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2016 (12) TMI 488 - AT - Income TaxNon-deduction of tax at source u/s.194J - non deduction of tds on amount paid on account of internet charges - Held that - ITAT in the case of M/s Kotak Securities Ltd. (2012 (2) TMI 77 - ITAT MUMBAI ), wherein it was held that no TDS is required to be deducted in respect of bank guarantee charges paid to bank, accordingly assessee cannot be said to be in default for such non-deduction of TDS on such payment. Facts of the instant appeals are similar, respectfully, following the order(supra), we do not find any infirmity in the order of CIT(A) holding that assessee is not in default for non-deduction of TDS on such payments. Non-deduction of tax at source u/s.194H - default in respect of payment of bank guarantee charges - Held that - The Mumbai Bench of Tribunal in the case of Kotak Securities Ltd. vs. DCIT, (supra) has held that bank guarantee charges are not liable for deduction of tax under section 194H on the ground that such transactions are on principal to principal basis and the element of agency which is essential to cover it as commission as per Explanation to section 194H is absent. Appeal of the Revenue is dismissed whereas appeal of the Assessee is allowed.
Issues:
Cross appeals filed by the assessee and Revenue against the order of CIT(A) for the assessment year 2011-12 regarding non-deduction of tax at source u/s.201(1) & 201(1A) of the IT Act for internet charges and bank guarantee charges. Analysis: 1. Internet Charges: The Assessing Officer (AO) held the assessee in default for non-deduction of tax at source u/s.194J for internet charges. However, CIT(A) confirmed this action by the AO. The Tribunal referred to a previous case where a similar issue was decided in favor of the assessee. The Tribunal found that payments made for internet charges to obtain standard facility from BSNL do not fall under 'fee for technical services' as per section 194J of the IT Act. The Tribunal upheld the decision of CIT(A) based on precedents, dismissing the Revenue's appeal. 2. Bank Guarantee Charges: The AO also held the assessee in default for non-deduction of tax at source u/s.194A(3) for bank guarantee charges. However, the CIT(A) ruled in favor of the assessee on this issue. The Tribunal referred to a previous decision where it was held that bank guarantee charges are not liable for tax deduction under section 194H. The Tribunal found no reason to interfere with CIT(A)'s conclusion, as it was consistent with the precedent. Therefore, the Revenue's appeal on this issue was dismissed. 3. Maintenance Charges: Regarding the deduction of tax at source for maintenance charges paid for computer services, the AO contended that tax should have been deducted u/s.194J, while the assessee had deducted tax u/s.194C. The Tribunal analyzed the nature of the payment and found that the services availed by the assessee were standard facilities, not technical services. Referring to previous decisions and the definition of technical services under section 194J, the Tribunal held that the payment made by the assessee did not fall under section 194J. The Tribunal upheld the decision of CIT(A) and allowed the assessee's appeals while dismissing the Revenue's appeal. 4. Supreme Court Decision: The Tribunal also mentioned that the issue was covered by a decision of the Hon'ble Supreme Court in the case of Kotak Securities Ltd., further supporting the Tribunal's decision. The Tribunal found no merit in the AO's order holding the assessee in default for non-deduction of tax at source for internet charges and bank guarantee charges. In conclusion, the Tribunal dismissed the appeal of the Revenue and allowed the appeals of the Assessee based on the detailed analysis and legal precedents cited in the judgment.
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