TMI Blog2020 (7) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: 1. (a) Whether on the facts and in the circumstances of the case and in law, the Ld.CIT(A) was justified in holding that interconnection usages charges (IUC)is not in the nature of Fees for Technical Services and hence not liable for TDS under section 194J of the I.T. Act 1961? (b) On the facts and circumstances of the case and in law, the CIT(A) erred in not appreciating the factual and legal matrix brought out by the AO in the order passed u/s 201(1)/201(1A) r.w.s.254 of the Act, wherein the AO has relied on the examination of Technical expert wherein it confirmed that was interconnectivity /roaming charges are in the nature of technical service as there exists human intervention. 2. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary at the time of hearing of the case or thereafter. 3. The order of the CIT(A) being erroneous be set aside and Ld. A.O's order be restored. 3. Even though the issues raised in this appeal are admittedly covered by the decision of coordinate bench dated 28thFebruary 2019, in assessee s own cases in ITA No. 2195 2196/Ahd/2016for the assessment years2008-09 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avind, 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 assesseeto 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 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 Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices 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/- 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. 5. Learned representative has also fairly agreed that the issues raised on this appeal are squarely covered by the aforesaid decision. We see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 8. 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 the spread of Covid 19 epidemic, and this lockdown was extended from time to time. As a matter of fact, even before this formal nationwide lockdown, the functioning of the Income Tax Appellate Tribunal at Mumbai was severely restricted on account of lockdown by the Maharashtra Government, and on account of strict enforcement of health advisories with a view of checking spread of Covid 19. The epidemic situation in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ITR 244 (Bom)], Hon ble Bombay High Court did not approve an order being passed by the Tribunal beyond a period of 90 days, but then in the present situation Hon ble Bombay High Court itself has, vide judgment dated 15th April 2020, held that directed while calculating the time for disposal of matters made time-bound by this ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
