By TIOL News Service

AHMEDABAD, FEB 12, 2014: THE issue before the Bench is - Whether when the assessee enters into agreement for transporting employees and guests of a Research Institute and hires certain vehicles on rent to fulfil its obligations, any TDS liability u/s 194C arises on payments made in this regard. And the answer goes against the Revenue.

Facts of the case

The assessee concern had undertaken a contract of transporting the employees of Institute of Plasma Research by supplying vehicles for the purpose. In the course of executing the contract, the assessee hired certain vehicles from a private agency and made payment of Rs. 42.84 lakhs. During assessment, AO contended that u/s 194C, assessee was required to deduct tax at source, while making such payment. The assessee admittedly not having done so, such payment would be hit by the provisions of Section 40(a)(ia) and the expenditure should be disallowed. The assessee contended that the assessee had only rented the vehicles and the said agency had not provided any service of carriage of passengers. The charges were therefore paid for renting or hiring of the vehicles. AO was unmoved and he disallowed the expenditure and observed that it was clear that assessee was liable to deduct TDS as per Section 194C. It was admitted that the assessee had not deducted tax from payment to other to the extent of Rs. 42,84,497/-, though he was liable to do so. In view of this, the assessee had not complied with the provisions of section 194C and as such the provisions of section 40 (a)(ia) were clearly attracted in the assessee's case.

On appeal before the CIT (A), assessee relied on the terms of the agreement between the assessee and the IPR to further contend that no part of the assessee's responsibility arising out of the said agreement was further contracted out with a private agency. The CIT [A], however, basing reliance on the terms of the agreement negated the contention. On further appeal, Tribunal allowed the assessee’s appeal and reversed the deduction.

Before the HC, the Revenue's counsel had contended that Tribunal committed an error in reversing the decision of revenue authorities. The payments made by the assessee were clearly hit by Section 194C. It was submitted that assessee had for the first time canvassed before the Commissioner that in view of the agreement between the assessee and the IPR, the question of relationship between the contractor and subcontractor would not arise. Referring to the terms of the agreement, counsel contended that part of the work undertaken by the assessee under the said agreement was assigned to the subcontractor. Looked from any angle, even otherwise, such payment would fall under section 194C.

Held that,

++ from the various clauses of the agreement between assessee and IPR, it could be seen that the entire task was assigned to assessee by the IPR for transportation of its employees and the guests; for which the assessee had to maintain certain number of vehicles in good working condition and to deploy necessary staff and for such purpose, IPR agreed to pay rent. The entire task was to be performed by the contractor and could not be assigned to a subcontractor without prior permission of the IPR. As held and observed by the Tribunal, the Revenue did not bring out any material to establish that the owner of the vehicles performed the work of transportation. The assessee had merely hired the vehicles for performing its part of the contract with IPR. That being the position, the Revenue’s stand that the work of transportation or part thereof was assigned to a subcontractor was rightly not accepted by the Tribunal;

++ in a judgment of CIT v. Prashant H. Shah, the Division Bench of HC considered the provisions of Section 194C and in particular, subsection (2) thereof in connection with the contract for construction. When the Revenue contended that the contractor had engaged a subcontractor for performance of part of the work, the Court observed that subsection (2) of section 194C requires that any person, that is, a contractor responsible for paying any sum to any resident subcontractor in pursuance of a contract with the subcontractor for carrying out or for supply of labour for carrying out the whole or any part of the work undertaken by the contractor or for supplying any labour, which the contractor had undertaken to supply has to, at the time of credited such sum to the account of subcontractor, or at the time of payment in cash or in any other manner, deduct TDS at the specified rate. For application of subsection (2) of section 194C, the requirement is that there is a contractor who has undertaken to carry out any work or supply of labour, a part of such work or supply of labour is executed through a subcontractor and in pursuance of execution of such work, the payment is being made either in cash or in any other manner or the same is being credited in the account of the subcontractor. Only under such circumstances, the requirement of deducting tax at source on such payment would arise on the part of the contractor. The Tribunal, upon detailed examination of the nature of relationship between the assessee and the transporter, came to the conclusion that this is not a case of subcontract. The Tribunal noted that none of the responsibilities of the contractor vis-a-vis the execution of the work were fastened on the transporters. The Tribunal noted that the assessee had indemnified ANS Construction against any legal or financial liability if such liability arises in future out of such contract. The assessee was solely responsible for execution of the work. No part of such liability was fastened on the transporters. The assessee had only availed of the services of such transporters for carrying out the material to the site. The Tribunal, therefore, concluded and rightly so in our opinion that this was not a case of relationship between the assessee contractor and the transporters in the capacity of subcontractors. To reiterate, for application of section 194C (2) what was necessary was a relationship between the contractor and subcontractor and not merely be hiring of an agency by the contractor during the course of execution of the work. In the present case, such vital requirement of relationship of a contractor and subcontractor between the assessee and the transporters was missing. The Tribunal, in our view, was perfectly justified in holding that liability to deduct tax at source in the present case do not arise. In the result, we see no question of law arising. Tax Appeal is therefore dismissed.

(See 2014-TIOL-184-HC-AHM-IT)