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TMI Blog2016 (10) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... ] has erred in confirming the penalty levied by the Assessing Officer [herein after referred to as "AO"] u/s 201(1)/201(1A) of the Act without appreciating merits of the case. b) The CIT (A) should have appreciated that the appellant had requested for adjournment of hearing as there was change in the Authorised Representative through a request letter dated 12th September 2014 and the same was accepted. However, the order was passed ex-parte without giving appellant the opportunity of being heard. Thereby not serving the purpose of natural justice. c) The CIT (A) did not appreciate the fact that appellant cannot be subjected to penalty when he acted under bonafide belief that it always acted as an agent of the Stock Exchange for paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of managerial services rendered by NSE to the assessee and consequently the transaction charges constituted fee for technical services u/s 194J of the Act and, therefore, assessee ought to have deducted tax at source. However, the aforesaid judgement of Hon'ble Bombay High Court was carried to Hon'ble Supreme Court wherein the view taken by the Hon'ble High Court has not been accepted. It has been held by the Hon'ble Supreme Court that transaction charges paid go NSE are meant for the facility and they did not constitute technical service or managerial service and, therefore, there was no liability to deduct tax at source on such payment u/s 194J r.w.s 9(i)(ii). 4. Per contra, the Ld.DR supported the orders passed by the lower authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade including those of a particular/single transaction that would lead credence to its authenticity is provided for by the stock exchange. All such services, fully automated, are available to all members of the stock exchange in respect of every transaction that is entered into. There is nothing special, exclusive or customised service that is rendered by the stock exchange. "Technical services" like "Managerial and consultancy service" would denote seeking of services to cater to the special needs of the consumer user as may be felt necessary and the making of the same available by the service provider. It is the above feature that would distinguish or identify a service provided from a facility offered. While the former is special and exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices. Each and every transaction by a member involves the use of the services provided by the stock exchange for which a member is compulsorily required to pay an additional charge (based on the transaction value) over and above the charges for the membership in the stock exchange. The above features of the services provided by the stock exchange would make the same a kind of a facility provided by the stock exchange for transacting business rather than a technical service provided to one or a section of the members of the stock exchange to deal with special situations faced by such a member(s) or the special needs of such member(s) in the conduct of business in the stock exchange. In other words, there is no exclusivity to the services re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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