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TMI Blog2019 (3) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... y invoking provisions of Section 194J of the Income Tax Act. 3. Since common issues are involved in both the matters the same are heard analogously and are being disposed of by a common order. 4. The assessee company is running business of telecom operations and providing telecom services. Initially on 02.01.2009, the Assessing Officer passed an order u/s 201(1)/201(1A) of the Act holding that the payment by the company to the other telecom company for roaming charges should have been subjected to deduction u/s 194J and 194C of the Act thereby treating the assessee as "assessee in default" for not deducting TDS. The said order was upheld by the Learned CIT(A) when an alternate plea was raised by the Learned AO stating that roaming charges is nothing but the rent paid for the use of machinery equipment and the assessee is require to deduct TDS at source under the provisions of section 194I of the Act, which was confirmed by the said Learned CIT(A). In appeal, preferred by the assessee, the Hon'ble Tribunal relying upon the judgment passed in the matter of CIT-vs-Bharti Cellular Ltd. reported in 330 ITR 239 dated 12.08.2010 restored the matter to the file of the Assessing Officer t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07-08 respectively. The order passed by the Learned Tribunal of Jaipur Bench in the matter of M/s. Bharti Hexacom Ltd.-vs-ITO(TDS) passed in ITA No.656/JP/2010 for A.Y. 2009-10. the order passed by the Hon'ble High Court of Karnataka in the matter of CIT(TDS)-vs-M/s. Vodafone South Ltd. were also relied upon by the Learned AR. On the contrary the Learned DR failed to controvert the contentions made by the assessee. 7. Heard the Learned representative of the respective parties, perused the relevant materials available on record. We find from different judgments placed before us that the issue involved in the matter as to whether roaming services require any human intervention and thereby payment of roaming charges whether falls under the ambit and purview of TDS provisions u/s 194J of the Act has been held in favour of the assessee holding that there is no manual or human intervention involved in the process of interconnection charges. In fact it is common knowledge that when one of the subscribers in the assessee's circle travels to the jurisdiction of another circle, the calls get connected automatically without any human intervention and it is for this, the roaming charges is pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (supra) the Apex Court after having found that whether human intervention is required in utilizing roaming services by one telecom mobile service provider Company from another mobile service provider Company, IS an aspect which may require further of the evidence and therefore, the matter was remanded back to the Assessing Officer. Further, in the impugned order of the Tribunal, after considering the above referred decision of Bharti Cellular Limited, the Tribunal has further not only considered the opinion, but found that as per the said opinion the roaming process between participating entities is fully automatic and does not require any human intervention. Therefore, we do not find that the aforesaid decision in the case of Bharti Cellular Limited, would be of any help to the appellants - Revenue. 10. In the another decision of the Apex Court, in the case of Kotak Securities Limited, the matter was pertaining to the charges of the Stock Exchange and the Apex Court, ultimately, found that no TDS on such payment was deductible under Section 194J of the Act. But the learned Counsel for the appellants - Revenue attempted to contend that in paragraphs 7 and 8 of the above refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The order passed by the Learned Tribunal Jaipur Bench in ITA No.656/JP/2010 had also been carefully considered by us. While passing orders in favour of the assessee, the Learned Tribunal observed as follows: "11. We have heard the rival contentions of both the parties and perused the material available on the record. After going through the order of the Assessing Officer, ld CIT(A); submissions of the assessee as well as going through the process of providing roaming services; examination of technical experts by the ACIT TDS, New Delhi in the case of Bharti Cellular Ltd.; thereafter cross examination made by M/s Bharti Cellular Ltd.; also opinion of Hon'ble the then Chief Justice of India Mr. S.H. Kapadia dated 03/09/2013 and also various judgments given by the ITAT Ahmadabad Bench in the case of Canara Bank on MICR and Pune Bench decision on Data Link Services. We find that for installation/setting up/repairing/servicing/maintenance capacity augmentation are require human intervention but after completing this process mere interconnection between the operators is automatic and does not require any human intervention. The term Inter Connecting User Charges (IUC) also signifie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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