TMI Blog2013 (11) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Gujarat High Court in the case of Gujco Carriers Vs. CIT (2002 (2) TMI 48 - GUJARAT High Court). Therefore, the provisions of section 194J of the Act were not applicable. - Decided in favor of assessee. - I.T.A. Nos.24 & 25/Jodh/2012 - - - Dated:- 31-7-2013 - Shri Hari Om Maratha And Shri N. K. Saini, JJ. For the Appellant: Shri N. M. Ranka, Shri N. K. Jain, Shri Kishan Goyal For the Respondent : Dr. Deepak Sehgal, CIT, D.R. ORDER Per N. K., Saini:- These two appeals by the assessee are directed against the separate orders each dated 31/10/2001 for the assessment years 2008-09 and 2009-10. The issues involved in these appeals, which were heard together, are common, therefore, these are being disposed of by this consolidated order for the sake of convenience. 2. First we will deal with I.T.A. No.24/Jodh/2012. In this appeal the assessee has raised the following grounds: 1. The Authorities below have erred in law and in facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Power Co. Ltd. vs. CIT [1998] 262 ITR 383 (SC). The learned CIT, D.R. did not object for the admission of the above additional ground. Therefore, the additional ground is admitted, although the assessee has already taken the same ground vide ground No. 1. 5. Ground No. 5 of this appeal is general in nature while the additional ground and ground No. 1 are correlated, in our opinion, no specific finding is required for these grounds as the same will be dealt while deciding ground nos. 2, 3 and 4. 6. Vide ground No. 2 and 3 of the appeal, the grievance of the assessee relates to the application of provisions of section 194J instead of 194C of the I.T. Act, 1961 (hereinafter referred to as the Act ) in respect of payments made to the contractors. 7. The Facts related to this issue, in brief, are that a survey u/s 133A of the Act was carried out on 4th and 5th March, 2009 at the business premises of the assessee. The A.O. observed that in the course of survey, it was found that during the financial year 2007-08 following payments were made by the assessee for obtaining technical services:- S.No. Name and Address of the contractor/ deductee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red Accountants Association Vs. CBDT 264 ITR 374 (Allahabad) 7. Continental Construction Ltd. Vs. CIT 195 ITR 81 (SC) 8. CBDT Vs. Oberoi Hotel 231 ITR 148 (SC) The Assessing Officer did not accept this contention of the assessee that the payments to the deductees were covered in the exclusionary part of explanation (2) to section 9(a)(vii) of the Act on the ground that none of the deductees carried out any construction or assembling or mining or like projects for the assessee and no specific evidence to justify the claim made was furnished. The assessee for the above said contention placed reliance on the following case laws: 1. ITAT, Ahmedabad decision in the case of Gujarat State Electricity Corporation Ltd. Vs. ITO 82 TTJ 456 2. Sky Cell Communication Ltd. Vs. DCIT 251 ITR 53 (Mad) However, the Assessing Officer was of the view that the aforesaid decisions, relied by the assessee, were distinguishable on facts. The Assessing Officer held that the assessee ought to have deducted tax at source u/s 194J and not u/s 194C of the Act. He accordingly considered the assessee in default for a sum of ₹ 1,01,07,835/- for short deduction of tax u/s 201(1) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s), Rotary Table (for rotational force) and Top Drive (for rotating the. drilling strings), Mud Pumps (for pumping mixture of chemicals in the well) amongst others. These Rig parts were transported by trailers and trucks (The contract was awarded to RR Enterprise) to the well site. These Rig parts were loaded and unloaded on the trailers and trucks and assembled in the well site with the help of cranes (The contract was awarded to Choudhary Transport). Boring holes in the ground also required a lot more equipment and materials. The main amongst them were Casings (Steel Pipes), Drill Pipes (used for boring holes with external rotational force), Bits (conical earth-cutting device), Chemicals, and Cement etc. All these materials were transported by trailers and trucks (The contract was awarded to RR Enterprise) to the well site. Here also cranes (The contract was awarded to Choudhary Transport) were used for loading and unloading purposes. As soon as all materials were transported to the well site and the Rig was assembled, actual boring started. As the Bit attached to the Drill Pipes started cutting the earth with rotational force, the Bit and Drill Pipes slowly moved downwards. At t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose data to the logging truck and computer onboard the logging truck. 6. These were done to ascertain the depth of the well, the presence or otherwise of Oil Gas, to determine Mud Chemicals and its mixture. These data were gathered and processed online real-time basis so that, appropriate action could be taken by the Drilling Engineers while Drilling. 7. Preparation of logs on the basis of the data gathered during logging operation. 8. Interpretation of the log and report there on as to the existence or otherwise of Oil Gas in the well. If presence of Oil Gas was indicated then at what depth. 9. Perforation of well: Once, on the basis of the data gathered from logging operations, it was established the presence of Oil Gas in the well, perforation was done. Perforation was making series of holes in the Casing to make ways for Oil Gas to come out. (e) Man Management for Rig: Since, the company did not have the required manpower to operate and maintain the Rig, a Man Management Contract had been entered. The essential services under the contract included (This Contract was awarded to Mercantile Associates) - 1. Assembling of the Rig for drillin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT Vs. Narendra Doshi 254 ITR 606 (SC). (viii) UOI Vs. Kaumudini Narayan Dalai 249 ITR 219 (SC) (ix) Berger Paints India Ltd. Vs. CIT 266 ITR 99 (SC). (x) CIT Vs. A.R.J. Security Printers 264 ITR 276 (Del) It was contended that the provisions of Section 194J could not be invoked in the assessee's case because it had not paid any fees for professional consultancy work but paid the amount based on the actual execution of work on the field of exploration block of the assessee company and in accordance with the work executed as per their bills with the details of the work done by the respective contractors and the company paid after deduction of TDS u/s 194C of the IT Act. It was submitted that all the contracts were in connection with prospecting for, or extraction or exploration or production of mineral oils and were clearly covered by the exclusionary part, viz. consideration for any construction, assembly, mining or like project, excluded in the definition of fees for technical services given in Explanation 2 to clause (vii) of sub-section (1) of section 9 which indicates that the payments made to contractors for execution of mining contracts, by no stretch of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned CIT(A) that the scope of section 194C of the Act was very wide and applied to all types of contracts for carrying out any work including transport contracts, services contracts, labour contracts, material contracts and works contracts, except what had been specifically excluded or which were governed by any special provision. It was contended that the Assessing Officer had wrongly assumed as if section 194C applies only to simple work contract which presumption was clearly contrary to the plain language of section 194C of the Act. The reliance was placed on the Circular No. 666 dated 8th October 1993 issued by the CBDT and the judgment of Hon'ble Supreme Court in the case of Associated Cement Company Vs. Commissioner of Income Tax 201 ITR 435 (SC). It was further contended that the Instruction No.1862 issued on 22/10/1990 by the CBDT explained the scope of mining or like project in respect of 'mining' or prospecting for, or extraction or production of mineral oil, which includes rendering of services like imparting of training and carrying out drilling operations for exploration or exploitation of oil and natural gas and the assessee was carrying on only such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned CIT(A) examined the nature of contracts between the assessee and the deductees as under: (1) Contract with HLS Asia Ltd. dated 27.09.2005 was for wire line logging, data processing and perforation services (page 4 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 in section II. The appellant was paying the deductee consideration for the provision of services. The services were spelt out in detail in section II of the contract. The contractor was to provide experienced personnel for the services. The price schedule also mentioned payment of service charges. (2) Contract with Mercantile Associates dated 10.08.2005 was for man management services for operation and maintenance (page 65 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 para 7 of the contract. The contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the business of exploration, development, extraction, transportation of crude oil and natural gas, transportation of finished petroleum products production of liquefied petroleum gas and that as a part of its mining activities for exploration of oil fields, the assessee has a Project Office at Jodhpur in Rajasthan. It was contended that the assessee had found oil fields and further exploration and extracting is going on at Jaisalmer, Barmer and other places, for that purpose the assessee engaged contractor 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 Cranes, Transportation by Trucks/Trailers, Man Management Services, Cementing Services etc. towards achievement of its stated objectives of extraction of oil and gas. The learned counsel for the assessee also explained the various activities involved in mining of oil and gas, since we have already reproduced those in the former part of this order, as the same were submitted to the learned CIT(A) also, therefore, for the cost of repetition these are not reproduced herein. However, the learned CIT(A) had not given the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. It was further stated that the assessee in line with the practices followed in its other offices/projects as also in other upstream Oil Gas Companies under MOPNG, and as advised by its Tax Experts, have consistently been deducting TDS from the contractors (recipients) u/s 194C of the Act and depositing the same with the Government Authorities. It was emphasized that the Income-tax Authorities at Jodhpur as well as at other places have consistently treated contracts as work contract liable to deduction u/s 194C of the Act. It was also stated that neither in the case of the assessee nor in the case of other Oil Companies, different view had ever been taken by the tax authorities and even the Assessing Officers assessing for various years as well as the statutory auditors and tax auditors have found due compliance of the provisions of tax deductions at source. It was contended that the Assessing Officer created a huge arbitrary, illegal, unjustified and unsustainable demand but collected coercively in order to meet its revenue collection target. It was further contended that the DCIT (TDS) invoked the provisions of section 194J of the Act by treating payments made to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding: (i) Not ordinary contracts - (page 7) (ii) Activities involved technical knowledge expertise (Page 7) (iii) Associated Cement Ltd. contention not acceptable on account of High Court judgments (Page 8-10) (iv) Section 194C not applicable (Page 10) (v) Exclusionary part of Explanation not applicable (Page 10) It was vehemently argued that the Assessing Officer as well as learned CIT(A) grossly erred in rejecting the claim on the premise that each one of the contractors was bound to provide personnel for execution of the said work, however, ignored this vital fact that such employees were employees of the contractors and without the contractors, the assessee could not have been able to execute different step in the mining work. The learned counsel for the assessee also referred to circular No. 202 dated 05/07/1976 and submitted that the said circular reveals that as per section 44AB of the Act, presumptive income in case of non-resident engaged in the business of providing services or facilities in connection with or supplying plant and machinery on hire, used, or to be used, in the prospecting for or extraction or production of mineral oils, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral gas etc. and the assessee had carried out such activities in the year under consideration. As such any payment connected with such drilling operations was not fee for technical services for the purposes of explanation 2 to the section 9(1)(vii) of the Act read with Section 194J of the Act. The reliance was placed the following case laws: (i) ONGC (as representative assessee of Alberta Research Council, Canada) vs. Joint CIT Spl. Range, Dehradun (2010) 133 TTJ 0663 (DELHI) (ii) Geofizyka Torun Sp. Z.O.O., In Re [2010] 320 ITR 268 (AAR) (iii) DCIT vs. ONGC as agent of Foramer France [2009] 70 ITD 468 (Delhi) (iv) ACIT, Circle-1, Dehradun vs. Paradigm Geophysical Pty. Ltd. [2010] 122 ITD 155 (vi) Seabird Exploration FZ LLC. In Re [2010] 320 ITR 26 (AAR) It was argued that the scope of section 194C of the Act is very wide and it applies to all types of contracts for carrying out any work including transport contracts, services contracts, labour contracts, material contracts and works contracts, except what has been specifically excluded but the Assessing Officer as well as the learned CIT(A) wrongly assumed as if section 194C applies only to simple work contract. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Expldroil Otech (India) Pvt Ltd., New Delhi. 60,25,000 11,43,72,865 It was submitted that the service providers were required to carry out various activities for the assessee and specific detail of job to be performed was mentioned in contracts elaborately which revealed that all the contracts were not ordinary contracts because all the activities required to be performed as per the contracts involved technical knowledge and expertise. Therefore, the provisions of section 194J were applicable and not of Section 194C of the Act. The learned CIT, D.R. had also given the written submissions explaining therein the nature of services rendered by the service providers, which read as under: 1. M/s HLS Asia Limited Noida (U.P):- M/s HLS Asia Limited was rendering services for Oil India Ltd. such as hiring wire line logging, perforation and data processing services having adequate experience in logging, data processing and perforation services to provide the service for the fields in Rajasthan in open and cased hole logging, perforation, data processing and related services. Apar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Ltd. New belhi This company has rendered mud Engineering services with manpower and requisite equipment for smooth drilling of the wells mentioned in Jaisalmer and Bikaner -Nagaur Basins, Western Rajasthan India. The Scope of the Service is to provide expertise and state of the art technology for Mud Engineering Services. The service providers has also provided all necessary equipment services. Company's personnel shall carry out the mud engineering work at well site as per International Standard and must be Capable of handling mud losses shifted of moderate to severe magnitude as per International Standards and trouble shooting of all mud related problems. 5. M/s Asian Consulting Engineers Pvt. Ltd. From this company, OIL INDIA LIMITED hires the services of carrying out a Metalled Environmental Impact Assessment (E.J.A.) Studies of its two exploration Blocks in Rajasthan prior to seismic survey, drilling of twenty exploratory wells and production testing of these wells. Environment Impact Assessment study includes collection of Primary and secondary baseline data through field investigations, environmental monitoring and from secondary sources viz; maps, R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough compressed air agitation. (v) To clean, charge, discharge and vent lines of the silos and surges tanks blowing compressed air prevent hardening of cement, barytes, bentonite, etc, including cleaning and disposal of waste accumulation at the plant premises as and when required (but not less than once in every 15 days) to maintain a clean working environment. (vi) To arrange removal of condensed water, moisture in all silos, surge tanks and maintain the same clean and dry. (vii) To check and grease all valves, butterfly valves, flange holts, threads, etc. in the system as necessary and also check manhole gaskets and victaulic joint gaskets and all pipe fittings including connections for leakage. (viii) To provide necessary trained and well experienced personnel as per operational requirement for the job at Company's drilling location round the clock. (ix) To undertake the operation and all maintenance work required for the bulk Handling Plants, Compressors (specifications of the compressor: Atlas Copco make air compressors; Model - VI 250, capacity 250 to 300 CFM, W.P. 40 psi, run by parking P6-354 diesel engine), storage silos and their accessorie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable 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 case, it is an admitted fact that the assessee was engaged in the business of exploration, development, extraction, transportation of crude oil and natural gas, transportation of finished petroleum products and production of liquefied petroleum gas. For the aforesaid business the assessee engaged the contractors having the expertise in the respective fields. The assessee treated the contract with the service providers as the work contract and accordingly deducted TDS u/s 194C of the Act. On the contrary, the Assessing Officer was of the view that the contract with the service providers was not a simple work contract but a technical service contract. Therefore, the provisions of section 194J were applicable instead of provisions contained in section 194C of the Act. In the present case, we have to analyze as to whether the provisions contained in section 194C of the Act were applicable or not. The provisions contained in section 194C of the Act read as under: 194C. (1) Any person responsible for paying any sum to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redited 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 person paying or crediting such sum. (7) The person responsible for paying or crediting any sum to the person referred to in sub-section (6) shall furnish, to the prescribed income-tax authority or the person authorised by it, such particulars, in such form and within such time as may be prescribed. Explanation.--For the purposes of this section,-- (i) specified person shall mean,-- (a) the Central Government or any State Government; or (b) any local authority; or (c) any corporation established by or under a Central, State or Provincial Act; or (d) any company; or (e) any co-operative society; or (f) any authority, constituted in India by or under any law, engaged either for the purpose of dealing with and satisfying the need for housing accommodation or for the purpose of planning, development or improvement of cities, towns and villages, or for both; or (g) any society registered under the Societies Registration Act, 1860 (21 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sub section (1) of section 194C as income tax is on the sum credited to the account of or paid to a contractor in pursuance of a contract for carrying out a work or supplying labour for carrying out work, of any of the organizations specified therein, there is nothing in the sub-section which could make the Court to hold that the contract to carry out a work or the contract to supply labour to carry out a work should be confined to 'works contract' as was argued on behalf of the appellant. There is no reason to curtail or to cut down the meaning of plain words used in the section. Any work means any work and not a works contract , which has a special connotation in the tax law. Indeed in the sub-section, the 'work' referred to therein expressly includes supply of labour to carry out a work. It is a clear indication of legislature that the 'works' in subsection is not intended to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation. 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 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' . 2. The question whether prospecting for, or extraction or production of, mineral oil can be termed as 'mining' operations, was referred to the Attorney General of India for his opinion. The Attorney General has opined that such operations are mining operations and the expressions 'mining project' or 'like project' occurring in Explanation 2 to section 9(1) (vii) of the Income tax Act would cover rendering of services like imparting of training and carrying ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 gas as a contract for technical services. 13.7 As regards to the fee for technical services, the CBDT has issued a Circular No. 202 dated 05/07/1976, which reads as under (as mentioned at page Nos.624 and 625 of the Income Tax Law by Chaturvedi and Pithisaria): The expression fees for technical services has been defined to mean any consideration (including any lump sum consideration) for the rendering of managerial, technical or consultancy services, including the provision of services of technical or other personnel. It, however, does not include fees of the following types, namely: (i) Any consideration received for any construction, assembly, mining or like project undertaken by the recipient. Such consideration has been excluded from the definition on the ground that such activities virtually amount to carrying on business in India for which considerable e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 changed in a subsequent year. From the ratio laid down in the aforesaid case, it is clear that when the facts are similar, the consistency is to be maintained. Similarly, the Hon'ble Supreme Court in the case of CIT Vs. J.K. Charitable Trust (308 ITR 161) has held as under: Where the facts situation in all the assessment years is same, and if the Revenue has not appealed from the decision of an earlier year, it's appeal from the decision from a succeeding year will be dismissed. 13.9 In the present case since the facts for the year under consideration are similar to the facts involved in the earlier years wherein the Department had accepted the tax deducted at source u/s 194C of the Act, so keeping in view the principle of consistency also, the Assessing Officer was not justified in deviating from the earlier stand. It is although well settled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 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 Vs. Standard Batteries Ltd. (201 ITR 977) (Bom.) (b) CIT Vs. Mahindra Ugine Steel Co. Ltd. (233 ITR 204) (Bom.) (c) Kandla Port Trust Vs. ACIT (296 ITR 88) (AT) (Rajkot) (d) DCIT Vs. ABG Heavy Industries Ltd. (303 ITR 328) (AT) (Mumbai) (e) Sanco Trans Ltd. Vs. ACIT (61 ITD 317) (ITAT Madras) Accordingly the Assessing Officer held that the assessee was liable to deduct tax at source u/s 194I in respect of payments made to M/s Choudhary Transport. 16. Being aggrieved, the assessee carried the matter to learned CIT(A) and submitted that there was no discussion about the payments made to M/s R.R. Enterprises in the order passed u/s 201/201(A) on the amount paid to the said party which had only been included in Annexure-A of the said order while computing the alleged short deduction and interest thereon. As regards to the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstrued 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 194C of the Act. The learned CIT(A) sustained the action of the Assessing Officer considering the same to be justified. As regard to the contention of the assessee that the payment made to M/s R. R. Enterprises was only covered in Annexure-A to the assessment order and not in the body of the order, the learned CIT(A) was of the view that it was of hardly any consequence as the Annexure was very much part of the assessment order. 17. Now the assessee is in appeal. The learned counsel for the assessee reiterated the submissions made before the authorities below. It was further submitted that the copies of contracts executed with the parties for hiring of diesel hydraulic trucks mounted mobile cranes with operators and crew, revealed that the work of lifting, loading, transportation and unloading of heavy goods was entruste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 cannot be described as a transport vehicle carrying either goods or passengers which is a pre requisite for applying provisions of section 194C of the Act. He further submitted that the impugned vehicles as per the terms and conditions of the relevant contracts were required to carry out crane services in the area of assessee company's operation in the state of Rajasthan. Therefore, those vehicles could never have been utilized as transport vehicles either to carry goods or passengers as envisaged in Explanation-III to section 194C of the Act. It was pointed out that these cranes required specific parameters of the lifting capacity and operating radius of the cranes etc. making it obvious that the impugned contracts were for hiring cranes only. The reliance was placed the decision of Hon'ble Madras High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an inanimate object means a machine for moving heavy objects usually by suspending them from a projecting arm or beam. Crane is any of a diverse group of machines that not only lift heavy objects but also shift them horizontally. Movable cranes are mounted on railway, cars, motor trucks or chassis equipped with caterpillar treads and the hoisting machinery is mounted so as to counterpoise part of the load on the boom and thereby, prevent the entire crane from overturning while carrying the load. A mobile crane mounted on a truck constitutes a single unit known as truck crane which is adapted for use on roads for special services. The trucks on which the crane is mounted is constructed and adapted specially to carry the crane. Goods carriage as defined in section 2(14) of the Motor Vehicles Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 shall apply mutatis mutandis for this appeal also. 23. The only remaining issue in the appeal for the assessment year 2009- 2010, vide ground No. 5, relates to the rejection of non deduction certificate in the case of M/s Hindustan Purva Sainik Human Welfare Multi Purpose Co-operative society Ltd. 24. The facts related to this issue, in brief, are that the assessee made a payment of ₹ 27,02,003/- to the aforesaid society towards providing security services on contracts basis. The Assessing Officer noticed that in the course of survey it was found that for part of the year the assessee company had not deducted tax at source on this payment. On enquiry the assessee replied to the Assessing Officer that ITO, ward 1(1) Udaipur had issued a No Deduction Certificate to the payee society on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 Tax Deduction Certificate did not mention the period as was the case in Financial Year 2005-2006 and 2006-2007. He further observed that this certificate was apparently issued on 10/06/2003 i.e. much before the certificate issued on 25/11/2005 and 27/04/2006 and the certificates were later in time prescribed the validity period and the earlier certificate, i.e. issued on 10/06/2003 is superseded by the later certificates issued for Financial Year 2005-2006 and 2006-2007. The learned CIT(A) pointed out that no other certificate could be furnished by the assessee for the year under consideration, he, therefore, confirmed the action of the Assessing Officer. 26. Now the assessee is in appeal. The learned counsel for the assessee reiterated the submissions made before the authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record at page 603 of the assessee's paper book), wherein it is stated that the total income of M/s. Hindustan Purv Sainik Human Welfare Multi Purpose Co-Op. Society is exempt u/s 80P(2)(vi) of the Act, therefore, the clients of the said society are not required to deduct tax at source at the time of payment to above cooperative society. The said certificate is valid upto 31/03/2009 and the present case relates to the Financial Year 2008-2009 i.e. assessment year 2009-2010. It appears that neither the Assessing Officer nor the learned CIT(A) had given any cognizance to the aforesaid certificate placed at page No. 603 of the assessee's compilation. We, therefore, set aside this issue back to the file of the Assessing Officer to be adjudicated afresh and on verification if it is found that the assessee was having the certificate issued by the competent authority for non deduction of the tax at source on the payment made to the said society then the assessee cannot be held as assessee in default on the payment made to the said society. Accordingly, this issue is remanded back to the Assessing Officer to be adjudicated afresh in accordance with law after providing due and r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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