TaxTMI 
TaxTMI 
2016 (10) TMI 90
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....er and disposed of by this common order for the sake of convenience. 2. The assessee has raised following common grounds in its appeals: "1. Tax is deductible u/s. 194C of the I.T. Act 1961 ('the Act') on the payments made to M/s. Utsav Logistics Pvt. Ltd) and not u/s. 194J of the Act as alleged by the TDS Officer. 1.1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has legally erred in holding that payments to Utsav Logistics under a contract for movement of goods in the port premises is liable for deduction of tax at source under the provisions of Sec. 194J and not Sec. 194C of the Act. 1.2. Without prejudice to above and in the alternative and on the facts and in the circumstanc....
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....tice was issued as to why the assessee should not be treated as defaulter u/s. 201(1) for short deduction of tax u/s. 194J of the Act. 4. In response to the said notice, the assessee filed its reply dated 5.12.2012 submitting that assessee has engaged ULPL for moving containers from one place to another within port premises as is evident from the copy of invoice raised by the ULPL and the assessee company. It was contended that as per the terms and conditions of the agreement, it is evident that ULPL will provide reachstaker alongwith operator. , its maintenance and other related expenses will be the responsibility of ULPL and reachstaker will be operated as per the directions of the assessee company for moving containers from one place ....
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....(reachstaker) is liable for TDS u/s. 194C and not under 194J of the Act. The Assessing Officer treated the payments made by the assessee are towards technical services therefore the assessee is liable to deduct TDS u/s. 194J of the Act. Therefore, the assessee was held as defaulter u/s. 201(1) of the Act for the balance TDS. However, the Assessing Officer on verification of the certificates from the auditors of the payee firm i.e. ULPL to the effect that ULPL has filed their return of income including the payments received by them from the assessee company and since ULPL has paid tax thereon, in view of the judgement of the Hon'ble Supreme Court in the case of Hindustan Coca Cola Beverages (P) Ltd Vs CIT, he held that no further tax is to b....
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....ld that the payments made for the services provided by the NSICT for the movement of its cargo in respect of import and export done by its customers, movement of cargo in port which lifting of containers from customer's trailer/rail wagons by the operation of rubber tyre gantry cranes, movement of the containers from yard to the vessel side and moving the containers from trailers at the quay side on to the vessel with the operation of quay cranes, is not fees for managerial or technical services covered u/s. 194J of the Act. The Ld. Counsel for the assessee further placing reliance on the decision of the Rajkot Bench in the case of Kandla Port Trust Vs DCIT (16 Taxmann.com 273) submits that assessee running a port and in order to carry out ....
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....othing but providing technical or managerial service to the assessee within the meaning of fees for technical services as provided in Explanation-2 to clause (vii) of sub-section (1) of Sec. 9 of the Act. Therefore, since the assessee did not deduct TDS under section 194J of the Act, the Assessing Officer held the assessee as defaulter and passed order u/s. 201(1) for short deduction of TDS. However, since the recipient i.e. ULPL has offered the receipts from assessee as its income, the Assessing Officer following the decision of the Hon'ble Supreme Court in the case of Hindustan Coca Cola Beverage (P) Ltd. Vs CIT (211 CTR 545) held that no further tax can be recovered from the assessee company but he worked out the interest liable to be ch....