TMI Blog2011 (11) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... r fixed hours than it is a service contract for carrying out the work - the hiring of the buses would not be akin to taking of any plant and machinery on lease - Held that: assessee would be liable to deduct the tax on such payment under sec. 194C of the Act and not under sec. 194I of the Act - Decided in favor of the assessee - IT Appeal Nos. 4749 and 4750 (Delhi) of 2010 - - - Dated:- 4-11-2011 - RAJPAL YADAV, SHAMIM YAHYA, JJ. P.K. Sahu for the Appellant. Mrs. Srujani Mohanty for the Respondent. ORDER Rajpal Yadav, Judicial Member - The present two appeals are directed at the instance of assessee against the separate orders of even date i.e. 31.8.2010 passed by the Learned CIT(Appeals) in assessment years 2008- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate provided in sec. 194C of the Act. In his opinion, the hiring of buses is akin to taking of plant and machinery on lease and, therefore, the tax ought to have been deducted under sec. 194I where the rate of tax on such payment is 10%. In this way, Assessing Officer has held that assessee has short deducted the tax. He raised a demand of Rs. 30,10,349 in assessment year 2008-09. He has also levied interest under sec. 201A of the Act. On a similar analogy, a demand has been raised in assessment year 2009-10. 3. Dissatisfied with the order of the Deputy CIT(TDS) dated 29.5.2009, assessee carried the matter in appeal before the learned CIT(Appeals) in both the assessment years. However, the appeals did not bring any relief to the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucted in the office of NCPS, NTPS Limited, Vidyut Nagar, Dadri District G.B. Nagar on 21.1.2009. During the course of spot verification, Sh. Harjeet Singh, DGM(Finance) was present at the time of spot verification. The TAN of the assessee is MRTNO0201F and PAN No. is AAACN0255D which comes under the jurisdiction of Income-tax Officer (TDS), Noida. They are deducting tax at source on salary, contract payment, hiring of vehicles and payment made to professionals etc. A summon u/s. 131 of the IT Act, 1961 was issued on 21.1.2009 for filing the details of payments and TDS thereon along with evidence fixing the date for 28.1.2009. In compliance to this letter, on 28.1.2009 Sh. Vipin Kumar, CA attended and filed the power of attorney, placed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He made a reference to Sr. No.(vi)(c) of the Explanation appended to this section. 4. Learned DR while impugning the order of the Learned CIT(Appeals) contended that assessee has taken the busses on hire. It means that the buses were taken on lease and such buses are to be construed as plant. Since the lease payment was made for the hiring of the plant, its case comes within the ambit of explanation appended to sec. 194 I of the Act. It provides that any rent paid for plant or machinery or equipment then TDS is to be deducted at 10%. The learned counsel for the assessee on the other hand, submitted that Assessing Officer has misconstrued the provisions. The assessee has not taken the buses on lease. It had entered into a contract of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amming for such broadcasting and telecasting. According to the ITAT, a specific provision has been made in sec. 194C which bring within its ambit the contractual work concerning broadcasting and telecasting, therefore, revenue cannot apply section 194J which is more general term. Hon'ble Delhi High Court has upheld this view of the ITAT. The learned counsel for the assessee pointed out in the present case also at Sr. No.4 of the explanation appended to sec. 194C, meaning of expression "work" has been given which provides (a) advertising; (b) broadcasting telecasting including production of programs for such broadcasting and telecasting; (c) carriage of goods or passengers by any mode of transport other than by railways; (d) x x x, (e) x x ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has made a reference to Circular No. 558 dated 28.3.1990 issued by the CBDT. In the circular, board has considered this aspect and was of the view that where a vehicle is given on hire along with provisions of a driver for use of carrying of the passengers for fixed hours than it is a service contract for carrying out the work. It will be covered under sec. 194C of the Act because the vehicle has been made available as a matter of service. Learned First Appellate Authority has considered this aspect while observing that it is a service contract and assessee was to deduct tax under sec. 194 C of the Act. Considering the order of Learned CIT(Appeals) and in view of the above discussion, we do not find any merit in this appeal. It is dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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