Indian Kanoon - Search engine for Indian Law

Income Tax Appellate Tribunal - Mumbai

Dcit (Tds) - 1(1), Mumbai vs Asian Heart Institute & Research Centre ... on 31 May, 2017

                     IN THE INCOME TAX APPELLATE TRIBUNAL
                            MUMBAI BENCH "C" MUMBAI

             BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND
                 SHRI N.K. PRADHAN (ACCOUNTANT MEMBER)

                                ITA No. 2211/MUM/2016
                                Assessment Year: 2012-13


      DCIT (TDS)-1(1)                   Vs.    M/s Asian Heart Institute & Research
      Mumbai-400051                            G.N.Block, BKC,Bandra(E)
                                               Mumbai-400051

                                               PAN No. AAACC8811C

      (Appellant)                                     (Respondent)

                          Assessee by :        Shri Saurabh K. Rai, DR
                          Revenue by:          Shri D.D. Anjaria, AR

                 Date of Hearing     :                25/05/2017
                Date of pronouncement:                31/05/2017


                                              ORDER

      PER N.K. PRADHAN, AM

This is an appeal filed by the revenue. The relevant assessment year is 2012-13. The appeal is directed against the order Commissioner (Appeals) - 59, Mumbai and arises out of assessment made u/s 201(1)&201(1A) of the Income Tax Act, 1961 (the 'Act').

2. The grounds of appeal raised by the revenue read as under:

1. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred by holding that provisions of section 194C are applicable and not the provisions of section 194J as held by the A.O. without appreciating the fact that the maintenance of specialized machines in hospitals call ITA No. 2211/Mum/2016 2 for skilled professional/ technical engineers and cannot be held as single contractual charge.

2. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred by holding that the provisions of section 194C are applicable and not the provisions of section 194J of the IT Act as held by the A.O. without appreciating that the very nature of pest control in hospital is akin to industrial pest control and varies from regular day-to-day pest control.

3. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred by holding that the provisions of section 194J are applicable and not the provisions of section 192 of the IT Act as held by the A.O. without appreciating that there exists employer-employee relationship between the consultant doctors and the company.

4. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the demand of Rs.7,40,08,412/- without properly appreciating the factual and legal matrix of the case as clearly brought out by the A.O. in order u/s 201(1)/201(1A) of the Income Tax Act, 1961.

3. Briefly stated, the facts of the case are that the Assessing Officer (A.O.) found that (i) the assessee had been deducting TDS @ 10% u/s 194J on the payment made to consultant doctors instead of 30% u/s 192,

(ii) the assessee had been making TDS @ 2% u/s 194C on the payments made for pest control expenses and annual maintenance contract instead of 10% u/s 194J of the Act. Therefore, the A.O. held the following:

                            U/s. 201(1)       U/s. 201(1A) for 36    Total
                               (Rs.)                months           (Rs.)
Payment towards              16,66,034             5,99,772          22,65,806
Annual Maintenance
Contract (AMC) & Pest
Control Expenses
                                                             ITA No. 2211/Mum/2016   3



Payment made to Full       5,27,59,269        1,89,83,337          7,17,42,606
Time Consultants
Total                      5,44,25,303        1,95,83,109          7,40,08,412

In view of the above, the A.O. held the assessee to be in default for non-deduction of TDS and worked out the total tax liability of the assessee at Rs.7,40,08,412/-.

4. Aggrieved by the order of the A.O., the assessee filed an appeal before the Ld. CIT(A). We find that he Ld. CIT(A) has followed the order of the Tribunal in the case of the assessee for the A.Y. 2008-09 (ITA No. 7051/Mum/2012), A.Y. 2009-10 (ITA No. 7052/Mum/2012), A.Y. 2010- 11 (ITA No. 7053/Mum/2012) and A.Y. 2011-12 (ITA No. 7054/Mum/2012) and allowed the appeal filed by the assessee.

5. The Ld. D.R. relies on the order passed by the A.O. On the other hand the Ld. Counsel of the assessee supports the order passed by the Ld. CIT(A).

6. We have heard the rival submissions and perused the relevant material on record. We find that the issues in the instant appeal are squarely covered in favour of the assessee by the order of the Tribunal relied on by the Ld. CIT(A) which have been mentioned at para 4 here-in- above. Facts being similar, we follow the order of the Co-ordinate Bench for the A.Y. 2008-09, 2009-10, 2010-11 and 2011-12 and uphold the order of the Ld. CIT(A).

7. In the result, the appeal is dismissed.

Order pronounced in the open Court on 31/05/2017.

         Sd/-                            Sd/-

   (MAHAVIR SINGH)                    (N.K. PRADHAN)
   JUDICIAL MEMBER                 ACCOUNTANT MEMBER

Mumbai:
Dated: 31/05/2017
Rahul Sharam, Sr. P.S.

Copy of the Order forwarded to :
1. The Appellant
2. The Respondent.
3. The CIT(A)-
4. CIT
5. DR, ITAT, Mumbai
6. Guard file.
                                                BY ORDER,
//True Copy//
                                         (Dy./Asstt. Registrar)
                                             ITAT, Mumbai