AHMEDABAD, JAN 13, 2014: THE issues before the bench are - Whether acquiring the right of displaying advertisement at hoarding site and making payment to hoarding site owners involve lease, sub-lease or tenancy arrangement; Whether deduction of TDS u/s 194-I is applicable in such case; Whether connectivity charges paid as per the agreement for using of pipeline connection for gas transportation, is in the nature of carriage of goods and covered u/s.194C; Whether it would be considered differently, in case the pipeline was owned by a third party and was opened for service to other clients also; Whether in case, an assessee uses the facility of hiring helicopters for transportation of its employees, deduction of TDS u/s 194I is tenable in law; Whether in case an asset is taken on hire basis and the control lies with the actual owner only, deduction of TDS on payment made can be u/s 194I; Whether in case the services provided by an event Manager were taken for managing a particular event only, deduction of Tax u/s 194J is tenable in law and Whether an assessee can claim expenses from a particular event as its business expense. And the verdict goes against the Revenue.
Facts of the case
A) Assessee, a Public Sector Undertaking, had made payment to M/s Proveg Communication Pvt. Ltd.(PCPL) The AO had stated that the assessee Co. had submitted a letter regarding hiring the hoardings at 17 major locations in Gujarat and fixed the monthly rate of Rs. 34,24,2607/-. The A.O. observed that the assessee Co. had made payment of Rs. 6,85,43,740/- to the aforesaid contractor during the year under consideration. However, assessee had deducted tax @ 2% u/s 194C as against 10% u/s 1941. The assessee was show-caused. After considering assessee's reply, AO held that assessee was liable for 10% TDS as against 2% deducted. On appeal before CIT(A), assessee placed an order vide a letter with PCPL, for "Display of Hoarding Advertisement" at 17 major locations in Gujarat. AO found in his show cause notice that assessee had made monthly payments of Rs. 34.24 lacs. As per office note, it had specifically been mentioned that this was purely a hiring charges of hoardings and all other charges of Flex providing etc. were extra. This proves that charges paid on monthly basis from May, 2008 lo February 2009 were of nature of rent and as such assessee was required lo deduct tax @ 2 % . Please show cause why tax was not deducted @ 10% u/s 194 I. Assessee had submitted that it had taken the services of PCPL with the only purpose of "Brand Building". Assessee was not in the business of taking "Hoardings on Rental basis". It had sole purpose of advertisement and building its image in the State of Gujarat. For the very same reason PCPL had been appointed as an agency to render specialized services for display of hoarding of advertisement. PCFL itself does not own the "Hoardings" and it was natural for them to obtain the same from "Hoarding Owners" on rental basis. It was obvious that assessee had to pay PCPL for the charges of the hoardings as a part of the advertisement contract. However this entire procedure was a part of the wide understanding of rendering advertisement related services. It was submitted that what was contemplated was brand building and there was no question of hoardings or rental given, but the idea was to build up the corporate image, hence, assessee was liable to deduct tax at the rate of 2% plus applicable surcharge and cess. AO had grossly erred in ignoring the Judgment of ITAT in the case of ITO vs. Roshan Publicity Private Limited (2005-TIOL-258-ITAT-MUM)where the Tribunal had held that the amount paid for advertisement purpose would attract the provisions of section 194C.
B) During assessment, AO had observed that the assessee company made payment to Gujarat State Petronet Ltd.(GSPL). It was observed that the assessee Co. had made payment of Rs. 8,90,69,820/- to Gujarat State Petronet Ltd. Towards gas transportation charges by hiring Pipeline Connection. However, the assessee had deducted tax @ 2% u/s 194C as against 10% u/s. 1941. The assessee was show-caused. Its contention was not accepted by the AO and raised demand of Rs. 77,28,335/-. On appeal before CIT(A), assessee had submitted that AO had not asked any details regarding payment made to GSPL during the course at survey. It was found by the AO in show cause notice that assessee had deducted TDS @ 2% only i.e. u/s 194C on gas transportation charges paid to GSPL. Whereas this payment was of rental nature and it was required to deduct tax @ 10%. In reply assessee has submitted that it had deducted tax at the rate of 2% U/s 194C for the payment made for "Gas Transportation Charges" of Rs. 12 Crores to GSPL instead of TDS @ 10% U/s. 194-I as the same was of rental nature. It was further observed that payment was also made to GSPL towards "Pipeline Payment Charges / Connectivity Charges" after deducing tax at the rate 2% U/s 194C instead of deducing tax at the rate of 10% U/s 194-I. Assessee had submitted that payments were made to GSPL for transportation of Gas. Revenue had wrongly classified it as "Pipeline Payment Charges / Connectivity Charges". Gas Transportation Charges were paid only and only to ensure that the Gas reaches to the consumer and it was not for hiring of pipelines. Hence, there was no question of hire and therefore the provisions of Section 194J were not applicable. Assessee was not in the business of hiring of pipelines.
CIT(A) after taking into consideration the submission of assessee had given relief to assessee and observed that assessee made payments of transmission of gas for which it deducted tax u/s 194C. However, the AO considered the payment as rent in view of amended definition of Sec. 194I for use of equipment such as gas pipelines. In the order, A.O. did not discuss or even mention as to how transmission of gas by GSPL will be equivalent to use of equipment by the appellant. For carrying out any work or transporting or transmitting goods, machines and equipments are used but question is who used these equipments. If the equipments have been given on lease, sublease, tenancy or under any other arrangement, then provisions of Sec. 1941 is attracted. In the absence of any of these, use of equipment for any work, transmission etc by the owner of these equipments will not attract the provision of Sec. 194-I. In case of assessee, the gas pipeline was owned operated and maintained by GSPL who used the pipeline for transporting the gas. A certificate from GSPL was submitted by the assessee in which it was confirmed that GSPL provided services of transport of gas through the pipeline owned, maintained and operated by GSPL and assessee does not have any right, exclusive or otherwise on the pipelines. It was also confirmed that same pipeline was used or transport of gas for many other customers. Having considered the facts of the case, the gas transmission agreement, mode and basis for payment use of pipeline for transmitting gas for many consumers, operation and maintenance of pipeline by GSPL and no possession or exclusive right to use the pipeline at any given point of time, it was clear that the payment for gas transmission by the appellant will not attract the provisions of Sec. 194I. Thus assessee had not committed default u/s 201(1) and accordingly tax u/s 201(1] and interest u/s 201(1A) was not payable by the appellant.
C) It was objected by the assessee that CIT(A) had erred in law by holding that assessee's contract was not for transportation but for hiring of Helicopter Services and therefore, it falls in the category of equipment rent. The CIT(A) had also erred in law and on facts in confirming the action of the AO to levy interest of Rs. 5,02.500/-U/s. 201(1A) on shortfall of TDS u/s 201(1). He ought to have appreciated that once the tax had already been paid by the deductee the same together with interest and penalty cannot be recovered from the deductor even though deductor had failed to deduct tax at source in view of decision of Children's Education Society Vs. DCIT (2010-TIOL-04-HC- KAR -IT) Karnataka HC and decision of Hindustan Coca Cola Beverages Pvt Ltd. Vs CIT (2007-TIOL-144-SC-IT). Thus, assessee had submitted that the contention of CIT(A) was bad in law and hence the same should be deleted.
Further CIT(A) had erred in law by holding that appellant had made payment of Rs 28,16.500/- for arrangement of corporate cricket tournament which were squarely covered u/s. 194J and accordingly assessee was required to deduct tax at source. He had failed to appreciate that assessee had made payment to 3rd I Event management for managing and organizing the "GSPC Invitation 20-20 Corporate Cricket Tournament 2008" and therefore assessee was required to deduct tax as per provisions of section 194C. The CIT(A) had also erred in law and on facts in confirming the action of AO to recover short deduction of tax of Rs 2,26,278/- and interest of Rs 18,102/- U/s. 201(1A) on short fall of TDS u/s. 201(1). Thus assessee had submitted that the contention of the CIT(A) was bad in law and hence the same should be deleted.
Assessee Company had executed a service contract with M/s Global Vectra Helicrop Ltd. Its office was situated at Mumbai. Assessee company desires for hiring of Helicopter service for its offshore drilling sites and fixed the monthly rent for operating the Helicopter. On verification of the details submitted by the assessee, it was noticed that assessee had made payment of Rs. 3,67,93,523/- to M/s Global Vectra Helicrop. Ltd. and deducted TDS @ 2% u/s 194C as against 10% u/s 194I. Assessee submitted that as per AO's assessee's contention was not acceptable in view of Taxation Laws Amendment Act 2006 extended the definition of rent to include payment for the use of machinery, plant equipment, furniture, fittings etc. Hiring of vehicle to attract TDS u/s 1941. Thus, payment made to GVHL were in nature of Rent Equipment' as defined in section 194-I and tax was required to be deducted @ 10 % upto the period of obtaining the certificate u/s 197. Hence, there was a short deduction of tax by 8% + EX. Therefore, interest u/s 20l(IA) was mandatory and continued until tax was paid. Thus the A.O. raised demand of Rs. 34,58,490/- u/s 201(1) & 201 (1A) r.w.s. 194I.
On appeal, CIT(A) had confirmed the action of AO and observed that assessee had deducted 2% tax on hiring of Helicopter Service u/s 194C whereas AO considered the same as covered by Sec. 194I considering the same as rent of equipment and the differential tax deducted and interest thereon was raised as liability. Assessee hired the Helicopter service for logistic support for its employees and consultants. As per details submitted by the assessee, the contract with GVHL was for hiring Helicopter on rental basis which was also for associated services. Assessee's contract was not for transportation but for hiring of Helicopter services therefore, it falls in the category of equipment rent. Even GVHL had applied for lower deduction u/s 197 r.w.s. 194I with regard to the payment received from appellant. Thus, the transaction was for hiring of Helicopter and not for transportation. The decisions relied upon by the assessee were therefore, not relevant. Thus, CIT(A) confirmed the action of the ITO. Assessee had argued that in the case of Hindustan Coca-Cola Ltd., recipient had paid taxes on receipt and filed the return of income, therefore, the tax demand was not recoverable from the appellant. Wherever the income subject to TDS has been offered for tax and taxes have been paid on the same, the demand u/s 201(1) cannot be enforced. ITO.TDS. was therefore, directed to verify the appellant's claim and if the taxes had been paid on the Income received by the deducted demand u/s 201(1) will be reduced. Interest u/s 201(1A) will however, be leviable in view of the same decision of apex court. In case of CIT vs. Reliance Engineering Associated Pvt. Ltd, it was held that agreement for hiring services of contractors for rendering transportation services for goods and passengers by buses cars sumos utility vans etc would be covered u/s. 194C and not u/s. 194I.
D) Assessee company made payment to 3rd I Event Management. The assessee company issued a work order dtd. 23/05/2008 to 3rd I Event Management Group for managing and organizing the "GSPC Invitation 20-20 Corporate Cricket Tournament 2008" for an amount of Rs. 28, 16,500/-. The work order was placed offer inviting quotations from the interested parties. Further, 3rd I Event Management have also charged service charges @ 12% for the services provided to GSPC. Accordingly, the assessee Co. has made payment to the contractor and deducted the tax at source @ 2% only as against 10 % u/s 194-J of the Act. Since the payment was made to the person who managed the event (i.e. even management), the assessee was required to deduct the tax as per the provisions of Section 194J of the Act. As the tax was deducted @ 2% only on the above payment, there was short deduction of tax by 8% +5C+EC. The assessee was show-cause. After considering assessee's reply AO raised demand U/s 201(1) and 201(1A).
Assessee had submitted that it had issued a work order vide a letter to 3rd I Event Management Group for organizing the "GSPC Invitation 20-20 Corporate Cricket Tournament 2008" for an amount of Rs. 28,16,500/-. The AO had observed that assessee had made payment to 3m I event Manager of Rs. 13,32,140/- after deducing TDS @ 2% u/s 194C, whereas this services rendered by 3rd I Event Manager was of professional skills and therefore attracts TDS provision u/s 194I. Assessee was asked to show cause why tax was not deducted u/s 194I. It was submitted that assessee had issued an order to 3rd I event Manager - 3rd I primarily to organize a "Corporate Cricket Tournament involving GSPC, ONGC Reliance, TATA, Indian Railways and Income Tax. The entire responsibly of the management of the cricket tournament for a period of 12 days was on the shoulders of 3rd I and it was to be paid management fees at the rate of 15% of the total value of billing. GSPC had taken the services of 3rd I for holding the "Cricket tournament". The order was for the arrangement of "Entire tournament" in an efficient manner. It was therefore obvious for GSPC to deduct tax as per the provisions of Section 194C. Services rendered by 3rd I were not covered by any professions and hence payments made by GSPC to 3rd I were certainly not covered by the professional payments category. Also the services rendered by 3rd I were not covered by technical services. AO had grossly erred in ignoring the decision of ITAT in the case of Gujarat State Electricity Corporation Limited vs. ITO wherein it was held that in the case of agreement for operation and maintenance of power project, payment made by assessee company to Gujarat State Electricity Board for entire operation and maintenance of power plant under a comprehensive contract could not be treated as payment of fees for professional services as contemplated in sec, 194J. Such payment would come within the limb of exclusive part, viz "consideration for like project' excluded fn the definition of "fees for technical services" given in Expln. to sec 9 (1A) (vii). Deduction of tax at source at 2% as per section 194C was justified.
CIT(A) had confirmed the action of AO and observed that assessee had made payment for management services however, deducted tax u/s 194C only. A.O. considered the same in the category of managerial consulting services. The kinds of services received by the appellant definitely fall in this category. The decision relied upon by the appellant in the case of Guj. Electricity Ltd, was not relevant since that contract was for comprehensive services. However in the case of appellant it was only management fees which are squarely covered u/s. 194-J. Accordingly, A.O. 's action was confirmed. Assessee's related ground in view of SC's decision in the case of Hindustan Coca-Cola Ltd. was that the recipient 3 I Event Management had paid taxes on receipt and filed the return of income, therefore, the tax demand was not recoverable from the assessee. CIT(A) agreed with the appellant that wherever the income subject to TDS had been offered for tax and taxes had been paid on the same, the demand u/s 201(1) cannot be enforced. ITO. TDS was therefore, directed to verify the appellant's claim and if the taxes had been paid on the income received by the dedcutee, demand u/s 201(1) will be reduced. Interest u/s 201 (1A) will however, be leviable in view of the same decision of SC.
Held that,
A) ++ after taking into consideration assessee's submissions, CIT(A) allowed the appeal of assessee and observed that assessee paid to M/s Proveg Communication Ltd for the purpose of Brand Building and taking hoardings for advertisement included sever other services apart form hiring hoardings. Appellant relied upon ITAT, Mumbai decision in the case of ITO. Vs. Roshan Publicity Pvt. Ltd. (2005-TIOL-258-ITAT-MUM). In the said decision it was held that in acquiring the right of displaying advertisement at hoarding site and making payment to hoarding site owners does not involve lease, sub-lease or tenancy and therefore, sec. 194-I is not applicable as the payment cannot be termed as rent. Applicant's case is also identical since it had advertisement contract with PCPL. The advertising company who hires the hoardings will fall within the purview of 194-1 and not the person who pays advertisements charges. From the details of advertisement charges submitted it is clear that only the part of the amount relates to hoardings, the remaining part is for other services referred in appellant's reply such as business promotion, printing and stationary Brand Building etc. Considering this and respectfully following the decision of Mumbai ITAT referred above, the ITO. TDS's action is not upheld and this ground is allowed;
++ since CIT(A) has given relief to the assessee by following the decision of Mumbai ITAT in the case of ITO vs. Roshan Publicity Pvt Ltd (2005-TIOL-258-ITAT-MUM) and no contrary decision was cited by the revenue at the time of hearing before us we feel no need to interfere with the order passed by Ld. CIT(A) and the same is hereby upheld. This ground of revenue's appeal is dismissed;
B) ++ since CIT(A)'s above finding is in conformity with the finding of the Tribunal in the case of ACIT vs. Gujarat State Petronet Ltd (2013-TIOL-304-ITAT-AHM) on identical issue wherein it was observed that the first payment namely vehicle hiring charges has not been prescribed u/s. 194I Vehicles and Chauffers supplied by the contractor and was under the complete control of the contractor. Thus, we confirm the order of the CIT(A) on this issue. Similarly, the second payment for connectivity charges were paid to GPSC against the agreement for using of pipeline connection of GAIL for gas transportation. This pipeline was owned by the GAIL and was opened to service to its other clients also, which was in nature of carriage of goods and covered u/s.194C. Thus, on second issue also, the CIT(A) found justified and we do not find the reason of any intervention in the order of the CIT(A) on this issue. The third and last payment was gas transportation charges. The appellant paid these payments for gas transportation purposes to Gujarat Gas Company Ltd. and avail them facility of pipeline of it. The ownership and complete control of this pipeline is of Gujarat Gas Company Ltd. This pipeline owned by the contractor is open for use for other clients also and it was a work performed carriage of goods as prescribed u/s.194C. Thus, it is covered u/s. 194C and CIT(A) was right to decide this issue is as a contract for the transportation of gas. The appellant has also submitted the confirmation from the deductee that these receipts had been disclosed in their respective income and all the deductees are limited company. Thus, in view of the SC decision in case of Hindustan Coca Cola Beverages Pvt. Ltd, the assessee cannot be treated as deemed defaulter within u/s. 201(1). Accordingly, we dismiss the appeal of the Revenue and allow the CO of the appellant. We feel no need to interfere with the order passed by CIT(A) and the same is hereby upheld. This ground of the revenue is also dismissed. In the result, revenue's appeal is dismissed;
C) ++ we find that assessee had executed a service contract with M/s Global Vectra Helicorp Ltd for availing helicopter services in relation to air logistic support for crew and personnel of the assessee and any of its consultants or suppliers as well as supply of essential cargo to and from offshore rig. Assessee while making payment to Global Vectra Helicorp Ltd has deducted tax @ 2 % as per provisions of section 194C. AO however was of the view that the payment made to M/s GVHL was covered by Section 194I, considering the same as rent of equipment and therefore assessee was to deduct tax @ 10 %. As per contract between assessee and M/s GVHL, the helicopter services were hired by the assessee for air lift of crew including company's and company's third party personnel and essential cargo required at the rig. Assessee had not taken possession of those helicopters from M/s. GVHL and responsibility of operating and maintaining of the helicopters was of M/s GVHL only. Therefore this contract between assessee and GVHL falls u/s 194C. This view of ours gets support from the decision of the HC in the case of CIT vs. Reliance Engineering Associates P. Ltd. In that case, the assessee had engaged the services of contractors for rendering transportation services for goods and passengers by buses, cars, sumos utility vans etc. It had not taken possession of those vehicles from the contractors and the responsibility of operating and maintaining of the vehicles was of the contractor. The assessee made deduction of tax in accordance with provision u/s 194C. The revenue authorities however held that carriages for the purpose of carrying goods and passengers would be treated to be machineries within the meaning of explanation to section 194I and therefore the assessee was liable to deduct higher amount of tax as per section 194I. On appeal the Tribunal decided in assessee's favour. On revenue's appeal jurisdictional High Court confirmed the order of ITAT. In view of the above, lower authorities were not justified in holding that payment made by the assessee to M/s GVHL for hiring of helicopters for transportation of his employees falls under the category of equipment hiring and TDS @ 10% was deductable on this payment u/s 194I of the Act. Therefore their orders are hereby set aside and this ground of assessee's CO is allowed;
D) ++ before us counsel of the assessee reiterated the submission made before CIT(A) and submitted that though services provided by M/s 3rd Eye Event Management are managerial in nature but the same services were not taken by the assessee for managing its business but these services were taken for managing a 20-20 cricket tournament only. Therefore payment made to M/s 3rd Eye Event Management is not covered by the provisions of section 194 J. This argument advanced by the assessee is devoid of any merit as the expenses incurred by the assessee on organizing of cricket tournament have been claimed by the assessee against its business income as if the same were incurred for business purposes. Therefore it cannot be said that managerial consultation services of Third Eye Event were not for its business. The assessee cannot take contrary stand to avoid its TDS liability. Therefore we have no hesitation in upholding the order of Ld. CIT(A) and the same is hereby upheld. This ground of CO is dismissed.
Regards
Prarthana Jalan
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