Commissioner Of Income Tax v. Bharticellular Ltd. (2011) 330 Itr 239 (Sc), 2.Union Of India Vs. Satish Panalal Shah(2001) 249 Itr 221 (Sc

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ------------------------------------------------------ D.B. Civil Writ Petition No. 5681/2014 Commissioner of Income Tax (TDS) & ors. Vs.Ajmer Vidyut Vitran Nigam Ltd. & ors. Date of order : 19.10.2016 HON'BLE MR.K.S. JHAVERI,J.HON'BLE MR.MAHENDRA MAHESHWARI,J. Mr. R.B. Mathur, for the petitioners.Mr. Sanjay Jhanwar, for respondent. JUDGMENT--------- 1.By way of this petition, the petitioners have prayed for the following reliefs: “a) Allow the writ petition and quash /setaside the order/Ruling of AAR dated 27.08.2012(Annexure-1) to the extent it is against therevenue.b) Hold that the SLDC Charges falls within theambit of section 194J and /or 194C of the Actand liable for deduction of Tax at source.c) Hold that the interest U/S. 201 is alsopayable on the said amount. d) Such further relief for which thepetitioners are entitled may also be awardedincluding cost of the petition.” 2. Counsel for the respondents relied on the provisions of Section 194C and 194J which reads as under :- 194C. (1) Any person responsible for paying anysum to any resident (hereafter in this sectionreferred to as the contractor[85]) for carrying outany work[85](including supply of labour forcarrying out any work) in pursuance of a contractbetween the contractor and a specified personshall, at the time of credit of such sum to theaccount of the contractor or at the time ofpayment thereof in cash or by issue of a chequeor draft or by any other mode, whichever isearlier, deduct an amount equal to— (i) one per cent where the payment is being madeor credit is being given to an individual or aHindu undivided family;(ii) two per cent where the payment is being madeor credit is being given to a person other thanan individual or a Hindu undivided family,of such sum as income-tax on income comprisedtherein. (2) Where any sum referred to in sub-section (1)is credited to any account, whether called"Suspense account" or by any other name, in thebooks of account of the person liable to pay suchincome, such crediting shall be deemed to becredit of such income to the account of the payeeand the provisions of this section shall applyaccordingly.(3) Where any sum is paid or credited forcarrying out any work mentioned in sub-clause (e)of clause (iv) of the Explanation, tax shall bededucted at source— (i) on the invoice value excluding the value ofmaterial, if such value is mentioned separatelyin the invoice; or (ii) on the whole of the invoice value, if thevalue of material is not mentioned separately inthe invoice. (4) No individual or Hindu undivided family shallbe liable to deduct income-tax on the sumcredited or paid to the account of the contractorwhere such sum is credited or paid exclusivelyfor personal purposes of such individual or anymember of Hindu undivided family. (5) No deduction shall be made from the amount ofany sum credited or paid or likely to be creditedor paid to the account of, or to, the contractor,if such sum does not exceed [86][thirty] thousandrupees 194J. (1) Any person, not being an individual ora Hindu undivided family, who is responsible forpaying to a resident any sum by way of— (a) fees for professional services, or (b) fees for technical services[26], [27][or] [(ba) any remuneration or fees or commission bywhatever name called, other than those on whichtax is deductible under section 192, to adirector of a company, or] [(c) royalty, or (d) any sum referred to in clause (va) of section28,]shall, at the time of credit of such sum tothe account of the payee or at the time ofpayment thereof in cash or by issue of a chequeor draft or by any other mode, whichever isearlier, deduct an amount equal to [29][ten] percent of such sum as income-tax on incomecomprised therein “ 194J. (1) Any person, not being an individual ora Hindu undivided family, who is responsible forpaying to a resident any sum by way of— (a) fees for professional services, or (b) fees for technical services[26], [27][or] [(ba) any remuneration or fees or commission bywhatever name called, other than those on whichtax is deductible under section 192, to adirector of a company, or] [(c) royalty, or (d) any sum referred to in clause (va) of section28,]shall, at the time of credit of such sum tothe account of the payee or at the time ofpayment thereof in cash or by issue of a chequeor draft or by any other mode, whichever isearlier, deduct an amount equal to [29][ten] percent of such sum as income-tax on incomecomprised therein “ 3. The assessee was bound to deduct TDS in lieu ofservices received by them and for the services receivedby them was liable to pay tax within the meaning ofExplanation 2 to Section 9(1)(vii) of the Act. -3- 4.However counsel for the respondents Mr. Jhanwar contended that the issue is concluded in view of the following decisions : 1.Commissioner of Income Tax Vs. BhartiCellular Ltd. (2011) 330 ITR 239 (SC), 2.Union of India Vs. Satish Panalal Shah(2001) 249 ITR 221 (SC), 3.Commissioner of Income Tax Vs. Jaipur VidyutVitran Nigam Ltd. D.B. ITA No. 579/2009, HighCourt of Judicature for Rajasthan, Jaipur 4.Commissioner of Income Tax Vs BhartiCellular Ltd (2009) 319 ITR 139 (Del.), 5.Skycell Communications Ltd. and Anr. VsDeputy Commissioner of Income Tax and Ors.(2001) 251 ItR 53 (MAD.), 6.M.S. Jewellery Vs. Assistant Commissioner(ASSESSMENT) Agricultural Income Tax and SalesTax and Anr. (1994) 208 ITR 531 (KER.), 7.CIT vs. Maharashtra State ElectricityDistribution Co. Ltd., (2015) 119 DTR (BOM) 278, 8.Commissioner of Income Tax-II and Ors. VsDelhi Transport Ltd. Manu/ DE/ 2199/2015. 5. We have heard learned counsel for the parties. 6.In view of the fact that issue is concluded bydecision of Bombay High Court and Delhi High Court andSLP against the same has been dismissed. In that view of the matter the issues are required to be answered infavour of the assessee against the department. 7.Consequently, the writ petition filed by theDepartment stands dismissed. (Mahendra Maheshwari),J. (K.S. Jhaveri),J. BM Gandhi/ 79