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4. Relying upon the aforementioned order dated 27/1/2009, the AO in the impugned assessment order has disallowed these charges on the ground that assessee has failed to deduct tax at source under section 194J of the Act and Ld. CIT(A) has held that such charges were liable for deduction of tax under section 194C of the Act and the assessee was not liable for deduction of tax either under section 194J and/or under section 194 I.

5. The assessee is assailing the order of Ld. CIT(A) on the ground that ld. CIT(A) has erred in holding that the tax was deductible tax at source even under section 194C of the Act. The revenue apart from supporting the order of Ld. CIT(A) on this issue, being respondent in assessee's appeals would also contend that Ld. CIT(A) should have held that the tax on such payment was deductible u/s. 194J/194 I of the Act.

6.8 Ld. AR further submitted that section 194J also could not be applied in view of the following decision of ITAT on the applicability of section 194J has also been considered.

a. Decision of the Jaipur Bench of the ITAT in the case of Jaipur Vidyut Vitran Nigam Ltd. v/s. DCIT reported in (2009) 123 TTJ 888.

b. Unreported decision of the Jodhpur Bench of the ITAT in the case of ITO v/s. Aditya Cements Ltd. (in ITA No. 161, 162 & 152/JU/2010) c. Unreported decision of the Delhi Bench of the ITAT in the case of Dakshin Haryana Bijali Vitran Nigam Ltd. (ITA No. 3576 to ITA NO.7539/MUM/2011(A.Y.2008-09) ITA NO.2405/MUM/2011(A.Y. 2007-08) ITA NO.8572/MUM/2011(A.Y. 2008-09) 3578/Del./2009) referred to in the decision of the Jodhpur Bench referred to above.

7.3 Distinguishing the decisions relied upon by Ld. AR it was submitted by Ld. DR that issue before the Tribunal in the case of Jaipur Vidyut Vitaran Nigam Ltd. (supra) was regarding applicability or otherwise of section 194J of the Act. He submitted that on appreciation of agreement and the facts of that case it was held by the Tribunal that technical staff by operating and maintaining its grid stations and transmissions lines simply discharge their functions and do not render any technical service to the assessee, therefore, section 194J did not apply. He submitted that so far as it relate to non-applicability of section 194C, Jaipur Bench of ITAT had relied upon those evidences which established that the payment was made on the principle of no profit or no loss and was in the nature of reimbursement of cost. He submitted that as against the facts of that case the assessee in the ITA NO.7539/MUM/2011(A.Y.2008-09) ITA NO.2405/MUM/2011(A.Y. 2007-08) ITA NO.8572/MUM/2011(A.Y. 2008-09) present case in support of its arguments that the nature of wheeling and transmission charges payment is reimbursement of cost, has filed additional evidences vide paper book dated 26/9/2011 which were not filed either before the AO or Ld. CIT(A) and these have been filed only for the first time before ITAT.

8.2 It may be mentioned here that the applicability of section 194J and also sec. 194C was examined by the coordinate Bench of the Tribunal in the case of Jaipur Vidyut Vitaran Nigam Ltd (supra) and it has been the contention of the assessee that the agreement in that case also contain similar terms and the facts are also similar. This contention of the assessee has not been controverted by the revenue by specifically pointing out that there was any major difference between the terms of the agreement considered in that case and the terms of contract in the present case as well as in the facts of both the cases. It has been categorically held in the said case that there was no liability on the assessee to deduct tax on the payments of transmission/wheeling and SLDC charges u/s 194J. No contrary decision has been brought to our notice in which it has been held that tax on such charges is deductible under either of the sections viz 19C, 194J; 194 I of the Act..