TMI Blog2018 (10) TMI 1360X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of lower authorities with regard to dis-allowance of expenses claimed of Wheeling and SLDC charges are set aside in the light of the observation of the Supreme Court in the case of CIT, Delhi Vs. Bharti Cellular Limited [2010 (8) TMI 332 - SUPREME COURT OF INDIA]. The matter is remanded back to the A.O. to decide the said issue afresh. - ITA No. 369 of 2014 (O&M) - - - Dated:- 9-10-2018 - MR AJAY KUMAR MITTAL AND MR AVNEESH JHINGAN, JJ. For The Appellant : Mr. Yogesh Putney, Senior Standing counsel For The Respondent : Mr. K.L. Goyal, Senior Advocate with Mr. Umang Goyal, Advocate ORDER AVNEESH JHINGAL, J. The revenue has filed the present appeal under Section 260A of the Income Tax Act, 1961 (fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in violation of principle of interpretation of statutes? ( iv) Wehther on the facts and circumstances of the case, the learned ITAT was right in law in holding that the payments made by the assessee in form of transmission/wheeling SLDC charges were not liable for deduction of tax at source under section 194J of the Income Tax Act? On 02.02.2015 notice of motion was issued for consideration of questions No. (ii) (iii) and (iv). Question No.(i) was answered against the revenue in view of the decision of this Court in ITA No. 209 of 2014 titled The Commissioner of Income Tax, Hisar, Vs. Dakshin Haryana Bijli Vitran Nigam Ltd. Hisar, decided on 1.10.2014. 3. The brief facts necessary for adjudication of the controversy inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for wheeling and SLDC charges paid to HVPNL for the assessment year 2007-08. Aggrieved of the assessment order, the respondent filed appeal before the Commissioner of Income Tax (Appeals) [CIT(A)]. Vide order dated 03.01.2011 the appeal was allowed. 4. The revenue assailed order of CIT(A) before the Tribunal. The Tribunal vide order dated 27.06.2012 following the earlier orders in the case of assessee for the assessment years 2006-07 and 2008-09 and relying upon decision of 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 30.04.2009, dismissed the appeal. It was held that there was no liability of the respondent to deduct at source on transmission/wheeling char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, we are directing the Assessing Officer (TDS) in each of these cases to examine a technical expert from the side of the Department and to decide the matter within a period of four months. Such expert(s) will be examined (including crossexamined) within a period of four weeks from the date of receipt of the order of this Court. Liberty is also given to Respondent No.1 to examine its expert and to adduce any other evidence. 8. The primary basis whereby the Apex Court had concluded services to the falling under 194J of the Act to be technical services that whether any human intervention was involved in the activity or not. The Apex Court observed that wherever there was human intervention requiring examination of technical da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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