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2015 (8) TMI 378 - DELHI HIGH COURTTDS liability on "wheeling charges" - whether it did not amount to "fees for technical services" within the meaning of Section 194J? - whether there is any 'rendering of any managerial, technical or consultancy services (including the provision of services or technical or other personnel)' by PGCIL to DTL by virtue of the BPTA within the meaning of Section 194 J (1) read with Explanation 2 of Clause (vii) of sub-section (1) of Section 9 of the Act? - Held that:- Although the wheeling charges may be fixed by the CERC, that by itself is not a determinative factor. In the present case, DTL is seeking to characterize the wheeling charges as payment for use of PGCIL's equipment within the meaning of Section 194C of the Act. Interestingly, the CIT (A) in its order has accepted the plea that the job of DTL is to transport the electricity and it is therefore like carriage of goods. Despite accepting the above plea, the CIT (A) has simply concurred with the AO only because of "absence of sufficient legal precedent on the subject". Once it is accepted that all what PGCIL does is to transmit the electricity to DTL through the network without any human intervention, it cannot be characterized as a provision of technical services and sought to be brought within the fold of Section 194 J of the Act. By virtue of the BPTA agreement between DTL and PGCIL there is transportation of the electricity from PGCIL to DTL, through the equipment and network required statutorily to be maintained by PGCIL through its technical personnel using technical expertise. This, however, does not result in PGCIL providing technical services to DTL. Therefore the wheeling charges paid by DTL to PGCIL for such transportation of electricity cannot be characterized as fee for technical service. The ultimate conclusion of the ITAT holding that the "wheeling charges" paid by the Assessee, in the facts of this case, was deductable as it did not amount to "fees for technical services" within the meaning of Section 194J of the Act is therefore not erroneous. - Decided in favour of the Assessee.
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