IRC Carriers P. Ltd., Kolkata v. ITO, Ward - 12(2), Kolkata, Kolkata

ITA 456/KOL/2010 | 2007-2008
Pronouncement Date: 30-04-2010

Appeal Details

RSA Number 45623514 RSA 2010
Assessee PAN AAACI7233G
Bench Kolkata
Appeal Number ITA 456/KOL/2010
Duration Of Justice 1 month(s) 28 day(s)
Appellant IRC Carriers P. Ltd., Kolkata
Respondent ITO, Ward - 12(2), Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 30-04-2010
Appeal Filed By Assessee
Bench Allotted SMC
Tribunal Order Date 30-04-2010
Assessment Year 2007-2008
Appeal Filed On 02-03-2010
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL 'B BENCH : KOLKATA (BEFORE HONBLE SRI B.R.MITTAL J.M. AND HON BLE SRI B.C.MEENA A.M.) I.T.A. NO. 456 /KOL/2010 ASSESSME NT YEAR : 2007-08 IRC CARRIERS (P) LTD. V S ITO WARD-12(2) KOLKATA (PAN NO. AAACI 7233 G) (APPELLANT) (RESPONDENT) APPELLANT BY : SR I JAY NARAYAN GUPTA. RESPONDENT BY : SRI PIYUSH KOLHE. O R D E R PER SHRI B.C.MEENA A.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)- XII KOLKATA DATED 29.01.2009 FOR THE ASSESSMENT Y EAR 2007-08. 2. IN ALL THE GROUNDS THE ISSUE INVOLVED IS REGARD ING THE APPLICABILITY OF THE PROVISIONS OF SECTION 194C OF THE INCOME TAX ACT 1961. 3. WHILE PLEADING ON BEHALF OF THE ASSESSEE THE LEARNED A.R. SUBMITTED AS FOLLOWS. THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGED IN THE BUSINESS OF INVESTMENT AND ADVANCING LOANS AND TRANSPORT. TH E ASSESSEE PURCHASED A FLAT NO. 5A MEASURING 2900 SQ FT IN THE 12 STORIED BUILDING NAMED AS BALLY HIGH AT 1 BALLYGUNGE PARK ROAD KOLKATA ON 31.1.99. THE SAM E WAS USED FOR BUSINESS PURPOSES. THE CONVEYANCE DEED WAS REGISTERED. THE ASSESSEE WAS TO PAY PROPORTIONATE SHARE OF EXPENSES. THE LEARNED A.R. SUBMITTED THAT IT WAS A REIMBURSEMENT OF ACTUAL SPECIFIC EXPENSES. AS PER THE SALE AGREEMENT WITH THE PROMOTER THE PROPORTIONATE SHARE OF THE ACTUAL EXPENSES FOR THE MAINTENANCE OF THE COMMON AREA WAS TO BE PAID. SINCE THIS WAS THE OBLIGATION PUT BY THE SALE AGREEMENT THEREFORE CBDT CIRCULAR NO. 13/2006 DATED 13.12.2006 IS APPLICABLE. THUS IT WAS A CONTRACT FOR SALE AND NO T CONTRACT FOR THE WORK AND HE ALSO RELIED ON THE DECISION OF HONBLE SUPREME COU RT IN THE CASE OF STATE OF HIMACHAL PRADESH VS ASSOCIATED HOTELS OF INDIA LT D. [1972] 29 STC 474 (SC). SUBMITTED THAT WHILE APPLYING THE PROVISIONS F OR TDS THE MAIN OBJECT HAS TO BE SEEN AND IN THIS CASE IT WAS TRANSFER OF PROPER TY. HENCE IT WAS A CONTRACT FOR 2 SALE. IN VIEW OF THE BOARD CIRCULAR THE PROVISIO NS OF SECTION 194C ARE NOT APPLICABLE. 4. ON THE OTHER HAND THE LEARNED D.R. RELIED ON T HE ORDER OF THE CIT(A). 5. AFTER HEARING BOTH THE SIDES WE FIND THAT THE A SSESSEE COMPANY WAS HAVING A CONTRACT WITH THE COMPANY FOR REPAIRING AND MAI NTENANCE OF THE BUILDING. THE AMOUNT PAID DURING THE PERIOD RELEVANT TO THE AS SESSMENT YEAR 2007-08 WAS MORE THAN RS.50 000. THE ASSESSEE HAS NOT DEDUCTED TDS THEREUPON. THE LEARNED A.RS CLAIM THAT IT WAS A SALE CONTRACT RAT HER THAN A WORK CONTRACT IS NOT CORRECT. THE PERSONS WHO ARE MAINTAINING THE BUILD ING WERE PROVIDING THE SERVICES UNDER A CONTRACT AND THIS CONTRACT WAS FOR SERVICE S. THE LEARNED A.RS CLAIM THAT IT WAS A PART OF THE SALE CONTRACT IS TOTALLY MIS GUIDING AND MISLEADING. THE ASSESSEE ENTERED INTO A CONTRACT FOR MAINTENANCE O F COMMON AREA. THE ASSESSEE HAS TO PAY THE PROPORTIONATE SHARE IN RESPECT OF TH E SERVICES RENDERED BY SERVICE COMPANY (THE CONTRACTOR) IN RESPECT OF MAINTENANC E AND REPAIRING. THUS THERE WAS AN EXISTENCE OF CONTRACT BETWEEN THE PAYER AND PAYEE FOR MAKING THE PAYMENTS FOR SERVICES RENDERED. THE PAYMENTS WER E CONTRACTUAL PAYMENTS AND THE PROVISIONS OF SECTION 194C ARE ATTRACTED. THE N ON-COMPLIANCE OF SUCH PROVISIONS WILL CERTAINLY ATTRACT THE PROVISIONS O F SECTION 40(A)(IA) OF THE INCOME TAX ACT. IN VIEW OF THIS FACT WE SUSTAIN THE ORD ER OF THE CIT(A) AND DISMISS THE ASSESSEES APPEAL. O RDER PRONOUNCED IN THE OPEN COURT ON 30.4.2010 SD/- SD/- (B.R.MITTAL) (B.C.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30.4.2010 COPY FORWARDED TO :- 1) ITO WARD 12(2) KOLKATA. 2) IRC CARRIERS PVT. LTD.21 HEMANTA BASU SARANI CENTRE POINT 2 ND FLOOR KOLKATA. 3) CIT(A) KOLKATA. 4) CIT KOLKATA. 5) D.R. ITAT KOLKATA. BY ORDER ASSISTANT REGISTRAR I.T.AT. KOLKATA. BCD 3