TMI Blog2014 (12) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... Distribution Co. Ltd vs Addl. CIT [2012 (8) TMI 519 - ITAT, MUMBAI]. The Assessing Officer’s order is silent on both these counts i.e involvement of any human element or making available of any technology or technical knowledge. The lower appellate order does not state anything specific about this technical know-how aspect but draws inferences based on assessee’s agreements that some manual element is always embedded therein in distribution and wheeling activity. No details are quoted in support thereof. Therefore, we observe that the assessee’s identical wheeling, scheduling and transmission facilities availed from the TANGEDCO do not attract sec.194J(1) Explanation (b) of the Act. At this stage, the Revenue places strong reliance on Ajmeer Vidyut Vitran Nigam Ltd decision (2012 (8) TMI 742 - AUTHORITY FOR ADVANCE RULINGS). We quote section 245S(1) to observe that the said decision applies as a precedent only in specific conditions enumerated therein. The Revenue fails to draw any distinction on facts or refer to any case law to the contrary. - Decided in favour of assessee. - I.T.A.No.2584/Mds/2014, I.T.A.Nos.2585, 2586 & 2587/Mds/2014, I.T.A.Nos.2588, 2589 & 2590/Mds/2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated. The TANDEDCO charged the assessee/renewable energy generator for start up, power drawn for that purpose, wheeling charges, STU charges payable towards transmission, scheduling and system operating charges as per the relevant regulations applicable; to be remitted in the respective account heads. The assessee had paid short term open access transmission charges @ ₹ 28.97 per MWHr for utilizing the power utility s transmission network with scheduling and system operation charges @ ₹ 500 per day per transmission and wheeling charges @ ₹ 14.74 per unit for transactions carried out below 336W i.e 22KV and 11KV voltage. The Assessing Officer in his order dated 19.3.2013 treated the aforesaid wheeling, scheduling and transmission activities as technical services. The payments made in question were accordingly held as fee for technical services . He observed that this wheeling and transmission involved maintenance of properly regulated flow of electrical energy at the required quantity and voltage. Case law of Ajmeer Vidyut Vitran Nigam Ltd [2012] 76 DTR (AAR) 209 was quoted. In the end, the Assessing Officer took into consideration the deductee s practice in obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the 1st day of July, 1995; Or (B) Where the amount of such sum or, as the case may be, the aggregate of the amounts of such sums credited or paid or likely to be credited or paid during the financial year by the aforesaid person to the amount of, or to, the payee, does not exceed - Explanation - for the purposes of this section (a) ........... . (b) fees for technical services shall have the same meaning as in Explanation 2 to clause (vii) of sub-section(1) of section 9 ; (ba) ..... . (c) ........ . Explanation 2 to c1ause(vii) of sub-section(1) of section 9 reads as under: For the purposes of this clause, fees for technical services means any consideration (including any lump sum consideration) for the rendering of any managerial, technical or consultancy services (including the promotion of services of technical or other personnel) but does not include consideration for any construction, assembly, mining or like project undertaken by the recipient or consideration which would be income of the recipient chargeable under the head salaries. 3.1 Perusal of the Biomass wheeling agreement between the assessee i.e. Biomass Energy Generator (BEG) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the wheeling. charges are subject to TDS u/s 194J of the Act. Hence, I decline to interfere in the order of the ITO u/s 201(1)/201(lA) of the Act. 3.4 Regarding the assessee's reliance on the decision of ITAT Jodhpur Bench in the case of ITO(TDS) Udaipur vs Hindustan Zinc Limited (2013) 40 Taxmann.com 42 which has also referred to the decision of Jaipur Bench of the, Tribunal in the case of Jaipur Vidyut Vitran Nigam Limited vs DCIT (2009) 123 TTJ 888(which was also relied on by the assessee), I am of the humble opinion that the nature of work, process involved, etc in these kinds of technical work certainly involves human element. The decisions relied on by the assessee says that knowledge of person is not made available in these operations. The agreement entered by our assessee and TANGEDCO clearly demonstrate involvement of human element. History is witness to many disasters happened in the past in the use of electricity due to short circuit, load shedding, fluctuation, etc. History is also witness for many instances where disasters were prevented due to human intervention. Electricity generation, transmission and utilization by the ultimate consumer are complex system an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vement of any human element or making available of any technology or technical knowledge. The lower appellate order does not state anything specific about this technical know-how aspect but draws inferences based on assessee s agreements that some manual element is always embedded therein in distribution and wheeling activity. No details are quoted in support thereof. Therefore, we observe that the assessee s identical wheeling, scheduling and transmission facilities availed from the TANGEDCO do not attract sec.194J(1) Explanation (b) of the Act. At this stage, the Revenue places strong reliance on Ajmeer Vidyut Vitran Nigam Ltd decision (supra). We quote section 245S(1) to observe that the said decision applies as a precedent only in specific conditions enumerated therein. The Revenue fails to draw any distinction on facts or refer to any case law to the contrary. In these circumstances, we accept the assessee s arguments and delete the impugned demand. I.T.A.No.2584/Mds/2014 is allowed. 7. Same order to follow in I.T.A.Nos.2585 to 2590/Mds/2014. 8. To sum up, all the assessees appeals I.T.A.No.2584 to 2590/Mds/2014 are allowed. Order pronounced on Friday, the 12th of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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