Loading judgment…
No AI summary yet for this case.
Order u/s.254(1)of the Income-tax Act,1961(Act) लेखा सद�य सद�य, राजे�� राजे�� केकेकेके अनुसार अनुसार/ PER Rajendra A.M.- लेखा लेखा लेखा सद�य सद�य राजे�� राजे�� अनुसार अनुसार Challenging the orders,dated 18.03.2009,of CIT(A)-14,Mumbai the assessee has filed the appeals for the above mentioned assessment years(AY.s).Assessee company is engaged in the business of providing cellular services in the region of Mumbai and Kalyan circles. As the issues involved in both the appeals deal with the identical questions,therefore,we are adjudicating them together.
ITA/155/Mum/2010,AY 2007-08: 2.Effective ground of appeal,made by the AO is about payment of Rs.79.90 lakhs by the assessee for the services rendered for the outsourcing.A survey action u/s. 133A of the Act was carried out at the business premises of the assessee on 21.01.2009. During the course of survey it was noticed by the Survey party that the assessee had made payments to various contractors/agencies for supply of manpower,that expenses were also incurred under the head outsource call centre costs. The AO issued a show cause notice in that regard. After considering the submissions of the assessee, he held that the assessee was liable to deduct tax at source u/s. 194J for the payments made under both the heads, that the assessee was wrong in claiming that the contract entered into it for supply of manpower was not in the nature of professional or technical services,that the assessee had deducted tax u/s. 194C and not u/s. 194J of the Act. The AO treated the assessee as 155-157/M/10-Vodafone Essar Ltd. assessee in default (A-I-D)u/s. 201(1) of the Act and raised a demand of Rs.14.97 crores. He also levied interest u/s. 201(1A) of the Act.
3.Aggrieved by the order of the AO,the assessee preferred and appeal before the First Appellate Authority (FAA) and made elaborate submissions before him. It also filed a sample copy of the agreement entered by it with M/s. Lobo Business Pvt. Ltd. (Lobo). It also referred to the provisions of section 194C and relied upon the case of Associated Cement Co. Ltd. (201 ITR 435)and contended that the payment made towards supply of manpower was in the nature of supply of work for carrying work as envisaged u/s. 194C of the Act and that section 194J was not applicable to the facts of the case.
After considering the order passed by the AO u/s. 201 of the Act and the submissions of the assessee, the FAA held that the assessee had entered into an agreement to engage manpower with Lobo for customer contract services,that Lobo had supplied required manpower against which it had made certain payments,that the work assigned to the manpower was to attend Vodafone subscribers, that the duties performed by them could not be classified as professional service or technical service or managerial service, that the work assigned to them was not more than of clerical level, that the assessee had rightly placed reliance on the case of Associated Cement Co. Ltd. (supra), that the payments made by the assessee for supply of manpower fell within the provisions of section 194C and not under section 194 J,that it had rightly deducted tax @ 2.27% for such payments.
4.Before us,the Department Representative (DR) argued that provisions of section 194 were applicable to the payments made by the assessee to Lobo, that the agreement with Lobo clearly establishes that services rendered were of technical nature. He relied upon the cases of Vodafone Cellular Ltd. -AY 2013-14 and 2014-15, Canara Bank (117 ITD 207) and stated services rendered by persons supplied by Lobo were not simple services, that the AO has rightly invoked provisions of section 194J of the Act.
The Authorised Representative (AR)referred to agreement entered into between the assessee and Lobo and treated the scope of work was very limited, that the assessee would not screen the employees,that they were the employees of the service provider.He referred clause 2.2 and clause 6 of the agreement(paper book -page 24),and stated that provisions of Explanation to section 9(1)
155-157/M/10-Vodafone Essar Ltd. were not applicable, that the provisions of section 194C referred to were labour. He referred to the cases of Associated Cement Co.Ltd.(201ITR435); Skycell Communications Ltd. (251ITR 53); Vodafone Essar Limited (135TTJ385) ;Ramakrishna Vedanta Math (ITA 477,478 & 479/Kol/2012); 5.We have heard the rival submissions and perused the material before us.We find that a survey u/s.133A of the Act was conducted at the office premises of the assessee in January, 2009,that the AO had held that assessee was in default for not deducting tax at source at correct rates with regard to payments made to various third-party service providers for supply of manpower and outsourced call centre services,that the assessee has detected tax as per the provisions of section 194C of the Act,that the AO held that it should have deducted tax as envisaged by section 194J. Thus, the narrow issue to be decided by us is applicability of section i.e.194C or 194J for the payments made by the assessee.
5.1.Section 194C deals with payments made to contractors/subcontractors for carrying out any work in pursuance of a contract. The section reads as under: PAYMENTS TO CONTRACTORS AND SUB-CONTRACTORS. 194.(1) Any person responsible for paying any sum to any resident (hereinafter in this section referred to as the contractor) for carrying out any work (including supply of labour for carrying out any work) in pursuance of a contract between the contractor and (a) the Central Government or any State Government ; or (b) any local authority ; or (c) any corporation established by or under a Central, State or Provincial Act ; or (d) any company ; or (e) any co-operative society ; or (f) any authority, constituted in India by or under any law, engaged either for the purpose of dealing with and satisfying the need for housing accommodation or for the purpose of planning, development or improvement of cities, towns and villages, or for both ; or (g) any society registered under the Societies Registration Act, 1860 (21 of 1860) or under any law corresponding to that Act in force in any part of India ; or (h) any trust ; or (i) any university established or incorporated by or under a Central, State or Provincial Act and an institution declared to be a university under section 3 of the University Grants Commission Act, 1956 (3 of 1956) ; or (j) any firm ; or (k) any individual or a Hindu undivided family, $or an association of persons or a body of individuals, whether incorporated or not, other than those falling under any of the preceding clauses whose total sales, gross receipts or turnover from the business or profession carried on by him exceed the monetary limits specified under clause (a) or clause (b) of section 44AB during the financial year immediately preceding the financial year in which such sum is credited or paid to the account of the contractor,
155-157/M/10-Vodafone Essar Ltd. shall, at the time of credit of such sum to the account of the contractor or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to (i) one per cent. in case of advertising, (ii) in any other case two per cent., of such sum as income-tax on income comprised therein : The term ‘work’has been defined in explanation III to section 194C of the Act.It is an inclusive definition.In the case of Associated Cement Co Ltd (201 ITR 435),the Hon’ble Supreme Court has defined the word work as under: “No ambiguity is found in the language employed in the sub-section. What is contained in the sub-section, as appears from its plain reading and analysis, admits of the following formulations: (1) A contract may be entered into between the contractor and any of the organisations specified in the sub-section. (2) Contract in Formulation-1 could not only be for carrying out any work but also for supply of labour for carrying out any work. (3) Any person responsible for paying any sum to a contractor in pursuance of the contract in Formulations 1 and 2 could credit that sum to his account or make its payment to him in any other manner. (4) But, when the person referred to in Formulation-3 either credits the sum referred to therein to the account of or pays it to the contractor, he shall deduct out of that sum an amount equal to two per cent. as income- tax on income comprised therein. Thus, when the percentage amount required to be deducted under the sub-section as income-tax is on the sum credited to the account of or paid to a contractor in pursuance of a contract for carrying out a work or supplying labour for carrying out a work, of any of the organisations specified therein, there is nothing in the sub-section which could make us hold that the contract to carry out a work or the contract to supply labour to carry out a work should be confined to " works contract " as was argued on behalf of the appellant. We see no reason to curtail or to cut down the meaning of the plain words used in the section. " Any work " means any work and not a " works contract ", which has a special connotation in the tax law. Indeed, in the sub-section, the " work " referred to therein expressly includes supply of labour to carry out a work. It is a clear indication of the Legislature that the "work" in the sub-section is not intended to be confined to or restricted to " works contract ". " Work " envisaged in the sub-section, therefore, has a wide import and covers "any work" which one or the other of the organisations specified in the sub- section can get carried out through a contractor under a contract and further it includes obtaining by any of such organisations supply of labour under a contract with a contractor for carrying out its work which would have fallen outside the " work ", but for its specific inclusion in the sub-section.” 5.2.In our opinion,to decide the issue,it is necessary to refer to the agreements entered into by the assessee with the service providers i.e. Lobo and IGPST.Relevant clauses of the agreement dated 12/12/200,entered in to by the assessee with Lobo,has following clauses: “(ii)VEL has appointed Franchisees for its customer centres (“ Vodafone Stores”) located in the different places of Mumbai Telcom circle and wishes to engage the Service Provider for customer contact services 2. SCOPE OF WORK 2.1. The Service Provider will provide its Executives to VEL for attending the Subscribers who visit the Vodafone Stores of VEL. The Service Provider will identify the appropriate Executives through a screening process as prescribed by VEL” them at the Vodafone Stores of VEL. At all
155-157/M/10-Vodafone Essar Ltd. the times, the Executives soda plant will be employees of the Service Provider and shall not claim employment with VEL. In the event of suspension or termination of any Executives by the Service Provider, the Service Provider shall provide VEL with a replacement. 2.2 For the purpose of providing the services as mentioned above, the Service Provider hereby undertakes and confirms That It Shall: (a) instruct its Executives not to misrepresent to the subscribers capitalised that or to any third party any fact or matter in any manner XXXXXX (d) supervise and monitor the performance of the Executives and provide constructive feedback to improve their performance for the services the performance of the concerned educative then the Service Provider shall be liable to provide replacement for such low performing Executive….. 5.3.From the agreement,it is clear that LOBO had agreed to provide manpower for attending to subscribers who would visit a store of the assessee,that Lobo was responsible for identifying appropriate executives through proper screening process, that the executives were employees of Lobo and not of the assessee, that Lobo had to provide a replacement in case of suspension/ termination of any executive, that the assessee was making payment to Lobo At a specified amount,per executive,per shift,per month.We have taken note of the fact that executives supplied by Lobo were generally undergraduates were simple graduates who were traced to act in a particular manner as per the given set of guidelines when attending to a subscriber to a prospective customer of the assessee.In our opinion nil/negligible intellectual element was involved in the task undertaken by the executives and the pro-dominant element was talking to the subscribers of the assessee. At best the services were raided by the executives of Lobo were of a routine nature.It is also a fact that no directive regulating or control for superintendents or admitted the functions were performed by the executives. The management of the assessee was looking after the acquisition and superintendence of the functions of the executives supplied by Lobo.In short, considering the nature of the work carried out by the executives of Lobo, it cannot be held that provisions of section 194J were applicable to the payments made by the assessee to Lobo.Therefore,we are of the opinion that payment made for supply of executives by Lobo would fall within the meaning of supply of labour for carrying out work and accordingly the assessee was liable for deduction of tax at source under section 194C of the Act.
6.Now we would also like to consider the provisions of section 194 J of the Act, wherein the term professional services has been defined in the explanation.As per the explanation profession -al services would mean services rendered by a person in the course of carrying on legal,
155-157/M/10-Vodafone Essar Ltd. medical,meaning or architectural profession or the profession of accountancy or technical consultancy or interior decoration or advertising or such other profession as notified by the Board for the purpose of section 44AA of this section. The term fees for technical services,as used in section 194J,stipulates that the term has the same meaning as used in explanation 2 to section 9(1)(vii)of the Act.In our opinion,the definition clearly indicates that the definition is quite exhaustive.Only the services specifically stated in the definition would be included within the meaning of fees for technical services.In other words,services rendered should be in nature of any managerial technical or consultancy services,for being classified as being towards fee for technical services.
In short,services provided by Lobo were in nature of supply of manpower for carrying out routine work,that the assessee has rightly deducted tax u/s. 194C of the Act.
7.Next ground of appeal is about treating the assessee A-I-D in respect of lower deduction of tax at source on payment made towards outsource call services centres.During the year under appeal, the assessee has made certain payments to outsource call centre providers, that the assessee has deducted tax @2.27% on such payments.The AO, however, held that the payment towards outsource call centres by the assessee were in respect of highly technical services and that the skill staff was provided to run the company call centre, that the assessee was liable to deduct tax at source as per the provisions of section 194J of the Act.
8.Before the FAA,during the appellate proceedings,the assessee furnished copies of agreement entered into between the assessee and Intelnet Global Services Pvt. Ltd. (IGSPL), the assessee compared the services of the call centre executives with the services of a telephone operator who would respond to the calls received at his desk and transferring the records/messages based on instructions given by him. It also relied upon the case of Hon’ble Madras High Court in the case Skycell Communications Ltd. 251 ITR 53.After considering the relevant material the FAA held that the call centre service executives were generally undergraduates/simple graduates, they had the services provided by them were of a routine nature, that the services to be rendered by the assessee were only of customer support services,that same do not involve any technical/ managerial services, that call centre service were more like service of telephone operators, that it would fall under the definition of technical or managerial services as contemplated by the Act.
155-157/M/10-Vodafone Essar Ltd.
Finally,he held payment made by the assessee for call centres under the agreement fell u/s. 194C and not under u/s. 194J of the Act.
9.Before us,the DR argued that executives,supplied by outside agencies,were performing technical job,that assessee was controlling the screening process for selecting the staff, that the services provided by the executives of Lobo required skill of high quality.He referred to the cases of Vodafone Cellular Ltd.(177TTJ105) and Canara Bank (117ITD207). The AR supported the order of the FAA and stated Lobo was supplying the executives,that the executives were doing normal routine job,that the executives were undergraduates/graduates only, that Lobo had overall control over the employees, that they were working as telephone operators, that the agreement with Lobo was pure manpower supply contract, that the recipients of the payments had filed returns of income and paid taxes accordingly.He referred to cases of Executive Engineer (282CTR318); Fino Fintech Foundation (159ITD743); Merchant Shipping Services P.Ltd.(135 TTJ598). He further stated that in the case of Vodafone Cellular Ltd.(supra), work related to front office management, liaison work, vendor payment queries, field activation were provided by the executives, that the job performed by them required technical and management expertise, that facts of the case under consideration are totally different from that of the case relied upon by the DR. 10.We have also gone through the agreement entered into by the assessee with IGSPT.As per the agreement(clause 2.1),the call Centre services involved merely providing customer support services on behalf of the assessee and did not involve provision of any professional/ managerial/ technical expertise/services to the assessee.The call Centre service executives were also generally undergraduates were simple graduates who would act in a particular manner as per the given set of guidelines when attending to a subscriber.Therefore,in our opinion,payments towards outsourced call centre services would also liable for deduction tax at source under section 194C and not under section 194J of the Act.Here,we would like to refer to the case of Skycell Commutation Ltd. (251 ITR 53).In the matter,the Hon’ble Madras High Court has held as under: “Fees for technical services is not defined in section 194J of the Income-tax Act, 1961. Explanation (b) in that section provides that that expression shall have the same meaning as in Explanation 2 to clause (vii) of sub-section (1) of section 9 . This definition shows that consideration paid for the rendering of any managerial, technical or consultancy service, as also the consideration paid for the provision of services of technical or other personnel, would be 7
155-157/M/10-Vodafone Essar Ltd. regarded as fees paid for “technical service”. The definition excludes from its ambit consideration paid for construction, assembly, or mining or like project undertaken by the recipient, as also consideration which would cons-titute income of the recipient chargeable under the head “Salaries”. Thus while stating that “technical service” would include managerial and consultancy services, the Legislature has not set out with precision as to wha t would constitute “technical” service to render it “technical service”. Having regard to the fact that the term is to required to be understood in the context in which it is used, “fees for technical services” could only be meant to cover such things technical as are capable of being provided by way of service for a fee. The popular meaning associated with “technical” is “involving or concerning app-lied and industrial science”. “Technical service” referred to in section 9(1) contemplates rendering of a “service” to the payer of the fee. Mere collection of a fee for use of a standard facility provided to all those willing to pay for it does not amount to the fee having been received for technical services. When a person decides to subscribe to a cellular telephone service in order to have the facility of being able to communicate with others, he does not contract to receive a technical service. What he does agree to is to pay for the use of the airtime for which he pays a charge. The fact that the telephone service provi-der has installed sophisticated technical equipment in the exchange to ensure connectivity to its subscriber, does not on that score, make it provision of a tech-nical service to the subscriber. What applies to cellular mobile telephone service is also applicable in fixed telephone service. Neither service can be regarded as “technical service” for the purpose of section 194J . In the modern day world, almost every facet of one’s life is linked to science and technology inasmuch as numerous things used or relied upon in every day life is the result of scientific and technological development. Every instrument or gadget that is used to make life easier is the result of scientific invention or development and involves the use of technology. On that score, every provider of every instrument or facility used by a person cannot be regarded as providing technical service. When a person hires a taxi to move from one place to another, he uses a product of science and technology, viz., an automobile. It cannot on that ground be said that the taxi driver who controls the vehicle, and monitors its movement is rendering a technical service to the person who uses the automobile. Similarly, when a person travels by train or in an aeroplane, it cannot be said that the railways or airlines is rendering a technical service to the passenger and, therefore, the passenger is under an obligation to deduct tax at source on the payments made to the railway or the airline for having used it for travelling from one destination to another. When a person travels by bus, it cannot be said that the undertaking which owns the bus service is rendering technical service to the passenger and, therefore, the passenger must deduct tax at source on the payment made to the bus service provider, for having used the bus. The electricity supplied to a consumer cannot, on the ground that generators are used to generate electricity, transmission lines to carry the power, transformers to regulate the flow of current, meters to measure the consumption, be regarded as amounting to provision of technical services to the consumer resulting in the consumer having to deduct tax at source on the payment made for the power consumed and remit the same to the Revenue. Satellite television has become ubiquitous, and is spreading its area and coverage, and covers millions of homes. When a person receives such transmission of television signals through the cable provided by the cable operator, it cannot be said that the home owner who has such a cable connection is receiving a technical service for which he is required to deduct tax at source on the payments made to the cable operator. Installation and operation of sophisticated equipments with a view to earn income by allowing customers to avail of the benefit of the user of such equipment does not result in the provision of technical service to the customer for a fee. When a person decides to subscribe to a cellular telephone service in order to have the facility of being able to communicate with others, he does not contract to receive a technical service. What 8
155-157/M/10-Vodafone Essar Ltd. he does agree to is to pay for the use of the airtime for which he pays a charge. The fact that the telephone service provider has installed sophisticated technical equipment in the exchange to ensure connectivity to its subscriber, does not on that score, make it provision of a technical service to the subscriber. The subscriber is not concerned with the complexity of the equipment installed in the exchange, or the location of the base station. All that he wants is the facility of using the telephone when he wishes to, and being able to get connected to the person at the number to which he desires to be connected. What applies to cellular mobile telephone is also applicable in fixed telephone service. Neither service can be regarded as “technical service” for the purpose of section 194J of the Act. The use of the internet and the world wide web is increasing by leaps and bounds, and there are hundreds of thousands, if not millions, of subscribers to that facility. The internet is very much a product of technology, and without the sophisticated equipment installed by the internet service providers and the use of the telephone fixed or mobile through which the connection is established, the service cannot be provided. However, on that score, every subscriber of the internet service provider cannot be regarded as having entered into a contract for availing of technical services from the provider of the internet service, and such subscriber regarded as being obliged to deduct tax at source on the payment made to the internet service provider. At the time the Income-tax Act was enacted in the year 1961, as also at the time when Explanation 2 to section 9(1)(vii) was introduced by the Finance (No. 2) Act, with effect from April 1, 1977, the products of technology had not been in such wide use as they are today. Any construction of the provisions of the Act must be in the background of the realities of day- to-day life in which the products of technology play an important role in making life smoother and more convenient. Section 194J, as also Explanation 2 in section 9(1)(vii) of the Act were not intended to cover the charges paid by the average house-holder or consumer for utilising the products of modern technology, such as, use of the telephone fixed or mobile, the cable T. V., the internet, the automobile, the railway, the aeroplane, consumption of electrical energy, etc. Such facilities which when used by individuals are not capable of being regarded as technical service cannot become so when used by firms and companies.” Considering the above, we are of the opinion that provisions of section 194J were not applicable to both of the payment made by the asseessee,during the year under consideration,to the service providers.
11.We find that the assessee,during the assessment proceedings, had furnished the declarations obtained from various service providers regarding payment of taxes by them for the amounts received from it along with the details of the PAN numbers of the service providers including Lobo and IGSPT (pages 81 – 86 of the paper book).As per the provisions of section 202 of the Act deduction of tax at source is only one of the modes of recovery of tax.In other words, the purpose of TSD provisions is only to ensure early recovery of tax. In the case of Hindustan Coca-Cola Beverages Private Ltd.,(293 ITR 226)the Hon’ble Supreme Court has dealt with the issue of deduction of tax by the deductee with regard to payments received from the deductor. The Hon’ble court had held that where the didactic, recipient of income pays tax on the amount received from the deductor,the Department once again cannot recover tax from the deductor on the same income by treating it to be an A-I-D.Instruction No.75/201/95-IT (B),dated 29/01/1997, 9
155-157/M/10-Vodafone Essar Ltd. issued by the CBDT,provides that no demand visualised under section 201 (1) of the Act should be enforced after the text deductor had satisfied the officer in charge of TDS that taxes had been paid by the other party.Considering the above facts,we are of the opinion that the assessee cannot be held to be an A-I-D,in view of the fact that service providers, to whom the payments were made by it,had already paid appropriate taxes by way of advance tax /self-assessment tax.
In our,opinion,the cases relied upon by the DR of no help,as the facts of the case under appeal are different from the facts of those cases.In both cases the tribunal has given a finding of fact that duties performed by the employees were of technical nature.But,in the matter before us,it is clear that the executives were performing routine jobs.So,considering the facts and circumstan - ces of the matter,we hold that the order of the FAA does not suffer from any legal or factual infirmity.Upholding the same,we decide first effective ground of appeal stands dismissed.
12.Next ground deals with levy of interest u/s.201(1A)of the Act.We have already held that the assessee cannot be treated an A-I-D for the payments made by it to two service providers. So, the interest levied has to be deleted.Second ground of appeal is decided against the AO ITA.s/156-157/Mum/2010,AY.08-09 & 09-10 : 13.Following our order for the AY. 2007-08,we allow appeals for both the AY.s,as the facts of all the three cases are similar.Effective grounds of appeal for the AY.s 2008-09 and 2009-10 are decided against the AO. As a result,all the appeals filed by the AO stand dismissed. फलतः िनधा�रती-अिधकारी �ारा दािखल क� गई अपील� नामंजूर क� जाती है Order pronounced in the open court on 2nd August , 2017. आदेश क� घोषणा खुले �यायालय म� दनांक 02 अग!त, 2017 को क� गई । Sd/- Sd/- (शि�जीत शि�जीत डेडेडेडे / Saktijit Dey) (राजे�� / Rajendra) शि�जीत शि�जीत �याियक सद�य / JUDICIAL MEMBER लेखा लेखा सद�य सद�य / ACCOUNTANT MEMBER लेखा लेखा सद�य सद�य मुंबई Mumbai; �दनांक/Dated : 02.08.2017. Jv.Sr.PS. आदेश क� क� �ितिलिप �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order forwarded to : आदेश आदेश आदेश क� क� �ितिलिप �ितिलिप अ�ेिषत अ�ेिषत 1.Appellant /अपीलाथ�
2. Respondent /��यथ� 3.The concerned CIT(A)/संब� अपीलीय आयकर आयु�, 4.The concerned CIT /संब� आयकर आयु� 5.DR “ ” Bench, ITAT, Mumbai /िवभागीय �ितिनिध, खंडपीठ,आ.अ.�याया.मुंबई 6.Guard File/गाड! फाईल 10
155-157/M/10-Vodafone Essar Ltd.