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TMI Blog2020 (6) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... d by and under judgment passed by the Ahmedabad Tribunal in case of ACIT vs. M/s. BhartiAirtel Ltd. in ITA Nos. 2195 & 2196/Ahd/2016AYs. 2008-09 & 2009-10order dated 28.02.2019; a copy of the said order has also been provided before us by the Learned AR. He therefore prays for similar relief before us. 3. The Learned DR, however, has failed to controvert such contentions made by the Learned AR. 4. Heard the respective parties. We have also perused the relevant materials available on record and also order passed by the Ahmedabad Tribunal in ITA Nos. 2195 & 2196/Ahd/2016 . We find in the identical situation the Learned Tribunal has been pleased to pass orders in Revenue's appeal holding that the roaming charges paid by the appellant to other telecom companies are not covered under fees for technical services and out of the purview of TDS provision of 194J of the Act. The relevant portion whereof is as follows: "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 ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Apex Court in the case of Commissioner of Income-tax-A, Mumbai vs. Kotak Securities Limited, reported at [2016] 67 taxmann.com 356 (SC) and it was submitted that if the observations made by the Apex Court in the above referred decisions are considered, the decision of the Tribunal would be unsustainable and consequently, the questions may arise far consideration before this Court in the present appeals. 9. We may record that in the decision of the Apex Court in the case of Bharti Cellular Limited (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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 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. 14. Thus, following the decision of Hon'ble Jurisdictional High Court we hold that the process involved in the roaming connectivity does not involve any human intervention and, therefore, the services does not fall within the ambit of "technical services". Hence, it is not required to deduct tax at source on such payments." 8. 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 ITA Nos.2195 & 2196/Ahd/2016 The ACIT vs. M/s. BhartiAirtel Ltd.Asst. Years - 2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 Rs. 71,30,810/- & Rs. 38,07,820/- 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 of the Act. We find no infirmity in the order passed by the Learned CIT(A). We, therefore, do not hesitate to confirm the same. Therefore, revenue's appeal is devoid of any merit and hence dismissed. 10. In the result, both the appeals of the revenue is dismissed." 5. Respectively relying upon the order aforesaid, we find no other alternative but to dismiss the appeal preferred by the Revenue since the same is found to be devoid of any merit on the issue which has also been settled in favour of the assessee as discussed above. 6. In the result, Revenue's appeal is dismissed. 7. Before parting we would like to make certain observation relating to the issue cropped up under present scenario of Covid-19 pandemic as to whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pex Court in the case of Anil Rai (supra) and to issue appropriate administrative directions to all the Benches of the Tribunal in that behalf. We hope and trust that suitable guidelines shall be framed and issued by the President of the Appellate Tribunal within shortest reasonable time and followed strictly by all the Benches of the Tribunal. In the meanwhile(emphasis, by underlining, supplied by us now), all the revisional and appellate authorities under the Income-tax Act are directed to decide matters heard by them within a period of three months from the date case is closed for judgment". In the ruled so framed, as a result of these directions, the expression "ordinarily" has been inserted in the requirement to pronounce the order within a period of 90 days. The question then arises whether the passing of this order, beyond ninety days, was necessitated by any "extraordinary" circumstances. 9. Let us in this light revert to the prevailing situation in the country. On 24th March, 2020, Hon'ble Prime Minister of India took the bold step of imposing a nationwide lockdown, for 21 days, to prevent spread of Covid 19 epidemic, and this lockdown was extended from time to time. As a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Disaster Management Act, 2005, and also in the light of the discussions above, the period during which lockdown was in force can be anything but an "ordinary" period. 10. In the light of the above discussions, we are of the considered view that rather than taking a pedantic view of the rule requiring pronouncement of orders within 90 days, disregarding the important fact that the entire country was in lockdown, we should compute the period of 90 days by excluding at least the period during which the lockdown was in force. We must factor ground realities in mind while interpreting the time limit for the pronouncement of the order. Law is not brooding omnipotence in the sky. It is a pragmatic tool of the social order. The tenets of law being enacted on the basis of pragmatism, and that is how the law is required to interpreted. The interpretation so assigned by us is not only in consonance with the letter and spirit of rule 34(5) but is also a pragmatic approach at a time when a disaster, notified under the Disaster Management Act 2005, is causing unprecedented disruption in the functioning of our justice delivery system. Undoubtedly, in the case of Otters Club Vs DIT [(2017) 392 I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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