TMI Blog2005 (12) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... le telephone companies to its subscriber was technical services or not, and the Hon'ble Madras High Court held that it cannot be treated as fee for technical services. In the case before us, the assessee is providing service to its subscribers and certain calls are routed by making use of the network of BSNL and for that purpose, the call charges received by the assessee from its subscribers are shared with BSNL. In our view, the said service cannot be treated as technical service and the provisions of s. 194J are not applicable. The orders of the lower authorities are vacated. Since, we have held that the provisions of s. 194J are not applicable, we do not see any reason to deal with the alternative plea of the assessee. In the result, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al/international long distance operator and the amount of share of calls made outside the State is given to the national/international service provider. The assessee has paid charges to the BSNL network for using the services of its network. 4. The AO held that the payment made by the assessee to BSNL is fee for technical services and as such assessee was required to deduct TDS under s. 194J. 5. Learned CIT(A) in its order has held as under: "It is seen that the BSNL provides a host of technical and managerial services for a fee or a charge which may either be fixed or linked to the usage of its network in terms of time and pulse rate. As has been observed by the AO, it is immaterial for the purpose of s. 194J as to what nomenclature is use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided by BSNL to the assessee. He relied on the decision of Madras High Court in the case of Skycell Communications Ltd. Anr. vs. Dy. CIT Ors. (2001) 170 CTR (Mad) 238: (2001) 251 ITR 53 (Mad). 7. Learned counsel, in the alternate stated that the primary liability of paying the tax on the said income is of the recipient of the income and since the said recipient has already paid taxes on this income, no tax can be recovered from the payer and the assessee-company cannot be held as assessee-in-default with regard to the tax on same income on which the tax has already been paid by the recipient. For this proposition, he relied on the decision of Gujarat High Court in the case of CIT vs. Rishikesh Apartments Co-operative Housing Society Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid for routing the telephone calls through the said network means that the technical service is being provided. The Hon'ble Madras High Court in the case of Skycell Communications has held as under: "In the modern day world, almost every facet of one's life is linked to science and technology inasmuch as numerous things used or relied upon in everyday life is the result of scientific and technological development. Every instrument or gadget that is used to make life easier is the result of scientific invention or development and involves the use of technology. On that score every provider of every instrument or facility used by a person cannot be regarded as providing technical service." In our considered view, the situation in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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