TMI Blog2020 (10) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of CIT vs. Vodafone South Ltd. [2016 (8) TMI 422 - KARNATAKA HIGH COURT] as the said judgement is later in time. Post Vodafone South Ltd. (supra) various benches of the Tribunal have been consistently following the law laid down by Hon ble Karnataka High Court. We hold that the roaming charges paid by the assessee are not in the nature of fee for technical services . DR has not brought before us any contrary decision. We find no infirmity in the impugned order. Accordingly, the same is upheld and ground No.1 (a) of the appeal is dismissed sans-merit. Interest levied under section 201(1A) - Since we have held that the roaming charges paid by the assessee to the other telecom service provider are not in the nature of fee for technical services no TDS under section 194J is liable to be deducted. Once there is no liability for deducting tax at source, question of charging interest under section 201(1A) of the Act does not arise. - ITA NO. 3947/MUM/2017 - - - Dated:- 8-10-2020 - Shri Vikas Awasthy, Judicial Member And Shri Rajesh Kumar, Accountant Member For the Appellant : Shri Akhtar H. Ansari For the Respondent : None ORDER PER VIKAS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uire any human intervention. Hence, such payments cannot be termed as fee for technical services . Since, no Technical Services are involved the payments for such services cannot be termed as Fee for Technical Services . Consequently, no TDS was deductible on such payments. 4. Against the findings of CIT(A), the Revenue is in appeal before the Tribunal, raising following grounds of appeal:- (1) Grounds of appeal: (a) On the facts and in the circumstances of the case and in law, the Ld. CIT{A) erred in holding that Roaming Charges paid by the assessee to Reliance Telecom Ltd. (RTL) are not in the nature of Fees for Technical Services' and hence not liable for deduction of tax at source u/s 194J of the Income-tax Act, 1961. (b) On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in not sustaining the 201(1) order regarding non deduction of TDS u/s 194J of the I.T. Act on payment of Roaming Charges and consequently deleting the levy of interest u/s 201(1A) of I. T. Act, 1961. In doing so, the Ld. CIT(A) has not appreciated that payment of interest u/s 201(1A) is mandatory in the event of default in payment of TDS amount. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the fact situation are also the same and the payment made for roaming connectivity cannot be termed as technical services and, ultimately, it was found that the assessee could not be said as in default for non deduction of TDS at source on the roaming charges paid by it to the other service provider and the appeals are allowed to that extent. Under the circumstances, the present appeals before this Court. 8. We have heard Mr. K.V. Aravind, learned counsel appearing for the appellants - Revenue in all the appeals. The learned Counsel relied upon 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 CIT v. Bharti Cellular Ltd. [2010] 193 Taxman 97/[2011] 330 ITR 239 (SC); and the another was the decision of the Apex Court in the case of CIT v. Kotak Securities Ltd. [2016] 67 taxmann.com 356/239 Taxman 139/383 ITR 1 (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 cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court in the case of Bharti Cellular Ltd.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 be 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. [Emphasized by us] 9. We find that the Co-ordinate Bench of the Tribunal in a recent decision in ITA No.3964/Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cially in light of any rebuttal which may come from the side of assessee. Thus, we are refraining from deciding the first issue before us. When the above order was passed by Tribunal, the Tribunal did not have the benefit of decision rendered by Hon ble Karnataka High Court in the case of CIT vs. Vodafone South Ltd. (supra) as the said judgement is later in time. Post Vodafone South Ltd. (supra) various benches of the Tribunal have been consistently following the law laid down by Hon ble Karnataka High Court. 11. Thus, in the light of the decisions discussed above, we hold that the roaming charges paid by the assessee are not in the nature of fee for technical services . The ld. Departmental Representative has not brought before us any contrary decision. We find no infirmity in the impugned order. Accordingly, the same is upheld and ground No.1 (a) of the appeal is dismissed sans-merit. 12. In ground No.1(b) of the appeal, the Revenue has assailed deleting of interest levied under section 201(1A) of the Act. Since we have held that the roaming charges paid by the assessee to the other telecom service provider are not in the nature of fee for technical services no TDS ..... X X X X Extracts X X X X X X X X Extracts X X X X
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