2004 (8) TMI 654

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....that the applicant entered into contract with National Thermal Power Corporation (hereinafter referred to as "NTPC") for the construction 220 KVA sub-station at Mandaula, Ghaziabad, U.P. Offer was given on December 28, 1988, which was accepted on January 12, 1989. It appears that towards advance a sum of Rs. 8 crores was paid on February 21, 1989 and Rs. 4 crores was paid on March 31, 1989 by the applicant to NTPC. Admittedly, work had not been started and the goods had not been transferred to the applicant during the year under consideration. Assessment was made by the assessing authority under section 7(3) in respect of the payment made by the applicant but the same has been quashed by the Tribunal on the ground that the payment was made ....

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....nsfer of property in goods (whether as goods or in any other form) in pursuance of a works contract, not being a building contract of such class or value as may be notified by the State Government in public interest in this behalf, shall, at the time of making such payment to the contractor, either in cash or in any other manner, deduct an amount equal to four per cent of such sum towards part or, as the case may be, full satisfaction of the tax payable under this Act on account of such works contract: Provided that the Commissioner may, if satisfied that it is expedient in the public interest so to do and for reasons to be recorded in writing, order that in any case or class of cases no such deduction shall be made or, as the case may b....

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....ayable from the transfer of property in goods in pursuance of a works contract shall at the time of making such payment to the contractor deduct amount equal to 4 per cent. Section 8-D(1) does not apply to all payments but applies to only those payments, which are for the discharge of any liability on account of valuable consideration payable for transfer of property in goods. If there was no transfer of property in goods and the payment is not towards the discharge of any liability towards valuable consideration payable for the transfer of property in goods provisions of section 8-D(1) do not apply. In the present case, admittedly payment was in the nature of advance payment and it was not towards the discharge of any liability on accou....