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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER 2016
PRESENT
THE HON’BLE MR.JUSTICE JAYANT PATEL AND THE HON’BLE MR.JUSTICE B MANOHAR REVIEW PETITION NO.400/2014 IN ITA NO.445/2013 BETWEEN:
THE COMMISSIONER OF INCOME-TAX-TDS NO.59, HMT BHAVAN 4TH FLOOR, BELLARY ROAD GANGANAGAR BANGALORE
THE DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE-18(1) NO.59, HMT BHAVAN 4TH FLOOR, BELLARY ROAD GANGANAGAR BANGALORE-560032
...PETITIONERS
(BY SRI.K V ARAVIND, ADVOCATE)
2 AND:
M/S MARKET PROBE INDIA PVT LTD NO.4123, 6TH CROSS ROAD 19TH MAIN, HAL II STAGE BANGALORE 560 008
...RESPONDENT (BY SRI.SEETHARAM, ADVOCATE)
THIS PETITION IS FILED UNDER ORDER 47 RULE 1 OF CPC, PRAYING TO REVIEW THE ORDER DATED:01/04/2014 PASSED IN ITA NO. 445/2013, ON THE FILE OF THE HON'BLE HIGH COURT OF KARNATAKA, BANGALORE.
THIS PETITION COMING ON FOR ORDERS THIS DAY, JAYANT PATEL J., PASSED THE FOLLOWING:
ORDER
The Review Petition has been preferred by the Revenue contending inter alia that in the earlier decision of this Court dated 1st of April 2014 (ITA 425/13 & allied matters) this Court did not examine the aspects as to whether services so rendered would fall in the category of technical services or not and the only discussion is for professional services and therefore,
3 since the said aspect is not considered for examination as to whether such would fall under technical services or not, and consequently as to whether the finding of the Tribunal can be termed as perverse on that basis or not, earlier order passed in the main appeal be reviewed and the matter may be considered in this regard.
We have heard Sri K.V.Aravind, learned counsel for the petitioners and Sri Seetharam, learned counsel for respondent.
Prima facie, at the first blush, one may feel that the contention deserves consideration but, on further scrutiny it appears that the revenue from the very beginning treated the services conjointly namely as fees for professional services and fees for technical services. Said aspect is apparent from the grounds stated in the appeal of the Revenue.
When this Court put a pointed question to the Revenue as to whether the Board has notified the other professions which may fall under the professional services or not, the counsel for the Revenue could not lay his hand, at that stage also, it was not expressly contended that if not professional services, such would fall in the category of technical services. Hence, when contention was not even raised separately to treat it as technical services, we do not find that such ground would be available as valid ground for review.
Apart from the above, in the order of the Tribunal, there is also a finding of fact in the reasoning portion which reads as under: “…..We are of the view that the data collection charges will be neither a professional services nor a fee for technical services. As we have already seen the definition of professional services means services rendered in the course of legal
5 medical engineering or the architectural profession or profession of accountancy or technical consultancy, interior decoration or advertising. The Board has the power to notify other services. It is not the revenue’s case that data collection charges is a notified service for the purpose of Sec.194J of the Act. As we have already seen the data collection charges are paid to persons who merely record the answers to questions given in the questionnaire. The person who does such service are from the cross sections of the society like individuals, students, house wives or an agency. By no stretch of imagination can it be said that these people render professional services. So also these people cannot be said to be engaged in rendering the technical services. The definition of technical services means consideration for rendering any managerial, technical or consultancy services. The data collection charge does not involve rendering any managerial technical or consultancy
6 services. We are of the view that neither the AO nor the CIT(A) have appreciated the nature of services rendered by the assessee in proper perspective and have wrongly come to the conclusion that the data collection charges are covered by Sec.194J of the IT Act.”
The aforesaid finding of fact even otherwise is also outside the scope of appeal where the judicial scrutiny is limited to the substantial questions of law.
In view of the above, we find that on facts also, the Tribunal has found that services cannot be termed as technical in the absence of the material to the contrary and such finding cannot be said to be perverse. Hence, the ground sought to be canvassed for review even if examined, would be inconsequential to the ultimate decision taken in the main appeal.
In view of the above, the Review Petition is meritless and therefore, dismissed.
Sd/- JUDGE
Sd/- JUDGE
Sk/-