IN THE ITAT MUMBAI BENCH ‘D’
Ratan J Batliboi
Assistant Commissioner of Income-tax, 16(1), Mumbai
IT APPEAL NO. 298 (MUM.) OF 2012
[ASSESSMENT YEAR 2007-08]
JUNE 22, 2012
Amit Shukla, Judicial Member
This appeal has been filed by the assessee against the order dated 28-11-2011, passed by the CIT(A)-28, Mumbai for the quantum of assessment passed under Section 143(3) for the assessment year 2007-2008.
2. As many as four grounds of appeal have been raised, wherein ground No.2 relating to addition on account of income from partnership firm under Section 10(2A) of Rs. 60,000/- and ground No.4 for disallowance of Rs. 2,25,554/- made under Section 14A read with Rule 8D, have not been pressed by the learned AR and, therefore, grounds No.2 & 4 are treated as dismissed as having not pressed.
3. In ground No.3, the assessee has challenged the disallowance on account of telephone and vehicle expenses to the extent of Rs. 50,000/- on ad hoc basis. The Assessing Officer has disallowed the expenditure of Rs. 1,00,000/- out of telephone and vehicle expenses on ad hoc basis assuming it to be personal in nature. It was submitted by the assessee that he has incurred personal expenditure of Rs. 4,02,902/-on account of use of telephone and vehicle, which has not been claimed as business expenditure and, therefore, the disallowance of Rs. 1,00,000/- out of claim of expenditure of Rs. 3,64,752/- on telephone and Rs. 1,96,547/- on vehicle expenses are not reasonable and not called for. The CIT(A) restricted the disallowance to Rs. 50,000/- on the ground that the personal element could not be ruled out.
3.1. Learned AR on behalf of the assessee has submitted that the assessee has its own vehicle for the personal purposes and a huge expenditure on account of telephone and vehicle has also been shown as personal expenses which has not been claimed as business expenditure. Hence, no disallowance is called for. On the other hand, learned CITDR relied upon the findings of the CIT(A).
4. We have carefully gone through the finding of the Assessing Officer as well as CIT(A) and also the rival submissions. After considering the fact as stated by the learned AR and also borne out from the records that the assessee has himself shown personal expenditure of Rs. 4,02,902/- on account of usage of telephone and vehicle, which has not been claimed as business expenditure, there was no occasion to make any kind of ad hoc disallowance on account of personal usage. Therefore, we do not find any merit in making any kind of disallowance as have been sustained by the CIT(A) and accordingly, disallowance of Rs. 50,000/- made under the head telephone and vehicle expenses, is deleted. Ground No.3 is allowed.
5. The main issue involved in this appeal arises from ground no.1, which has various sub grounds. The issue relates to enhancement of income by Rs. 289.65 lakhs by the CIT(A), who has made the disallowance after invoking the provisions under Section 40 (a)(ia) on the payments of Rs. 289.65 lakhs made to JR & Co. on account of non- deduction of TDS under Section 194C.
6. The genesis of the issue started from the stage of assessment proceedings when the assessee has claimed amount of TDS of Rs. 35,56,901/- in his return of income. The Assessing Officer observed that out of this sum, the income of TDS of Rs. 6,51,012/- was not shown in the instant year on cash basis. Therefore, he disallowed the TDS amount of Rs. 6,51,012/- on the ground that the same can be claimed only when the income is shown in the total income of the assessee. He, therefore, allowed the credit of TDS to the extent of Rs. 29,05,889/- and the balance amount of TDS of Rs. 6,51,012/- was disallowed. This matter was agitated in first appeal.
6.1 The assessee in the first appeal, on the one hand, raised the ground for disallowing the credit of Rs. 6,51,012/- and on the other hand, contended that the National Institute of Bank Management (hereinafter referred to as the ‘NIBM’) has wrongly deducted the tax at source from Rs. 307.75 lakhs as against the architect fees paid to the tune of Rs. 18.10 lakhs. On perusal of the details filed before the CIT(A), it was noted by him that the assessee was paid Rs. 289.65 lakhs on account of payment towards cost of work which was being managed by the assessee on behalf of the client (NIBM). It was submitted by the assessee that the NIBM entered into a separate work contract with one JR & Company and, therefore, NIBM, should not have deducted TDS on payment made to JR & Co. The relevant facts, which has led to the enhancement of the income by the CIT(A) are that the assessee, who is a qualified Architect, was appointed by NIBM to implement the project of NIBM at Pune for planning and implementing of refurbishment of a hostel at the NIBM campus. The agreement was entered into on 8th May, 2006 between NIBM and the assessee. The assessee was required to implement the entire project on the terms and conditions stated in the said agreement. The CIT(A) during the course of the appellate proceedings after noting the various terms and conditions given in the various clauses of the agreement, observed that the assessee was not only responsible for the Architect work but also for the entire civil and electrical contract. Even though the assessee could engage contractors of his choice for completion of work, but he was solely responsible for the execution of the work and was alone responsible to NIBM vis-à-vis the contractors and suppliers. He, therefore, was of the opinion that the payment for the entire project routed through the assessee is his gross receipts and payment made to JR &Co. is an expense as they were sub-contractors. Accordingly, the enhancement notice was issued to the assessee vide letter dated 3-9-2011.
6.2 It was submitted by the assessee that the relationship between the NIBM and the assessee is that of principal and agent and the agreement specially provides that, for the purpose of payment to contractors, the assessee shall act as a representative or an agent for disbursement. Clause V of the agreement was relied upon, wherein it has been provided that payment shall be made under two heads – one towards professional fees and services and other towards cost of work, which shall be maintained by the assessee on behalf of its client as a representative or an agent for disbursement towards cost of work. The reliance was also made to clause IV, which provides for scope of work and clause VIII, which provides for professional fees. From the said clauses, it was argued that the agreement is for contract for professional services. It was also pointed out that the JR & Co. was the main contractor and not a sub-contractor and there is a direct relationship between JR & Co. and NIBM and they had the relationship of a contractor and the contractee. In support of this, following documents were filed :-
“a. Bills raised by the contractor on NIBM (sample enclosed);
b. Letter dated 23rd April, 2006 from the contractor confirming the award of contract (enclosed)
c. Letter dated 7th June, 2007 from the contractor to NIBM asking for TDS certificates (enclosed)
d. Letter dated 6th July, 2007 from RJB-A to NIBM asking for issuing TDS Certificates in the name of contractors (enclosed)
e. Letter dated 15th July, 2007 from the contractor to NIBM asking for either providing TDS Certificates or the amount of TDS (enclosed).”
It was further submitted that the assessee is not earning any margin from the contractors and whatever the payment has been made is reimbursed to the said contractor. The other important aspect which was highlighted, that the assessee has not recognised the receipts from NIBM as revenue in respect of contract amount which is evident from the fact that it is neither a part of the balancesheet nor the profit loss account of the assessee, therefore, no deduction has been claimed in the profit loss account. Thus, the provisions of Section 40(a)(ia) for disallowing the entire payment does not arise. Lastly, it was submitted that this issue is not arising out of the assessment order and the stand taken by the Assessing Officer, as he has examined all the facts while completing the assessment of the assessee, after verifying all the documents and records placed before him and, therefore, the enhancement proposal is legally not tenable. Alternatively, it was also submitted that the contractor has already offered his income to tax and it is not the stand of the department that the assessee had earned any margin in the contract work, therefore, such a disallowance is not called for. Another alternative argument was that the entire amount is not liable for TDS as not all the transaction attract TDS as the portion of some billings is for supply of goods.
7. Learned CIT(A) rejected the entire contentions and submissions of the assessee and after referring to various clauses of the agreement dated 8-5-2006 between the assessee and NIBM, observed and held as under :-
“8.4 I have perused the reply and I find that there is no merit in the submission. I, in view of discussion in para 8.2 above, hold that assessee was the contractor and JR & Co. was the sub-contractor. The assessee has failed to produce any agreement between NIBM and JR & Co. appointing JR & Co. as contractor. The assessee has shown receipts in his books after excluding receipts received on account of contract work and has accou8nted for only the professional receipts. In short, the assessee has not accounted for receipts of Rs. 289.65 lakhs ;received from NIBM. The assessee could have claimed deduction for payment made to the sub-contractor if he had deducted TDS as required under Chapter XVII-B. However, on account of provisions of section 40(ia), assessee cannot claim deduction for payments made to sub-contractor as no TDS as required under Chapter XVII-B has been deducted. Consequently, the receipts to the tune of Rs. 289.65 lakhs are treated as income and added to the income assessed by the AO. The AO should issue a demand notice in respect of this additional demand and proceed under the Act accordingly. Since receipt from work is now being brought to tax, credit for tax deducted at source of Rs. 6,51,012/- can be given by the AO. This ground of appeal is decided in favour of the assessee in view of enhancement to assessed income being made vide this order.
9. The appeal is disposed of with enhancement of Rs. 289.65 lakhs. While making this addition to the assessed income, AO is required to give relief of Rs. 3,53,168/- (Rs. 50,000 + Rs. 77,164 + Rs. 2,25,554) as per discussions above from the assessee income.”
8. Learned Senior Counsel on behalf of the assessee has structured his argument on the issue of enhancement and disallowance under Section 40(ia) in the following manner :-
“1. The enhancement made by the CIT(Appeal) is without jurisdiction.
2. The enhancement made by the CIT(Appeal) is erroneous on merits, inter-alia because;
A(1) The CIT(Appeal) erred in holding that, the appellant is a contractor, and therefore, the provisions of section 194C and, consequently, section 40(a)(ia) were applicable to him.
A(2) Without prejudice to A(1) above, the CIT(Appeal) failed to appreciate that, section 194C and section 40(a)(ia) of the Income Tax Act, 1961, can have no applicability to bought out items.
A(3) Without prejudice to A(1) and A(2), above, no disallowance under section 40(a)(ia) can be made, in respect of amount paid during the year.
See Case of M/s Merilyn Shipping & Transporters v. ACIT. Income Tax Appellate Tribunal, Special Bench, Vishakhapatanam.
A(4) Without prejudice to A(1) and A(2) above, the CIT(Appeal) ought to have held that, there was reasonable cause for non-deduction of tax at source by assessee and, therefore, the provisions of section 40(a)(ia) were inapplicable.
B. Without prejudice to A above, the CIT(Appeal) ought to have appreciated that there was diversion of Income at source in favour of JR & Co. and hence, there was no question of section 40(a)(ia) of the Act, being applicable to it.”
9. On the issue of enhancement, learned counsel submitted that the subject matter of appeal before the CIT(A) was disallowance of TDS credit for sum of Rs. 6,51,012/- and the CIT(A) was obliged to adjudicate the said ground in the manner in which the Assessing Officer has decided the issue. The taxing of entire receipts of Rs. 289.65 lakhs under Section 40(a)(ia) was definitely a new source of income, which as per law, the CIT(A) could not have done so. In support of his contention, he has made extensive reference to the decision of Hon’ble Supreme Court in the case of CIT v. Shapoorji Pallonji Mistry  44 ITR 891 and CIT v. Rai Bahadur Hardutroy Motilal Chamaria  66 ITR 443. Relying upon the said judgments, he submitted that the CIT(A) has no power to enhance the assessment by discovering a new source of income, not considered by the Assessing Officer in the order appealed against. The power of enhancement was restricted to the subject matter of the assessment or the source of income, which have been considered especially or by clear implication by the Assessing Officer from the point of view of taxability and that CIT(A) had no power to assess the source of income which had not been taken into consideration by the Assessing Officer. He further submitted that these two judgments of the Hon’ble Supreme Court have also been considered by the Full Bench of Delhi High Court in the case of CIT v. Sardari Lal & Co.  251 ITR 864, wherein the Hon’ble Full Bench has held that the view taken by the Hon’ble Supreme Court still holds good and whenever the question of taxability of income from a new source which had not been considered by the Assessing is concerned, the jurisdiction to deal with the same lies under Section 147/148 and 263 and the similar power is not available to the first appellate authority. Based on these judgments, he submitted that the very assumption of the CIT(A) that Rs. 289.65 crores is an income of the assessee, was not the subject matter of the assessment or the scrutiny by the Assessing Officer. The Assessing Officer was besieged with the credit of the TDS amount of Rs. 6,51,012/-only which was flowing from the return. What the CIT(A) has done, he has tried to make the enhancement of income and addition on a new source of income, by holding that entire receipts as taxable, on the ground that TDS was not deducted under Section 194C, therefore, the provisions of Section 40(a)(ia) comes into operation. Such an action, definitely amounts to discovering of a new source of income and taxability thereof is beyond the jurisdiction of the CIT(A). The Assessing Officer has not gone into the aspect of the taxability of the income or to the nature of the income whether it belongs to the assessee or to the contractor and, therefore, the CIT(A) has to restrict himself to the finding of the Assessing Officer and the grounds which was challenged before him.
9.1 On merits, he submitted that the CIT(A) has failed to appreciate that the assessee was not a contractor, which is evident from letter dated 23-4-2006 forming part of the paper book page-1, wherein the contractor M/s JR & Co. has written a letter in which it has been mentioned that they have been awarded a contract by the NIBM. He also pointed out the details of payment given at page 19 of the paper book and also the copy of invoices/bills raised by JR& Co. to the NIBM. Copy of such bills have been placed in the paper book from pages 20-33 of the paper book. From such bills, he vehemently argued that the invoices have been directly raised by the contractor to the NIBM and the assessee had no role to play as a contractor. The assessee was merely an agent to forward the payment to the contractor and has not recorded the said payment in his books of accounts which is evident from the audited copy of the profit and loss accounts. The payment made by the NIBM to the assessee after deducting TDS, has been objected to, which is evident from the fact that the letter was written by the contractor to the NIBM that TDS certificate should be issued on the amount received by them. The copy of such letter dated 7-6-2007 has been placed in the paper book at page 34. Similarly, the assessee has written letter to NIBM that TDS certificate and the deduction of tax should have been in the name of the contractors i.e. JR & company and requested to cancel the certificate issued in his name. The copy of such letter dated 6-7-2007 has been placed in the paper book at page 39. On these facts, he argued that the assessee was merely an architect and the contractor was M/s JR & company and, therefore, the provisions of 194C will not apply to the present case.
9.2 The second limb of his argument is that Section 194C and Section 40(a)(ia) have no application to bought out items i.e. on material purchase as there is no profit or income element. Therefore, these amounts should be reduced from the receipts. For this purpose, our attention was drawn to page 19 of the paper book giving the details of purchase items and contract work. In support of this contention, reliance was placed on the decision of Hon’ble Bombay High Court in the case of CIT v. Angel Capital & Debit Market Ltd. [IT Appeal NO. 475 of 2011, dated 28-7-2011] and the Hon’ble Supreme Court in the case of GE India Technology Cen. (P.) Ltd. v. CIT  327 ITR 456.
9.3 The Third limb of his argument was that no disallowance under Section 40(a)(ia) could be made in respect of amount paid during the year as the same is applicable only on the amount payable and in support of his contention, he relied upon the decision of the Special Bench in the case of Merilyn Shipping & Transports v. Addl. CIT  136 ITD 23. The details of amount payable have been provided at page 58 of the paper book.
9.4 The next contention of the Ld. AR was that there was a reasonable cause for non-deduction of tax at source by the assessee as he was under the bonafide belief that he is not a contractor and as such he was not required to deduct the TDS which is evident from the letters written by the assessee and also by the contractor. Therefore, in view of the decision of the Hon’ble Bombay High Court in the case of CIT v. Kotak Securities Ltd.  340 ITR 333, it should be held that non-deduction of TDS by the assessee was due to reasonable cause.
9.5 The last limb of his argument was that there was a diversion of income at source in favour of the JR & company, which is evident from the fact that all the payments received by the assessee has been given to the JR & company and there is no iota of profit element on such receipts. He submitted that even if the substance of agreement and other attended facts are taken into consideration then also it is evident that the assessee was not entitled to the receipts and, therefore, there was a clear cut diversion of income at source and, therefore, no such disallowance should be made. If the entire receipts is excluded at source then there is remain no question of expenditure.
10. Per Contra, learned CIT DR on the aspect of enhancement of income submitted that there was no new source of income as the subject matter of dispute related to TDS, which was flowing from the agreement and the transaction between the NIBM, assessee and the contractors. The learned CIT(A) has not discovered any new source of income but has examined the terms of the agreement between the two parties and the deduction of TDS aspect, which was the subject matter of appeal before him while adjudicating the issue of credit of TDS. In support of his argument, he relied upon the decision of ITAT Delhi Bench in the case of L. Dee’s v. ITO  120 ITD 138, wherein it has been held that the scope of power of CIT(A) is co-terminus with that of the Assessing Officer and he is empowered to do what the Assessing Officer can do and he has power to direct the Assessing Officer to do what he has failed to do. He further submitted that in this case, the TDS certificate were in the name of the assessee and not only that the assessee has claimed the entire TDS amount in his return of income, therefore, there was a clear cut intention of the assessee to treat the said receipts as his income. Thus, there could not be a case of reasonable cause or bonafide belief. Further, relying upon the various clauses of the agreement he submitted that there was a clear cut stipulation that in case of any defect in carrying out the work, the responsibility was that of the assessee. Thus, there was clear cut contract of work between the assessee and NIBM. On the issue of TDS on supply of material and amount payable, he submitted that this matter should be sent back to the Assessing Officer to verify and examine the same. For the various other issues, he strongly relied upon the findings given by the CIT(A).
11. We have carefully considered the rival submissions and perused the entire material placed on record. The main issue in ground No.1 relates to enhancement of income by Rs. 289.65 lakhs , due to non-deduction of TDS under Section 194C and consequent disallowance under Section 40(a)(ia). From the various sub grounds, given in ground No.1 and the arguments of the learned counsel, following issues are emerging, which needs to be adjudicated by us :-
1st issue :-Whether on the facts and circumstances of the case, learned CIT(A) was justified in enhancing the income of Rs. 289.65 lakhs;
2nd issue :-Whether there was any “work done” in pursuance of a contract as per the agreement by the assessee in terms of provisions of Section 194C;
3rd issue :-Whether on the facts and circumstances of the case, any disallowance under Section 40(a)(ia) is called for in the case of the assessee;
4th issue :-Whether provision of Section 194C and consequently disallowance under Section 40(a)(ia) is applicable on bought out items ie. on purchase of materials;
5th issue :-Whether there was a ‘reasonable cause’ for non-deduction of Tax at source, while making the payment to the contractor JR & company by the assessee;
6th issue :- Whether disallowance under section 40(ia) should be confined to amounts payable; and
Last issue :-Whether in the facts and circumstances of the case, there was any diversion of income at source.
12. The facts in brief are that the assessee is an architect, who has entered into an agreement on 8th May, 2006 with NIBM for comprehensive refurbishment of hostel at NIBM Campus, Khondhwekhurd, Pune. The assessee was appointed to implement the project on the terms and conditions specified in the said agreement and was solely responsible to carry out the “work” as defined in the said agreement. In pursuance of the “work” done for the project, the assessee had received payment of Rs. 2,89,65,778/- from NIBM and also architect fees of Rs. 18.10 lakhs. On the entire payment, TDS has been deducted by the NIBM. The payment so received by the assessee has not been taken as receipts in the profit loss account even though it has been incorporated in the books of account in a separate ledger appearing in the paper book at page 58, wherein receipts from NIBM and the payments has been made to contractor namely, JR & Company has been shown. However, the credit of the TDS for sum of Rs. 35,56,900/- for the entire payment deducted by NIBM has been claimed by the assessee in his return of income. From the facts, it is also borne out that M/s JR & Company had been appointed as a contractor by the assessee to carry out the works contract for the completion of work undertaken by the assessee for NIBM. For the contract work, the payments have been made by the assessee to the JR & Company. Besides that the NIBM has also paid professional fee for the architectural services rendered by the assessee. During the course of the assessment proceedings, the Assessing Officer noted that the TDS amount of Rs. 6,51,012/- has not been shown in the instant year on cash basis, therefore, the credit of such an amount was not allowed in the instant year by the Assessing Officer and held that TDS could be claimed only when the income is shown in the total income of the assessee. The Assessing Officer, accordingly allowed the credit of TDS for sum of Rs. 29,05,889/- (35,56,901 – 6,51,012/-) and in a way treated the entire payment received by the assessee as his receipts and income.
12.1 At the stage of CIT(A) this issue of disallowance of TDS credit of Rs. 6,51,012/- was challenged. While examining this issue, the CIT(A) looked into the agreement entered into by the assessee and the NIBM and examined the payment details and also the TDS deducted. It was on the examination of these documents, the CIT(A) came to the conclusion that the assessee was liable to deduct TDS on the payment made to the contractor i.e. JR & Company and, accordingly, he held that the entire payment of Rs. 289.65 lakhs should be treated as income of the assessee in view of the provisions of Section 40(a)(ia). On this background, we proceed to decide the various issues as have been carved out by us as above.
Decision on 1st Issue :-
13. The subject matter of appeal before the CIT(A) in ground No.6 before him, was the disallowance of TDS credit of Rs. 6,51,012/-. The TDS amount of Rs. 35,56,901/- is borne out from the TDS certificate issued by NIBM on the entire payment of Rs. 307.75 lakhs which have been claimed by the assessee in his return of income. It was in the course of examination of credit of TDS, the CIT(A) enquired into the nature of the payment and while doing so, he examined the said agreement dated 8-5-2006, which defines the scope of the work which has been assigned to the assessee in lieu of which the payment was made and TDS was deducted. Thus, the CIT(A) had only examined the issue which was before him and he has not ventured into taxing of any new source of income as claimed by the Ld. AR. There is absolutely no dispute with regard to the proposition laid down by the Hon’ble Supreme Court in the case of Shapoorji Pallonji Mistry, (supra), that the first appellate authority has no power to enhance the assessment by discovering a new source of income which has not been considered by the Assessing Officer in the order appealed against and also on the law laid down by the Hon’ble supreme Court in the case of Rai Bahadur Hardutroy Motilal Chamaria (supra), that the power of enhancement by the first appellate was restricted to the sources of income which have been the subject matter of the assessment or the source of income which has been considered expressly or by clear implication from the point of view of taxability and the first appellate authority had no power to assess the new source of income not considered by the Assessing Officer. Here in this case, as have been discussed above, the CIT(A) has not brought out any new source of income which had not been considered by the Assessing Officer. The Assessing Officer while adjudicating the issue of credit of TDS was required to examine the nature of the payment on which TDS has been deducted. On the one hand, the Assessing Officer allowed the credit of TDS amount of Rs. 29,05,899/-, and by implication that the entire payment received is his income and on the other hand, the assessee though claimed the entire credit of the TDS in return of income, but himself is denying the payment as his receipts. In such a situation, the first appellate authority had to examine this issue on his own. It is equally settled preposition of law that power of the first appellate authority is co-terminus with that of the Assessing Officer and is required to look into the issue and examine the same which has not been properly dealt with by the Assessing Officer. Here in this case, the CIT(A) has not discovered any new source of income which was not before the Assessing Officer but has examined the issue which was before the Assessing Officer and grounds before him. It is not a case where the Assessing Officer has made an addition on X and Y account and the CIT(A) has discovered some new source of addition for taxing the income on Z account. What the CIT(A) has done, he has examined the issue in detail which was subject matter before him and came to the conclusion that the Assessing Officer has failed to take note of the legal implication of the issue before him. This is more so when the assessee himself has taken contradicting stand, on one hand he is claiming the credit of entire TDS amount and on the other hand, contending that the entire payment received by him is not his receipts. Thus, on the facts of the present case, the ratio laid down by the Hon’ble Supreme Court as relied upon by the learned Senior counsel, does not apply to the instant case and, therefore, the CIT(A) was fully justified in law in acquiring the jurisdiction for making the enhancement of the income. Hence, the contention of the learned Senior Counsel on this issue cannot be upheld.
Decision on 2nd Issue :-
14. Learned counsel had pleaded that in this case, the contractor was JR & Company and was responsible for carrying out the entire works contract for the NIBM and all the bills were raised by the said contractor to the NIBM directly and only the payment was routed through the assessee. Reliance was placed on letter dated 23-4-2006, 7-6-2007 and 6-7-2007 as have been referred in the foregoing paras. It was also submitted that the assessee was an architect and was acting as an agent to forward the payment to the contractor. To examine this fact whether as per the agreement the responsibility of doing the “work in pursuance of contract” was with the assessee or with the M/s JR & Company, it would be relevant to refer various clauses of the agreement, which have been also referred to by the learned CIT(A) and the assessee. The agreement shows that it has been entered between NIBM which have been referred to as a ‘client’ and the assessee M/s Ratan J. Batliboi referred to as RJB-A in the agreement. The relevant portion of the agreement are reproduced herein below for the sake of ready reference :-
“(I) Appointment :
The client hereby appoints RJB-A, and RJB-A accepts the appointment and agrees to implement the Project on the terms and conditions stated hereinafter.
(b) “The Works” means the work or works to be executed to erect and complete the defined project intended by the Client and in connection with which the Client has engaged RJB-A to implement the project.
(d) “Final Cost Estimate” means the detailed listing of the total cost of the Project as calculated by RJB-A after preparing a final Bill of Materials and approved by the Client in writing.
(e) “Revised Final Cost Estimate” means the Final Cost Estimate as defined in Para I) d) above, increased or decreased by the cost of any Works added to or deducted from the Final Cost Estimate with the consent of the Client.
(f) “Cost of Works” means the final amount of all bills and billable expenses of contractors and suppliers for the Project, as certified by RJB-A.
(III) Terms of Appointment: The Client desires and RJB-A agrees to provide the following range of services as per the terms contained in this paragraph.
(1) Evaluation and design: RJB-A has already provided or shall provide the Client with the following evaluation and design services:
(a) studying the site to determine the scope of the Works
(b) re-designing the interior spaces identified for the purpose by the Client
(c) preparing general specifications for the materials and other parameters of the building materials, furnishings and products to be used
(d) preparing a summary schedule of rates and quantities
(e) procuring the approval by the Client of the summary schedule of rates and quantities to determine the Final Cost of Works.
(2) Supervision of the Works: RJB-A shall supervise the procurement, supply and construction management activities and be solely and fully responsible to the Client for ensuring compliance with the Client’s requirements.
(3) Implementation of the Works:
(a) RJB-A shall be permitted to utilise the services of any firm or firms for the purpose of executing the’ Works, which shall include project management, construction management, and procurement and supply of materials and products.
(b) The relationship between the Client and RJB-A with respect to the firms so appointed by RJB-A to execute the Works shall be as follows:
(i) RJB-A shall be free to determine which contractors or suppliers shall be utilised for executing the project. Such contractor or suppliers may include any firm or firms associated with RJB-A in terms of ownership, management or otherwise.
(ii) The Client shall not be required to correspond with or otherwise deal with any entity other than RJB-A
(iii) RJB-A shall be fully responsible for the performance of any such suppliers or contractors utilised by RJB-A and the Client shall be entitled to specific performance from RJB-A only
(iv) The Client shall make payments to RJB-A only and not to such firms. However, the Client acknowledges that the payments shall be on two separate accounts and shall be accounted for accordingly.
(v) The Client shall make payments to RJB-A towards two heads of accounts. The two account heads for payments shall be as under:
• Towards professional fees and services
• Towards Cost of Works which shall be managed by RJB-A on behalf of the Client as a representative or agent for disbursement towards the Cost of Works as and when the need arises. RJB-A shall be solely responsible to the Client for the management and disbursement of the funds and shall have complete freedom to decide on the disbursement thereof as it deems fit.
(c) The Client shall have no obligations to such contractors or suppliers being utilised by RJB-A.
(d) Wherever in this agreement there is a reference to contractors or suppliers in relation to executing the Works or procuring and supplying products, such reference shall be deemed to mean as RJB-A
(IV) Scope of Work
(1) General – Overview of responsibilities: RJB-A hereby contracts with the Client to perform the following tasks and the Client hereby contracts with RJB-A to provide all assistance which RJB-A reasonably may require from the Client to fulfil its obligations hereunder to the client:
(a) surveying the existing premises
(b ) preparing operational layouts
(c) designing and preparing Site Drawings
(d) providing budgets and payment schedules
(e) procuring all material and products including civil, plaster of paris, electrical, carpentry, plumbing, carpeting, furniture, appliances, audio visual equipment, white goods, brown goods, soft furnishings and accessories
(f) management of all site works including civil and general contracting, carpentry, and installation of all procurements.
(2) Stage I – Detailed Brief, Conceptual Design, Final Cost Estimate
(3) Stage II – Mobilisation
(4) Stage III – Job Progression
(a) Carry out all site works including civil, electrical, HVACI plumbing, tiling, painting, polishing, and carpentry.
(b) Place orders for all off-site procurements including carpeting, furniture, appliances, equipment, soft furnishings and accessories.
(5) Stage IV – Virtual Job Completion and Handover
(a) Effectively finish all site work listed above to enable occupation by the client.
(b) Install all off-site procurements listed above.
(c) Handover of site to Client in a ready to use state.
(6) Stage V – Snag List
(a) Within 15 days of handover of site, the Client provides a list of quality issues they wish to have attended to by RJB-A.
(b) RJB-A attends to these issues, or explains to the Client why the issue is not a material quality issue.
(V) Time Lines for Execution of Project
(1) Ideally, the above stages would run sequentially. However, considering the extremely short time line available for executing the project, the activities of multiple stages will in concurrently.
(2) Upon completion of 2 weeks from the date of receipt by RJB-A of 50% of the Final Cost Estimate as stated in Para VII) 3) b) below, it is expected that the following progress will be made at site:
(3) Upon completion of 2 weeks from the date of receipt by RJB-A of 75% of the Final Cost Estimate as stated in Para VII) 3) C) below, it is expected that the following progress will be made at site:
(4) The Virtual Completion and Hand Over of the site by RJB-A to the Client will be 2 months from the date of signing of this Agreement, receipt of first payment as per Para VII) 3) below, procurement of local body clearances if any, and handing over the site to RJB-A without any hindrances. This time frame of 2 months is subject to the following.
(VII) Cost of Project and Payment Schedule
(1) Cost of Works: The sanctioned Cost of Works, excluding Professional Fees, but including all taxes and expenses to be incurred by RJB-A and its contractors and suppliers, is estimated at Rs. 250 lacs.
(2) Final Cost Estimate:
(a) RJB-A and the client shall jointly survey the site and arrive at a consensus of the quantities involved. Such quantities shall include, without limiting, the following:
(i) Carpet areas
(ii) Built-up areas
(iii) Wall areas
(iv) Waterproofing areas
(v) Quantities of furniture and fixtures
(vi) Quantities of furnishings and accessories
(b) The quantity as determined above shall be applied to the rates specified in the “Specifications and Rate Sheet” attached as Annexure I to this agreement to arrive at the Final Cost Estimate, which will be signed off by the Client and RJB-A.
(e) Any additional work undertaken or products supplied with the approval of the Client but not included in Annexure I shall be billed as agreed to in advance between the Client and RJB-A.
(3) Schedule of payments: The Client shall pay RJB-A towards Cost of Works as follows:
(VIII) Professional Fees:
(1) RJB-A shall charge the Client and the Client shall pay RJB-A professional fees @ 4% of the Cost of Works, amounting to Rs. 10 lacs at the sanctioned cost of Works..
(a) The fees shall be payable progressively as stated in Para VIII) 2) below.
(b) The fees do not include service tax or other applicable taxes, which shall be charged extra by RJB-A and paid by the Client at the rates prevailing at the time of payment by the Client.,
(2) The Client shall pay RJB-A professional fees as follows:
(a) 50% of the fees calculated on the basis of the Final Cost Estimate on preparation and certification of the Final Cost Estimate as specified in Para VII (2)(c) above and submission to the Client of the Enabling Drawings
(b) 100% of the fess calculated on the basis of the Revised Final Cost Estimate, less amounts already paid, upon Virtual Completion and Hand Over as specified in Paragraph V (2) above and submission of a certified statement of the Cost of Works.
(IX) Other Provisions
(1) Expenses: The Client shall reimburse RJB-A the following expenses:
(a) Any other costs or expenses as pre-approved between RJB-A and the Client at mutually agreed terms.
(2) Services not included
(a) If the scope of the project differs substantially from the scope laid down in this agreement, then the Terms and Conditions also the fees and schedules of payments may be re-worked within the suggested framework by mutual consent and on terms agreeable to both the Client and RJB-A.
Subject to the conditions outlined in this Agreement the Client authorises RJB-A to:
(a) Act as the Client’s professional advisor for conceptualizing and implementing the Project as set forth in this Agreement.
(b) Select specific products, designs, models and colours within the specifications approved by the Client.
(c) Act as the Client’s representative within the limits set by these conditions.
(d) Appoint a firm or firms to procure and supply materials and products to the Client and to undertake the management of the construction activities on site.
(e) Provide the services and execute the tasks specified in this Agreement.
(i) RJB-A shall not proceed with any stage of the Project without the Client’s consent and completed payments to RJB-A for services rendered and works executed upto that particular stage.”
(4) Liability :
|(a) and (b)**||**||**|
(c) RJB-A shall ensure that any contractors or service providers selected by RJB-A to work on the project shall fully company with the different provisions of the various labour law statutes.
(i) RJB-A should fully ensure that such contractors or service providers fully comply with the provisions of Contract Labour (Regulation & Abolition) Act, 1970,ESI Act, 1948, EPF & MP Act, 1952, Minimum Wages Act, 1948 and such other statutes.
(ii) Any employee of the contractors selected by RJB-A would be exclusive employees of the said contractor and this agreement does not create any relationship of an employer and employee between the client and the employees engaged by the different contractors.
(iii) Any liability created on account of non compliance of any statutory provision shall be the exclusive liability of the contractors and if the Client incurs any cost because of the breach by the contractors of the same shall be liable to be recovered from RJB-A.
(5) Statutory deductions :
(a) The Client shall be entitled to deduct TDS and Works Contract Tax, as applicable under prevailing laws and regulations.
(6) Penalty for non completion:
(a) RJB-A confirms that it is aware that time is of the essence for this agreement, and that the Client intends to commence use of the facilities on or about July, 24, 2006.
(b) If RJB-A fails to Virtual completion and Hand Over as contemplated in para IV) 5) above by the item line contemplated in para V) 4) above or July 20, 2006, whichever is later, RJB-A shall pay or allow the Client the sum of half of one percent (0.5%) of the Final Cost Estimate per week of delay, subject to a maximum of 5% of the Final Cost Estimate, as liquidated damages. (i) Such moneys shall be deducted from any dues which become due to RJB-A
(ii) The deduction of such sum shall not, however, absolve RJB-A of their responsibility and obligation to complete the work in its entirety.
7. Defects after completion :
(a) For a period of 12 month after the Virtual Completion of the Works, RJB-A shall be responsible for any defect, or other faults in the Works carried out which may appear and shall be rectified at its own cost any defect, or other faults in the Works carried out which may appear.
(b) RJB-A shall, upon the direction and writing of the Client, and within such reasonable time as shall be specified therein, have rectified and made good by the Contractor at his cost.
(c) If RJB-A does not have the defects attended to within a reasonable time, the Client shall be entitled to have the defect rectified at its cost and adjust the expenses so incurred against the amount being withheld by the Client”.
14.1 If we analyse the above important clauses, following things are evident :-
(i) By this agreement, the assessee has been appointed to implement and execute the entire project required by the NIBM and the assessee has agreed to provide the range of services to execute the work completely which includes evaluation and design, supervision of the work and complete implementation of the work.
(ii) The NIBM has no direct or indirect obligation for the contractors or suppliers employed or utilised by the assessee and the assessee shall be fully responsible for any such performance by such suppliers and contractors. The assessee has to prepare two accounts under two heads – one towards professional fee and services and second for cost of work implemented by the assessee on behalf of the NIBM. The scope of the work as given in the agreement is very comprehensive and the assessee alone is responsible to carry out the entire work and to complete the project in the given time schedule.
(iii) All the payments shall be made to the assessee only at the time of completion of various stages as defined in the agreement. The entire cost of work including taxes and expenses are to be implemented by the assessee. Apart from the payment for the work done, the assessee shall also be paid professional fee also. The entire liability and the risk and responsibility of the work done shall lie upon the assessee including the penalty for non-completion, defects after completion etc.
(iv) The NIBM shall deduct TDS from the assessee as per the applicable prevailing laws.
(v) There is no mention about JR & Co. as a contractor of NIBM.
14.2 Thus, the entire nature of work comes squarely within the realm of “carrying out any work in pursuance of a contract” as stipulated in Section 194C. ‘Carrying out any work’ has a very wide import, which includes within its ambit not only simply works contract but also all kind of work, which a person carries out in pursuance of a contract. Such persons have been termed as ‘contractor’. The “work” can be done either by the ‘contractor’ himself or can get the work done by some other contractors, which in this section has been termed as ‘sub-contractors’. Here in this case, the assessee was assigned and was solely responsible for “carrying out the work” as mentioned in the agreement and the assessee has got this “work” done through the contractor namely, JR & Company under the assessee’s supervision and guidance, who in this case can be referred to as a ‘sub-contractor’. The assessee has carried out the work, specifically the works contract part through JR & Company. However, the risk and responsibility which is associated with a contract lies with the assessee only and JR & Company has merely shared the risk and responsibility with the assessee. Thus, there is a clear cut relationship of a ‘contractor’ and ‘sub-contractor’ between the assessee qua the JR & Company. Once the payment has been received in terms of the agreement, which was for a specific “work” to be done in pursuance of the agreement and the payment has been credited to the account of the assessee, this definitely forms part of the assessee’s receipts. This is also further fortified by the fact that the NIBM deducted TDS on the entire payment made to the assessee which was in line with the terms specified in the agreement itself. Raising of invoice bills by JR & Co. to NIBM will not make any difference as he has submitted the bill for carrying out the works contract which were assigned and approved by the assessee and the payment of which has been received by the assessee. It was only if such bills have been approved, the payment was to be made to the assessee, who in turn, will make the payment to JR & Co. Nowhere in the agreement it has been agreed that the JR & Co. is directly responsible for the risk and responsibility for executing the work. In fact, there is no a whisper or mention about JR & Co. in the entire agreement. Once this is not so, it does not makes any difference, whether the invoices has been raised by the JR & Co. directly to NIBM. Even the letters which has been referred to by the learned AR in the paper book will also not make any difference or improve upon the assessee’s case. Once the payment has been received by the assessee for “carrying out the work in pursuance of a contract” and TDS has been deducted on the entire payment by NIBM, the assessee while making the payment to JR & Co., which here in this case, are sub-contractors, the assessee was also liable for deducting tax at source as per the rate specified in Section 194C.
14.3 In our conclusion, we agree with the finding of the CIT(A) that the entire payment which has been received, are to be treated as receipts of the assessee and the payment made to JR & Co. as an outgoing expenses for getting the work done through JR & Co.. Thus, the assessee was responsible for deducting TDS under Section 194C for making the payment to JR &Co. This conclusion also gets fortified by the fact that the assessee has claimed the credit of entire TDS amount as was deducted by NIBM. This issue is thus, decided against the assessee.
Decision on 3rd Issue :-
15. The next issue which flows from our conclusion is whether the disallowance should be made under Section 40(a)(ia). Once it has been held that the payments received by him are part of the receipts, whereas the payment made by him to JR & Co. are to be treated as expenses for carrying out the work in pursuance of the contract. Then assessee was responsible for deducting the TDS. Section 40(a)(ia) is a non-obstante clause, which provides that such an expenditure shall not be allowed or deducted, if TDS has not been deducted on an amount payable to a contractor or sub-contractor. In the assessee’s case, since TDS has not been deducted while making the payment to JR & Co., such an expenditure cannot be allowed in view of the provisions of Section 40(a)(ia) on the amount payable. Hence, view taken by the CIT(A) for disallowance under Section 40(a)(ia) is factually and legally correct. Thus, this issue is also decided against the assessee.
Decision on 4th Issue :-
16. The next issue is whether any disallowance can be made under Section 40(a)(ia) for non-deduction of TDS under Section 194C on bought out items i.e on purchases of material. From the perusal of the records as placed before us, it is seen that large amount of payment relates to purchases and supply of materials. The obligation to deduct TDS is limited to the appropriate proportion of the income which is chargeable to tax. The payment of supply and charges of material do not partake the character of income in this case and there is no mark up for supply of purchases of items. Such payments are merely a reimbursement of expenses incurred for purchases and do not have any element of income. The judgment in the case of Angel Capital & Debit Market Ltd (supra) of the jurisdictional High Court as relied upon by the AR is squarely applicable. Therefore, we hold that the disallowance under Section 40(a)(ia) cannot be made on bought out/supply and purchases of materials as there was no liability to deduct TDS under Section 194C and, therefore, such a disallowance should be reduced. The Assessing Officer is, therefore, directed to verify the payments which have been made for purchases and supply of materials and segregate the same and further no disallowance shall be made on such expenses. Thus, this issue is decided in favour of the assessee subject to verification by the Assessing Officer.
Decision on 5th Issue :-
17. Learned AR has raised the issue of ‘reasonable cause’ for non-deducting of the TDS in the wake of Jurisdictional High Court decision in the case of Kotak Securities Ltd. (supra). In the instant case as has been brought out on record that the entire payment by NIBM was received by the assessee and not only that, TDS deducted by the NIBM has been claimed as part of his income. The credit of TDS amount has also been claimed in the Return of Income, which was partly denied by the Assessing Officer. Thereafter assessee went step further to claim the credit of TDS amount not allowed by the Assessing Officer before the CIT(A). It was at the stage of CIT(A), when the enhancement notice was issued, the assessee made submission that the TDS has wrongly been deducted by NIBM in his case. Under these circumstances, certainly there cannot be a case of reasonable cause for non-deducting of TDS on payment made to JR & Co. The assessee right from the stage of filing of return to the stage of Assessing Officer and further upto filing of appeal before the CIT(A) was very sure that TDS amount deducted from NIBM is his income. Once it is income, the assessee was obliged to deduct TDS while making the payment to JR & Co. The payment received and payment made are part of one transaction only. Thus, on these facts, we hold that there was no ‘reasonable cause entertained by the assessee. In the case of Kotak Securities Ltd. (supra), Hon’ble High Court after holding that the assessee was liable to deduct tax at source, however, found on facts of the case that both the revenue and the assessee nearly for decade, were of the view that TDS was not deductible on payment of transaction charges, therefore, there could be no fault with the assessee in not deducting the tax. It was on this premise that the Hon’ble High Court held that there was a bona fide belief. Nowhere the Hon’ble High Court held that on the grounds of reasonable cause, disallowance under section 40(a)(ia) should not be made. Thus, the ratio of Hon’ble High Court in the case of Kotak Securities Ltd. (supra) will not be applicable on the facts of the assessee’s case. Thus, this issue is decided against the assessee.
Decision on 6th Issue :-
18. The next issue is whether the provisions of Section 40(a)(ia) is applicable only to amount payable on the last day. As agreed by both the parties, this issue stands covered by the decision of Hon’ble Special Bench in the case of Merilyn Shipping & Transports (supra), wherein it has been held that the provision of Section 40(a)(ia) is applicable to the tax which is deductible on the sums payable. Accordingly the Assessing Officer is directed to verify the amount which are payable as on the last date i.e on the date of balance sheet and restrict the disallowance on the amount payable. (The details of which has been given at page 56 of the paper book). Accordingly, following the decision of the Special Bench, this issue is therefore, decided in favour of the assessee, subject to verification by the Assessing Officer.
Decision on Last Issue :-
19. Lastly, whether there was any diversion of income at source. As stated earlier, nowhere from the reading of the agreement it is borne out that there is any title in favour of JR & Co. by the NIBM. In absence of such clause, it cannot be held that there was a diversion of any income by overriding title. In the case of CIT v. Sitaldas Tirathdas  41 ITR 367 (SC), it was held by the Hon’ble Supreme Court that the true test for the application of the rule of diversion of income by an overriding title is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt, are there in every case, but it is the nature of the obligation which is decisive fact. Explaining further, it was observed by the Hon’ble Supreme Court that there is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of obligation cannot be said to be a part of the income of the assessee. Where by the obligation, income is diverted before it reaches to the assessee, it is deductible, but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same consequence, in law, does not follow. It was held by the Hon’ble Supreme Court that it is the first kind of payment which can truly be excluded and not the second. The second payment is merely an obligation to pay another a portion of one’s own income which has been received and is since applied. Here in this case, there never was any title in favour of JR & Co. to carry the work by NIBM and it was assessee’s obligation alone to get the work done. The payment received by the assessee was as per terms of agreement only. Accordingly, in view of the principle of law laid down by the Hon’ble Supreme Court, we hold that there was no diversion of income at source in favour of the JR & Co. This issue is, thus, decided against the assessee.
20. In view of the above, ground No.1 is partly allowed.
21. In the result, appeal filed by the assessee is partly allowed.