TMI Blog2010 (8) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... alls whether there is any manual intervention, is one of the points which requires expert evidence. - Matter requiring examination by Technical experts – going merely by contract between parties not proper – Dept. ought to examine technical experts – Matter remanded Regarding interest u/s 201(1A) - it would not be justified for the following reasons: Firstly, there is no loss of revenue. It is no doubt true that TDS has not been deducted by the payee but the tax has been paid by the recipient. Secondly, the question involved in the present cases is the moot question of law, which is yet to be decided. Basically, we would have closed the file because these cases are only with regard to levy of interest but we are remitting these cases, as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cellular Limited is required to connect its network with the network of BSNL (the service provider) and similar concomitant agreement is provided for under which BSNL is required to interconnect its network with M/s. Bharti Cellular Limited. 6. The question basically involved in the lead case is : whether TDS was deductible by M/s. Bharti Cellular Limited when it paid interconnect charges/access/port charges to BSNL ? For that purpose, we are required to examine the meaning of the words "fees for technical services" under sec-tion 194J read with clause (b) of the Explanation to section 194J of the Income-tax Act, 1961, ("Act", for short) which, inter alia, states that "fees for technical services" shall have the same meaning as containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that stage, any human intervention is involved is required to be examined, which again needs a technical data. We are only highlighting these facts to emphasise that these types of matters cannot be decided without any technical assistance available on record. 8. There is one more aspect that requires to be gone into. It is the contention of respondent No. 1 herein that interconnects agreement between, let us say, M/s. Bharti Cellular Limited and BSNL in these cases is based on obligations and counter-obligations, which is called a "revenue sharing contract". According to respondent No. 1, section 194J of the Act is not attracted in the case of "revenue sharing contract". According to respondent No. 1, in such contracts there is only s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such cases, the Department need not proceed only by the contracts placed before the officers. With the emergence of our country as one of the BRIC countries and with the technological advancement matters such as present one will keep on recurring and hence time has come when the Department should examine technical experts so that the matters could be disposed of expeditiously and further it would enable the appellate forums, including this court, to decide legal issues based on the factual foundation. We do not know the constraints of the Department but the time has come when the Department should understand that when the case involves revenue running into crores, technical evidence would help the Tribunals and courts to decide matters ..... X X X X Extracts X X X X X X X X Extracts X X X X
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