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2012 (8) TMI 393 - AT - Income TaxTDS on VSAT charges - Held that - It stands settled that VSAT charges are not payment for technical services and same being paid by the assessee to Stock Exchange are merely reimbursement of the charges paid/payable by the Stock Exchange to the Department of Telecommunication. Since the VSAT charges paid do not have any element of income, deducting tax while making such payments do not arise - Decided against Revenue TDS on Transaction charges paid by the assessee to the stock exchanges - Held that - Though section 194J was inserted w.e.f.July 1, 1995, till the AY in question that is the AY 2005-06 both the Revenue and the assessee proceeded on the footing that section 194J was not applicable to the payment of transaction charges. In these circumstances, if both the parties for nearly a decade proceeded on the footing that section 194J is not attracted, then in the AY in question, no fault can be found with the assessee in not deducting the tax at source u/s 194J and consequently, no action could be taken u/s 40(a)(ia). Therefore, to ascertain whether such bona fide was entertained in the earlier assessment, we remit issue back to file of AO with a direction to decide bona fides of contention in this regard and to decide the issue afresh in the spirit of law in case of Kotak Securities (2011 (10) TMI 24 - BOMBAY HIGH COURT) - Decided in favor of Revenue for statistical purposes.
Issues Involved:
1. Whether tax is required to be deducted under Chapter XVIIB of the I.T. Act on VSAT charges paid by the assessee to the stock exchanges. 2. Whether tax is required to be deducted under Chapter XVIIB of the I.T. Act on transaction charges paid by the assessee to the stock exchanges. Detailed Analysis: Issue 1: Tax Deduction on VSAT Charges Facts and Arguments: - The assessee, engaged in share broking, did not deduct TDS on VSAT charges amounting to Rs. 4,47,855/-. - The assessee argued that VSAT charges, which include bandwidth charges, are for data transmission and do not constitute technical services. - The Assessing Officer (A.O.) disallowed the deduction of VSAT charges under section 40(a)(ia) of the I.T. Act, asserting that they were liable for TDS. CIT(A) Decision: - The CIT(A) referenced the ITAT Mumbai decision in CIT vs. Angel Broking Ltd., which held that VSAT charges are not technical services and thus not subject to TDS. Tribunal's Analysis: - The Tribunal upheld the CIT(A)'s decision, citing the Bombay High Court's ruling in ITO v/s. Angel Capital, which confirmed that VSAT charges are not technical services and hence not liable for TDS. - The Tribunal reiterated that VSAT charges are merely reimbursements to the stock exchange for payments made to the Department of Telecommunication, lacking any element of income. Conclusion: - The Tribunal concluded that VSAT charges are not payments for technical services and thus not subject to TDS under Chapter XVII of the I.T. Act. Issue 2: Tax Deduction on Transaction Charges Facts and Arguments: - The assessee did not deduct TDS on transaction charges amounting to Rs. 8,21,754/-, arguing that these are levied by stock exchanges based on transaction volume and do not constitute technical or managerial services. - The A.O. disallowed the deduction, asserting that transaction charges are payments for services and thus liable for TDS. CIT(A) Decision: - The CIT(A) accepted the assessee's argument, referencing the ITAT Mumbai decision in Kotak Securities Ltd. vs Addl. CIT, which held that transaction fees are payments for the use of facilities and not for technical or managerial services. Tribunal's Analysis: - The Tribunal noted the Bombay High Court's decision in Kotak Securities, which held that transaction charges are fees for technical services under section 194J but granted relief to the assessee due to a decade-long bona fide belief that TDS was not applicable. - The Tribunal remitted the issue back to the A.O. to ascertain whether the assessee's bona fide belief was entertained in earlier assessments, instructing the A.O. to decide the issue afresh in light of the Kotak Securities case. Conclusion: - The Tribunal directed the A.O. to re-examine the bona fide belief of the assessee regarding the non-deduction of TDS on transaction charges and to decide the issue afresh, ensuring fair opportunity for the assessee to be heard. Final Order: - The appeal was partly allowed for statistical purposes, with directions to the A.O. to reassess the bona fide belief regarding TDS on transaction charges. The order was pronounced in the open court on 15.6.2012.
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