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2014 (12) TMI 1159 - AT - Income TaxNon deduction of TDS - whether wheeling, scheduling and transmission services amount availing of professional/technical services u/s 194J r.w. 9 (1)(vii)? - Held that:- As decided in ITO (TDS) Udaipur vs Hindustan Zinc Ltd [2015 (6) TMI 345 - ITAT JODHPUR] in identical wheeling and transmission charges paid to the State Power Utility Department holds that mere availing the power network system and making payments in lieu thereof does not amount to paying any ‘fee for technical services’. It has been observed that these activities do not involve any human element as per case laws CIT vs Bharti Cellular Ltd [2008 (10) TMI 321 - DELHI HIGH COURT] and Skycell Communications Ltd 'Compact Spinning System' The Dy. CIT [2001 (2) TMI 57 - MADRAS High Court ]. The co-ordinate bench concludes that section 194J aforesaid applies only in case some technology or technical knowledge is made available to others and not merely in a situation involving use of technical systems. Similar principle stands echoed by another coordinate bench in Maharashtra Electricity Distribution Co. Ltd vs Addl. CIT [2012 (8) TMI 519 - ITAT, MUMBAI]. The Assessing Officer’s order is silent on both these counts i.e involvement of any human element or making available of any technology or technical knowledge. The lower appellate order does not state anything specific about this technical know-how aspect but draws inferences based on assessee’s agreements that some manual element is always embedded therein in distribution and wheeling activity. No details are quoted in support thereof. Therefore, we observe that the assessee’s identical wheeling, scheduling and transmission facilities availed from the TANGEDCO do not attract sec.194J(1) Explanation (b) of the Act. At this stage, the Revenue places strong reliance on Ajmeer Vidyut Vitran Nigam Ltd decision (2012 (8) TMI 742 - AUTHORITY FOR ADVANCE RULINGS). We quote section 245S(1) to observe that the said decision applies as a precedent only in specific conditions enumerated therein. The Revenue fails to draw any distinction on facts or refer to any case law to the contrary. - Decided in favour of assessee.
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