2018 (10) TMI 1359 - HC - Income Tax

TDS u/s 194J - Addition u/s 40(a)(ia) - non-deduction of TDS on the payment of wheeling charges and the SLDC charges to the HVPNL - Held that - The order of lower authorities with regard to dis-allowance of expenses claimed of Wheeling and SLDC charges are set aside. The matter is remanded back to the A.O. to decide the said issue afresh in view of the observations in UTTAR HARYANA BIJLI VITRAN NIGAM LTD. 2015 (7) TMI 1294 - ITAT CHANDIGARH wherein matter was remanded back to the Assessing Officer for decision afresh in the light of the observation of the Supreme Court in the case of CIT, Delhi Vs. Bharti Cellular Limited (2010 (8) TMI 332 - SUPREME COURT OF INDIA )

Summary

Issues:
- Disallowance of expenses under Section 40(a) (ia) of the Income Tax Act, 1961 for non-deduction of TDS on wheeling charges and SLDC charges paid to HVPNL.

Analysis:
1. The revenue filed an appeal against the order of the Income Tax Appellate Tribunal regarding the disallowance of expenses claimed by the respondent for wheeling and SLDC charges paid to HVPNL for the assessment year 2008-09. The respondent, a power distribution company, purchases electricity from HPGCL and distributes it to consumers through the transmission network of HVPNL. The Assessing Officer disallowed the expenses as TDS was not deducted on wheeling and SLDC charges paid to HVPNL.

2. The Commissioner of Income Tax (Appeals) partly allowed the appeal, setting aside the disallowance of expenses claimed by the respondent. The revenue challenged this decision before the Tribunal, which dismissed the appeal based on previous orders and a decision of the Jaipur Bench. The Tribunal held that there was no liability to deduct TDS on transmission/wheeling charges and SLDC charges under Section 194-J of the Act, leading to the revenue's present appeal.

3. The revenue argued that a similar issue was decided by the Court in a previous case, where the matter was remanded back to the Assessing Officer for fresh consideration in light of the Supreme Court's observations. The Supreme Court emphasized the need to determine whether human intervention was involved in the services provided, as it would classify them as technical services under Section 194J of the Act.

4. The Court, following the Supreme Court's guidance, set aside the orders of the lower authorities and remanded the matter to the Assessing Officer for reevaluation. The Assessing Officer was directed to examine the presence of human intervention in the services provided and consider the applicability of Provisos inserted in Sections 201(1) and 201(1A) retrospectively. The Assessing Officer was also instructed to assess the element of income in the transaction before passing a fresh order in accordance with the law.

5. In conclusion, the Court, considering the previous decisions and the Supreme Court's guidance, set aside the disallowance of expenses claimed for wheeling and SLDC charges and remanded the matter to the Assessing Officer for further examination. The substantial question of law was decided accordingly, and the appeal was disposed of accordingly.