TMI Blog2018 (6) TMI 1646X X X X Extracts X X X X X X X X Extracts X X X X ..... s not require any human intervention and charges received or paid on account of this is not fees for technical services as envisaged in section 194J read with section 9(1) (vii) read with Explanation-2 of the Act. In the absence of any change in facts or law, the payments made for interconnection are not fees for rendering any technical services as envisaged in section 194J of the Act. Therefore, no tax is deductible at source u/s 194J of the Act on payment of roaming charges to the OTOs and the assessee therefore cannot be treated as an assessee in default. Apart from the various decisions of High Courts and ITAT orders cited, the issue stands concluded in favour of the assessee by the consistent orders of ITAT Bangalore and Jaipur Benches in assessee's own case. In the absence of any distinction on facts, circumstances or position of law, the departmental appeals are dismissed. - ITA Nos. 21 to 24/CHD/2018 A.Ys: 2005-06 To 2009-10 - - - Dated:- 28-6-2018 - Ms. Diva Singh, Judicial Member And Ms. Annapurna Gupta, Accountant Member Appellant by: Smt. Chanderkanta, Addl. CIT Respondent by: Shri Ronak G. Doshi, CA ORDER PER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose no objection but it may be communicated to him at the outset as he is traveling from outstation. 3. The ld. Sr.DR Ms. Chanderkanta stated that though she is familiar with the facts, however she sought a pass over to consider the decisions relied upon and stated that in case she needs time, she will indicate it at the earliest. Accordingly, a pass over was given and the remaining matters were taken up as per the Cause List. 4. After some time, the ld. Sr.DR on going through the record and the decisions in the intervening period, made a mention that she has gone through the decisions and would seek to place reliance upon the assessment order. No distinguishing fact or decision was referred by her to for taking a contrary view. 5. The ld. AR addressing the background submitted that in 2005-06 assessment year the issue had travelled to the CIT(A) in the first round and the issue was remanded for fresh adjudication in order to comply with the position of law as laid down by the Apex Court in the case of M/s Bharti Cellular Ltd. 193 Taxman 97. Pursuant to this order the Department had sought technical reports from the Experts. Considering the Reports, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idering the opinion of the technical experts as well as the explanation of the assessee, the TDS officer held that, the process of interconnection for the purpose of carriage of calls involves many processes like maintenance, supervision and monitoring, fault detection and rectification, monitoring and quality of signals, provisions of additional capacity when the installed capacity gets exhausted, capacity of medicine etc. The entire process is dependent upon the services of highly technical manpower and installations of network having various peripheral, hardware and software which are technical in nature. This hardware, software along with peripherals needs continuous monitoring, maintenance etc. to ensure fault free carriage of call for purpose of interconnection. This essentially involves the human intervention. Accordingly, it was held that the payments made for interconnection are fees for technical services and need to be covered u/s 194J of the Income tax Act 1961. 7. Aggrieved by this, the assessee filed an appeal before the CIT(A). The CIT(A) relying upon order dated 12.06.2015 in the case of M/s Bharti Hexacom Ltd. Vs ITO(TDS)-II, Jaipur in its order dt. 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire less (supra) and the Hon'ble Kolkota Tribunal in the case of Vodafone (supra) after considering the judgment of the Hon'ble Supreme Court in case of Bharti Airtel (supra), as discussed in Proposition-I and Proposition-II, and also in the absence of any contrary judgments as on date of any of the Hon'ble High Courts, no tax is deductible at source u/s 194J of the Act on payment of roaming charges to the OTOs. 7.2 We further find that considering this the issue was decided by the CIT(A) in the following manner : 5.4 I have gone through the order of AO5 the decisions that the appellant has relied upon in its support and have carefully considered the various submissions made by the appellant. Since the grounds of appeal preferred by the appellant are inter-connected as well as consequential to each- other, they are not dealt separately and are considered together. It would not be out of contort to reproduce the observation and findings of Hon'ble ITAT, Jaipur in the case of M/s Bharti Hexacom Ltd. Vs ITO(TDS)-II, Jaipur in its order dt. 12.6.2015 in ITA No. 656/JP/2010 as under: 11. We have heard the rival contentions of both the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been followed by Ahmedabad bench in the case of Vodafone Essar Gujarat Ltd v. ACIT (TDS) (ITA NO.386/Add/2011, dt.07.07.2015). Following these, we are of the opinion that assessee could not have been deemed as one in default for non-deduction of tax at source on roaming charges paid by it to other service providers. Ground 3 is allowed. Similar findings are also rendered by Hon'ble ITAT Kolkata in the case of Vodafone East Ltd. vs Addl. CIT (2015) 61 Taxmann.com 263 as well as by Hon'ble ITAT, Delhi in the case of Bharti Airtel Ltd. vs ITO, TDS (2016) 67 Tamann.com 223. More recently, in the case of Hindustan Coca Cola Beverages Pvt. Ltd and others (D.B. ITA No. 205/2005), the Hon'ble Rajasthan High Court had the occasion to examine the issue as to whether TDS is applicable u/s 194J of the Act on roaming charges paid for facilities provided by service provider, as this interconnection is managed/controlled/monitored by human intervention. In their order dt. 11.07.2017, while disposing. off a bunch of appeals involving various mobile service providers including the appellant, M/s Tata Teleservices Ltd., M/s Bharti Hexacom Ltd. and M/s Vodafone Digilink Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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