TMI Blog2019 (3) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... A) while allowing the claim of the applicant in deleting the demand raised u/s 194J for A.Y. 2008-09 & 2009-10 respectively with the conclusion that the roaming charges paid by the appellant to other telecom companies are not covered under ‘fee for technical service’ and such payments are out of the purview of TDS provision of 194J. We find no infirmity in the order passed by the Learned CIT(A). We, therefore, do not hesitate to confirm the same. - Decided against revenue. - I.T.A. Nos. 2195 & 2196/Ahd/2016 - - - Dated:- 28-2-2019 - Shri Pramod Kumar, Vice President And Ms. Madhumita Roy, Judicial Member For the Appellant : Shri Vinod Tanwani, Sr. D.R. For the Respondent : Shri Anil Bhalla, A.R. ORDER PER Ms. MADHUMITA ROY - JM: The instant appeals filed by the Revenue are against the order dated 10.06.2016 passed by the Commissioner of Income Tax (Appeals)-8, Ahmedabad under section 201(1)/201(1A) of the Income Tax Act, 1961 (hereinafter referred as to The Act ) arising out of the order dated 26.03.2014 by the Dy. Commissioner of Income Tax, TDS Circle, Ahmedabad for the Assessment Years 2008-09 2009-10. 2. The revenue has challenged the order ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the A.Y. 2008-09 2009-10 following the judgment passed by the Hon ble ITAT Kolkata Bench in the case of Vodafone East Ltd., in ITA No.1864/Kol/2012 for A.Y. 2009-10, the decision passed by the Hon ble ITAT Chennai in the case of DCIT-vs-M/s. Dishnet Wireless Ltd. in TS-409-ITAT-2015(CHNY) and the decision of Delhi ITAT in assessee s own case in ITA No.3593 to 3596/DEL/2012 where it was consistently held that there is no manual or human intervention involved in the process of interconnection charges upon considering the technical expert opinion and their cross examination. It was held by those pronouncements that interconnection charges paid by the appellant to other telecom operators are not in the nature of fee for technical services and therefore there is no liability to deduct tax thereon. In appeal, the Learned CIT(A) deleted the such addition made by the Learned AO. Hence the instant appeal preferred by Revenue before us. 6. At the time of hearing of the instant appeal the Learned Counsel appearing for the assessee submitted before us that the case of the assessee is covered by number of judgments passed by the different Tribunals where it was held that in the process of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue and perusing material on record, we find that the issue in this present appeals is covered against the Revenue by the decision of Jurisdictional High Court in the case of CIT vs. Vodafone South Ltd., vide 290 CTR 436 (Kar) wherein the Hon ble High Court after referring to the technical expertise of C-Dot on 29/09.2010 in respect of IUC Ltd., and the technical experts reexamined the matter and opined that the roaming services does not require any human intervention and it operates automatically, wherein at paras 7 to 12 of the order it is held as under: We have heard Mr. K.V. Aravind, learned counsel appearing for the appellants - Revenue in all the appeals. The learned Counsel relied two decisions of the Apex Court for canvassing the contention that the roaming charges paid by the assessee to the other service provider can be said as 'technical services'; one was the decision of the Apex Court in the case of Commissioner of Income-tax, Delhi vs. Bharti Cellular Limited, reported at [2010] 193 Taxinan 97 (SC); and the another was the decision of the Apex Court in the case of Commissioner of Income-tax-A, Mumbai vs. Kotak Securities Limited, reported at [2016] 67 ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any to another mobile service provider Company. Hence, we do not find that the observations made are of any help to the Revenue. 12. As such, even if we consider the observations made by the Apex Court in the case of Bharti Cellular Limited, supra, whether use of roaming service by one mobile service provider Company from another mobile service provider Company, can be termed as technical services or not, is essentially a question of fact. The Tribunal, after considering all the material produced before it, has found that roaming process between participating entities is fully automatic and does not require any human intervention. Coupled with the aspect that the tribunal has relied upon the decision of the Delhi High Court for taking support of its view. 13. In our view, the Tribunal is ultimately fact finding authority and has held that the roaming process between participating company cannot he termed as technical services and, therefore, no TDS was deductible. We do not find that any error has been committed by the Tribunal in reaching to the aforesaid conclusion. Apart from the above, the questions are already covered by the above referred decision of the Delhi High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) and assessee s appeal is allowed on this ground also. 9. The Hon ble High Court of Karnataka in the matter of CIT(TDS)-vs-M/s. Vodafone South Ltd. also had taken the same view in favour of the assessee. While doing so, the judgment passed by the Hon ble Jurisdictional High Court in the matter of Vodafone Essar Gujarat Ltd-vs-ACIT(TDS) was also taken into consideration. The relevant portion of the said judgment is as follows: 13. In our view, the Tribunal is ultimately fact finding authority and has held that the roaming process between participating company cannot be termed as technical services and, therefore, no TDS was deductable. We do not find that any error has been committed by the Tribunal in reaching to the aforesaid conclusion. Apart from the above, the questions are already covered by the above referred decision of the Delhi High Court, which has been considered by the Tribunal in the impugned decision. We find from the order passed by the Learned CIT(A) that all the judgments as discussed hereinabove were considered by the Learned CIT(A) while allowing the claim of the applicant in deleting the demand of ₹ 71,30,810/- ₹ 38,07,820/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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