ORDER

Per R.S. Syal, Accountant Member. - This appeal by the revenue and cross-objection by the assessee emanate from the order passed by the Commissioner of Income-tax (Appeals) on 28-10-2009 in relation to the assessment year 2004-05.

2. The only ground raised by the revenue is against the direction of the learned CIT(A) that payments made to NSICT be treated as covered under section 194C and not section 194J. Briefly stated the facts of the case are that the assessee-company is a shipping agent handling vessels at various Indian ports. A survey was conducted under section 133A on 9-3-2005 for verification of compliance of deduction of tax at source provisions. During the course of survey it was discovered that in the financial year 2003-04 the assessee made payment of Rs. 12,23,29,581 to M/s. Nava Sheva International Container Terminal Limited (hereinafter referred to as "NSICT") and deducted tax at source at the rate of 2.05 per cent as provided under section 194C for which payment was made. The Assessing Officer, during the course of proceed- ings under section 201(1) and 201(1A), noted that NSICT entered into technical service agreement with P&O Australia under which P&O Australia was to provide technical know-how to the assessee-company. It was also noted by the Assessing Officer that NSICT had also charged service tax on the payments from the assessee. The Assessing Officer noted that at the time of survey it was found that NSICT was operating its terminal with 8 quay cranes, 29 rubber tyred quantry cranes, 3 rail mounted gantry cranes and more than 600 employees. In para 10 of the assessment order, the Assessing Officer observed that P&O Australia was the main shareholder of NSICT through its holding in South Asia Port Limited and under the agreement P&O Australia supplied technical know-how in return for fees. In view of these facts the Assessing Officer opined that NSICT was rendering/providing technical and specialized services to its customers including the assessee along with machines and technical manpower and hence tax was deductible under section 194J. On being show caused, the Accounts Manager of the assessee explained that payments made to NSICT were for container movement under the contract and there were no professional or technical services involved in the movements of containers. It was explained that the services provided by NSICT were towards the movement of containers from customer's trailers/rail wagons to yard and from there to vessels in respect of export containers; and for the import containers, the payment was made for moving containers from vessels on to the trailers at the quay side and for lifting of trailers to customer's trailers/rail wagons. It was argued that the assessee had rightly deducted tax at source under section194C and the provisions of section 194J, sought to be applied by the Assessing Officer, were not applicable. Vide para 11 of the assessment order, the Assessing Officer accepted the assessee's contention that the payment was made towards container handling charges. He however held that container handling was a technical and specialized service. In his opinion the assessee-company was required to deduct tax at source under section 194J and not under section 194C. Resultantly he worked out short deduction of tax at source at Rs. 36,08,701 under section 201(1). Further the assessee was held to be liable for payment of interest under section 201(1A) amounting to Rs. 24,90,004.

3. The assessee assailed the order under section 201(1) and 201(1A) before the learned CIT(A), who concurred with the submissions advanced on behalf of the assessee and held that the provisions of section 194C were applicable. He however did not accept the assessee's contention that the assumption of jurisdiction under section 201(1) and 201(1A) was improper notwithstanding NSICT clarifying that they had paid tax on their income including payments received from the assessee. In the opinion of the learned CIT(A), the assessee's liability for deducting tax at source was not washed away with the payment of taxes by the recipient. He further did not accept the assessee's contention that the order passed under section 201(1) and 201(1A) was time-barred. Thus the other grounds raised by the assessee, challenging the abovereferred issues, were held to be infructuous in view of his decision on the main ground that the assessee had rightly deducted tax at source under section 194C. Both the sides are in appeal.

4. The revenue is aggrieved against the view taken by the learned CIT(A) that the tax was required to be deducted at source under section 194C and not section 194J. The learned Departmental Representative contended that it was discovered during the course of survey that the payments made by NSICT were in the nature of fees for technical services as they were providing specialized services to the assessee. He further argued that P&O Australia entered into technical service agreement with NSICT providing them the technical know-how, from where it would naturally follow that NSICT also provided technical services to its customers including the assessee. He further stated that NSICT charged service tax in its invoices raised on the customers, which was clear indicator of they being provider of technical services. The learned Departmental Representative argued that section 194C applies in respect of payments made to contractors, which was not the case under consideration. It was, therefore, strenuously argued that the view taken by the learned CIT(A), on this issue, be overturned.

5. In the oppugnation, the learned A.R. argued that the finding recorded by the Assessing Officer in para 5 that NSICT entered into technical service agreement with P&O Australia under which P&O Australia were to provide technical know-how to the assessee-company, was incorrect. He argued that this fact was also brought to the notice of the learned CIT(A) who has recorded the same on page 6 of the impugned order, which could not be controverted by the learned Departmental Representative. He further explained the nature of services provided by NSICT to the assessee. Placing strong reliance on Commissioner Of Income-Tax v. Estel Communications P. Ltd. [2009] 318 ITR 185 (Delhi) and Skycell Communications Ltd. v. Dy. CIT [2001] 251 ITR 53 (Mad.), the ld. AR argued that no technical services were provided to the assessee. For the same proposition he also relied on certain Tribunal orders. Opposing the departmental stand that NSICT was technical service provider, on the strength of its registration for the purpose of payment of service tax, the learned A.R. argued that NSICT was registered under the category of "PS & MC" as was clarified to the first appellate authority and the services rendered by them were covered under "Port Services" only. In view of these facts it was contended that the learned CIT(A) was right in coming to the conclusion that deduction of tax at source was required under section 194C and not section 194J.

6. We have heard the rival submissions and perused the relevant material on record in the light of precedents cited before us. It is noted that the assessee-company is a shipping agent handling vessels for import and export at various Indian Ports on behalf of its customers. Before we proceed further, it is sine qua non to zero in on the exact nature of services for which the assessee made the payments in question. Ordinarily shipping agent is a person whose business is to prepare shipping documents, arrange shipping space and insurance and further deal with the customs requirements. It is apparent from the assessment order that during the course of its business as shipping agent, the assessee availed the services provided by NSICT for the movement of its cargo in respect of import and export done by its customers. The movement of cargo on port, in case of export, involves different stages, viz., lifting of containers from customer's trailer/rail wagons by the operation of rubber tyre gantry cranes; movement of the containers from yard to the vessel side; and moving the containers from trailers at the quay side on to the vessel with the operation of quay cranes. Similarly the movement of cargo on port, in case of import, involves different stages, viz., moving the containers from vessel on to the trailers at the quay side with the operation of quay crane; movement of the containers from yard to vessel side; and operation of rubber tyre grantry cranes/rail mounted gantry cranes for lifting the containers off from trailers to customer's trailers/rail wagons. The above description of the work done by NSICT for the assessee was brought to the notice of authorities below and the Assessing Officer has recorded the same in para 10 of the assessment order. The veracity of above nature of services, as stated by the assessee to have been provided by NSICT, stood established when during the course of survey proceedings it was noted that NSICT operated its terminal with 8 quay cranes, 29 rubber tyred country gantry cranes, 3 rail mounted gantry cranes and more than 600 employees.

7. The reference made by the Assessing Officer in para 5 of the assessment order that NSICT entered into technical services agreement with P&O Australia under which P&O Australia was to provide technical know-how to the assessee-company, is not correct. The assessee stated before the learned CIT(A) that P&O Australia entered into technical agreement with NSICT for providing technical know-how to them and not to the assessee-company. This fact has not been controverted by the learned Departmental Representative with any material or evidence. From the above discussion it is manifest that the assessee made the payments for movement of cargo of its customers, which, in turn, was facilitated by NSICT with the use of their equipments in the shape of cranes and manpower.

8. Now the moot question is - Whether the payment made to NSICT for the movement of containers can be covered under section 194J? The assessee deducted tax at source under section 194C on the payments made to NSICT at the rate of 2.05 per cent. As against that the Assessing Officer has held that such payments are covered under section 194J, on which tax was deductible at the rate of 5.05 per cent. In order to appreciate the entire controversy in right perspective it would be apt to consider the provisions of section 194J vis-a-vis section 194C.

9. Section 194J requires deduction of tax at source by the payer, inter alia, on the payment or the credit of amount to a resident by way of fees for technical services at the specified rate, subject to the fulfilment of the stipulated conditions. The case of the Assessing Officer is that the assessee availed technical services from NSICT and hence tax was deductible at source under this section.

Explanation (b) to section 194J defines "fees for technical services" as under :—

""Fees for technical services" shall have the same meaning as in Explanation (2) to clause (vii) of sub-section (1) of section 9."

10. When we turn to Explanation (2) to section 9(1)(vii), it is found that 'fees for technical services' has been defined as under :—

"Explanation (2)—For the purposes of this clause, "fees for technical services" means any consideration (including any lump sum consi-deration) for the rendering of any managerial, technical or consultancy services (including the provision of services of technical or other personnel) but does not include consideration for any construction, assembly, mining or like project undertaken by the recipient or consideration which would be income of the recipient chargeable under the head "Salaries"."

11. On circumspection of Explanation (2) to section 9(1)(vii) in juxtaposition to section 194J, it becomes apparent that the fees for technical services is consideration for the rendering of any managerial, technical or consultancy services including the provision of services for technical or other personnel. Thus the foremost criteria for bringing any payment under the purview of Explanation (2) to section 9(1)(vii) is that the payment must have been made for rendering of any managerial, technical or consultancy services and also including the provision of services for technical or other personnel.

12. The Assessing Officer, in the instant case, has restricted himself only to the technical services and it is nobody's case that the assessee made any payment for managerial or consultancy services. In the like manner the Assessing Officer has not pressed into service the later part of the Explanation 2, which deals with provision of services of technical or other personnel. It is rightly so because of the fact that NSICT raised invoices in respect of movement of cargo and there is no reference to any specific provision of services by technical or other personnel. Rule of ejusdem generis helps in ascertaining the meaning of a general words in the company of specific words. As per this rule, the general words draw their colour and meaning from the company they keep. The application of this rule has been approved in the context of the Income-tax Act by several Courts including the Hon'ble Supreme Court in a recent judgment rendered in CIT v. McDowell & Co. Ltd. [2009] 314 ITR 167 . By applying this rule, the expression 'other personnel' in this provision must fall within the genus of 'services of technical' personnel. It cannot be considered as any personnel unrelated to the managerial, technical or consultancy services. Even though NSICT had the services of several personnel in the process of movement of cargo, those personnel, in the absence of any finding by the Assessing Officer that they possessed some technical expertise, cannot be considered within the ambit of this provision as falling under 'other personnel'.

13. Further narrowing the scope of controversy to the payments made by the assessee for availing technical services, as has been held by the Assessing Officer, we need to concentrate on the meaning of 'technical services'. In other words, the technical services should be provided by the recipient of the amount so as to bring the payment within the scope of section 194J. The words 'technical services' have not been defined in the Act. But when we view Explanation to section 9(1)(vii), which defines 'fees for technical services' as consideration for rendering of any "managerial, technical or consultancy services", it becomes apparent that the word "technical" is preceded by the word "managerial" and succeeded by the word "consultancy". As both the 'managerial' and 'consultancy' services are possible with human endeavour, the word 'technical' should also be seen in the same light. To be more precise, any payment for technical services, in order to be covered under section 194J, should be a consideration for acquiring or using technical know-how simplicitor provided or made available by human element. There should be direct and live link between payment and receipt/use of technical services/information.

14. Where no technical services are provided as such, but the payment is made for the use of some machinery or equipment or standard facility which may have been created or brought into existence with the input of technical services along with man, machine and material, such payment would not partake of the character of fees for technical services. Take for example a person going to a cinema and purchasing ticket for watching a movie. When he purchases ticket, he pays for watching the movie and not for availing any technical service. It is a different matter that the movie is exhibited on screen by way of some technical input. Take another example of a person boarding a bus or train by purchasing the requisite ticket. It cannot be said that the person is making payment for technical services. No doubt bus or train is made by sufficient technical input but the user of the same on a non-customized basis cannot be said to be making payment for any technical services. It is the bus manufacturer who avails technical services in making the bus. Once the bus is made and brought on road for use by anyone, boarding on it in lieu of ticket, is a payment for use of bus as a facility and not for technical services which was obtained by the bus manufacturer at the time of making bus. In the present age of technology most of the services availed by us are result of some technical input. The usage of such facility on payment basis cannot be described as fees for technical services.

15. Coming back to the facts of the instant case it is noticed that the assessee made payment to NSICT for the movement of the containers from or up to the vessel. In order to facilitate the movement of containers, NSICT provided the services of different types of cranes such as quay cranes, rubber tyre gantry cranes and rail mounted gantry cranes. These cranes are used for specific purposes only. Rubber tyre gantry cranes, rail mounted gantry cranes are used for lifting the container from customer's trailer/rail wagons and quay cranes are used for moving containers from trailers at the quay side on to the vessel. When the assessee made payment to NSICT it was meant for using the facility of cranes provided by them for the movement of containers and not for availing any technical services which may have gone into the making of cranes. NSICT opened its doors of service to one and all. Anybody interested in movement of containers could avail the facility. The assessee has also made payment on bill to bill basis. In other words, payment was made for user of a standard facility provided by NSICT, specifically for the movement of containers from or to the vessel.

16. The Assessing Officer has heavily relied on the fact that NSICT was registered for the purpose of payment of service tax. It was clarified by NSICT to the learned CIT(A), vide their letter dated 2-1-2009, that they were registered under the category of "PS & MC". "PS" stands for Port Services. They admitted that all the services rendered by them were covered under Port Services. They also admitted that they had not rendered any MC (management consultancy) services. The learned A.R. has placed on record a text of section 65(82) of the Finance Act, 1994 defining "Port Services" as under :—

"'Port Services' means services rendered by a port or any person authorized by the port in any manner in relation to the vessel or goods. Such services include movement of ships and vessels, movement of cargo and goods into and out of the port etc. Services provided at ports are contained in Chapter V on works and services to be provided at ports of the Major Port Trust Act, 1963."

17. From the mandate of section 65(82) of Finance Act, 1994, it is vivid that Port Services consist of cargo handling, dock services and container handling services. When we view the registration of NSICT as the one under the category of 'PS & MC' along with the fact that the assessee paid for the movement of containers of its customers, there remains no doubt that NSICT, in fact, maintained different types of cranes for the purpose of providing cargo handling services. The registration of any person for the purpose of service tax, no doubt presumes that some sort of services are provided by him within the meaning of Finance Act, 1994, but that does not mean that such services are only in the category of 'technical services' unless the prescription of Explanation (2) to section 9(1)(vii) is fulfilled. A payment to be covered under section 194J should be fees for technical services and such fees should be for rendering of any technical, managerial or consultancy services and not anything else. In order to rope in any service provider within the net of section 194J, it is of paramount importance to check the true nature of service provided on the touchstone of the mandate of this provision alone. If the conditions of section 194J, read with section 9(1)(vii) Explanation (2) are not fulfilled, the liability under this section is ruled out.

18. In the case of Skycell Communications Ltd. (supra), the assessee was engaged in the business of providing cellular mobile telephone service to subscribers. The Department took the view that the payments made by the subscribers to the assessee be treated as covered under section 194J as fees for technical services. Rejecting this contention, the Hon'ble Madras High Court held the mere collection of a fee for use of a standard facility provided to all those willing to pay for it does not amount to the fee having been received for technical services. It was further held that when a person decides to subscribe to a cellular telephone service in order to have the facility of being able to communicate with others, he does not contract to receive a technical service. What he does agree to it to pay for the use of the airtime for which he pays a charge. The fact that the telephone service provider has installed sophisticated technical equipment in the exchange to ensure connectivity to its subscriber, does not on that score, make it a provision of technical service to the subscriber.

19. Similarly in the case of Estel Communications (P.) Ltd. (supra), it has been held that where the assessee made payment for use of internet bandwidth, it was using internet bandwidth of US party T for providing access to its subscribers and the Tribunal was justified in coming to the conclusion that no technical services were provided by T to the assessee within the meaning of section 9(1)(vii) and hence the assessee was not obliged to deduct tax at source from payment made to that party.

20. This case can be viewed from another angle also. There are many sections in Chapter XVII of the Act requiring deduction of tax at source on certain payments, which require the use of machinery in direct or indirect manner. E.g.Explanation III to section 194C defines 'work' as including (b) broadcasting and telecasting including production of programmes for such broadcasting or telecasting. It is obvious that this activity cannot be done without the use of some sophisticated machinery. Similarly section 194-I requires deduction of tax at source from rent. Explanation to this section defines 'rent' to mean payment for the use of, inter alia, (e) plant; (f ) equipment. This is a direct payment for the use of machinery. No machinery or equipment can be manufactured without some sort of technical service. If we accept the view taken by the Assessing Officer in this case that the payment for use of any machinery, or equipment or facility, which in turn, involves the input of some technical information in its making, is to be considered as fees for technical services, then the payments in all such cases shall be covered under section 194J and the other sections, as taken note of above, would be rendered as a redundant piece of legislation. It is axiomatic that it cannot be the case.

21. In view of the foregoing discussion we hold that there was no liability on the assessee to deduct tax at source from the payments made to NSICT within the meaning of section 194J and the ld. CIT(A) was justified in holding so.

22. Now let us examine and evaluate the contention of the assessee that the payments made to NSICT are covered under section 194C of the Act. This section mandates that any person responsible for paying any sum to any resident for carrying out any work including supply of labour for carrying out any work in pursuance of contract between the contractor and the persons specified, shall at the time of credit of such sum to the account of the contractor or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, shall deduct income-tax at source at the specified rate. Explanation III below section 194C(2) defines the expression "work", which is relevant for our purposes. Clause (c) of this Explanation provides that the expression "work" shall also include : 'carriage of goods and passengers by any mode of transport other than by railways'. A cursory glance on clause (c) of Explanation III brings out that carriage of goods by any mode of transport other than by railways has been included in the definition of "work" as applicable to section 194C. Carriage of goods means the movement of goods from source to destination. In case of exports, source is the godown of customer and the destination in India is vessel and vice versa in case of imports. The goods may reach from source to destination in one or more trips and that too with the help of one or more modes of carriers. If the journey of goods is broken and different modes are employed in facilitating the lifting of goods from source to final destination, such broken up journeys also amount to carriage of goods to the final destination. Reverting to the facts of the instant case, it is discernible that the assessee was making available the containers on customer's trailers/rail wagons, which were lifted from such trailers/rail wagons on the cranes by NSICT and were then moved from yard to vessel side. This movement of cargo is part of the journey of the container from the place of source to the place of destination, which is vessel. The assessee made payment for carriage of goods from the customer's trailers up to the vessel in case of export and vice versa in case of import of goods. This payment cannot be characterized as anything other than for the carriage of goods. When we view Explanation III(c ) below section 194C(2) it becomes apparent that the payment made by the assessee to NSICT is covered within this provision and the assessee rightly deducted tax at source under section 194C of the Act.

23. At this juncture we are reminded of the well-settled rule of generalia specialibus non derogant, which provides that the special provisions override general provisions. In other words, if a special provision has been enacted dealing with a particular thing or situation, then that particular thing or situation is governed by such special provision alone. Application of general provisions stands excluded on that. This rule has got the sanction from several Courts in the country including the Hon'ble Apex Court in Britannia Industries Ltd. v. CIT [2005] 278 ITR 546 and that of the Hon'ble jurisdictional High Court in Forbes Forbes Campbell & Co. Ltd. v. CIT [1994] 206 ITR 495 (Bom.). Coming back to the facts of the present case we find that the payments made to NSICT are straightway covered under Explanation III(c) below section 194C(2). This being a specific provision encompassing the payment of carriage, the provisions of section 194J, which are general in the context of not specifically defining the meaning of 'technical services', cannot be applied.

24. We, therefore, hold that the payments made by the assessee to NSCIT are covered under section 194C and there is no scope for applying the provisions of section 194J. The natural corollary is that the assessee rightly made deduction of tax at source at the applicable rate.

25. Ground No. 1 of the assessee's cross-objection assails the view of the learned CIT(A) that the assessee was responsible for deduction of tax at source notwithstanding the fact that the recipient had made the payment of tax due on its income. The assessee argued before the learned CIT(A) that NSICT treated payment made by assessee to them as their income and paid due tax by filing the return in time. It was, therefore, put forth that even if the Assessing Officer's stand for the deduction of tax at source at the higher rate was to be upheld, still the assessee could not be saddled with any liability under section 201(1). This line of argument was not approved in the first appeal.

26. The ld. counsel for the assessee reiterated the submissions advanced before the learned first appeallate authority and contended that there was no liability on the assessee under section 201(1) or 201(1A). Per contra, the learned Departmental Representative argued that the payment of tax by the recipient could not relieve the assessee from its liability of deducting tax at source and the learned CIT(A) was justified in holding so.

27. In our considered opinion the learned CIT(A) erred in holding that the liability of the assessee existed notwithstanding the payment made by the recipient of the amount. The Hon'ble Supreme Court in Hindustan Coca Cola Beverage (P.) Ltd. v. CIT [2007] 293 ITR 226 considered a case in which tax was already paid by the recipient of the income on the payment received from the assessee. It was held that the assessee could not be treated as in default under section 201(1). While reaching this conclusion it considered Circular No. 275/201/95-IT(B), dated 29-1-1997 issued by the CBDT as putting an end to the controversy when it declared that "any demand visualized under section 201(1) of the Income-tax Act should not be enforced after the tax deductor has satisfied the Officer-in-charge of TDS that the taxes due have been paid by the deductee assessee".

28. The Special Bench of the Tribunal in Mahindra & Mahindra v. Dy. CIT [2009] 30 SOT 374 (Mum.) has also taken similar view by holding that the person responsible cannot be treated as an assessee in default in respect of tax under section 201(1) if the payee has paid the tax directly. As admittedly NSICT paid due tax on their income inclusive of the amounts received from the assessee, naturally there cannot be any question of recovery of tax by treating the assessee as in default under section 201(1).

29. The legal position in respect of liability of interest under section 201(1A) stands on different footing from that under section 201(1). Despite the fact the payee included the amount received in his income and paid due tax, the liability of payer to interest under section 201(1A) still exists for the period between the date on which tax was deductible till the date on which the tax was actually paid. In such a situation the date of payment of tax by the payee can be treated as the date of payment. This view has been taken by the Supreme Court in CIT v. Eli Lilly & Co. (India) (P.) Ltd. [2009] 312 ITR 225 . Still in an earlier case, the Supreme Court in Hindustan Coca Cola Beverage Ltd.'s case (supra) has held that interest under section 201(1A) is payable till date of payment by deductee.

30. Be that as it may, this ground has become academic in view of our decision on the revenue's appeal that the assessee had rightly deducted tax at source under section 194C.

31. Second ground raised by the assessee in its cross-objection is about the holding of the order passed by the Assessing Officer as within reasonable time. The ld. AR argued that the order under section 201(1) and 201(1A) was passed by the Assessing Officer on 12-12-2008. In the absence of any time-limit provided in the Act for the passing of such order, the ld. AR argued, that it ought to have been passed within a reasonable time. It was contended that the passing of such order after four years from the end of the financial year be held to be time-barred. On the other hand, the ld. DR argued that the period of a little more than four years could not be held to be unreasonable.

32. We have heard both the sides. The liability of the person responsible is dependent upon the deductee failing or otherwise to pay such tax directly. Thus the action under section 201(1) is dependent on the outcome of the assessment of the payee and the time-limit for passing order under section 201(1) has to be viewed in the light of the fate of the assessment in the hands of the recipient. Logically the person responsible for paying sum chargeable to tax can be treated as assessee in default at any time prior to the assessment of the payee or the time available for the making of the assessment of the payee. If the persons responsible is deemed to be an assessee in default after the assessment of the payee or the time available for making assessment has expired then such amount of tax will be incapable of adjustment against tax liability of the payee and would require return to such person who has been treated as assessee in default. Thus both the initiation of proceedings under section 201(1) as well as the completion of such proceedings by passing order have to be prior to the time-limit within which the tax can be determined in the hands of the payee. It cannot be beyond such period. If the payee has included the amount received from payer in his total income but the tax has not been paid in full or part then the payer can be treated as assessee in default to the extent of the non-payment of tax on the sum paid to him provided the tax is not recovered from the payee. If the payee has furnished the return of income without disclosing the sum paid by the payer on which tax was deductible as per the provisions of the Act then the tax deductible at source can be recovered from the payer by treating him as assessee in default if the income has not been assessed in the hands of the payee. Still in another situation where the payee has not at all filed his return of income again the person responsible can be treated as assessee in default in respect of the tax on the sum paid by him in violation of the provisions of this Chapter. Thus, there remains no difficulty in answering the question that how much time is available with the revenue for treating the payer as assessee in default under section 201(1). The obvious answer is that the maximum time-limit available for assessment of the payee is the maximum time-limit within which the payer can be treated as assessee in default. With the expansion of the scope of section 147, also roping in the cases of assessment apart from reassessment, it is clear that the assessment of payee shall also include assessment made under section 147. Thus the maximum time-limit for initiating and completing the proceedings under section 201(1) has to be at par with the time-limit available for initiating and completing the reassessment. This is the view which has been canvassed by the Special Bench of the Tribunal in Mahindra & Mahindra's case (supra).

33. The learned A.R., when confronted with the abovereferred Special Bench order, candidly admitted that the order passed by the Assessing Officer is within the period of six years from the end of the relevant assessment year. Respectfully following the Special Bench order in Mahindra & Mahindra's case (supra), we hold that the order passed by the Assessing Officer is not time-barred. This ground is not allowed.

34. Third ground of the cross-objection is against non-adjudication by the learned CIT(A) of ground Nos. 4 to 6 raised before him. In view of our decision that the assessee rightly deducted tax at source under section 194C and there was no liability to deduct tax at source under section 194J, this ground challenging the demand of differential amount of tax under section 201(1) and interest under section 201(1A) has become infructuous.

35. In the result, the appeal of the revenue is dismissed and cross-objection of the assessee is partly allowed.