TMI Blog2014 (6) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... e whether the Provisos inserted in Sections 201(1) and 201(1A) by Finance Act, 2012 are applicable retrospectively, as urged by the assessee – Decided in favour of Revenue. - ITA No. 652 of 2010 (O&M) - - - Dated:- 8-5-2014 - Ajay Kumar Mittal And Jaspal Singh,JJ. For the Petitioner : Mr. Yogesh Putney, Advocate For the Respondent : Mr. Salil Kapoor, Mr. Saurabh Kapoor and Mr. Vikas Jain, Advocates ORDER Ajay Kumar Mittal,J. 1. This order shall dispose of a bunch of eight appeals i.e. ITA Nos.652, 654, 655 of 2010, 100, 101, 199, 202 and 204 of 2011, as learned counsel for the parties are agreed that identical proposition of law is involved in all these appeals. However, the facts are being extracted from 2. ITA No.652 of 2010 has been preferred by the revenue under Section 260A of the Income Tax Act, 1961 (in short, the Act ) against the order dated 23.10.2009, Annexure P.3, passed by the Income Tax Appellate Tribunal, Delhi Bench I , New Delhi (in short, the Tribunal ). It was admitted on 19.9.2011 to consider following substantial questions of law:- i) Whether the learned Tribunal has misread and misconstrued the statutory provisions of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act creating a demand of Rs. 34,97,93,179/- for the financial year 2007-08, Annexure A.1. Aggrieved by the order, the respondent filed appeal before the Commissioner of Income Tax (A) [CIT(A)]. Vide order dated 7.8.2009, Annexure A.2, the CIT(A) dismissed the appeal and upheld the order of the Assessing officer that the services rendered by HVPN were in the nature of technical services on which TDS was liable to be deducted under Section 194 J of the Act. Aggrieved by the order, the respondent filed appeal before the Tribunal. Vide order dated 23.10.2009, Annexure A.3, the Tribunal allowed the appeal of the assessee relying upon decision of the Jaipur Bench of the Tribunal in the case of Jaipur Vidyut Vitran Nigam Limited vs. ITO in ITA Nos. 127 to 131/JP/2009 dated 30.4.2009. It was held that there was no liability of the respondent to deduct at source on transmission/wheeling charges and SLDC charges under section 194J of the Act and as such demand raised was required to be cancelled. Hence the present appeals by the revenue. 4. Learned counsel for the revenue submitted that in view of the judgment of the Apex Court in CIT, Delhi v. Bharti Cellular Limited, (2011) 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired assist in obtaining the opinion of the technical experts in the relevant field of expertise and endeavour to arrange for the opinion of the concerned technical expert well within time. Further, the evidence so gathered shall be made available to the assessee and reasonable opportunity provided before the assessment order is passed. 3. After a reference is made to an expert in the above manner, intimation must be sent to the Board through Member (IT) in the following proforma: Name of case and assessment year Brief description of the technical issue involved Name and address of the expert Tax effect 5. On the other hand, learned counsel for the assessee besides supporting the order passed by the Tribunal submitted that the Finance Act 2012 which was effective from 1.7.2012 had inserted provisos in Sections 201(1) and 201(1-A) which read thus:- Proviso to Section 201(1) Provided that any person, including the principal officer of a company, who fails to deduct the whole or any part of the tax in accordance with the provisions of this Chapter on the sum paid to a resident or on the sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich requires expert evidence. Similarly, on what basis is the capacity of each service provider fixed when Interconnect Agreements are arrived at? For example, we are informed that each service provider is allotted a certain capacity . On what basis such capacity is allotted and what happens if a situation arises where a service provider's allotted capacity gets exhausted and it wants, on an urgent basis, additional capacity ? Whether at 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 Interconnect 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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