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TMI Blog2024 (2) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... r any adjournment was sought. Therefore, we proceed to decide the appeals on hearing the Ld. DR. The only issue in these appeals is whether TDS is to be deducted u/s 194J or u/s 194C of the Act on the payments made towards maintenance of X-Ray machine and CVC machine. 3. Perusal of the order passed u/s 201(1) and 201(1A) for these assessment years reveals that assessee made certain payments towards ambulance rent, maintenance of X-ray machine and CVC machine. The assessee deducted TDS on X-ray machine and CVC machine @ 1% u/s 194C of the Act. However, the Assessing Officer (for short referred as the "AO") was of the view that the assessee should have deducted TDS u/s 194J at 10% on payments made for maintenance of X-Ray and CVC machines as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in it was held that "in view of the above facts and circumstances, we are of the view that the expenditure on account of AMC of medical equipment etc. is not in the nature of fee for professional and technical services as construed u/s 194J of the Act and hence not liable to deduct TDS u/s 194J of the Act. The assesses has deducted TDS u/s 194C of the Act in regard to payments on AMC of medical equipment and machines etc. Accordingly, we find no infirmity in the order of CIT(A) on this issue and hence the same is confirmed." He has also relied on the decision of Hon'ble ITAT Ahmedabad and Hon'ble Madras High Court on this issue. The CBDT circular no.7 dated 08.08.1995 also supports his contention. As an alternate plea, the assessee has subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to attract the provisions of section 194J of the Act? In case the services of the electrician are provided by a contractor, whether the provisions of section 194C or 194J would be applicable? Answer: The payments made to an electrician or to a contractor who provides the service of an electrician will be in the nature of payment made in pursuance of a contract for carrying out any work. Accordingly, provisions of section 194C will apply in such cases. Question 29: Whether a maintenance contract including supply of spares would be covered u/s 194C or 194J of the Act? Answer: Routine, normal maintenance contracts which includes supply of spares will be covered under section 194C. However, where technical services are rendered, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. Thus it is held that TDS should have been made u/s 194J of the Act and the assessee is in default in this regard A perusal of the ledger accounts submitted by the assessee show that Rs.6,870/- were paid for repair & maintenance/AMC of X-Ray machine for which TDS @ 2% is deductible as it is a contract for maintenance. The payment of Rs 55.000/- to Fuji Film is also m the nature of AMC/ contract for maintenance for which TDS @2% is deductible. Payment of Rs.20,206/- made lo Allengers Medical Systems was also AMC/ contract for maintenance for which TDS @ 2% is deductible. As discussed above and as submitted by the assessee, for these payments the assessee is in default for non deduction of tax @ 2% u/s 194C of the Act as they were contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Coca Cola Beverage Pvt. Ltd. Vs. CIT 293 ITR 226 if the payee has taken into consideration the amounts received by payer in their return of income and paid taxes on such amounts the assessee cannot be treated as an assessee in default u/s 201(1) of the Act. The Ld.CIT(A) appears to have not considered all these submissions of the assessee and the evidences placed before him. In the absence of any evidence furnished before us to show that the payees have already considered these amounts in their returns, in the interest of justice, we restore this matter to the file of AO for fresh adjudication in accordance with law. The assessee is at liberty to file all the evidences to support their contentions before the AO. All the issues in the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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