TaxTMI 
TaxTMI 
2023 (4) TMI 1347
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.... the learned CIT-(A) has erred in law and on facts in confirming the order passed by the Learned AO U/s. 201(1) r.w.s. 201 (1A) of the Act and in directing that tax is required to be deducted U/s. 194J of the Act and not U/s. 194C of the Act. Rs.4,33,287/- 2. On the facts and in the circumstances of the case and in law the learned CIT (A) ought to have pass a speaking order and ought to have follow the CBDT Circular, binding precedent of hon'ble Apex Court and of ITAT, Ahmedabad which is fully applicable to the issue under consideration. Rs.4,33,287 3 On the facts and in the circumstances of the case and in law, the learned CIT(A) ought not have confirmed the order passed by AO treating the appellant in default and demanding the alleged differential tax with interest from the appellant by confirming the order passed U/s. 201(1) r.w.s. 201(1A) of the Act. Rs.4,33,287/- 4 It is therefore prayed that the orders passed by lower authorities may be quashed and set aside. Rs.4,33,287/- 5 Your appellant craves leave to add, amend, alter or withdraw any ground of appeal at the time of hearing. Rs.4,33,287/- T....
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....g condoned. 5. The brief facts of the case are that the survey under section 133A of the Act was carried out at the office premises of the assessee on 28-11-2014 for verification of TDS compliance. The assessee is a partnership firm engaged in the business of manufacturing of salt, providing liquid storage tank and providing warehouse on hire, trading of goods and commodities and sale of power, which are generated through windmills. From the details collected during this course of survey, the AO observed that the assessee had made payment of operation and maintenance charges and AMC charges to M/s Suzlon Group Companies. On verification of accounts, the AO observed that TDS on these payments have been made under section 194C of the Act. However, the nature of payments made to M/s Suzlon Group Companies is in lieu of technical services rendered for maintenance of windmills. Therefore, the AO held that the payment is in the nature of "fee for technical services" or "managerial services" and taxes are required to be deducted under section 194J of the Act as against taxes deducted by the company under section 194C of the Act. 6. In appeal, Ld. CIT(Appeals) dismissed the appeal of....
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.... 9,64,687.50 SGSL(0&M)/ SER/13-14/ 9305030761 dtd.01.01.201 4 1 Technical Services copying checking of various technical, safety and operational Parameters of the Equipment. 3,30,750.00 Total 35,00,437/- The appellant's claim is devoid of merit and it is accordingly held that the appellant had paid for technical services for Rs.35,00,437/- therefore liable to deduct tax on such payment u/s 194J of the Ac. The assessee has as such deducted TDS @ 2% u/s 194C is not maintainable therefore I confirm the action of the assessing officer to levy short deduction of tax as required u/s 194J of the Act as under F.Y. 2013-14 Amount of AMC Charges Paid 35,00,437/- Tax deducted @ 2% u/s. 194C 70,008/- Tax deductible @ 10% u/s. 194J 3,50,044/- Short deduction 2,80,036/- Accordingly the interest levied @ 1% on such lapse u/s 201(1A) for Rs.67,208/- of the Act is also confirm. In all the addition made for such default for total of Rs.3,47,244/- (2,80,036 + 67,208) is also confirmed. In view of section 201(1) r.w.s. 194J/194C and u/s 201(1 A) of the Act. The ground of appeal on this account is accordingly is dismiss....
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....ade Cleaning c) Nacelle Torquing and Cleaning 4) Transformer Oil Filtration e) Control Panel & LT Panel Maintenance i) Site and Transformer Yard Maintenance II Security Services As mentioned in Clause 5.5 III Management Services a) Data logging in for power generation, grid availability, machine availability. b) Preparation and submission of monthly performance report, c) Taking monthly meter reading jointly with SEE, of power generated at Firm's Wind Farm and supplied to SEB Grid from the meter/s maintained by SEB for the purpose and co-ordinate to obtain necessary power credit report/ certificate, d) Submission of detailed report of the Periodic preventive maintenance carried out with details of consumables / parts used. e) Prompt information in case of accidental damage/ shutdown of more than 24 hours, f) Breakdown Analysis report g) Schedule of repairing / replacing components with schedule. h) Liaison with insurance Firm including furnishing required information and all actions required for settlement of the claim from insurance company. IV....
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....d use of components, spares and consumables in the event of any breakdown or suspected breakdown due to any reasons excluding natural calamities which shall be covered by insurance company, in the Equipment or any part thereof, The breakdown shall be attended as soon as practically possible to put the Equipment back into operation. The breakdown repairs will cover cost of labour, spares/ materials and other works, which includes, a) Spares repairs/replacement b) Major breakdown as mentioned below - * Rewinding/Repairs of Generator and Motors * Rewinding/Replacement of Gear Box * Rewinding/Repairs of Transformers * Repairs/replacement of VCB * Repairs/replacement of Blades * Repairs/replacement of Controller and Control Panel e) Crane charges for carrying out repairs/replacement. d) Total replacement of oil in Gear Boxes and Transformers e) Painting of Equipment" 8.3 A perusal of the terms of contract shows that the services are primarily in the nature of greasing of bearings, spares repairs/replacement, repairs of major breakdowns, painting of equipment etc. Therefore, on perusal o....