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TMI Blog2018 (10) TMI 1359X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi Vs. Bharti Cellular Limited (2010 (8) TMI 332 - SUPREME COURT OF INDIA ) - ITA No. 401 of 2015 (O&M) - - - Dated:- 9-10-2018 - MR AJAY KUMAR MITTAL, AND MR AVNEESH JHINGAN, JJ. For The Appellant : Mr. Yogesh Putney, Senior Standing counsel For The Respondent : Mr. K.L. Goyal, Senior Advocate with Mr. Umang Goyal, Advocate ORDER AVNEESH JHINGAL, J. The revenue has filed the present appeal under Section 260A of the Income Tax Act, 1961 (for brevity 'the Act') against the order dated 15.07.2015 of the Income Tax Appellate Tribunal, Division Bench, Chandigarh (for short 'the Tribunal') passed in ITA No. 452/CHD/2014. The assessment year involved is 2008-09. 2. Notice of motion was is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission charges called 'wheeling charges' and State Load Dispatch Centre charges (SLDC). According to the Assessing officer, the assessee should have deducted TDS on wheeling charges and SLDC paid by it to HVPNL. Since the assessee had not deducted TDS from the payments made by it to HVPNL, the Assessing Officer passed order dated 10.12.2010; dis-allowing expenses claimed by the respondent-assessee for wheeling and SLDC charges paid to HVPNL for the assessment year 2008-09. Aggrieved of the assessment order, the respondent filed appeal before the Commissioner of Income Tax (Appeals) [CIT(A)]. Vide order dated 14.02.2014 the appeal was partly allowed but dis-allowance of the expenses claimed by respondent on wheeling and SLDC charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice had recorded as under:- 7. The problem which arises in these cases is that there is no expert evidence from the side of the Department to show how human intervention takes place, particularly, during the process when calls take place, let us say, from Delhi to Nainital and vice versa. If, let us say, BSNL has no network in Nainital whereas it has a network in Delhi, the Interconnect Agreement enables M/s. Bharti Cellular Limited to access the network of BSNL in Nainital and the same situation can arise vice versa in a given case. During the traffic of such calls whether there is any manual intervention, is one of the points which requires expert evidence. Similarly, on what basis is the capacity of each service provider fixe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the simple reason that the question of human intervention was never raised by the Department before the CIT. It was not raised even before the Tribunal; it is not raised even in these civil appeals. However, keeping in mind the larger interest and the ramification of the issues, which is likely to recur, particularly, in matters of contracts between Indian Companies and Multinational Corporations, we are of the view that the cases herein are required to be remitted to the Assessing Officer (TDS). 10. Accordingly, we are directing the Assessing Officer (TDS) in each of these cases to examine a technical expert from the side of the Department and to decide the matter within a period of four months. Such expert(s) will be examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the assessee. Since the Tribunal had followed its order of the Jaipur Bench and in such circumstances, it cannot be said that any independent finding has been recorded regarding element of income in this case, therefore, it shall be open for the Assessing Officer to consider the element of income in the transaction as well before passing fresh order in accordance with law. 6. Considering decisions referred above, 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 ITA No. 652 of 2010. 7. The substantial question of law is decided accordingly. The appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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