2015 (10) TMI 1590 - AT - Income Tax

Non deduction of TDS on the access charges paid to RCOM - whether payment of access charges to RCOM cannot be said to be payment towards fees for technical services or rent and hence the payment need not be subject to TDS under section 194-J or 194-I? - Held that - The fact is that none appeared on behalf of the Revenue. However, we have gone through the record and since the AO passed an order under section 154 of the Act rectifying his earlier order passed under section 201(1) of the Act vis-a-vis access charges, assessee cannot be said to be in default (for non-payment of tax) and hence the issues raised by the Revenue in the appeals are of academic importance and hence deserve to be rejected. - Decided in favour of assessee.

Summary

Issues:
- Non-deduction of tax at source on access charges paid to RCOM.
- Applicability of sections 194J and 194I of the Act.
- Treatment of access charges as fees for technical services or rent.
- Rectification of order under section 154 read with section 201(1) of the Act.
- Representation of cases by the Revenue before the Tribunal.

Issue 1: Non-deduction of tax at source on access charges paid to RCOM

The appeals by the Revenue were against the orders passed by the CIT(A)-14, Mumbai, regarding non-deduction of tax at source on access charges paid to RCOM for assessment years 2007-08 to 2010-11. The AO treated the assessee as 'assessee in default' under section 201(1) of the Act for not deducting tax at source on the payments made to RCOM. The contention was that the payments were towards technical services under section 194J of the Act.

Issue 2: Applicability of sections 194J and 194I of the Act

The AO argued that the payments made by the assessee to RCOM should have attracted tax deduction at source under sections 194J or 194I of the Act. The assessee, however, contended that the access charges were not liable to TDS under section 9(1)(vii) of the Act, as they were considered compensation for providing access to the telecom network and not fees for technical services or rent.

Issue 3: Treatment of access charges as fees for technical services or rent

The assessee maintained that the access charges paid to RCOM were not in the nature of fees for technical services or rent as per sections 194J and 194I of the Act. The CIT(A) accepted the assessee's contentions, ruling that the payments need not be subject to TDS under the specified sections.

Issue 4: Rectification of order under section 154 read with section 201(1) of the Act

The AO rectified the order passed under section 201(1) of the Act, observing that RCOM had considered access charges as income in its audited books and paid taxes. This rectification led to the ground being treated as infructuous by the CIT(A) for assessment year 2007-08. The Tribunal noted that the demand raised under section 201(1) was already cancelled by the AO.

Issue 5: Representation of cases by the Revenue before the Tribunal

During the Tribunal hearing, the Revenue's appeals were deemed of academic importance due to the AO rectifying the earlier order under section 154 read with section 201(1) of the Act. The CIT-DR sought adjournment but left without presenting the case effectively. The Tribunal emphasized the need for preparedness and effective representation by Department Representatives to support the Revenue's stand. Ultimately, the appeals filed by the Revenue were dismissed as the issues raised were considered of academic importance.

This detailed analysis of the judgment provides insights into the various issues involved, the arguments presented by the parties, and the ultimate decision reached by the Tribunal.