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TMI Blog2011 (7) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in the case of CIT vs. Woodward Governor India P. Ltd. 312 ITR 254. 3. Assessee was not represented by anybody nor there was any request for adjournment. Therefore the appeal was exparte on merits after hearing the learned D.R. 4. As far as the issue of allowance of VSAT Transaction charges are concerned these expenditures are allowable expenditures following the order of the ITAT in the case of Kotak Securities vs. Addl. CIT in ITA No. 1995/Mum/2008( 25 SOT 440). The CIT(A) followed the order of the ITAT Mumbai Bench in Kotak Securities vs. Addl. CIT (supra). Since the Stock Exchanges do not provide any managerial services and the fees paid by the member to the Stock Exchange is not for technical services rendered, no TDS is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old technical services being rendered. The Assessing Officer had also held that services were not available to the public at large but only to registered members, again that by itself would not make the services in question as technical services. Another reason given by the Assessing Officer was that speed at which transactions were completed and the ease with which transactions were done in screen based trading, which again was not relevant criteria for holding the services rendered as technical services. Fact that the data provided on screen would provide better data for carrying out transaction would not again be sufficient to hold that technical services were being rendered. All the above features present in screen based trading save ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anagerial service nor do they render any technical consultancy service. The transaction fee is not paid in consideration of any service provided by the stock exchange. It is a payment for use of facilities provided by the stock exchange and such facilities are available for use by any member. The provisions of section 194J which case a burden on a person to deduct tax at source and treat him as a defaulter on his failure to deduct tax at source, need be interpreted strictly and in the absence of a clear obligation on the part of a person, spelt out in unambiguous terms by the provisions of section 194J, read with Explanation 2 to section 9(1)(vii), such obligation cannot be implied or left to the ipsi dixit of the revenue authorities. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of CIT vs. Woodward Governor India P. Ltd. 312 ITR 254, where in it was held that the loss suffered by assessee on account of fluctuations of foreign exchange as on the date of Balance Sheet is an item of expenditure under section 37(1), allowed the mark to market loss in the case of equity index/stock future as an allowable loss. Revenue is contesting the same. 7. After considering the arguments of the learned D.R., we do not see any reason to differ from the finding of the CIT(A). Assessee is in the business of share broking and as part of business activity has entered into open positions in derivative market. By virtue of the amendment brought to section 43(5) the transactions in respect of trading in derivatives cannot be conside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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