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TMI Blog2019 (1) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. In view of this we set aside the ground number 2 of the appeal to the file of the CIT(A) to decide the above argument of the assessee whether the order passed by the ld AO is barred by limitation or not. - ITA No. 412/Del/2015 - - - Dated:- 23-1-2019 - SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER For The Assessee : Shri Sparsh Bhargava, Adv And Shri Yashwant Singh, Adv For The Revenue : Shri Sanjeet Singh, CIT DR ORDER PER PRASHANT MAHARISHI, A. M. 1. This is an appeal filed by the assessee against the order of the ld CIT(A)-IX, New Delhi dated 13.11.2014 for the Assessment Year 2007-08. 2. The assessee has raised the following grounds of appeal:- 1. Ground No. 1 - The order passed by the TDS officer is bad in law 1.1. On the facts and in the circumstances of the case and in law, the CIT(A) has erred in not holding that the order passed by the TDS officer is badin- law. 1.2. On the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in upholding the Appellant as assessee in default in view of the provisions of section 201(1) read with section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d CIT(A) has erred in not appreciating that proceedings which are already barred by limitation cannot be revived by a subsequent enactment in law. 2.5. On the facts and circumstances of the case and in law, without prejudice to the above the learned CIT(A) has erred in not appreciating that sub-section 3 of section 201 was inserted by Finance (No. 2) Act 2009 w.e.f. April 1, 2010, and therefore any action prior to April 1, 2010 cannot be governed by the section but may be governed by the law enunciated by the Hon ble jurisdictional High Court in NHK Japan Broadcasting Corporation (305 ITR 137). 2.6. On the facts and circumstances of the case and in law, the learned CIT(A) has erred in not appreciating that the TDS officer has incorrectly interpreted the cut off date as provided in proviso to section 201(3) of the Act as the cut off date for both initiation of proceedings and completion of such proceedings thereby implying that revenue has jurisdiction to re-assess an assessee even for a year as far back as 1961-62. 2.7. On the facts and circumstances of the case and in law, the learned CIT(A) has erred in not appreciating that a proviso is added to an enactment to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances of the case and in law, the learned CIT(A) has erred in upholding the order of the TDS officer that the Appellant was required to deduct tax under section 194J of the Act on the roaming charges paid/payable by the Appellant to other telecom operators, during the subject financial year. 4.2. On the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in not appreciating the fact that no human intervention, which is sine qua non for a service to qualify as technical service, is involved in provision roaming services and therefore, roaming charges cannot be construed as Fee for Technical Services for the purposes of the Act. 4.3. On the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in not appreciating that even as per the statement of technical experts recorded in the context of interconnect services in case of the Appellant itself for AY 2003-04, the carriage of calls is an automatic activity and human intervention, if any, is required only for inter-connect set-up, capacity enhancement, monitoring, maintenance, fault identification, repair, etc. 4.4. On the facts and in the circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , who acted as agents of the assessee were entitled to commission, on payment of such commission tax u/s 194H was deducted. It was further stated that for prepaid distributors the sale price was charged from principal to agent w.e.f. January 2007 and therefore, the question of TDS of such discount amounting to ₹ 128351086/- does not arise. 4. The ld AO rejected the contention of the assessee since the issue is covered by the decision of the Hon ble Jurisdictional High Court in the case of Idea Cellular 325 ITR 148. Therefore, the ld AO held that assessee is an Assessee in default and therefore, worked out TDS liability along with interest of ₹ 10810220/- with respect to commission paid to distributors. The ld AO further noted that relevant tax has already been paid by recipient as argued by the assessee, is also not applicable, as the assessee is to satisfy the AO by way of the certificate from the auditor. No such certificate was filed. Further, with respect to the roaming charges to other operators was also held as fees for technical services on which the assessee has not deducted tax at source and the liability of TDS and interest thereon was at ₹ 6169 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 2009 for first three quarters and 31 March 2010 for quarter no four of F Y 2006 07. Apparently, the order is made by the ld AO on 28.03.2011. Further section 201(3) also has proviso where the time limit for the financial year commencing of year before first day April 2007 is up to 31 March 2011. Apparently, the order of the ld AO is made on 28.03.2011. The assessee has also submitted Circular No. 5/2010, which provides that such proviso; apply only in those cases where TDS proceedings are pending before the tax authorities. It is also a fact that this argument raised before the ld CIT(A) have not been adjudicated and it is also not known whether any proceeding are pending before the tax authorities for applicability of proviso to section 201(3) of the Act. In view of this we set aside the ground number 2 of the appeal to the file of the ld CIT(A) to decide the above argument of the assessee whether the order passed by the ld AO is barred by limitation or not. In view of this ground, No. 2 of the appeal of the assessee is allowed with above direction. In view of this ground, No. 2 of the appeal of the assessee is allowed with above direction. 11. In view of our decision in gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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