S.J. Vazifdar, C.J. - (1.) This is an appeal against the order of the Income Tax Appellate Tribunal dismissing the appeal filed by the appellant against the order of the Commissioner of Income Tax (Appeals) allowing the respondent/assessee's appeal against the assessment order. This appeal pertains to the assessment year 2012-2013.
(2.) According to the appellant, the following substantial questions of law arise:- (i) Whether on the facts and in the circumstances of the case, the Ld. ITAT is right in law in holding that in view of proviso inserted by Finance Act, 2012 with effect from 01.07.2012 to Section 201(1) of the Income Tax Act, 1961, the respondent-assessee cannot be held to be deemed to be an assessee in default as the sub-contractors have already offered the payments to tax ignoring that the proviso was inserted by the Finance Act, 2012 with effect from 01.07.2012 to Section 201(1) of the Income Tax Act, 1961 which cannot be made applicable to the case of the respondent-assessee as the issue in the present case relates to the assessment years 2012-13 (ii) Whether on the facts and in the circumstances of the case, the Ld. ITAT is right both on facts and law in holding that the nature of work carried out by sub-contractors to be mere a work within the meaning of Section 194C and the work carried does not fall under professional and technical service provided within the meaning of Section 194J read with Explanation 2 to section 9(1)(vii) of the Income Tax Act, 1961 (iii) Whether on the facts and in the circumstances of the case, the Ld. ITAT was right in law in applying the case of Hindustan Coca Cola Beverages Pvt. Ltd. v. CIT reported as (2007) 293 ITR 226 (SC) which has no application in as much as even if the sub-contractors have offered the payments received from the respondent-assessee to tax in that eventuality also the respondent-assessee cannot escape from levy of interest and penalty in accordance with the provisions of Income Tax Act, 1961 (iv) Whether on the facts and in the circumstances of the case, the Ld. ITAT is right in recording perverse findings contrary to material on record and held that the subcontracted activities entrusted by Bharat Heavy Electricals Ltd. are neither professional nor technical service ignoring the material that the same could only be done with the human intervention involving qualified professionals, engineers, highly technical staff and consultants having full expertise in their field
(3.) The appeal is admitted on questions (ii) and (iv). Question (iii) is linked to question (i). Questions (ii) and (iv) are linked to each other.;