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ITO (TDS) -Range -2 (3) , Mumbai Versus M Dharamdas and Company, Mumbai

2015 (7) TMI 660 - ITAT MUMBAI

Liability to deduct tax u/s 1941 - AO has treated assessee in default with regard to non-deduction of tax at source in case of terminal handling charges, container freight station charges, Mumbai Port trust charges and Crane/Forklift charges - CIT(A) deleted liability - Held that:- CIT(A) has recorded a categorical finding of fact that in so far as terminal handling charges are concerned, the same has been paid by the assessee to foreign shipping lines or their agents on behalf and on account of .....

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tion from the operations of the ships and accordingly, they are chargeable to tax as profits of the shipping business. The Ld. CIT(A) has further noted that the assessee has noted particulars of payments made to shipping lines and to their agents and has held that they are not in the nature of rent. Finding of the CIT(A) on this score is upheld.

Regarding Container Freight Station charges, Bombay Port Trust charges, the Ld. CIT(A) has discussed the relevant provisions of Custom’s Act .....

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CFS do not belonged to the assessee and the services provided for handling till the clearance of the custom was not availed or utilized by the assessee but by the owner of the goods. Finding of the CIT(A) on this score is upheld.

Regarding payments for grant of Crane/Forklift charges, the assessee’s case has been that, it is not rented any crane/Forklift albeit it engages the services of crane operators/contractors for loading/unloading of goods. The contractors engaged to use local .....

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TDS u/s 194I but u/s 194C. Further, on similar matters, the Tribunal has upheld the same reasoning that any such kind of charges a TDS are not liable to be deducted. Thus, the order of the CIT(A) is upheld and the grounds raised by the revenue are dismissed. - Decided in favour of assessee. - ITA No. : 1505/Mum/2013,ITA No. : 1506/Mum/2013,ITA No. : 1507/Mum/2013 - Dated:- 10-7-2015 - Shri G S Pannu and Shri Amit Shukla, JJ. For the Petitioner : Shri Pawan Kumar Beerla For the Respondent : Shri .....

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ent year 2008-09 are reproduced hereunder: i) On the facts and in the circumstances of the case and in law, the Id. CIT(A) erred in holding that the assessee was under no liability to deduct tax u/s 1941 of Income Tax Act 1961 and deleting the terminal Hiring/handling charges determined by the AO u/s 201(1) of the Act without considering in the alternative applicability of the provisions of sec. 194C of the Income Tax Act 1961. ii) On the facts and in the circumstances of the case and in law, th .....

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t, 1961. iii) On the facts and in the circumstances of the case and in law, the Id. CIT(A) erred in holding that the assessee was under no liability to deduct tax u/s 194I of Income Tax Act 1961 and deleting the non/short deduction under the head BPT Charges i.e., wharfage charges determined by the AO u/s.201 of the Act without appreciating the fact that the definition of rent stands amended with effect from 13.07.2006. Wharfage charges refers to accommodation for providing unloading, storage of .....

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section u/s. 1941 of the I.T. Act 1961. v) On the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in deleting the demand on account of short deduction of tax on payments of Terminal Handling charges, Container Freight Station charges and BPT charges does not fall within the purview of section u/s. 1941 of the LT. Act., without appreciating the factual and legal matrix of the case, as clearly brought out by the A.O. in his order u/s. 201(1) / 201(1A) of the In .....

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e necessary at the time of the hearing of the case or thereafter. 2. Brief facts of the case are that the assessee is a partnership firm, which carries on the business of Customs House Agent (CHA) and functions in accordance with the licensing conditions contained in the Custom s Act, 1961. A survey operation u/s 133A was conducted against some of CHAs, which included assessee s premises also on 24.02.2011, in order to verify the compliance with the provisions of Chapter XVII-B of the Income-tax .....

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re not applicable. Regarding terminal handling charges (THC) paid to shipping lines it was submitted that the same were paid by the assessee to the foreign shipping lines or their agents. These charges pertain to handling of the material at the berth site while operating of cargo of the ships of foreign shipping lines, for which claims were raised by the shipping companies, specifically importer/exporter to whom the goods belonged. The payment to these shipping companies or agents made by the as .....

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he ship/steamer. The charges were paid on behalf of importer, which were reimbursed to the assessee on actual/actuarial basis against the receipt issued by the Steamer Companies against CFS. On Crane/Forklift charges, it was submitted that the assessee has deducted TDS u/s 194C, as the assessee is not operating or using the crane or forklift on its own but has given contract to perform the job. Lastly, regarding Bombay Port Trust charges, (BPT) again the assessee submitted that the same is also .....

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educted tax u/s 194C. The Ld. CIT(A) has discussed the issue in detail regarding each and every nature of payment, which has been dealt from pages 28 to 44 of the appellate order and allowed all the conditions raised by the assessee that such payment do not entail deduction of tax at source u/s 194I. 6. Before us, the Ld. Counsel submitted that all these issues are covered by the decision of the Tribunal in series of cases, wherein, the Hon ble Tribunal after detailed discussions have held that .....

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ssions and perused the relevant finding given in the impugned orders. The AO has treated assessee in default with regard to non-deduction of tax at source in case of terminal handling charges, container freight station charges, Mumbai Port trust charges and Crane/Forklift charges. We find that the Ld. CIT(A) has recorded a categorical finding of fact that in so far as terminal handling charges are concerned, the same has been paid by the assessee to foreign shipping lines or their agents on beha .....

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here Revenue generation from the operations of the ships and accordingly, they are chargeable to tax as profits of the shipping business. The Ld. CIT(A) has further noted that the assessee has noted particulars of payments made to shipping lines and to their agents and has held that they are not in the nature of rent. Accordingly, the finding of the CIT(A) on this score is upheld. 9. Regarding Container Freight Station charges, Bombay Port Trust charges, the Ld. CIT(A) has discussed the relevant .....

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