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2010 (12) TMI 842 - AT - Income TaxAssessee in default - Tds u/s 194J or 194I - national roaming costs - application of rule of ejusdem generis - held that:- Here, the words "of similar nature" clearly make room for the application of the rule of ejusdem generis in the sense that the other business or commercial rights must be of the same nature as those listed in the earlier part of the provision (viz., patents, copyrights, trade-marks etc.). Such restrictive words are not present in Explanation (i) below section 194-I. - the rule of ejusdem generis does not apply to the interpretation of Explanation (i) of section 194-I. Regarding TDS u/s 194I - The payment of roaming charges by the assessee to the other service providers cannot be considered as rent within the meaning of the Explanation below section 194-I. Therefore, there was no liability on the part of the assessee to deduct tax from the same under that section. Regarding TDS u/s 194J - the CIT(A) has not in fact decided the issue of applicability of section 194J. - in view of the observations of the Supreme Court in the case of CIT vs. Bharti Cellular Ltd. (2010 -TMI - 202748 - Supreme Court of India ) matter remanded back to AO to decide afresh. Regarding double payment of tax - After the judgment of the Supreme Court in the case of Hindustan Coca Cola Beverage (P) Ltd. (http://www.taxmanagementindia.com/visitor/detail_case_laws.asp?ID=1676), there is no merit in the contention that taxes can be recovered from the deductor even though taxes were paid by the deductees. - CIT(A) ought to have directed the Assessing Officer to invoke his powers under the Act and have the payment of taxes by the payees verified from the respective Assessing Officers assessing the payees with the help of the Permanent Account Numbers of the payees made available by the assessee - If upon verification it is found that the taxes have been paid by the payees fully in respect of the roaming charges received by them from the assessee, nothing survives - Appeal is partly allowed
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