Gujarat High Court
The Principal Commissioner Of Income ... vs Rishi Kiran Roadlines on 8 September, 2015
Author: Harsha Devani
Bench: Harsha Devani, A.G.Uraizee
O/TAXAP/541/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 541 of 2015
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THE PRINCIPAL COMMISSIONER OF INCOME TAX....Appellant(s)
Versus
RISHI KIRAN ROADLINES,....Opponent(s)
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Appearance:
MR PRANAV G DESAI, ADVOCATE for the Appellant(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 08/09/2015
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. The appellant revenue in this appeal under section 260A of the Income Tax Act, 1961 (hereinafter referred to as "the Act") has challenged the order dated 20.3.2015 made by the Income Tax Appellate Tribunal, Rajkot Bench, Rajkot in ITA No.1006/RJT/2010 by proposing the following two questions stated to be substantial questions of law :-
"(A) Whether on facts and in the circumstances of the case, ITAT is justified in law and on facts in deleting the entire addition of Rs.45,56,000/- made on account of disallowance under section 40(a)(ia) of the Act ?
(B) Whether on facts and in the circumstances of the
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O/TAXAP/541/2015 ORDER
case, ITAT is justified in law and on facts in holding that the payment in question was not covered within the meaning of either Section 194(C) or Section 194(I) of the Act ?"
2. The assessment year is 2006-07 and the relevant accounting period is the previous year 2005-06. The assessee, a firm, filed its return of income for assessment year 2006-07 on 30.12.2006 declaring total income of Rs.30,42,330/-. The case was selected for scrutiny. The Assessing Officer found that there was a default in deduction of TDS in respect of payment of Rs.45,56,000/- made to M/s.Kiran Shipping Agency Private Limited for taking dumper, tanker, hydra, forklift etc. from it. According to the Assessing Officer, the assessee was bound to deduct TDS under section 194C of the Act on such payment but it failed to do so. He, accordingly, disallowed payment of Rs.45,56,000/- on which no TDS was deducted under section 40(a)(ia) of the Act. The assessee carried the matter in appeal before the Commissioner (Appeals), who deleted the disallowance by holding that in the assessee's case tax was not deductible either under section 194C or 194I of the Act. The revenue went in appeal before the Tribunal but failed.
3. Mr. Pranav Desai, learned senior standing counsel for the appellant submitted that the Commissioner (Appeals) was not justified in deleting the addition of Rs.4,56,000/- made on account of disallowance under section 40(a)(ia) of the Act by reiterating the findings recorded by the Assessing Officer.
4. This court has considered the submissions advanced by the learned counsel for the appellant and has perused the Page 2 of 4 HC-NIC Page 2 of 4 Created On Sat Sep 12 00:45:59 IST 2015 O/TAXAP/541/2015 ORDER impugned order passed by the Tribunal as well as the orders passed by the lower authorities.
5. As can be seen from the impugned order, the Tribunal has taken note of the fact that in the present case the sister concern of the assessee had leased its idle equipments to the assessee which were utilised by the assessee and payment was made to the sister concern. This transaction was not in the nature of contract but was in the nature of lease agreement and, therefore, could not be treated as contracted payment as per the provisions of section 194C of the Act and hence, disallowance of such amount under the provisions of section 40(a)(ia) was not justified on account of failure on the part of the assessee to effect TDS on such payments.
6. As regards the contention that the case would fall within the ambit of section 194I of the Act, the Tribunal took note of the fact that section 194I which included machinery and equipment came into effect only from 14.7.2006 and hence, the same would not be applicable in the facts of the present case.
7. The question that arises for consideration in the present case is whether the assessee was liable to deduct TDS while making payment to its sister concern in respect of equipments taken on lease by it from the sister concern either under section 194C or section 194I of the Act.
8. Insofar as the applicability of section 194C of the Act is concerned, both, the Commissioner (Appeals) as well as the Tribunal have recorded a concurrent finding of fact to the Page 3 of 4 HC-NIC Page 3 of 4 Created On Sat Sep 12 00:45:59 IST 2015 O/TAXAP/541/2015 ORDER effect that there was no contract between the assessee and its sister concern and that as and when such equipments were lying idle and the assessee needed them, the same were utilised by the assessee and payment was made to the sister concern. Therefore, the transaction was not in the nature of contract but was in the nature of lease agreement.
9. As regards the applicability of section 194I of the Act, a perusal of the relevant statutory provisions as they stood at the relevant time reveals that section 194I did not include the words, "machinery and equipment" which were inserted only with effect from 14.7.2006. Under the circumstances, having regard to the fact that in the year under consideration the words "machinery and equipment" did not find place in section 194I of the Act, the same would not be applicable in the facts of the present case.
10. In the light of the above discussion, it cannot be said that the impugned order passed by the Tribunal suffers from any legal infirmity so as to give rise to any question of law, much less, a substantial question of law warranting interference. The appeal, therefore, fails and is, accordingly, dismissed.
(HARSHA DEVANI, J.) (A.G.URAIZEE, J.) zgs Page 4 of 4 HC-NIC Page 4 of 4 Created On Sat Sep 12 00:45:59 IST 2015