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TMI Blog2019 (12) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... e - the order of the Ld. CIT(Appeals) set aside. Appeal allowed - decided in favor of assessee. - ITA No.1255/PUN/2017, ITA No. 1257/PUN/2017 - - - Dated:- 5-12-2019 - Shri R.S. Syal, VP And Shri Partha Sarathi Chaudhury, JM For the Assessee : Shri Nikhil Pathak For the Revenue : Shri T. Vijaya Bhaskar Reddy ORDER PER PARTHA SARATHI CHAUDHURY, JM : These two appeals preferred by the assessee emanates from the orders of the Ld. CIT(Appeals)-7, Pune dated 27.03.2017 for the assessment year 2009-10 as per the grounds of appeal on record. 2. At the very outset, the Ld. AR of the assessee submitted that facts and circumstances in both these appeals are absolutely similar and the issues raised in both these appeals are covered by the decision of the Pune Bench of the Tribunal in assessee‟s own case. 3. These cases were therefore heard together. Since facts common and issues are similar, these cases are being disposed of vide this consolidated order. For the sake of convenience, we would first take up ITA No.1255/PUN/2017 for adjudication. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The Ld. CIT(Appeals) recorded his decision from Para 6.3 onwards of his order. That before the Ld. CIT(Appeals) a detailed written submission was filed by the assessee which is on record. It is also pertinent to note that the assessee preferred appeal against the order u/s.201 201(1A) for assessment year 2007-08 and 2008-09 respectively. The CIT(A)-13, Pune dismissed the appeal of the assessee vide order dated 30.03.2015. The Ld. CIT(A) in that case held the payments made for acquiring software licenses are taxable under Income Tax Act as well as DTAA. The Ld. CIT(A) also held that payment made for use of the leased line are taxable and the assessee ought to have deducted the tax at sources on payments made for the use of leased line charges as per Income Tax Act as well as DTAA. Therefore, in the present case, the Ld. CIT(Appeals) upheld the order of Assessing Officer in invoking the Section 40(a)(i) of the Act for non deduction of TDS. 6. The Ld. AR of the assessee appraised the Bench that this issue is covered in favour of the assessee by the decision of the Pune Bench of the Tribunal in assessee own case in ITA No.626/PUN/2017 for the assessment year 2009- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, there was no requirement to deduct tax at source out of such payments. In the said breakup, the assessee has also pointed out that software charges paid were to the tune of ₹ 4,22,73,399/-, which we have already held in the paras hereinabove, not liable for deduction of tax at source. 101. Applying the said propositions to the facts of present case, we hold that the assessee has not defaulted in non deduction of tax at source out of payments made for lease line charges. We also uphold the alternate plea of assessee that the said lease line charges are at best reimbursement of expenses and hence, not liable for deduction of tax at source. The grounds of appeal No.4 to 5 are allowed. . 106. In the facts before Ahmedabad Bench of Tribunal, where services rendered by service provider were general in nature and which did not involve any transfer of technology, it was held that where the onus was on Revenue authorities to demonstrate that these services too involve any transfer of technology and since that onus was not discharged, then the payment was not covered by the definition of Fees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee‟s own case for A.Ys. 2007-08 and 2008-09 (supra) has been set aside / stayed by higher Judicial Forum. Revenue has also not pointed out any distinguishing feature in the facts of the present case and in the case of assessee‟s own case in earlier years. We therefore, relying on the decision of the Tribunal in assessee‟s own case in earlier years (supra) and for similar reasons hold that assessee has not defaulted in deduction of TDS on the impugned payments made. We therefore set aside the order of AO passed u/s 201(1) / 201(1A) of the Act. Thus, the grounds of the assessee are allowed. 7. We have perused the case records and heard the rival contentions. The Ld. DR could not bring any material or relevant documents on records to demonstrate that the order of the Tribunal in assessee‟s own case has been set aside or stayed by the Higher Judicial Forum. The Revenue has not pointed out any distinguishing feature in the facts of the case with that of the assessee‟s own case in earlier year. Therefore, respectfully following our findings in the earlier year and for similar reasons, we hold that the assessee has not defaulted in d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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