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Commissioner of Income Tax (TDS) Chandigarh Versus The Accounts Officer, M/s Dakshin Haryana Bijli Vitran Nigam Limited, Panchkula

2015 (11) TMI 1310 - PUNJAB AND HARYANA HIGH COURT

TDS u/s 194J - payments made by the assessee in form of transmission/wheeling and SLDC charges - ITAT quashed TDS liability making a mention of Explanation 2 to section 9(1)(viii) of I.T.Act, regarding term ‘technical service’ by using the word ‘human’- Held that:- As decided in Commissioner of Income Tax (TDS) Chandigarh vs. Dakshin Haryana Bijli Vitran Nigam Limited [2014 (6) TMI 542 - PUNJAB & HARYANA HIGH COURT] the issue arising in these appeals requires to be re-adjudicated by the Assessin .....

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to whether any human intervention was involved in the activity or not - thus, the matter is remitted back to the AO to examine the technical expert and after examining him for fresh adjudication - the assessing authority shall also examine 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 for statistical purposes. - ITA No.201 of 2011 (O&M) - Dated:- 6-11-2015 - MR. AJAY KUMAR .....

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assed by the Income Tax Appellate Tribunal, Chandigarh Bench 'A', Chandigarh (in short, the Tribunal ). It was admitted on 19.9.2011 to consider following substantial questions of law:- Í) Whether the learned Tribunal has misread and misconstrued the statutory provisions of Income Tax Act, while making a mention of Explanation 2 to section 9(1)(viii) of I.T.Act, regarding term technical service by using the word human in violation of principle of interpretation of statutes? ii) Wh .....

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ability on the income of the deductee? 3. The matter is no longer res integra. Identical matter has already been decided by this Court in Commissioner of Income Tax (TDS) Chandigarh vs. Dakshin Haryana Bijli Vitran Nigam Limited, ITA No.652 of 2010, on 8.5.2014, wherein it was recorded as under:- 7. After giving our thoughtful consideration to the respective submissions of learned counsel for the parties, we are of the opinion that the issue arising in these appeals requires to be re-adjudicated .....

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. If, let us say, BSNL has no network in Nainital whereas it has a network in Delhi, the Interconnect Agreement enables M/s. Bharti Cellular Limited to access the network of BSNL in Nainital and the same situation can arise vice versa in a given case. During the traffic of such calls whether there is any manual intervention, is one of the points which requires expert evidence. Similarly, on what basis is the capacity of each service provider fixed when Interconnect Agreements are arrived at? For .....

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ed 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 .....

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r raised by the Department before the CIT. It was not raised even before the Tribunal; it is not raised even in these civil appeals. However, keeping in mind the larger interest and the ramification of the issues, which is likely to recur, particularly, in matters of contracts between Indian Companies and Multinational Corporations, we are of the view that the cases herein are required to be remitted to the Assessing Officer (TDS). 10. Accordingly, we are directing the Assessing Officer (TDS) in .....

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