipient or consideration which would be income of the recipient chargeable under the head "Salaries." 13.3 From the above it is crystal clear that consideration for mining is not included in fees for technical services. The CBDT to clarify the meaning of "mining" has issued Instruction No.1862 dated 22/10/1990, copy of which is placed at page No. 748 of the assessee's compilation. The said Instruction reads as under: "1. The expression "fees for technical services" has been defined in Explanation 2 to section 9(1)(vii) of the Income-tax Act, 1961 as under: "Explanation 2: for the purpose of this clause, 'fees for technical services' means any cons....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at the Circulars issued by the CBDT are binding on the Income Tax authorities. In this regard, the Hon'ble Madras High Court in the case of N. Mahalingam Vs. C.W.T. 256 ITR 453 held as under: "that the Income-tax Department has consistently followed the circular. No reason had been stated as to why that circular was disregarded in the instant case. The assessee was as much entitled to the benefit of the circular as any other assessee similarly placed. That circular being one which is beneficial to the assessee, is also binding on the Department and the stand taken by the Department inconsistent with the circular could not be sustained." 13.5 A similar view has been taken by the Hon'ble Allahabad High Court in the case of Sir Shadi Lal Enterprises Ltd. vs. Union of India And Others [2003] 262 ITR 166 (All), wherein it has been held as under: "The circulars of the Central Board of Direct Taxes are binding on the tax authorities." 13.6 Therefore, in view of the above instructions issued by the CBDT, the Assessing Officer was not justified in treating the contract entered into by the assessee with various parties for exploration or extraction of mineral oil and natural ga....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pugned demand u/s 201/201(1A) of the Act. In the present case, it is also relevant to point out that the assessee, in line with the practice followed in its other offices/projects as also in other upstream oil & gas companies under Ministry of Petroleum and Natural Gas (MOPNG), had consistently been collecting TDS from the contractors (recipients) u/s 194C of the Act and depositing the same with the Government Authorities and the Income Tax Department in all the earlier years treated consistently the contract as "work contract" liable to TDS (Tax deduction at source) u/s 194C of the Act. On the issue relating to consistency, the Hon'ble Supreme Court in the case of Radhasoami Satsang vs. CIT 193 ITR 321 has held as under: "Strictly speaking, res judicata does not apply to income-tax proceedings.Though, each assessment year being a unit, what was decided in one year might not apply in the following year; where a fundamental aspect permeating through the different assessment years has been found as a face one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be change....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... hiring of two diesels hydraulic truck mounted mobile cranes of 30 and 40 metric tones with operator and crew. (ii) The vehicles contracted could never be utilized as transport vehicles i.e. to carry goods or passengers as provided in explanation III to section 194C. (iii) The vehicles were required to carry out crane services. (iv) The decision of Gujarat High Court in the case of Gujco Carriers Vs. CIT 256 ITR 50 relied upon by the A/R was not applicable to the facts of the present case as the same was given in the context of claim for higher depreciation. (v) The decision of Madras High Court in the case of CIT V/s Shri Ram Transport Finance Co. Ltd. (254 ITR 558) which defined the nature of cranes to be more applicable to the facts of the assessee's case. (vi) The certificate U/s 197/194I dated 30.06.2008 for F.Y. 2008-2009 issued by the ITO(TDS), Ward-51(6), New Delhi to M/s Choudhary Transport clearly mentioned that the payments made to the deductee were in the nature of rent. Such certificate was never objected to either by the deductee or the deductor. (vii) The fact that cranes were treated as machinery was supported by the following decisions:- (a) CIT V....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eep the cranes in worthy running condition and agreed to provide the services of operators and other staff required for maintenance and running of cranes. Therefore, such contract clearly comes within the ambit and scope of works contract as contemplated in section 194C of the Act, as per Circular No. 558 dated 28/03/1990 in which it had been clarified that where buses were given on hire along with driver holding valid license, conductor and such other facilities, such contracts, though may appear to be a simple hire contract but it will be regarded as a works contract for purpose of section 194C of the Act. 16.1 The learned CIT(A), after considering the submissions of the assessee, observed that the cranes hired by the assessee from M/s Choudhary Transport were in the nature of machinery, therefore, those could not be construed to mean goods carriages as defined in section 194C(7) of the Act. He further observed that section 194I specifically provides for deduction of tax at source for use of any machinery or plant or equipment and the assessee having made the payment to M/s Choudhary Transport for the use of machinery i.e. cranes, was liable to deduct tax u/s 194I and not u/s 19....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nes. Therefore, such contract clearly came within the ambit and scope of works contract as contemplated in section 194C of the Act. A reference was made to Circular No. 558 dt. 28.3.1990 wherein it had been clarified that where buses were given on hire along with driver holding valid license, conductor and such other facilities, such contracts, though may appear to be a simple hire contract but it would be regarded as a works contract for the purposes of section 194C of the Act. It was accordingly submitted that the tax deducted at source as per the provisions of section 194C of the Act was justified. It was also contended that the tax had been deducted at source from payments made to those contractors as per section 194C of the Act in all the past years and such practice was always accepted by the Department. As such the Rule of Consistency also supports the action of the assessee for deduction of tax at source as per section 194C of the Act and the provisions of section 194I of the Act were not applicable in relation to such contracts. 18. In his rival submissions, the learned CIT D.R. strongly supported the orders of the authorities below and further submitted that the cranes c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ger by any mode of transport other than by railway. Now question arises as to whether hydraulic truck fitted with crane can be used to carry the goods or passengers. In this regard, the Assessing Officer had not uttered even a single word, he simply stated that the vehicles contracted could never be utilized as transport vehicle. 21. The issue as to whether the mobile crane would fall within the expression of motor lorries, which means motor trucks has been decided by the Hon'ble Gujarat High Court in the case of Gujco Carriers Vs. CIT 256 ITR 50 (Guj.) wherein it has been held as under: "The origin of the word "lorry" is uncertain. "Lorry" means (i) "a large strong motor vehicle for transporting goods, etc.", (ii) "a long flat low wagon", or (iii) "a truck used on railways or tramways", as per the Concise Oxford Dictionary. Lorry or truck would mean not only any motor vehicle designed to carry freight or goods but also to perform special services like fire fighting. Motor vehicles like fire trucks, fork lift trucks and crane trucks which are designed for special services fall within the category of "motor trucks" (also called "motor lorries"). The word "crane" when used for....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vs. Popular Art Palace Pvt. Ltd. in Appeal No. 111/2002 order dated 04/07/2003 held that lift is not plant & machinery. In the present case also the Assessing Officer treated the crane fitted with truck as plant & machinery and held that the provisions of section 194I were applicable for deducting TDS. However, the provisions contained in section 194I of the Act are applicable for plant & machinery or for land and building or land appurtenant to a building or , plant, equipment, furniture or fittings but as we have already observed in the earlier part of this order that cranes are not the plant & machinery as per the ratio laid down by the Hon'ble Jurisdictional High Court in the case of CIT vs. Popular Art Palace Pvt. Ltd. (supra) and Hon'ble Gujarat High Court in the case of Gujco Carriers Vs. CIT (supra). Therefore, the provisions of section 194J of the Act were not applicable. In that view of the matter, we allow the appeal of the assessee on this issue and set aside the order passed by the learned CIT(A). 22. In I.T.A. No.25/Jodh/2012, ground No. 1 to 4 are the same as were in I.T.A. No.24/Jodh/2012 (supra). Therefore, our findings given in former part of this order s....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the ITO, Ward 1(1 ), Udaipur who informed that separate certificates had been issued for Financial Year 2005-06 and 2006-07 but the said ITO did not confirm whether any such certificate had been given or not for Financial Year under consideration. It was contended that the enquiries made by the Assessing Officer must have also convinced him that the income of the said society was not taxable as the same was exempt u/s 80P of Act and the ITO Ward 1(1) did not dispute the correctness and validity of the "No Deduction Certificate" issued on 10/06/2003, in which no validity period was mentioned. It was further stated that the liability for alleged non-deduction of tax at source and interest thereon had been created in apparent violation of "No Tax Deduction Certificate" issued by the Assessing Officer and if the certificate had been issued without mentioning the validity period, the same has to be regarded as valid, true and rightly applicable for all years until the said certificate is withdrawn, modified or cancelled, particularly when the income of the payee was exempt u/s 80P of the Act. 25.1 The learned CIT(A), after considering the submissions of the assessee, observed that "No....