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TMI Blog2020 (10) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... of 'fee for technical services', therefore, the assessee was required to deduct tax at source under section 194J of the Act, on such payments. Since, the assessee did not deduct tax at source on the said payments the assessee was held as 'assessee in default'. Consequently, the ACIT-TDS invoked the provisions of section 201(1) r.w.s. 201(1A) of the Act. The ACIT-TDS vide order dated 12/03/2014 fasten tax liability of Rs. 4,24,07,479/- on account of withholding tax under section 194J and interest of Rs. 57,05,216/- under section 201(1A) of the Act. Aggrieved against the aforesaid order the assessee filed appeal before CIT(A) . 3. The CIT(A) in the facts of the case following the decision rendered by Hon'ble Supreme Court of India in the case of CIT vs. Bharti Cellular Ltd., 330 ITR 239 (SC) and various other decisions viz.: (i) CIT vs. Vodafore South Ltd. [2016] 72 taxmann.com 347 (Karnataka HC); (ii) Bharati Airtel vs. ITO (TDS)[2016] 67 taxmann.com 223 (Del-Trib); (iii) Seimens Limited, 30 taxmann.com 200 (Mum Trib); (iv) Vodafone East Ltd vs. Addl. CIT [2015] 61 taxmann.com 263 (Kol Trib); (v) Idea-Cellular Ltd vs. CIT [2016] 65 taxmann.com 116 Pune; (vi) Dishne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance while deciding the issue in favour of assessee. The primary issue in the appeal is: Whether the roaming charges paid by the assessee to the other telecom service provider (Reliance Telecom Ltd.) are in the nature of 'Fee for technical Services' and hence, liable for deduction of tax at source under section 194J of the Act. 7. The issue was was considered by the Hon'ble Supreme Court of India in the case of CIT vs. Bharti Cellular Ltd. (supra). The Hon'ble Apex Court restored the issue to the file of Assessing Officer for reconsideration after seeking the support of technical expert to ascertain if any human intervention is required in providing interconnect/roaming services. 8. Thereafter, the Hon'ble Karnataka High Court in the case of CIT vs. Vodafone South Ltd.(supra) decided in 2016, after considering the decision of Hon'ble Apex Court (rendered in August 2010) held that payment made by a mobile service provider to another mobile service provider for utilization of roaming mobile date and connectivity cannot be termed as technical service and therefore, no TDS was deductible u/s194J of the Act. The Hon'ble High Court upholding the order of Tribunal observed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, we do not find that the aforesaid decision in the case of Bharti Cellular Ltd. would be of any help to the appellants - Revenue. 10. In the another decision of the Apex Court, in the case of Kotak Securities Ltd. 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 referred decision of the Apex Court, it has been observed that if a distinguishable and identifiable service is provided, then it can be said as a "technical services". Therefore, he submitted that in the present case, roaming services to be provided to a particular mobile subscriber by a mobile Company is a customize based service and therefore, distinguishable and separately identifiable and hence, it can be termed as "technical services". 11. In our view, the contention is not only misconceived, but is on non existent premise., because the subject matter of the present appeals is not roaming services provided by mobile service provider to its subscriber or customer, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that for identical reasons the provisions of section 201(1)/201(1A) of the Act were invoked in assessee's own case in AY 2010-11 and 2011-12. The issue travelled to the Tribunal in ITA No.2953/Mum/2014 and 2958/Mum/2014. The Tribunal decided the aforesaid appeals by the assessee vide order dated 11/4/2016. The Co-ordinate Bench after recording of extensive contentions raised by both the sides left the issue open by observing as under: "13. ......... Here in this case, post Bharati Cellular Ltd., decision by the Supreme Court, whereby, AO was required to examine the technical experts cannot be held to be conclusive at this stage qua the concept of human involvement in the process of roaming, because in such cross examinations, as incorporated by the AO in the impugned order, there is inherent contradiction and if we go by the latest principle laid down by the Hon'ble Supreme Court in the case of Kotak Securities Ltd. (supra), then the whole test of constant human intervention and human interface fails in the case of roaming charges. However, we are not entering into the semantics of the controversy whether human involvement/intervention is there qua the payment of roaming char ..... X X X X Extracts X X X X X X X X Extracts X X X X
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