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2018 (6) TMI 1646 - AT - Income TaxTDS u/s 194J - roaming charges paid for roaming agreements with OTOs - assessee is engaged in the business of providing telecommunication services in telecom circles of Punjab - HELD THAT:- We find that departmental appeals are without any merit. The facts taken on record which have not been upset are that for installation/setting up/repairing/servicing/maintenance/capacity augmentation etc. human intervention is required, however after this process is complete, the interconnection between the operators is automatic and at that stage, no human intervention is required. These conclusions have been arrived after considering the Reports of the technical experts, their cross-examination etc. Interconnecting User Charges (IUC) which signifies charges for connecting two entities. The Coordinate Benches have relied upon the order in the case of i-Gate Computer Systems Ltd where decision of M/s Bharti Cellulars Ltd. [2010 (8) TMI 332 - SUPREME COURT] has been considered and also on the decision of Data Link transfer wherein considering similar facts, it has been held that it does not require any human intervention and charges received or paid on account of this is not fees for technical services as envisaged in section 194J read with section 9(1) (vii) read with Explanation-2 of the Act. In the absence of any change in facts or law, the payments made for interconnection are not fees for rendering any technical services as envisaged in section 194J of the Act. Therefore, no tax is deductible at source u/s 194J of the Act on payment of roaming charges to the OTOs and the assessee therefore cannot be treated as an assessee in default. Apart from the various decisions of High Courts and ITAT orders cited, the issue stands concluded in favour of the assessee by the consistent orders of ITAT Bangalore and Jaipur Benches in assessee's own case. In the absence of any distinction on facts, circumstances or position of law, the departmental appeals are dismissed.
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