2017 (8) TMI 1458 - HC - Income Tax

TDS u/s 194C - payment of license fee to the West Bengal State Electricity Regulatory Commission - non deduction of tds - Held that - The view of the Tribunal in respect of power factor rebate and power interruption charges are essentially findings on fact, upon appreciation of certain technical aspects. It has been held by the Tribunal that power factor rebate is not paid to anybody. It has also been found by the Tribunal that both these charges are adjusted against electricity consumption bills payable by high voltage industrial consumers. The factual basis of these findings have not been contested by the Revenue. We do not find such finding to be perverse. As regards charges paid to Regional Load Despatch Centre (RLDC), the assessee s stand is that these are in the nature of fees paid to a statutory authority under the Electricity Act, 2003 and as such payment on these heads also cannot constitute fees contemplated in the aforesaid two provisions of the Act. The other head in respect of which expense has been disallowed is payment of license fee in terms of the Electricity Act, 2003 and the 2005 Rules. On this finding also, we do not think the Revenue has made out a case for interference with the Tribunal s decision. - Decided against revenue

Summary

Issues involved:
1. Requirement for making deduction of tax at source (TDS) on various charges.
2. Nature and character of wheeling charges and transmission charges.
3. Nature and character of power factor rebate and power interruption charges.
4. Nature and character of unscheduled interchange charges and payments to Regional Load Despatch Centre.
5. Payment of license fees to the Regulatory Commission.

Detailed Analysis:

1. Requirement for making deduction of tax at source (TDS) on various charges:
The Revenue contended that the assessee was required to deduct tax at source under Sections 194C and 194J of the Income Tax Act, 1961, for various charges paid under different heads. The Tribunal and the Commissioner of Income Tax (Appeals) found that these charges did not constitute payments to contractors or fees for technical services, thus not attracting TDS provisions.

2. Nature and character of wheeling charges and transmission charges:
The Tribunal concluded that wheeling and transmission charges were neither contractual payments nor fees for technical services under Sections 194C or 194J of the Act. It was determined that these charges were for the use of state transmission utility and did not involve human intervention or interface. The Tribunal's view was supported by the Bombay High Court decision in CIT Vs. Maharashtra State Electricity Distribution Co. Ltd. (2015) 375 ITR 23 (Bom).

3. Nature and character of power factor rebate and power interruption charges:
The Tribunal found that power factor rebate and power interruption charges were adjustments against electricity consumption bills for high voltage industrial consumers. These charges were part of the tariff order and not payments made to any entity. Consequently, they were not subject to TDS under Sections 194C or 194J of the Act.

4. Nature and character of unscheduled interchange charges and payments to Regional Load Despatch Centre:
The Tribunal held that unscheduled interchange charges, which are part of the Availability Based Tariff (ABT), did not fall within the purview of fees for technical services under Section 194J. Payments to Regional Load Despatch Centre were operational expenses and not contractual payments or fees for technical services, thus not attracting TDS provisions.

5. Payment of license fees to the Regulatory Commission:
The Tribunal analyzed the provisions of the Electricity Act, 2003, and the West Bengal Electricity (Fees for Application for Grant of Licence) Rules, 2005, and concluded that license fees payable under the statute did not come within the purview of Section 194C of the 1961 Act.

Conclusion:
The Tribunal's decision, sustained by the Commissioner of Income Tax (Appeals), was based on a detailed examination of the nature and character of the charges in question. The Tribunal found that these charges did not constitute payments for work done by a contractor or fees for technical services, thus not attracting TDS provisions under Sections 194C and 194J. The High Court concurred with the Tribunal's findings and dismissed the Revenue's appeal, stating that no substantial question of law was involved. The appeal and stay petition were dismissed with no order as to costs.