TMI Blog2018 (11) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the case and there should have been tax deducted at source in respect of the said transaction. The assessee said that the assessee cannot be branded as the assessee in default u/s 201(1) read with Section 194H in the absence of any evidence that the prepaid distributors have not offered for tax the discount availed by them from the appellant, we are of the considered opinion that it is a verifiable fact and learned AO has to verify whether the prepaid distributors have offered or not for tax the discount availed by them from the assessee. AO for verification of the fact whether or not the prepaid distributors offered for tax the discount availed by them from the assessee. Non deduction of the TDS u/s 194J on the payments of roam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase are that the assessee is engaged in the business of providing cellular mobile telephone services in the state of New Delhi and NCR. There was survey u/s 133A of the Income-tax Act, 1961 ( the Act ) on 17.11.2011 to verify as to whether the assessee was discharging the TDS obligation on account of payments covered under various TDS related provisions of the Act, especially considering the decision of the Hon ble jurisdictional High Court in assessee s own case on the issue of treating the cash discounts on pre-paid and postpaid sales as commission covered u/s 194H and also the treatment on account of payment towards IUC/Roaming charges covered u/s 194J of the Act. Notice dated 8.8.2012 was issued in respect of the TDS compliance verifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted by the learned AR that in the absence of any principal agent relationship, Section 194 H of the Act has no application. 4. Per contra, the learned DR submitted that having considered the contentions of the assessee, the jurisdictional High Court in assessee s own case has reached a conclusion that the transactions between the assessee and the distributors, Section 194H is applicable. On this aspect, learned AR fairly submitted that the Hon ble jurisdictional High Court in the case reported in 118 Taxman 118 reversed the decision of the Delhi Bench of the ITAT in assessee s own case, and the decision of the Tribunal was favourable to the assessee. 5. It is, therefore, clear that in assessee s own case having considered the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e TDS u/s 194J of the Act on the payments of roaming charges of ₹ 11,45,830/-. It is the submission of the Ld. AR that that there is no manual or human intervention during the process of transportation of calls between two networks and this is done automatically. He further submitted that human intervention is required only for installation of the network and installation of other necessary equipments/ infrastructure and also for maintaining, repairing and monitoring each operator or network so that they remain in a robust condition to provide faultless service to the customers. He, therefore, submitted that the purpose of payments in question cannot be categorized as for the Fee for technical services. 8. Ld. DR, however, while pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucture and also for maintaining, repairing and monitoring each operator or network so that they remain in a robust condition to provide faultless service to the customers besides where the network capacity has to be enhanced by telecom operators. The Tribunals have consistently found that such human intervention cannot be said to be for inter connection of a call. 10. We have gone through the decision of a coordinate bench of this Tribunal in Bharti Airtel Ltd. Vs ITO, TDS ward, New Delhi (2016) 67 Taxmann.com 223 (Delhi) wherein the Tribunal took the view that human intervention for providing certain services to put an equipment in place is different from the human intervention in the transportation of calls between two networks. Vide p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d only such payments as are for services which are specialized, exclusive and utmost to users/consumers qualified as fee for technical services in terms of Explanation 2 to Section 9(1)(vii) so as to attract TDS u/s 194J. On this premise, in assessee s own case, a coordinate bench of this Tribunal held that in the absence of any human intervention during the actual roaming process, payment would not be fee for technical services and cannot be regarded as payments to Section 194J are applicable. 12. While respectfully following these decisions and especially one in assessee s own case for the immediately preceding year, we are of the considered opinion that this demand cannot be sustained and has to be deleted. 13. Now turning to Groun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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