ITO, New Delhi v. M/s Elsamex India Pvt. Ltd., New Delhi

ITA 659/DEL/2011 | misc
Pronouncement Date: 16-09-2011 | Result: Dismissed

Appeal Details

RSA Number 65920114 RSA 2011
Assessee PAN AAACE6703H
Bench Delhi
Appeal Number ITA 659/DEL/2011
Duration Of Justice 7 month(s) 11 day(s)
Appellant ITO, New Delhi
Respondent M/s Elsamex India Pvt. Ltd., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 16-09-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 16-09-2011
Date Of Final Hearing 04-08-2011
Next Hearing Date 04-08-2011
Assessment Year misc
Appeal Filed On 04-02-2011
Judgment Text
BEFORE THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B NEW DELHI BEFORE SHRI C.L. SETHI JUDICIAL MEMBER AND SHRI B.C. MEENA ACCOUNTANT MEMBER ITA NOS.658 & 659/DEL.2011 (FINANCIAL YEARS : 2008-09 & 2009-10) ITO WARD 49 (4) VS. M/S. ELSAMEX INDIA PVT. LTD . NEW DELHI. 1304-1304A CHIRANJIV TOWER 43 NEHRU PLACE NEW DELHI 110 019 . (PAN NO.AAACE6703H) (APELLANT) (RESPONDENT) ASSESSEE BY : SHRI KAPIL GOEL ADVOCATE DEPARTMENT BY : SHRI ROHIT GARG DR O R D E R PER B.C. MEENA ACCOUNTANT MEMBER : BOTH THE APPEALS FILED BY THE REVENUE ARISE OUT OF THE ORDER OF THE CIT (APPEALS)-XXX NEW DELHI DATED 01.11.2010. IN BOTH THE FINANCIAL YEARS 2008-09 AND 2009-10 THE ORDER OF AO IS U/S 2 01(1) OF THE INCOME- TAX ACT. FOR THE SAKE OF CONVENIENCE BOTH THE APP EALS ARE BEING DISPOSED OFF BY THIS COMMON ORDER AS THE ISSUES ARE COMMON. THE GROUNDS OF APPEAL TAKEN BY THE REVENUE IN ITA NO.658/DEL/2011 FOR FINANCIAL YEAR 2008-09 ARE AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE LEARNED CIT(A) HAS ERRED IN ITA NOS.658 & 659/DEL/2011 2 1) HOLDING THAT THE PAYMENT OF RS.3 73 000/- TO KANCHI FARMS PVT. LTD FOR OFFICE REPAIR MAINTENANCE IS IN THE NATURE OF CONTRACTUAL PAYMENT AND THE ASSESSEE IS LIABLE FOR TDS U/S 194C INSTEAD OF SECTION 194I IGNORING THE FACT THAT THE A.O HAS ESTABLISHED IN THE ORDER U/S 201(1)/201(1A) THAT IT WAS THE PAYMENT MADE FOR RENT HENCE ASSESSEE WAS LIABLE FOR TDS U/S 194I. 2) HOLDING THAT THE PAYMENT TO AKHIL REFRIGERATION FOR REPAIRS I.E. LABOUR CHARGES WAS LESS THAN RS.20 000/- ARE NOT LIABLE FOR TDS THE OBSERVATION OF CIT(A) IS NOT CORRECT AS IN THE ORDE R THE A.O HAS CLEARLY MENTIONED THAT THE ASSESSEE HAS MADE SINGLE PAYMENT AMOUNTING RS.24 500/- TO AKHIL REFRIGERATION AGAINST REPAIR & MAINTENANCE OF AIR CONDITIONERS. 3) HOLDING THAT THE PAYMENTS BY THE ASSESSEE TO VARIOUS SUB CONTRACTORS ARE COVERED WITHIN THE SCOP E OF SECTION 194C(2) ON WHICH THE TAX IS LIABLE TO BE DEDUCTED AT THE RATE 1.133 % AND NOT 2.266% AS HAS BEEN CONCLUDED BY THE A.O. 4) IN NOT APPRECIATING THE FACT RECORDED BY THE A.O IN THE ORDER U/S 201(1)/201(1A) THAT THE PAYMENT OF RS.1 00 68 230/- UNDER THE HEAD 'HOT MIX ASPHALT' TO M/S GAYATRI CONSTRUCTION CO WAS FOR HIRING OF MACHINERY/PLANT AND SUBJECTED FOR TDS U/S 194 I. THE GROUNDS OF APPEAL TAKEN BY THE REVENUE IN ITA N O.659/DEL/2011 FOR FINANCIAL YEAR 2009-010 ARE AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE LEARNED CIT(A) HAS ERRED IN 1) HOLDING THAT THE PAYMENTS BY THE ASSESSEE TO VARIOUS SUB CONTRACTORS ARE COVERED WITHIN THE SCOP E OF SECTION 194C(2) ON WHICH THE TAX IS LIABLE TO BE ITA NOS.658 & 659/DEL/2011 3 DEDUCTED AT THE RATE 1.133 % AND NOT 2.266% AS HAS BEEN CONCLUDED BY THE A.O. 2) IN NOT APPRECIATING THE FACT RECORDED BY THE A.O IN THE ORDER U/S 201(1)/201(1A) THAT THE PAYMENT OF RS.1 57 905/- UNDER THE HEAD 'HOT MIX ASPHALT' TO M/S GAYATRI CONSTRUCTION CO WAS FOR HIRING OF MACHINERY/PLANT AND SUBJECTED FOR TDS U/S 194I. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE COMP ANY IS CARRYING ON BUSINESS OF REPAIR & MAINTENANCE OF INFRASTRUCTURE PROJECTS AND TO PARTICIPATE REPRESENT CONSORTIUMS IN INFRASTRUCTUR E PROJECTS MICRO SURFACING CONSTRUCTION OF ROADS. ON 10.12.2009 A S URVEY U/S 133A WAS CARRIED OUT AT THE PREMISES OF ASSESSEE AT 1304 13 04A CHIRANJIV TOWER 43 NEHRU PLACE NEW DELHI-19. A STATEMENT ON OATH OF SHRI SIDDHI NATH MISHRA ASSOCIATED MANAGER WAS ALSO RECORDED AT THE TIME OF SURVEY. DURING THE COURSE OF SURVEY EXTRACTS OF VARIOUS AC COUNTS INVOLVING PAYMENTS LIABLE FOR TDS WERE OBTAINED. SOME OTHER D OCUMENTS WERE ALSO TAKEN WHICH WAS RELEVANT FOR THE ISSUE OF TDS. THE AO ASKED ASSESSEE TO FILE ALL AGREEMENTS OF DIFFERENT EXPENSES AND LEDGE R OF ALL EXPENSES. AS RECORDED BY AO THE ASSESSEE HAD FILED PART DETAILS . IT IS NOTED BY AO THAT THE ASSESSEE HAS MADE PAYMENTS TO VARIOUS PARTIES A ND DEDUCTED TDS ON LOWER RATES OR IN SOME CASE ASSESSEE HAS NOT DEDUCT ED TDS. CIT (A) GRANTED THE RELIEF HENCE REVENUE IS IN APPEAL BEFO RE US. ITA NOS.658 & 659/DEL/2011 4 3. FIRST WE ARE TAKING UP ITA NO.658/DEL/2011 FOR F INANCIAL YEAR 2008-09. IN THIS APPEAL GROUND NO.1 IS AGAINST T HE DELETION OF ADDITION IN RESPECT OF PAYMENT OF RS.3 73 000/- TO KANCHI FA RMS PVT. LTD. FOR OFFICE MAINTENANCE CHARGES PAID IN PURSUANT TO AN A GREEMENT. AO HELD IT A PAYMENT OF RENT AND APPLIED THE PROVISIONS OF SEC TION 194-I OF INCOME- TAX ACT INSTEAD OF SECTION 194-C CONSIDERED BY ASSE SSEE. THE ASSESSEE CLAIMED THAT IT HAD ENTERED INTO AN AGREEMENT WITH KANCHI FARMS PRIVATE LIMITED FOR SERVICES (LIKE MANPOWER FOR SECURITY O FFICE BOY AND MANPOWER FOR PANTRY SERVICES AND MAINTENANCE SERVIC ES). THE LUMP-SUM AMOUNT OF RS.37 300/- PER MONTH FOR THESE SERVICES PAID AND DEDUCTED TDS AT THE RATE OF 2.06% THEREON IN VIEW OF PROVISI ONS OF SECTION 194-C TAKING IT AS ROUTINE NORMAL MAINTENANCE CONTRACT AS PER CBDT CIRCULAR NO.715 DATED 08.08.1995. 4. WE HAVE HEARD BOTH SIDES ON THIS ISSUE. WE HAVE ALSO GONE THROUGH THE AGREEMENT BETWEEN ASSESSEE AND KANCHI F ARMS PVT. LTD. DATED 01.04.2007 PLACED AT ASSESSEE PAPER BOOK PAGE 1 TO 3. AS PER THE CLAUSES THIS WAS AN AGREEMENT FOR FITTINGS AND FIX TURES INSTALLED IN THE ENTIRE PROPERTY NO.A-254 ROAD NO.6 NATIONAL HIGHW AY NO.8 MAHIPALPUR NEW DEHI-110037 FOR OFFICIAL PURPOSE FO R A PERIOD OF TWO YEARS COMMENCING ON 1.4.2007 ON A MONTHLY RENT OF R S.37 300/-. CIT (A) HAD GRANTED RELIEF ON THE BASIS OF CLAUSE 2 & 3 OF THIS AGREEMENT WHICH PUTS OBLIGATION ON ASSESSEE TO PROVIDE MANPOW ER FOR SECURITY ITA NOS.658 & 659/DEL/2011 5 OFFICE BOY AND MANPOWER FOR PANTRY SERVICE AND TO P ROVIDE MAINTENANCE OF ENTIRE PREMISES. HOWEVER HE HAD IGNORED THE CL AUSE 4 5 7 8 AND 10 WHICH STATES ABOUT FIXTURES AND FITTINGS WHICH HAD BEEN LET OUT. CLAUSE 10 PROVIDES ABOUT THE LIST OF THE FIXTURES AND FITTING S AS PER ANNEXURE-I WHICH HAD BEEN LET OUT. HOWEVER THE RELEVANT ANNEXURE I AS STATED IN THE CLAUSE HAD NOT BEEN FILED ON RECORD. IT IS NOT ACCOMPANIE D ALONG WITH AGREEMENT FILED ON RECORD. THE TERMS OF AGREEMENT SHOW THAT THERE WAS LETTING OF FIXTURES AND FITTINGS. KEEPING ALL THESE FACTS IN VIEW WE HOLD THAT CIT (A) WAS NOT JUSTIFIED IN HOLDING THAT THE PAYMENT W AS FOR A ROUTINE NORMAL MAINTENANCE AND SUPPLY OF LABOUR AND THE PROVISIONS OF SECTION 194-C ARE ATTRACTED. IN OUR CONSIDERED VIEW IT WAS LEASE A GREEMENT FOR LETTING OUT FIXTURES & FITTINGS. THE OBLIGATION ON ASSESSEE TO MAINTAIN OFFICE AND PROVIDE MANPOWER TO OFFICE WAS A SECONDARY TO THE L ETTING OUT OF FIXTURES & FITTINGS. ASSESSEES CLAIM THAT INCOME HAD BEEN DECLARED BY M/S. KANCHI FARMS PVT. LTD. IS A MATTER OF RECORD. IT R EQUIRES VERIFICATION. IN VIEW OF THIS FACT WE SET ASIDE THE ISSUE TO THE FI LE OF AO TO RE-DECIDE THE SAME. 5. THE ISSUE RAISED IN GROUND NO.2 IS AGAINST THE H OLDING THAT THE PAYMENT MADE TO AKHIL REFRIGERATION FOR REPAIRS AND MAINTENANCE OF AIR- CONDITIONER OF RS.24 500/- WAS CONSISTING TWO DIFFE RENT TRANSACTIONS AND EACH OF THEM WAS LESS THAN RS.20 000/- AND NOT LIAB LE FOR TDS. DURING THE PREVIOUS YEAR THE ASSESSEE HAD MADE PAYMENT OF RS.24 500 TO AKHIL ITA NOS.658 & 659/DEL/2011 6 REFRIGERATION FOR REPAIR & MAINTENANCE OF AIR-CONDI TIONERS. THE ABOVE AMOUNT WAS SUM OF MATERIAL CHARGES OF RS.11 250 AND LABOUR CHARGES OF RS.13 250. SEPARATE BILLS FOR LABOUR CHARGES AND M ATERIAL CHARGES WERE RAISED. AS PER ASSESSEE NO TDS LIABILITY AROSE ON THE ASSESSEE AS THE AMOUNT OF LABOUR CHARGES WAS LESS THAN RS.20 0000. LD. DR SUBMITTED THAT THE OBSERVATION OF CIT(A) IS NOT CORRECT AS IN THE ORDER THE A.O HAS CLEARLY MENTIONED THAT THE ASSESSEE HAS MADE SINGLE PAYMENT AMOUNTING RS.24 500/- TO AKHIL REFRIGERATION AGAINST REPAIR & MAINTENANCE OF AIR CONDITIONERS. IT WAS AN ANNUAL MAINTENANCE CONTRA CT. LD. AR RELIED ON CIT (A) ORDER. 6. WE HAVE HEARD BOTH SIDES AND PERUSED THE MATERIA L ON RECORD. IN ASSESSEES BOOK THIS AMOUNT HAD BEEN DEBITED TO RE PAIR AND MAINTENANCE OF AIR-CONDITIONER LEDGER ACCOUNT. THE NARRATION I N LEDGER ACCOUNT PROVIDES THAT THIS AMOUNT WAS SUM OF TWO BILLS NO.3 12 AND 314 BOTH DATED 27.02.2009 PLACED AT PAGES 10 & 11 OF PAPER B OOK. BILL NO.312 DATED 27.2.2009 SHOWS THAT IT WAS FOR GAS CHARGES A ND VAT WAS ALSO PAID. IN VIEW OF THIS FACT WE SUSTAIN THE ORDER O F CIT (A) ON THIS ISSUE AND DISMISS GROUND NO.2 OF THIS APPEAL. 7. THE ISSUE RAISED IN GROUND NO.3 IS AGAINST THE H OLDING THAT THE PAYMENTS MADE BY THE ASSESSEE TO VARIOUS SUB CONTRA CTORS ARE COVERED WITHIN THE SCOPE OF SECTION 194C(2) ON WHICH THE TA X IS LIABLE TO BE DEDUCTED AT THE RATE 1.133% AND NOT 2.266% AS HAS B EEN CONCLUDED BY THE ITA NOS.658 & 659/DEL/2011 7 A.O. ON 29.04.2008 AHMEDABAD VADODARA EXPRESSWAY CO. LTD. NEW DELHI AS AN EMPLOYER ENTERED INTO M/S. RAMKY INFRAS TRUCTURE LTD. AS CONTRACTOR FOR CERTAIN WORK LIKE SHORT TERM IMPROVE MENT AND MAINTENANCE OF AHMEDABAD VADODARA EXPRESSWAY FROM 0.00 KM. TO 9 3/302 OF H.E.1 INCLUDING ROBS AND ITS APPROACHES IN THE STATE OF G UJARAT. SUBSEQUENTLY A SUB CONTRACT AGREEMENT EXECUTED ON 16.05.2008 BET WEEN RAMKY INFRASTRUCTURE LTD AND ELSAMEX INDIA PVT. LTD. (ASS ESSEE) FOR SHORT TERM IMPROVEMENT AND ROUTINE MAINTENANCE OF AHMEDABAD VA DODARA EXPRESSWAY H.E.1 INCLUDING ROBS ITS APPROACHES FOR A VALUE OF RS.28 87 56 730/-. AS PER CLAUSE 5 FOR THE PRICE S CHEDULE THE ASSESSEE (DEDUCTOR) SHALL RECEIVE THE PAYMENT FROM RIL ONLY AFTER THE RIL RECEIVES THE CORRESPONDING PAYMENT FROM THE CLIENT (AHMEDABAD VADODARA EXPRESSWAY LTD. (A COMPANY WHOLLY OWNED BY NATIONAL HIGHWAYS AUTHORITY OF INDIA). IN AOS VIEW THE NA TURE OF CONTRACT INDICATES THAT THE ENTIRE CONTRACT WAS BETWEEN AHME DABAD VADODARA EXPRESSWAY LTD. (THE CLIENT) AND THE ASSESSEE (DEDU CTOR) M/S RIL WAS ONLY ACTING AS AN CONDUIT. AO ALSO HELD THAT HIS VI EW WAS SUBSTANTIATED FROM THE TERM OF CONTRACT IN CLAUSE 5 WHICH READS AS UNDER: 'THE PERCENTAGE OF MONEY TO BE TRANSFERRED TO THE PARTY SHALL BE ARRIVED UPON BY DEDUCTING ALL APPLICABLE TAXES AND / OR RATES AND EXPENSES OF RIL ON THE CONTRACT AT THE TIME OF PAY MENT RECEIVED FROM THE CLIENT'. ITA NOS.658 & 659/DEL/2011 8 AO ALSO HELD THAT THE ASSESSEE DEDUCTOR HAS SUB CON TRACTED THE PROJECT TO OTHER CONTRACTORS AND DEDUCTED TDS @ 1.133%. THE PA YMENTS MADE BY THE ASSESSEE ARE IN THE NATURE OF CONTRACT FOR MAIN TENANCE OF HIGHWAY SUBJECTED TO TDS @ 2.266% AS AGAINST 1.133%. THE A MOUNT PAID UNDER THIS HEAD BY THE ASSESSEE IS RS.L 72 94 900 AND DED UCTED TAX ON IT U/S 194- C IS RS.2 10 300/- BUT THIS PAYMENT LIABLE FOR TDS @ 2.266% COMES OUT TO RS.3 91 902/-. THEREFORE THE ASSESSEE DEDUCTED SHORT TAX AMOUNTING TO RS.1 81 602/-. LD. DR RELIED ON AOS ORDER AND L D.AR RELIED ON THE CIT (A)S ORDER. 8. WE HAVE HEARD BOTH SIDES AND PERUSED THE MATERIA L ON RECORD. AS PER AOS OWN FINDINGS THE ASSESSEE HAD SUB-CONTRAC T THE WORK FURTHER TO SUB-CONTRACTORS. EVEN IF RIL HELD TO BE JUST CONDU IT THEN ALSO ASSESSEES CASE FALLS UNDER SECTION 194C(2) OF THE ACT WHICH P UTS OBLIGATION ON ASSESSEE TO WITHHOLD TAX @ 1% ON THE PAYMENT TO THE SUB-CONTRACTORS. IN VIEW OF THIS MATTER WE UPHOLD THE ORDER OF CIT (A) ON THIS ISSUE AND DISMISS THIS GROUND. 9. THE ISSUE IN GROUND NO.4 IS AGAINST NOT APPRECIA TING THE FACT RECORDED BY THE A.O IN THE ORDER U/S 201(1)/201(1A) THAT THE PAYMENT OF RS.1 00 68 230/- UNDER THE HEAD 'CONTRACT TO HOT MI X' TO M/S GAYATRI CONSTRUCTION CO FOR HIRING OF MACHINERY/PLANT AND T O BE SUBJECTED FOR TDS U/S 194I. THE ASSESSEE HAS PAID RS.1 00 68 23 01- UNDER THE HEAD 'CONTRACT TO HOT MIX ' AND DEDUCTED TAX ON IT AT TH E RATE OF 2.26% UNDER ITA NOS.658 & 659/DEL/2011 9 SECTION 194-C AMOUNTING TO RS.2 28 148/-. THE ASSE SSEE FURNISHED COPY OF WORK ORDER DATED 03.10.2008 WITH 'GAYATRI CONSTR UCTION CO' PLACED AT PAGE 59 OF PAPER BOOK. THE WORK ORDER SHOWS THAT GA YATRI CONSTRUCTION CO. WAS PROVIDING '15000 MT OF HOT MIX MATERIAL WIT H ASPHALT EMULSION LABOUR & MACHINERY (APOLLO SENSOR PAVER VIBRATORY ROLLER COMPRESSOR AND EMULSION SPRAYER MACHINE ETC.)'. T HE QUOTATION RELATED TO THIS WORK ORDER DATED 1.8.2008 PLACED AT PAGE 58 SHOWS THAT IT WAS FOR PROVIDING HOT MIX MATERIAL (WITHOUT ASPHALT) EMULSI ON LABOUR AND ALL MACHINERY ETC. THUS THERE IS INCONSISTENCY IN THE TERMS OF THE WORK CONTRACT AND QUOTATION. AO TREATED THE PAYMENT IN THE NATURE OF HIRING OF PLANT WHICH IS SUBJECTED TO TDS U/S 194-I @ 11.33% AND WORKED OUT AT RS.11 40 730/- AND SHORT DEDUCTION UNDER THIS HEAD IS RS.9 12 582/-. 10. CIT (A) GRANTED RELIEF BY HOLDING IT AS A COMPO SITE WORK CONTRACT AND TDS TO BE DEDUCTED U/S 194C OF INCOME-TAX ACT. 11. WE HAVE HEARD BOTH SIDES ON THIS ISSUE. WE HAV E ALSO CAREFULLY PERUSED THE MATERIAL ON RECORD AND DOCUMENTS SUBMIT TED IN PAPER BOOK. THE QUOTATION PLACED AT PAGE 58 SHOWS THAT GAYATRI CONSTRUCTION CO. TO PROVIDE HOT MIX MATERIAL WITHOUT ASPHALT AND IT WAS ALSO PLEADED BEFORE CIT (A). CIT (A) TREATED IT AS A COMPOSITE CONTRAC T. THE WORD OUT HAD BEEN INSERTED WITH PEN IN BETWEEN WITH ASPHALT AND THE SAME HAVE BEEN BRACKETED AND THEREAFTER THE WORD EMULSION LABOUR AND ALL MACHINERY ETC. HAS BEEN MENTIONED. IN THE WORK ORDER THE NARRATI ON IS AS UNDER :- ITA NOS.658 & 659/DEL/2011 10 PROVIDING HOT MIX MATERIAL WITH ASPHALT EMULSION LABOUR & MACHINERY (APOLLO SENSOR PAVER VIBRATORY ROLLER COMPRESSOR AND EMULSION SPRAYER MACHINE ET C. COMPLETED (EXCLUDING ASPHALT). THE CONTRACT LEDGER ACCOUNT AND COPY OF GAYATRI CON STRUCTION CO. FROM ASSESSEES BOOKS ALSO SHOW THAT PAYMENTS WERE HOT M IX MATERIAL WITH ASPHALT EMULSION MACHINERY ETC. THE FACTS ABOUT MIXING OF ASPHALT ARE NOT CLEAR. WHETHER THERE WAS SEPARATE PAYMENT FOR A SPHALT IS ALSO NOT CLEAR. HOWEVER OTHER FACTS OF CASE ON RECORD SUGG EST THAT IT WAS A COMPOSITE CONTRACT. IN VIEW OF THESE FACTS AND CI RCUMSTANCES IN THE INTEREST OF JUSTICE WE SUSTAIN THE ORDER OF CIT (A ) AND DISMISS THIS GROUND OF REVENUES APPEAL. 12. NOW WE TAKE UP THE APPEAL OF REVENUE IN ITA NO. 659/DEL/2011 FOR FINANCIAL YEAR 2009-010. 13. GROUND NO.1 IS AGAINST THE HOLDING THAT THE PAY MENTS BY THE ASSESSEE TO VARIOUS SUB CONTRACTORS ARE COVERED WIT HIN THE SCOPE OF SECTION 194C(2) ON WHICH THE TAX IS LIABLE TO BE DE DUCTED AT THE RATE 1.133 % AND NOT 2.266% AS HAS BEEN CONCLUDED BY THE A.O. THIS GROUND IS ALREADY DECIDED BY US IN ITA NO.658/DEL/2011 AFORES AID AND THE SAME IS DECIDED IN FAVOUR OF THE ASSESSEE AND WE UPHOLD THE ORDER OF THE CIT (A) IN THAT APPEAL. FOLLOWING THE SAME WE UPHOLD THE ORDER OF THE CIT (A) AND DISMISS THE GROUND TAKEN BY THE REVENUE. ITA NOS.658 & 659/DEL/2011 11 14. GROUND NO.2 IS AGAINST NOT APPRECIATING THE FAC T RECORDED BY THE A.O IN THE ORDER U/S 201(1)/201(1A) THAT THE PAYMEN T OF RS.1 57 905/- UNDER THE HEAD 'HOT MIX ASPHALT' TO M/S GAYATRI CON STRUCTION CO WAS FOR HIRING OF MACHINERY/PLANT AND SUBJECTED FOR TDS U/S 194I. THIS ISSUE IS ALSO DECIDED BY US IN ITA NO.658/DEL/2011 IN FAV OUR OF ASSESSEE. HENCE THIS GROUND IS DISMISSED. 16. IN THE RESULT ITA NO.658DEL/2011 IS PARTLY ALL OWED FOR STATISTICAL PURPOSES AND ITA NO.659/DEL/2011 IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE 16 TH DAY OF SEPTEMBER 2011. SD/- SD/- (C.L. SETHI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : THE 16 TH DAY OF SEPTEMBER 2011/TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT (A)-XXX NEW DELHI. 5.CIT(ITAT) NEW DELHI. AR/ITAT