Commissioner Of Income Tax Jaipur v. National Highway Authority Of India Ltd

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 71 / 2017 Commissioner Of Income Tax Jaipur ----Appellant Versus National Highway Authority Of India Ltd ----Respondent _____________________________________________________ For Appellant(s) : Mr. Prateek Kedawat for Mr. R.B. Mathur. _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE INDERJEET SINGHOrder 05/07/2017 1.By way of this appeal, the appellant has challenged thejudgment and order of the Tribunal whereby the Tribunal hasdismissed the appeal and confirmed the order of CIT(A). 2.Counsel for the appellant has framed the followingsubstantial questions of law: “A. Whether in the facts and circumstances ofthe case the ITAT has justified in law and hasacted illegally and perversely in holding that theassessee is not liable for making payment ofTDS u/s. 194C of the Act. B. Whether under the given facts andcircumstances the contractual amount paid bythe NHAI to its concessionary M/s GVK JaipurKishangarh Expressway Pvt. Ltd. in the name of“Grant”, is liable for tax deduction u/s 194C ofthe Income-tax Act, 1961 for not.” 3.However, now the issue is squarely covered by the decisionof this Court in CIT, Jaipur Vs. National Highway Authority of IndiaLtd., D.B. Income Tax Appeal No.75/2003 decided on 21.04.2017,wherein it has been held as under: “3. The facts of the case are that The assessee has entered into concession agreements with thesecompanies and the agreement is on Build Operateand Transfer (BOT) Model. As per theseagreements, NHAI has conveyed the concession toconstruct the (2 of 2) Highways,operate and maintain them and collect Toll ontheseHighwaystotheabovenamedConcessionaries. As per these agreements, theconcessionaries were to be given certain amountfor construction of roads by the NHAI. The AOobserved that the assessee (NHAI) had not madeTDS as per section 194 C of the IT Act, 1961which appeared to be applicable in the instant casein respect of the above concessionaries. The AOpassed order u/s 201 (1)/ 201(1A) on 18.03.2011creating demand of Rs. 6,56,58,200/- for AY2006-07 for non deduction of TDS on the paymentof ‘ Contract Money’ to the concessionaries. 4. While considering the case, the Tribunal hasobserved as under:- “We have gone through the terms of theagreement. The inference drawn by the AO is thatthe “Grant” is nothing but payment to thecontractor is mis-placed. As per Section 194C, thepayment is required to be made to the contractorbut in the given case payment is not made to thecontractor. The agreement cannot be stated to bepurely a contract agreement but it is a contractagreement of joint venture. Hence, we do not seeany infirmity in the order of ld. CIT(A), therefore,the same is hereby upheld.” 4.Taking into consideration the above, the appeal stands dismissed. (INDERJEET SINGH),J. (K.S. JHAVERI),J. //bmg 16