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TMI Blog2013 (9) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... t in all respect i.e. the project was turnkey project. 2. On the facts given and in the circumstances of the case the learned CIT Appeal (V) has erred in partially deleting TDS under section 201(1) of the Income tax Act and to compute interest under section 201(1A) of income tax Act from the date of payment/credit till date of completion of assessment in case of deductee for A.Y. 2008-09. 2. The facts which are revealed from the record as under. M/s. Biopharmax BV Netherlands holds 100% shareholding in M/s. Biopharmax India Pvt. Ltd. M/s. Biopharmax had entered into an agreement with M/s. Scigen Biopharmax Pvt. Ltd. (the assessee) on 17- 10-2006 for establishment of an Insulin Manufacturing unit at Pune on Turnkey basis. The Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee company in maintenance of the facility and also to provide a maintenance manual inclusive of all the documentation, instructions and protocols required in order to operate and maintain the facility in accordance with GMP, FDA and EMEA requirements. 4. The contract price for the project, including the provision of certain technical services was worked out at Rs. 45,68,12,000/- which was payable in installments. As per the terms of the agreement as noted by the Assessing Officer all the designs, drawings, specifications, notes and other works developed exclusively by Biopharmax for the assessee company would become the property of the assessee and could be used by the assessee company in any other construction. The Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be getting agreed the Contract price of Rs. 41 crores since the capital goods would be supplied by M/s. Scigen and the contract price includes supply of capital goods as per the agreement. As per his statement M/s. Biopharmax has provided the design of the plant to M/s. Scigen and the said advance was towards the design, technical advice and for supervising the erection of the plant. On the basis of the statement recorded of Vice President (Operations) of M/s. Biopharmax as well as Non-Executive Director of the assessee company and after examining the terms of the agreement the Assessing Officer concluded that the advances is made by assessee company were for providing technical services and hence the provisions of Sec. 194J are applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es the place or original agreement. The appellant's claims that when the payment of Rs. 4,65,35,0287- was made, at that time it was not. Known to the appellant that the agreement is going to be revised and therefore at that: time the appellant was justified in deducting TDS as per sec. l94C as it was a contract. This contention of the appellant is not acceptable in view of analysis of various clauses of the agreement by the DCIT(TDS), from the reading of Appendix C and G as well as considering the statement of two employees of M/s. BPIPL recorded by Central Excise Authorities where they have accepted that M/s. BPIPL was providing technical services to the appellant company. It is also important to note that the statement of these two em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviding technical consultancy service in relation to the setting up of the Insulin Manufacturing Unit. The Vice-President of M/s. Biopharmax in his statement dated 15-02-2008 has stated that there was a modification of the agreement and the assessee has decided to supply all the basic capital goods and only the designing and technical advice and supervision on the erection of the plant was assigned to M/s. Biopharmax. All these facts are not in dispute as per the Addendum. We find that the contract is restricted only for providing the designing and technical specifications of the plant as well as supervising of the erection of the plant. Addendum is a continuation of the original agreement itself and hence, it relate back to the original co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the completion of the assessment for the A.Y. 2008-09 in the case of deductee. The Ld. CIT(A) directed the Assessing Officer to delete the addition u/s. 201(1) of the Income-tax Act and compute interest u/s. 201(1A) of the Income-tax Act from the date of payment/credit till the date of completion of the assessment in the case of deductee for the A.Y. 2008-09. We find that in the case of Hindustan Coca Cola Beverage (P) Ltd. (supra) the Hon'ble Supreme Court has held that even if no demand can be raised if the deductee has deposited the tax but at the same time the assessee will be liable for the interest. We find no merit in the Ground No. 2 as the Ld. CIT(A) has given directions in accordance with law, the Ground No. 2 is dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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