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2016 (6) TMI 174 - ITAT MUMBAI

2016 (6) TMI 174 - ITAT MUMBAI - TMI - TDS u/s 194H - discount given to the distributors towards starter kits and recharge vouchers - Held that:- As far as sale of starter kit / sim card is concerned, it is purely a purchase / sale transaction on principal–to–principal basis and there is no relationship of agency. That being the case, the provisions of section 194H are not applicable. Thus provisions of section 194H is not attracted on the discount given on sale of pre–paid starter kit. Thus we .....

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t to ascertain the fact whether there is any human intervention in providing cellular services. It is patent and obvious that the Assessing Officer has relied upon the technical report obtained in case of Vodafone Essar Mobile Services Ltd. Roaming / inter connectivity services are rendered automatically without any human intervention. It is evident from the order passed under sections 201(1) and 201(1A), that the Assessing Officer relying upon the technical report obtained in case of Vodafone E .....

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under sections 201(1) and 201(1A). - Decided in favour of assessee. - ITA No. 2043/Mum./2014, ITA no.2044/Mum./2014, ITA no.2045/Mum./2014 - Dated:- 27-5-2016 - Shri Saktijit Dey, Judicial Member And Shri Rajesh Kumar, Accountant Member For the Assessee : Shri Sparsh Bhargava For the Revenue : Shri B.S. Bist ORDER Per Bench These four appeal by the assessee are directed against a common order dated 30th January 2014, passed by the learned Commissioner (Appeals)-13, Mumbai, pertaining to asse .....

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d failure of the assessee to deduct tax at source under section 194J of the Act, in respect of payments made towards roaming service provided by other telecom service providers. Facts being common in all the assessment years, therefore, as a matter of convenience, we refer to the facts as involved in assessment year 2009-10. 3. Brief facts are, a survey under section 133A of the Act was conducted in assessee s case on 3rd August 2011, to verify TDS compliance. On the basis of information obtaine .....

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munication Services. He found the assessee holds two Unified Access Service licenses for Mumbai service area and another for Maharashtra and Goa service areas. The Assessing Officer noticed that the Department of Telecommunication (DOT), Government of India, has issued licenses to assessee for providing mobile telecom service in various telecom circles in the country. Under such license, the assessee has offered two types of service to the public. The first kind of service provided is post-paid .....

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ocumentation of the connection on behalf of the assessee, attend to the complaints of the customers, account for the air time consumed by the customers and carry out the work of raising bills and collection of the proceeds. The Assessing Officer found that in this segment the assessee is paying commission to the distributors for the service rendered by them and is deducting tax at source in terms of section 194H depending upon the payment made. In the second segment, the assessee renders pre-pai .....

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he pre-paid products to the customers. Only difference between the two segments is, in pre-paid the customers are paying in advance to the distributors as well as the distributors are paying in advance to the assessee. On the basis of material on record, Assessing Officer found, in case of pre-paid cellular service, the assessee appoints a number of distributors on the basis of agreements. While taking delivery of the starter kits and recharge vouchers, the distributors make payment to the asses .....

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collects this invoice price in advance from the distributors. However, the distributors are permitted to deliver the products to the ultimate consumers at a price of their choice not exceeding the MRP of ₹ 100 per unit. Thus, the margin of the distributors is the difference between the sale price and invoice price. The Assessing Officer found that the difference in invoice price and sale price is treated as a discount in assessee s books of account, however, no TDS was made by the assesse .....

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ing but commission liable for TDS under section 194H. On the basis of the aforesaid inference drawn, the Assessing Officer issued a notice to the assessee to show cause as to why it should not be treated as assessee in default under section 201(1), for non-deduction of tax at source on payments made to the distributors. In response to show cause notice issued by the Assessing Officer, assessee furnishing the agreement with the distributors as well as other documentary evidences, submitted, the d .....

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valid tax invoice and deliver challan and not under any stock transfer note. The assessee discharges its liability to pay sales tax collected from the distributor as per the tax invoice generated during the month. To substantiate this fact, assessee referred to its books of account where the sim cards are shown as stock-in-trade. It was submitted by the assessee, it files regular sales tax / VAT returns accounting such sales to the distributors. It was submitted, in respect of recharge vouchers .....

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assessee sells the products, it is the responsibility of the distributor to effect further sale of such products to the retailers through proper invoice. The assessee submitted, as per the Package Commodities Rules, any product which is in packed form requires to carry the MRP price over the product. Therefore, the assessee sells its product allowing trade margin on the transaction at the point of sale of such product to the distributor and has no control over the price at which the distributor .....

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assessee and the distributor relating to pre-paid sim cards and re-charge vouchers. The assessee submitted, it neither pays any income nor is responsible for paying to the distributor any amount either in the form of commission or otherwise for sale of the products. It was submitted, assessee is even not aware of the price at which the sim cards and recharge vouchers were sold by the distributors to retailers and the retailers to ultimate consumers. Referring to the provisions of section 194H, i .....

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being no relationship of principal-to-agent between the assessee and the distributors as far as pre-paid transactions are concerned, there is no liability the assessee to deduct tax under section 194H. In support of such contention, assessee relied upon a number of judicial pronouncements. The Assessing Officer, however, did not find merit in any of the submissions made by the assessee. Ultimately, he concluded that the discount on MRP allowed by the assessee to the distributor is nothing but co .....

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stand take before the Assessing Officer, though, assessee submitted that provisions of section 194H are not attracted but the learned Commissioner (Appeals) relying upon the decision of the Tribunal, Bangalore Bench, in assessee s own case in respect of similar order passed by the Assessing Officer under sections 201(1) and 201(1A), upheld the impugned order of the Assessing Officer observing as under:- 3.4 As there is no change on facts in these assessment years involved and issue thus remain .....

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A.Y. 2009-10, ₹ 5,95,44,354 for A.Y. 10-11, ₹ 9,43,72,450 for A.Y. 11-12 and ₹ 2,83,31,306 for A.Y. 12-13 are confirmed. The ground no.1 to 8 in A.Y. 2009-10 and ground no.1 to 9 in A.Y. 2010-11, 11-12 and 12-13 are dismissed. 5. Learned Authorised Representative submitted, the decision of the Tribunal, Bangalore Bench, relying upon which the learned Commissioner (Appeals) has upheld the order of the Assessing Officer, in the meanwhile, has been reversed by the Hon'ble Karn .....

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nataka High Court held that there is no principal-to-agent relationship between the assessee and the distributors to treat the discount as commission. He submitted, in fact, the assessee has not paid any amount to the distributors. He submitted, the amount charged by the assessee in the invoice was also reflected in the books of account, as the sale price of the pre-paid sim card / starter kit. He, therefore, submitted that the issue being squarely covered by the decision of the Hon'ble Karn .....

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s treated the assessee as assessee in default alleging non-deduction of tax at source under section 194H, on the reasoning that it has paid commission to the distributors for selling the pre-paid sim card / starter kit and recharge vouchers. However, on a perusal of the facts on records, it is noticed that though the assessee has fixed an MRP on the starter kits / pre-paid sim card and recharge vouchers but that is only for the purpose of allowing margin to the distributors. The assessee does no .....

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₹ 80 to ₹ 100. However, as far as the assessee is concerned, it raises the invoice for ₹ 80 only to the distributer and also the same amount is reflected in the books of account towards the sale price. The assessee never credits the amount of ₹ 100 towards the sale price and allows discount of ₹ 20 in its books of account. Thus, as far as the assessee is concerned, sale price of the starter kit / sim card is ₹ 80. Furthermore, as per the terms and conditions, .....

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g in detail the aforesaid factors have decided the issue in favour of the assessee by reversing the order of the Tribunal. In view of the changed scenario, after the order of the Hon'ble Karnataka High Court as referred to above, the decision of the learned Commissioner (Appeals) cannot be sustained. In fact, ITAT, Jaipur Bench, in case of M/s. Tata Teleservices Ltd. v/s ITO, ITA no.309/Jp./2012 and others, dated 13th March 2015, following the decision of Hon ble Karnataka High Court (supra) .....

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to the aforesaid issue, there is one more issue arising in appeal relating to the assessment years 2010-11, 2011-12 and 2012-13. In the course of the proceedings under section 201, the Assessing Officer found that the assessee pays roaming charges towards services provided by other operators to the users of the assessee s mobile service. The Assessing Officer, on the basis of information obtained during the survey, found that assessee has paid roaming charges to other operators for using their n .....

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riber of the later. Based on the usage, the host operator raises invoice on the home operator and the home operator in turn recovers from its own subscribers. The Assessing Officer noted, when a customer of a telecom operator like the assessee makes a STD / ISD call to the subscriber of same network or another network but operating in another telecom circle, it has to pay inter-connectivity charges to the carrier company which carries the call from the assessee s network in Mumbai to the other n .....

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ter-connectivity charges paid to other telecom network. The Assessing Officer, therefore, called upon the assessee to justify its action in not deducting the tax at source. In response to the query raised by the Assessing Officer, the assessee in its letter dated 8th November 2011 submitted, the provisions to section 194J are not applicable on the payment made to other operators for the inter-connection usage charges as it is in the nature of standard service provided through technology without .....

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t. Thus, it was submitted by the assessee that without obtaining report from the technical expert and cross-verification by the assessee, it cannot be held that the services rendered are technical service with human intervention. The Assessing Officer after considering the submissions of the assessee observed, after the Hon'ble Supreme Court in Bharti Airtel Ltd. (supra) directed the Departmental Authorities to obtain a technical report, the department obtained such report and on the basis o .....

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missioner (Appeals), without much discussion / deliberation, upheld the order of the Assessing Officer observing as under:- 4.2 In the instant cases under appeal it is seen that the A.O. has already obtained technical opinion following decision given by Honourable Apex court in Bharti Cellular 2010-TIOL-65-SC-IT as in coming out form order itself. In the case when there is no different opinion that it is a service provided by one operator to the other, I am of the view that same needs to upheld. .....

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Officer in assessee s case has decided the issue. He submitted, in assessee s case, neither the Assessing Officer has obtained a report from technical expert nor the assessee was allowed to cross examine the technical expert. Learned Authorised Representative submitted, in any case of the matter even assuming that the technical report submitted in case of Vodafone Essar Mobile Services Ltd., would be applicable to the assessee s case also, still the issue has to be decided in favour of the asse .....

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decided by the Tribunal, in favour of assessee, the orders passed by learned Commissioner (Appeals) and the Assessing Officer cannot be sustained. 11. Learned Departmental Representative relied upon the reasoning of the Assessing Officer and the learned Commissioner (Appeals). 12. We have considered the submissions of the parties and perused the material available on record. On a perusal of the impugned order passed under section 201(1), it leaves no room for doubt that the Assessing Officer by .....

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l expert the extent of human involvement in providing the services, but the Assessing Officer in case of assessee has not undertaken any such exercise. He has simply referred to the report obtained from technical expert in case of Vodafone Essar Mobile Services Ltd. Further, the Assessing Officer has not given any opportunity to the assessee to cross-examine the technical expert. For these reasons alone, the demand raised cannot be sustained. Even otherwise also, as brought to our notice by the .....

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sue to the Assessing Officer for obtaining a fresh technical report in case of the assessee. After analysing the technical report from the expert, the Bench found that the roaming / inter-connectivity services provided by other telecom operators is through standard automated services with the aid of existing network / infrastructure used by such operator for providing telecommunication services to their own subscribers. Hence, roaming charges would partake the same character as normal telecommun .....

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ess, we reproduce the observations from the order of the Tribunal hereunder in entirety:- 4.10. We have heard the rival submissions and perused the materials available on record. It would be pertinent to note here that roaming services are provided by other telecom operators by using their existing telecom network/ infrastructure and no incremental investment is required to put up any additional network /infrastructure for provision of such roaming services. The aforesaid fact lends further supp .....

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mmunication charges paid by a subscriber to its service provider. 4.11. We are not in agreement with the arguments of the Learned DR that the word technical‟ used in Explanation 2 to Section 9(1)(vii) of the Act should take the same character of managerial‟ or consultancy‟ provided in the said section wherein human intervention is required and accordingly even for technical services, human intervention is definitely required. In this regard, the Hon‟ble Delhi High Court i .....

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arti Cellular Ltd in 330 ITR 239 (SC) , the Hon‟ble Apex Court had stated that right from 1979 various judgments of the High Courts and Tribunal have taken the view that the words technical services have got to be read in the narrower sense by applying the rule of noscitur a sociis, particularly , because the words technical services in section 9(1)(v ii) r.w. Explanation 2 comes in between the words managerial and consultancy services . We find that the principles laid down by the Delhi H .....

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(SC), the TDS officer has been directed to obtain technical evidence from the experts in the telecom field with regard to the fact of existence of human intervention for the roaming services and accordingly the ACIT, Circle 51(1), New Delhi had recorded statement from Shri.Tanay Krishna on 29.9.2010. The Learned AR has also filed prayer for receipt of additional evidence in terms of Rule 29 of ITAT Rules on 20.7. 2015 containing the statements recorded from Shri Tanay Krishna on 29.9.2010 in the .....

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Court, these statements were recorded in the case of the group company of the assessee. However, it is seen that the statement of Shri Tanay Krishna on 29.9. 2010 have been relied upon by the Learned CIT(Appeals) vide page 29 of his order but the cross examination of Shri Tanay Krishna is not in records of the lower authorities. We find that the statement is very much relevant for the disposal of these appeal s and are hereby admitted as additional evidence (in respect of cross examination stat .....

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assessee as long as the facts and circumstances involved are identical. In the instant case, the facts in the case of Vodafone Essar Mobile Services Ltd are identical with the facts of the assessee herein and also it happens to be the group company of the assessee. 4.14. Shri Tanay Krishna‟s statement-questions and answers - 4, 5, 6 & 16 are reproduced below :- Question 4: Can you enlighten us about the functioning of the network system of the cellular operators at the time of receivin .....

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determined. ii) Selection of vendor - is done to determine who will provide these services along with his consultancy. iii) Hardware and software is supplied by the vendor and it is customized to the need of the network as per the TEC specifications. iv) Installation as per vend or guidelines - it involves installation of both hardware and software. v) Call configuration/provisioning of system - in this the opera tor has to configure and make provision in data base as to how the calls will flow. .....

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es the system work automatically when network system o f o ne cellular opera tor gets connected with the network system of other cellular operator? Ans. 5: When a calls get connected by one operator to other, per se it is an automatic connection, but there can be instances when there is a problem in the call connect which may require resolution through human intervention. Question 6: Hence there is no 100% automatic operation of this network. Can you explain what kind of human intervention is re .....

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Question 16: Please tell us the places or points or areas where human intervention with each other? Ans. 1 6: As has been detailed in several answers that I have given earlier, one can broadly say that when there is an interconnection between two service providers, human intervention is constantly required for management of network/System, capacity enhancement and monitoring of system/network. 4.15. Cross examination proceedings of Shri Tanay Krishna - questions and answers - 3,4,5,7,11 & 1 .....

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ervention is required only when the call is not successful, i.e., the call fails due to any reason. Q. 4. Is any human intervention involved in the entire process of carriage of call from one operator to another? No, as stated above, no human intervention is required in the process of carriage of calls. However, human intervention is required at the inter-connect set-up stage (including configuration, installation, testing, etc.) and capacity enhancement, monitoring (including network monitoring .....

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u have mentioned that services of a technical expert are required for inter-connect arrangements. Please confirm whether such services are required for provision of inter-connect services, i.e., carriage of calls from one network to another, or are primarily for fault detection and removal. Please refer to answer to Question 4 of this cross examination. Q.11. What is the extent of human involvement in provision of interconnect services. i.e., carriage of calls originating on network of one opera .....

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e and fault repair, rectification, enhancement, configuration, and set-up? We agree that the telecom networks are automated networks and do not require human intervention for carriage of calls. However, as stated in Question 4 of this cross examination, human intervention is required at the inter-connect set-up stage (including configuration, installation, testing, etc) and capacity enhancement, monitoring (including network monitoring), maintenance, fault identification, repair and ensuring qua .....

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applicability of TDS provisions on Transmission Charges / wheeling charges paid by power generating companies. This issue had reached the corridors of various judicial forums and now has been put to rest by the following decisions:- CIT (TDS) vs Maharashtra State Electricity Distribution Co. Ltd reported in 375 ITR 23 (Bom) - By this appeal, the Revenue has proposed the following questions to be substantial questions of law:- (a) Whether, on the facts and in the circumstances of the case and in .....

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d section 201(IA) could not be applied? (b) Without prejudice to the above, whet her, on the facts and in the circumstances of the case and in law, payment of wheeling and transmission charges to the entitles like MSETCL and P G CIL, should have been treated as fees for technical services and tax should have been deducted at source under section 194J of the Act from the payments? He submitted that in the case of Chhattisgarh State Electricity Board no appeal h ad been filed by the Revenue and th .....

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nsmission charges draw its colour from the basic meaning of the expression "rent". It is seen from the decision of the Supreme Court in Singapore Airlines (supra) that the meaning of "rent" must be understood in the context in which they are used. In the present set of facts, it is not possible to equate the wheeling and transmission charges payable MSETCL with rent. On facts it is seen that the MERC order dated June 27, 2006, deals with MSEDCL's contentions, apropos the .....

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or determining of the transmission tariff could not be determined in a mechanical manner as if the charge was only for use of the State transmission utility. The MERC while passing this order on transmission charges had received various objections some, inter alia, supporting the composite tariff, some against. However, we need not divert our attention to the details of pricing formula fin ally adopted. There is nothing on record to support the Revenue's contention that the wheeling and tran .....

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tion and they cannot be subjected to provisions of section 194-1 of the Act. We, however, clarify that this is restricted to the case of the assessee in view of the public function to be undertake n by it, as a result of the restructuring of the Maharashtra State Electricity Board. It is pertinent to mention here that section 62 of the Act provides that the Commission may, in the case of supply of electricity fix a maximum ceiling of the tariff, in an attempt to promote competition amongst the d .....

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or the providing technical services. Under the open access system, it is the MSEDCL which will be availing of the said transmission facility. No "service" is being provided by the MSETCL or the State transmission utility. No doubt, MSEDCL, astransmission licensee is required to provide superintendence, maintenance and repairs to the system. However, no such service is rendered b y t he MSETCL to M SE DCL. MSETCL is obliged to maintain the system by value of operation of law under the E .....

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chnical services but, in our view it is neither. Wheeling charges represent the charge for permitting use of the State transmission utility by persons other than the distribution licence. The transmission charges simply constitute fees for availing of the said transmission utility to be used by open access concept for distribution of electricity to the licensees and consumers. In view of the above discussion, we are of the view that the wheeling and transmission charges are neither rent nor fees .....

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d, building, plant machinery, equipment, furniture, fitting, etc. and, therefore, not re nt. Equally, the amounts are not fees for technical services. In the facts and circumstances of this case, we answer the question in favour of the assessee and against the Revenue. The appeal is disposed of accordingly. There will be no order as to costs. b) Auro Mira Biopower India P Ltd vs ITO TDS reported in (2015) 55 taxmann.com 452 (Chennai-Tribunal) - Section 194 read with section 9 of the Income Tax A .....

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ted in (2014) 52 taxmann.com 261 (Delhi - This finding has been followed by the ITAT in ITA No. 3965/ Del/2011 in the case of assessee for Assessment Year 2006-07. Apart from the finding of tribunal recorded in the assessee‟s own cases, we deem it pertinent to take note of the finding recorded by the tribunal in the case of Chhattisgarh State Electricity Board -vs.- ITO (supra) (2012) 50 SOT 33 (Mum.)- No further appeal to High Court by Department. The relevant finding read as under : 11. .....

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namely M P State Electricity Board, Gujarat Electricity Board, Maharashtra State Electricity Board, Electricity Department - Government of Goa, Administration of Daman & Diu, and Electricity Department - Administration of Dadra and Nagar Haveli, has entered into a 'Bulk Power Transmission Agreement' with PGCIL. The preamble of this agreement, inter alia, notes that the PGCIL "is desirous to transmit energy from the Central Sector Power Station(s) to the Bulk Power Beneficiaries .....

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ain the system parameters within acceptable/reasonable limits except where it is necessary to take measures to prevent imminent damage to any equipment". In respect of these services, the bulk power beneficiaries are to pay to PGCIL a monthly charges computed in the manner set out in clause 9 of the said agreement. This clause, in turn, refers to formula set out in A.4 of Annexure 1 which refers to the same ratio of agreed annual charges divided by 12 as is between power transmitted to each .....

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n lines is restricted to the fact that electrical power purchased by the assessee, simultaneously alongwith electrical power purchased by other bulk power beneficiaries, is transmitted through these transmission lines. The way it works is like this. The power available at the delivery points, collectively for all the bulk power beneficiaries, is loaded for transmission on these transmission lines or powergrid and each of the beneficiaries is allowed to utilize the power to the extent allocated t .....

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ation is whether or not the payment for transmission charges can be termed as 'rent' for the purposes of Section 194-I of the Act. 12. Let us now take a look at the statutory provision with regard to tax withholding from rent payments, which is set out in Section 194-I of the Act, and analyze the same. Section 194-I provides as follows: Any person, not being an individual or a Hindu undivided family, who is responsible for paying to a resident any income by way of rent, shall, at the tim .....

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e made under this section where the amount of such income or, as the case may be, the aggregate of the amounts of such income credited or paid or likely to be credited or paid during the financial year by the aforesaid person to the account of, or to, the payee, does not exceed [one hundred eighty thousand rupees] : Provided further that an individual or a Hindu undivided family, whose total sales, gross receipts or turnover from the business or profession carried on by him exceed the monetary l .....

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(b) building (including factory building); or (c) land appurtenant to a building (including factory building); or (d) machinery; or (e) plant; or (f) equipment; or (g) furniture; or (h) fittings, whether or not any or all of the above are owned by the payee;] (ii) where any income is credited to any account, whether called "Suspense account" or by any other name, in the books of account of the person liable to pay such income, such crediting shall be deemed to be credit of such income .....

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es for use of the machinery, plant and equipment collectively constituting mode of transmission of power, the provisions of Section 194-I come into play on the facts of this case. 14. The core issue that we must deal with is whether the present arrangement under the Bulk Power Transmission Agreement can be termed can be covered by the scope of expression any other agreement or arrangement 'for the use of' appearing in Explanation (i) to Section 194-I. 15. Explanation (i) to Section 194-I .....

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lines are not only being used for transmission of electricity to the assessee but also for transmission to electricity to various other entities. The transmission lines continue to be not only under control and possession of the PGCIL in legal terms, but, what is more important, these transmission lines are effectively in the control of PGCIL, without any involvement of the assessee in actual operations of the same. On these facts, in our humble understanding, the assessee has made the payments .....

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e to be in the control of PGCIL for transmission of electricity for other entities and for all practical purposes. Even as electricity purchased by the assessee is transmitted to the assessee from the NTPC busbar to its landing points, the same transmission lines continue to be engaged in similar transmission of electricity for other entities and the assessee has no say in the manner in which such transmission lines can be controlled and used by the PGCIL. Undoubtedly, for the purpose of an arra .....

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nsmission lines, and all that he gets from the arrangements is that he can draw the electrical power purchased from PGCIL's transmission lines in an agreed manner. 16. While on the issue of distinction between use of an asset and benefit from an asset, we may usefully refer to the following distinction brought out by the Karnataka High Court between leasing out of equipment and the use of equipment by its customer. This was done in the case of Lakshmi Audio Visual Inc. v. Asstt. Commr. of Co .....

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he manner, time and nature of use and enjoyment, though within the framework of the agreement, then it would be a transfer of the right to use the goods and fall under the extended definition of "sale". On the other hand, if the customer entrusts to the assessee the work of achieving a certain desired result and that involves the use of goods belonging to the assessee and rendering of several other services and the goods used by the assessee to achieve the desired result continue to be .....

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ull lorry load) from place A to B, for an agreed consideration which is called freight charges or lorry hire. The carrier sends its lorry to the customer's depot, picks up the consignment and proceeds to the destination for delivery of the consignment. The lorry is used exclusively for the customer's consignment from the time of loading, to the time of unloading at destination. Can it be said that right to use of the lorry has been transferred by the carrier to the customer? The answer i .....

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any of his godowns, to be picked up later by some other lorry assigned by the carrier for further transportation and delivery at destination. (ii) On the other hand, let us consider the case of a customer (say a factory) entering into a contract with the transport operator, under which the transport operator has to provide a lorry to the customer, between the hours 8 a.m. to 8 p.m. at the customer's factory for its use, at a fixed hire per day or hire per km. subject to an assured minimum, .....

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when the lorry is with the customer, the transport operator has no control over it. The transport operator renders no other service to the customer. ……." 17. It is thus clear that in a situation in which the payment in made for the use of an asset simpliciter, whether with control and possession in its legal sense or not, the payment could be said to be for the use of an asset. However, in a situation in which the payment is made only for the purpose a specific act, i.e. power .....

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. Viewed in this perspective, Section 194 I has no application so far as the impugned payments for transmission of electricity is concerned. For this short reason alone the impugned demands must be held to unsustainable in law. 9. On due consideration the order of the coordinate bench in the assessee‟s own case in assessment year 2005-06, and 2006-07 as well as in the case Chhattisgarh State Electricity Board, we are of the view that Ld. Commissioner of Income Tax (appeals) has appreciated .....

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een heavily relied upon by the Learned CITA, we find that human intervention is required only for installation / setting up / repairing / servicing / maintenance / capacity augmentation of the network. But after completing this process, mere interconnection between the operators while roaming, is done automatically and does not require any human intervention and accordingly cannot be construed as technical services. It is common knowledge that when one of the subscribers in the assessee‟s .....

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case, undisputedly, the Assessing Officer has not obtained any report from the technical expert to ascertain the fact whether there is any human intervention in providing cellular services. It is patent and obvious that the Assessing Officer has relied upon the technical report obtained in case of Vodafone Essar Mobile Services Ltd. Therefore, we are not in a position to know whether the facts relating to human intervention in assessee s case is similar to the facts in case of Vodafone Essar Mo .....

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