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TMI Blog2017 (11) TMI 1633X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee does not come within the purview of fees for technical service as defined under Explanation 2 to sec 9(1)(vii) of the Act and accordingly no tax is required to be deducted by the assessee u/s. 194J therefrom - Decided in favour of assessee. - ITA No. 5442/DEL/2015 - - - Dated:- 29-11-2017 - SHRI B.P. JAIN, ACCOUNTANT MEMBER, AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER Assessee by : Smt. Sushmita Basu, Adv Revenue by : Shri Arun Kumar Yadav, Sr. DR ORDER PER B.P. JAIN, ACCOUNTANT MEMBER, This appeal of the Revenue arises from the order of the ld. CIT(A)-I, Noidai vide order dated 25.05.2015 for A.Y. 2011-12. 2. The assessee has raised the following solitary ground of appeal: The ld. CIT(A)-I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . counsel for the assessee that the Tribunal has decided an identical issue in favour of the assessee for assessment year 2012-13 in ITA No. 5443/DEL/2015 vide order dated 16.11.2017, copy of which is placed on record. 6. We have heard the rival submissions and have perused the relevant material on record. We have gone through the facts of the ITAT order relied upon by the ld. counsel for the assessee [supra] in assessee s own case for assessment year 2012-13 where the facts assessment order identical and the addition so made was directed to be deleted by the ld. CIT(A) and the ITAT has dismissed the grounds raised by the Revenue. The relevant operative part of the said order is reproduced hereinbelow for ready reference: 3. The brie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O and reiterated the contentions raised in the grounds of appeal. 5. On the contrary, Ld. Counsel of the assessee relied upon the order of the Ld. CIT(A). She also filed a Paper Book containing pages 1 to 237 which are the copies of the various decisions of the Tribunal, Hon ble High Courts and the Hon ble Supreme Court, favouring assesse s case. In order to support her view, he also draw our attention towards the decision of the Hon ble Delhi High Court in the case of CIT vs. Delhi Transco Ltd. (62 taxmann.com 166 ) (Del) (2015), which was affirmed by the Hon ble Supreme Court of India in SLP(C) No. 853/2016 in the case of CIT(TDS) vs. Delhi Transco Limited and stated that the issue involved in the present appeal is squarely covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices which involve human interface/element. In other words, the expression 'technical service' could have reference to only technical service rendered by a human and that it would not include my service provided by machines or robots. However as against above contention we find that the AO has completely failed to bring relevant materials, whatsoever, on record to prove the existence of human interface/element in the present case. In view of the above, we find that such transmission and wheeling charges paid by the assessee does not come within the purview of fees for technical service as defined under Explanation 2 to sec 9(1)(vii) of the Act and accordingly no tax is required to be deducted by the assessee u/s. 194J therefrom. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther find that against the aforesaid decision of the Hon ble Delhi High Court in the case of CIT vs. Delhi Transco Limited (Supra), the Department went in Appeal before the Hon ble Supreme Court of India in SLP(C) No. 853/2016 in the case of CIT(TDS) vs. Delhi Transco Limited, which has since been dismissed by the Apex Court vide its order dated 22/01/2016 by holding as under:- We find no reason to entertain this Special Leave Petition, which is, accordingly dismissed. 7. In the result, the Appeal filed by the Department stands dismissed. 7. Finding no merit in the ground raised by the Revenue and respectfully following the ITAT order [supra], we dismiss the ground of appeal raised by the Revenue. Thus, the sole Ground raised ..... X X X X Extracts X X X X X X X X Extracts X X X X
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