* HON BLE SRI JUSTICE L.NARASIMHA REDDY AND HON BLE SRI JUSTICE CHALLA KODANDA RAM + I.T.T.A.Nos.30 and 50 of 2002 %Date: 24.07.2014 #The Commissioner of Income Tax, Hyderabad. appellant. and $M/s. A.P.State Road Transport Corporation, Hyderabad. Respondent ! Counsel for appellant: Sri J.V.Prasad ^ Counsel for Respondent : Sri S.Ravi < GIST: > HEAD NOTE: ? Cases referred 1. AIR 1974 SC 2309 2. AIR 1965 SC 1655 HON BLE SRI JUSTICE L.NARASIMHA REDDY AND HON BLE SRI JUSTICE CHALLA KODANDA RAM I.T.T.A.Nos.30 and 50 of 2002 COMMON JUDGMENT: (Per Hon ble Sri Justice L.Narasimha Reddy) These appeals under Section 260-A of Income Tax Act, 1961 are filed by Income Tax Department, feeling aggrieved by common order, dated 20.11.2000, passed by Hyderabad Bench B of Income Tax Appellate Tribunal in I.T.A.Nos.893 to 896/Hyd/1998. respondent is Andhra Pradesh State Road Transport Corporation. As part of its activities, it acquires vehicles and operates them on routes, in various parts of State. In process of acquiring buses, as first step, it purchases chassises of description, which are suitable for its use, from various manufacturers. Thereafter, steps are taken to get bodies of buses built, on chassises. process is not uniform. Buses of different varieties, such as Deluxe, Express and Ordinary, are thus procured. Tenders are invited from eligible agencies duly indicating specifications of buses. On finalising of contract, successful fabricator is handed over chassises, with understanding that after body is built thereon, bus, in its finished form is delivered to respondent. This activity was being undertaken by respondent, ever since its inception. jurisdictional assessing authority visited premises of respondent somewhere in year 1998. After examining activity, in process of getting bus bodies built by fabricators, he took view that it resembles works contract, and respondent was under obligation to effect deduction of tax, at source. Alleging that such step was not taken, he passed order, dated 06.02.1998, in exercise of power under Section 201 of Act, and levied tax of Rs.3,86,45,803/- and interest of Rs.74,74,557/-, for assessment years 1995-96 to 1997-98. Aggrieved by that order, respondent filed appeal before Commissioner of Income Tax (Appeals). Commissioner passed order, dated 23.10.1998, upholding order passed by ITO, but directing further verification on facts. respondent filed further appeal before Tribunal. Through order under appeal, Tribunal reversed order of assessment passed by ITO, as confirmed by Commissioner. It was held that Section 194-C of Act has no application to facts of case. Sri J.V.Prasad, learned counsel for appellant, submits that activity undertaken by agency that built bus body is nothing but works contract, and this is fortified from fact that chassises for bus was supplied by respondent itself. He submits that once work was undertaken by agency to construct bus body, that too according to specifications furnished by respondent, only conclusion that can be arrived at is that, what was undertaken by agency was work and not at all, activity of manufacture. He contends that it is only when trade or manufacture was undertaken, that concept of sale would come into existence and not when work is done according to specifications. He placed reliance upon judgments of Supreme Court in T.V.Sundram Iyengar v. State of [1] Madras . According to him, judgment of Supreme Court in [2] Patnaik & Company v. State of Orissa , was under Sales Tax Act, and parameters for imposition of tax under Sales Tax Act, on one hand, and Income Tax Act, on other, are totally different and same can be treated as binding precedent. Sri S.Ravi, learned counsel for respondent, on other hand, submits that whether one goes by nature of activity undertaken by agency that built bus body or absence of any supply of material by respondent, inescapable conclusion is that it was not works contract and it is sale, pure and simple. He contends that except giving specifications and paying money for work, respondent did not undertake any activity in process, much less did it supply material and Tribunal has taken same into account. He has placed reliance upon judgment of Supreme Court in Patnaik s case (2 supra). respondent has been carrying activity of purchasing chassises and getting bodies of buses, built thereon, for past several decades. It was only in year 1998 that ITO examined matter from point of view of Section 194-C of Act. He took view that activity of building bus body involves assignment of works contract or work entrusted by respondent, and thereby, tax at source ought to have been deducted, while making payment to fabricating agency. entire dispute revolves around answer to question as to whether activity entrusted by respondent to fabricators of bus, amounts to work or works contract on one hand or sale. If it is former, Section 194-C of Act gets attracted and if it is latter, it is not. It is not difficult to draw distinction between work on one hand, and sale, on other hand. Though activities cannot be described with mathematical precession, broad features thereof can certainly be discerned. Work involves discharge of some functions by person or agency to whom it its entrusted. Basically, nature of work is determined by person, who entrusted it, and material that is needed for work is also supplied by him. There may be instances where part of material is procured by person, who undertakes work. Another distinguishing feature is that if activity does not involve any expertise on part of worker or agency undertaking work, it tends to be treated as works contract. In contrast, if activity entrusted to agency is on account of its expertise, and what is supplied at end of contract capable of being put to immediate use, is definite item of goods, it becomes sale. It is finished product that comes to be sold, to person who placed order. It is not uncommon that even where activity of sale, pure and simple takes place, purchaser has his own liberty to stipulate specifications. goods of particular description are manufactured as regular activity, but purchaser has slightly different specification, depending upon nature of use. In such cases, necessary alterations are made even while keeping main substratum, intact. By itself, it does not change nature of transaction or activity. It continues to be sale of goods, may be with slight alterations. Therefore, (a) once finished product of definite description and shape was brought into existence with material and expertise of agency or person, who undertook activity, and (b) fixed price is paid thereon, activity tends to be close to sale . Once it is sale, it ceases to be work or works contract, from point of view of Section 194-C of Act. judgment of Supreme Court in T.V.Sundram Iyengar s case (1 supra), was totally on different set of facts. In that case, contract related to different kind of product. By no stretch of imagination, contract of that description can be compared to one of building bus bodies, which needs lot of expertise, experience and technical know how. discussion undertaken by their Lordships about expressions works contract and any work has to be understood on facts of that case. It is no doubt true that in Patnaik s case (2 supra), Supreme Court has dealt with matter under Sales Tax Act. Though parameters of imposition of tax under Income Tax Act, on one hand, and Sales Tax Act, on other hand, are different, once activity is found to be sale , under one enactment, it is difficult to treat it to be otherwise, under other, unless different definition is provided for in that enactment. What is sale , under Sales Tax Act can certainly be treated as such, under Income Tax Act also, particularly when Income Tax Act did not coin any different definition for it. We are in agreement with order passed by Tribunal. Accordingly, we dismiss appeals. There shall be no order as to costs. miscellaneous petitions filed in these appeals shall also stand disposed of. L.NARASIMHA REDDY, J. CHALLA KODANDA RAM, J. Date:24.07.2014 Note:- L.R. copy to be marked. (B/o) GJ [1] AIR 1974 SC 2309 [2] AIR 1965 SC 1655 Commissioner of Income-tax, Hyderabad v. A. P. State Road Transport Corporation