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TMI Blog2020 (6) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... aanta ZimikVashai, CITDR For the Respondent : Shri KetanVed, A.R., Sr. D.R. ORDER PER Ms. MADHUMITA ROY - JM: The instant appeal at the instance of the Revenue is directed against the order dated 14.08.2018passed by the Commissioner of Income Tax (Appeals) 60, Mumbai arising out of the order dated 26.03.2013passed under section 201(1)/201(1A) r.w.s. 254 of the Income Tax Act, 1961 (hereinafter referred as to the Act ) by the Income Tax Officer (OSD)(TDS) 3(1), Mumbai for Assessment Year 2007-08. 2. The short point involved in this particular appeal is that as to whether the interconnection usages charges (IUC) is in the nature of fees for technical services and whether the assessee is liable for TDS under s.194J of the Act. At the time of hearing the instant appeal, Learned counsel appearing for the assessee submitted before us that the issue is squarely covered by and under judgment passed by the Ahmedabad Tribunal in case of ACIT vs. M/s. BhartiAirtel Ltd. in ITA Nos. 2195 2196/Ahd/2016AYs. 2008-09 2009-10 order dated 28.02.2019 ; a copy of the said order has also been provided before us by the Learned AR. He therefore prays for similar relief before us. 3. The Learned DR, howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CTR 436 (Kar) wherein the Hon'ble High Court after referring to the technical expertise of C-Dot on 29/09.2010 in respect of IUC Ltd., and the technical experts reexamined the matter and opined that the roaming services does not require any human intervention and it operates automatically, wherein at paras 7 to 12 of the order it is held as under: We have heard Mr. K.V. Aravind, learned counsel appearing for the appellants - Revenue in all the appeals. The learned Counsel relied two decisions of the Apex Court for canvassing the contention that the roaming charges paid by the assessee to the other service provider can be said as 'technical services'; one was the decision of the Apex Court in the case of Commissioner of Income-tax, Delhi vs. Bharti Cellular Limited, reported at [2010] 193 Taxman 97 (SC); and the another was the decision of the Apex Court in the case of Commissioner of Income-tax-A, Mumbai vs. Kotak Securities Limited, reported at [2016] 67 taxmann.com 356 (SC) and it was submitted that if the observations made by the Apex Court in the above referred decisions are considered, the decision of the Tribunal would be unsustainable and consequently, the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra, whether use of roaming service by one mobile service provider Company from another mobile service provider Company, can be termed as technical services or not, is essentially a question of fact. The Tribunal, after considering all the material produced before it, has found that roaming process between participating entities is fully automatic and does not require any human intervention. Coupled with the aspect that the tribunal has relied upon the decision of the Delhi High Court for taking support of its view. 13. In our view, the Tribunal is ultimately fact finding authority and has held that the roaming process between participating company cannot he termed as technical services and, therefore, no TDS was deductible. We do not find that any error has been committed by the Tribunal in reaching to the aforesaid conclusion. Apart from the above, the questions are already covered by the above referred decision of the Delhi High Court, which has been considered by the Tribunal in the impugned decision. 14. Thus, following the decision of Hon'ble Jurisdictional High Court we hold that the process involved in the roaming connectivity does not involve any human intervention and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view in favour of the assessee. While doing so, the judgment passed by the Hon'ble Jurisdictional High Court in the matter of Vodafone Essar Gujarat Ltd-vs-ACIT(TDS) was also taken into consideration. The relevant portion of the said judgment is as follows: 13. In our view, the Tribunal is ultimately fact finding authority and has held that the roaming process between participating company cannot be termed as technical services and, therefore, no TDS was deductable. We do not find that any error has been committed by the Tribunal in reaching to the aforesaid conclusion. Apart from the above, the questions are already covered by the above referred decision of the Delhi High Court, which has been considered by the Tribunal in the impugned decision. We find from the order passed by the Learned CIT(A) that all the judgments as discussed hereinabove were considered by the Learned CIT(A) while allowing the claim of the applicant in deleting the demand of ₹ 71,30,810/- ₹ 38,07,820/- raised u/s 194J for A.Y. 2008-09 2009-10 respectively with the conclusion that the roaming charges paid by the appellant to other telecom companies are not covered under 'fee for technical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch date shall not ordinarily (emphasis supplied by us now) be a day beyond a further period of 30 days and due notice of the day so fixed shall be given on the notice board. 8. Quite clearly, ordinarily the order on an appeal should be pronounced by the bench within no more than 90 days from the date of concluding the hearing. It is, however, important to note that the expression ordinarily has been used in the said rule itself. This rule was inserted as a result of directions of Hon ble jurisdictional High Court in the case of Shivsagar Veg Restaurant Vs ACIT [(2009) 317 ITR 433 (Bom)] wherein Their Lordships had, inter alia, directed that We, therefore, direct the President of the Appellate Tribunal to frame and lay down the guidelines in the similar lines as are laid down by the Apex Court in the case of Anil Rai (supra) and to issue appropriate administrative directions to all the Benches of the Tribunal in that behalf. We hope and trust that suitable guidelines shall be framed and issued by the President of the Appellate Tribunal within shortest reasonable time and followed strictly by all the Benches of the Tribunal. In the meanwhile (emphasis, by underlining, supplied by us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that arrangement continued by an order dated 26th March 2020 till 30th April 2020 shall continue further till 15th June 2020 . It has been an unprecedented situation not only in India but all over the world. Government of India has, vide notification dated 19th February 2020, taken the stand that, the corona virus should be considered a case of natural calamity and FMC ( i.e. force majeure clause) may be invoked, wherever considered appropriate, following the due procedure . The term force majeure has been defined in Black s Law Dictionary, as an event or effect that can be neither anticipated nor controlled When such is the position, and it is officially so notified by the Government of India and the Covid-19 epidemic has been notified as a disaster under the National Disaster Management Act, 2005, and also in the light of the discussions above, the period during which lockdown was in force can be anything but an ordinary period. 10. In the light of the above discussions, we are of the considered view that rather than taking a pedantic view of the rule requiring pronouncement of orders within 90 days, disregarding the important fact that the entire country was in lockdown, we sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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