ITO, WD-3(1), TDS, KOLKATA, KOLKATA vs. M/S RCIL, (EASTERN REGION), KOLKATA, KOLKATA

That under the facts & circumstances of the caser the CIT(A) has erred in h9olding that the charges paid to other service providers as Interconnectivity Usage Charges (IUC) does not require any facility involving no human intervention. The interpretation of the CIT(A) is erroneous as the payment comes directly as defined as Royalty as clarified through Explanation (6) below Section 9(1)(vi). Moreover, he has not considered the clarifiatory letter issued by CBDT to M/s BSNL wherein it was clarified that ‘port charges / interconnectivity charge’ comes under provision of TDS u/s 194J.”

Both learned representatives take to CIT(A) detailed discussion qua the three issues of last mile charges, bandwidth for protection payment and interconnectivity usage charges paid; respectively, reading as under:- “4. Last Mile Charges - Bandwidth-End connectivity through optical fibre from Railtel's POP to Customers Premises: In the submission dated 05.011.2016 there is not much details about what exactly is the service or use for which last mile charges have been paid. Even the AO's order is not very clear on the exact nature of the facility for which the said last mile charge was paid. From the details appearing in the AO's order and the submission it appears that it is for use or hire of one or more optical fibres installed between the customers' premises and the Railtel's POP. The said connection is used to carry Railtel Data Traffic to and from the customers' premises. This is a kind of standard facility which may be expected to have been repeated with various other customers and owners of optical fibre cable. As this is standard facility or service this cannot be termed as technical service in the meaning of section 9(1)(vii) explanation-2 as held in the case of Siemens Ltd. v. CIT(A), (in 10 dated 12.2.2013). The appellant has also relied on the cases of Vodafone East Limited vs. ACIT (in ITA No.1864/Ko1/2012 dated 15.9.2016) and Asia Satellite Telecommunications Co. Ltd. v. DIT [(2011) 323 ITR 340 (Delhi HC)]. In the former case of the Kolkata Tribunal uses of transmission lines for the purpose of roaming was not held hit by section 194C or Section 1941 or Sec.194J of the Act. In the latter case lease of transponder capacity of satellites for the transport of data through satellite was not held as the services taxable as royalty. Later in the course of drafting of order a letter dated 22.1.2016 was received from the appellant on Last Mile Charge, Bandwidth for protection and interconnectivity charges. Its content on Last Mile Charge is produced as under: Last Mile charge:"The assessee had explained the nature of this payment vide its letter dated s" January,2016 as under: It is basically hiring of one pair of Optical Dark Fiber to provide last mile end connectivity at customer's premises from Railtel's ITA No.700-701/Kol/16 &ITA No.734-735/Kol/16 AYs 10-11& 11-12 ITO Wd-3(1) (TDS) Kol Vs. M/s RCIL Page 4 POP to customers POP through which RaiItel carries its own Bandwidth/Internet bandwidth. It is hired as and when required basis and once the services is discontinued, the hired fibre is also surrendered. We have now discussed this issue with our technical department and their further explanation is as under: i) Last Mile Charges refer for hiring the dark fiber within optic fiber cable. ii) The possession of the dark fiber within optic fiber cable in such cases is with Railtel. iii) The ownership of the dark fiber within optic fiber cable continues with the third party, i.e. the vendor from whom Railtel has hired the cable. iv) The dark fiber within optic fiber cable so hired is exclusively used by Railtel. v) The purpose of hiring the dark fiber(within optic fiber) cable is to end use carrying traffic from point(A) to point(b). Point A - Railtel POP Point B - Customer POP vi) The reason for hiring of the dark fiber (within optic fiber cable) is that the customers POP are very scattered, the quantum is variable and laying exclusive OFC is commercially NOT Viable. Timeline and delivery is also a constraint. In my view the optical fibre, if in the possession of the appellant during hire, can be said to be hit only by section 194I, which prescribes rate of 2% in cases of plant and machineries. The appellant is noted to have applied 2% though u/s.194C. Thus the tax amount seems to have been collected in correct amount though the correct section may be section 1941. No loss to revenue seems to have been caused. As the facility or the service involved in last mile connectivity is of standard nature section 194J cannot be said to be applicable as per law prevailing prior to Finance Act, 2012. As to the question whether the Finance Act 2012 changes the definition of the 'process' for the purpose of section 9(1)(vi) explanation-2 the appellant has relied on the following decisions wherein it has been held that the retrospective amendment cannot bring into existence TDS liability as on the time of payment or credit the deductor was not required to deduct TDS. In other words tax withholding liability is held as unchangeable with retrospective effect because a tax deductor cannot be expected to have clairvoyance knowing that the law will change in future. In other words tax that is deductible is dependent on the law as it existed at the point of time when payments or credits were made. The cases relied upon by the appellant are as under: i) Bombay High Court in the case of Western Coal Fields dated 01.10.2010 ii) DCIT v. Virola International (ITA!, Agra) 42 Taxmann.com 286. iii) ITAT Coachin Bench Kerala Vision Limited v ACIT, 46 taxmann.com 50, iv) RajasreeMotors(P) Ltd v. ACIT, 61 Taxmann. Cam 270(ITAT Cochin). This ground, therefore, has to be allowed.

Interconnectivity usage charges (IUC): The definition provided by the appellant in its said submission on Pag- 13 is as under: ‘These are the charges payable by a service provider, whose subscriber originates the call, to the service provider in whose network the call terminates. In the calling party pays (CPP) regime, only the calling party pays for the call and the calling party’s service provider usually pays termination charge to the called party’s service provider, to cover the interconnection/network usage cost.’ The issue is covered by the case of Vodafone East Limited vs ACIT (in ITA No.1864/Kol/2012 dated 15.9.2015) which has been decided for roaming charge consisting of interconnectivity and use of transmission lines. Interconnection / Network usage charge is standard facility involving no human intervention. As discussed above, amendment by the Finance Act, 22012 will have no effect in the years under consideration, which precede the coming into effect of the Finance Act 2012 and liability to tax (TDS) cannot be made retrospective. As it has been decided, only when the amounts are paid or credited, the decision to deduct has to be taken as per law then being in effect. This ground is required to be allowed.”

We have given our thoughtful consideration to rival submissions. Learned Departmental Representative vehemently contends during the course of hearing that the assesssee’s impugned payments pertaining to the first issue of last mile charges are liable for TDS deduction as fee for professional / technical services rather than rent u/s 194I of the Act. It quotes Section 9(1)(vi) Explanation -2 (iva) of the Act defining royalty to be any consideration for the use or right to use any industrial, commercial or scientific equipment etc. We find no substance in Revenue’s instant argument. There is no denial of the basic fact that the assessee has made the impugned last mile payment in lieu of availing a standard facility of hiring of one pair of optical dark fibre to provide last mile end connectivity. It uses its own internet bandwidth in this entire exercise of involving only hiring of about optical as dark fibre. The -701/Kol/16 &ITA No.734-735/Kol/16 AYs 10-11& 11-12 ITO Wd-3(1) (TDS) Kol Vs. M/s RCIL Page 7 Revenue fails to indicate that the said hiring creates any kind of right being vested in assessee’s favour regarding control of the equipment hardware. A coordinate bench in M/s Standard Chartered Bank vs. CIT ITA 3824/Mum/2006 holds in similar circumstances that a payment made for availing equipment facilities of standard nature without any control on the corresponding hardware does not amount to royalty u/s 9(1)(vi) Explanation-2 clause (iva) of the Act. The CIT(A) has already concluded that the assessee had deducted its TDS at equivalent rate (supra). We further make it clear that the CIT(A)’s above extracted findings also take into consideration various other case law (supra) to conclude that the impugned payments are not in the nature of royalty as insisted by the Assessing Officer. All these findings on facts have gone unrebutted from the Revenue’s side.

Same is the outcome of Revenue’s latter quantum appeal for assessment year 2011-12 as it has come on record that all there substantive grounds raised herein are common to those in preceding assessment year decided in assessee’s favour in foregoing discussion.