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Order u/s.254(1)of the Income-tax Act,1961(Act) खंडपीठ खंडपीठ केकेकेके अनुसार खंडपीठ खंडपीठ अनुसार अनुसार PER BENCH, AM- अनुसार Challenging the order,dated 06.02.2014 of CIT(A)-8,Mumbai the Assessee and the Assessing Officer(AO)have filed cross-appeals.Assessee-company,engaged in the business of share broking and share trading,filed its return of income on 13.10. 2011, declaring total income at Rs. 124.66 Crores.The AO completed the assessment, u/s 143(3) of the Act,on 23.02.2013,determining the income of the assessee at Rs.127.91 Crores. ITA/3502/Mum/2014: 2.Effective ground of appeal filed by the assessee is about disallowance of Data/Circuit Bandwidth Charges(D/CBC)amounting to Rs.2.16 Crores u/s.40(a)(ia)of the Act.During the assessment proceedings the AO found that the assessee had debited Rs.2.30 Crores towards D/CBC towards payment made to eight parties.On verification of TDS statement,he found that the assessee had not deducted tax at sources,as required by the provisions of the Act,while making the payment.Referring to the provisions of Section 194 J of the Act,the AO held that payment made for towards fees for professional or technical services had to be made only after deduction of tax at source at specified rates.He asked the assessee as to why an amount of Rs.2.30 Crores should not be disallowed as per the provisions of section 40(a)(ia) of the Act for non deduction of Tax u/s.194 of the Act.After considering the submissions of the assessee filed vide its letter 06.02.2013,the AO held that the provisions of section 194J 3551-52/M/14HDFC Securities and 40(a)(ia) were mandatory,that the assessee had not filed the copy of agreements entered into with the service providers,that the charges paid highlighted the extent of technically and consultancy involved, that the job comprised of application of more of soft skill rather than routine labour oriented work,that the services required human intervention with superior technical skill and fell under the category of technical services.After taking in to consideration the TDS made by the assessee of Rs.14.62 lakhs,the AO held that there was default on part of the assessee in not deducting tax for Rs.2.16 Crores.Invoking the provisions of section 40(a)(ia) of the Act,he disallowed the said amount. 3.Aggrieved by the order of AO,the assessee preferred an appeal before the First Appellate Authority(FAA).Before him,the assessee made elaborate arguments and filed additional evidences.The FAA called for a Remand Report from the and admitted the fresh evidences.After considering the available material,he held that payment towards D/CBC fell squarely under the provisions of Section 194 J of the Act,that the assessee was liable to deduct tax while crediting the said payment,that there was human intervention at all levels by the service providers,that the soul and the substance of the agreement revealed that at micro level all activities included the human intervention,that the services availed by the assessee were of technical nature.Following his order for the AY.2007-08, the FAA dismissed the appeal filed by the assessee. 4.Before us,the Authorised Representative(AR)stated that services provided by the eight entities were not of technical nature,that human intervention was absent in the services provided to the assessee, that he relied upon the cases of Siemens Limited(ITA/4356/Mum/2010),iGate Computer System Ltd.(67SOT296),Torry Harris Business Solution(P.)Ltd.(155ITD122).He further argued that the payees have paid the taxes and that the FAA had not adjudicated the said issue. Departmental Representative(DR)contended that orders of the FAA should be upheld. 5.We have heard the rival submissions and perused the material before us.We find that the assessee had availed services of eight entities and had made payments for use of data/circuit bandwith,that the FAA held that use of data bandwidth required human intervention and that it fell within the preview of fee for technical services,that TDS had to be made as per the provisions of section 194J of the Act.We are of the opinion that the basic issue to be decided is as to whether D/CBC can be treated technical services or not.We find that similar question had arisen in the case of iGate Computer System Ltd.(supra).Brief facts of the case were that the assessee was a software company engaged in software development, software export and allied activities,that a TDS Survey, u/s.133A of the Act,was carried out on 13.01.2009 at the business premises of assessee,that during verification,it was found that the assessee had not deducted tax at source from the DATA link charges paid to various telecom service providers. As per the AO,the assessee should have deducted tax at source from the said DATA link charges under section 194J of the Act.The plea of the assessee before the AO was that the DATA link charges were not in the nature of fee for technical services but for allowing the satellite link line from one service provider to be carried over to the other service provider, that the existing service provider had to provide inter connection of their net works from equipment of net works to equipment of other service providers to provide subscribers efficient and flawless services,that the DATA link usage was only for transmission of data from the server of assessee to the designated client server,that it was obvious that through the process of interconnection one service provider would establishes a link between it’s own network,services and equipment with the network,services and 2 3551-52/M/14HDFC Securities equipment of other service provider,that for facilitating these arrangements, service provider only uses the network element (for carrying the lines to their destination)of other service provider,that by providing the interconnection, the interconnection provider does not render any technical services either to the Interconnection Seeker or to the Subscriber of the services,that just because technical equipment/gadgets were used in the transmission process would not make the contract/connect towards rendering / availing technical services.However,the AO held that the DATA link charges was the fee paid for technical services rendered by the service provider and the assessee should have deducted tax at source under the provisions of section 194J of the Act. The matter travelled to the Tribunal and it decided the issue as under: “15. We have heard the rival contentions and perused the record. The assessee was engaged in software development, software export and allied activities. TDS Survey under section 133A of the Act was conducted on the premises of the assessee on 13.01.2009. The assessee was found to have made payments against DATA link charges to various telecom service providers. The ACIT-TDS was of the view that the assessee was liable to deduct tax at source out of such DATA link charges paid to various telecom service providers being professional services provided by the said service providers, in view of section 194J of the Act. The explanation of the assessee in this regard was that the said payments for DATA link charges were paid for using standard facilities provided by the service providers by using technical gadgets, which were made available universally to the others by way of the DATA link satellite line, which was established from one service provider to be carried over to the other service provider. In order to provide efficient and flawless services to the subscribers, the existing service providers provide interconnection of their networks through equipment of their networks to the equipments of other service providers. The connection is used for the transmission of DATA from one service provider to the designated client server and there was no human intervention for the transmission of the DATA.
On the perusal of the record, it transpires that facilities were provided by two entities i.e. the assessee and the service providers, who were linked to each other through the DATA link and for facilitating the arrangement, one service provider used the network element of other service provider to provide services to the ultimate customers. The issue which arises in the present appeal is whether such providing of services is covered under section 194J of the Act being technical or professional services provided by the service provider. XXXXXXXXXXXXXXXXXX 25. Now coming to the facts and circumstances of the present case, the assessee had furnished the explanation before the Assessing Officer and also filed written submissions before the CIT(A) vide letter dated 01.04.2013 along with Flow chart / Diagram of how the DATA links works which is placed at pages 24 to 26 of the Paper Book. The assessee also placed on record the sample copies of purchase orders at pages 27 onwards under which, it was explained that the perusal of the bills would reflect the basis of charges, rates, etc. which were fixed / agreed upon and finally billed by the DATA link providers and it was vehemently stated that the same does in no way indicate involvement or otherwise of human intervention in the DATA link process. In view thereof, in the absence of any human intervention between the assessee and the services provided by the DATA link provider, it cannot be said that the payment made by the assessee was for technical services. Merely because for maintenance purpose certain human intervention was provided, cannot lead to the surmise that the DATA link charges paid to various telecom service providers, were in the nature of technical services governed by the provisions of section 194J of the Act. The DATA link charges were paid for utilizing the standard facilities which were provided by the individual service providers by way of use of technical gadgets which were made available vide DATA link satellite link line established from one service provider to be carried over to the other service provider, does not involve technical services as there was only interconnection of the networks to the equipments of other service providers. In the absence of any human intervention for transmitting the DATA through such DATA link satellite link line, the 3 3551-52/M/14HDFC Securities payments made for utilizing such services was not in the nature of technical services governed by section 194J of the Act. Accordingly, we reverse the finding of CIT(A) in this regard and hold that DATA link charges of Rs.8,32,46,468/- were not liable for tax deduction at source under the provisions of section 194J of the Act.” We find that while deciding the appeal the Tribunal had considered all the cases that were available at time and were dealing with the identical issue.So,respectfully following the above order of the Tribunal,we decided ground no.1 in favour of the assessee. As the main ground has been decided in assessee’s favour,so,we are not adjudicating the other ground which deals with payment of taxes by the service providers.It is allowed for statistical purposes. ITA/3137/Mum/2014: 6.Effective ground of appeal
,raised by the AO is about deleting the addition of Rs.1.08 Croees. During the assessment proceedings,the AO found that the assessee had claimed the above mentioned amount under the head Rent being AS 19. Provisions.He called for justification for allowing the same.After considering the reply of the assessee,the AO held that the disputed amount was nothing but prepaid expenses which ought to have been claimed in the relevant financial year to which it belonged,that the amount was a balance-sheet item and not a P&L A/c.item.Finally,he treated the amount in question as prepaid expense and made a disallowance of Rs.1,08,45,878/- 7.Before the FAA,the assessee made elaborate arguments and produced additional evidences. He called for remand report from the AO.After considering the Report and rejoinder to the report of the AO,the FAA held that lease expenses were nothing but expenses that accrued to the assessee and were computed as per the provisions of Accounting Standard-19(AS-19),that the assessee had to follow the AS compulsorily, that AS-19 had been prescribed by the ICAI to claim lease expenses,that the expenses were claimed in accordance with accounting standard,that AO was not justified in treating the expenses as contingent/unconfirmed,that the claim made by the assessee was based on scientific method,that the assessee was following the same method in earlier years.Finally,he held that the lease payment under the operating lease should be recognised as an item of the P&L A/c on a straight line basis over the lease period.He deleted the addition made by the AO. 8.Before us,the DR supported the order of the AO.AR relied upon the order of the FAA and stated that the assessee followed the mandate of AS-19, that the provision was made on a scientific basis, that rent payable was allowable as per the section 30 of the Act. 9.We find that the AO had made the disallowance as he was of the opinion that it was a prepaid expense and that it could not be claimed during the year under appeal, that the assessee had claimed the expenditure as per the provisions of AS-19, that the agreement entered into by the assessee was in the nature of operating lease as defined in AS-19, as per the accounting standard in such cases the payments have to be considered as an item of P&L account on a straight line basis over the lease period. The FAA had given a categorical finding of fact that the provision of Rs.1.08 crores was in respect of the liability that had accrued during the FY 2009-10.We are of the opinion that, by following AS-19 the assessee has complied with the provisions of the Act, that AS-19 provides that in case of operating leases, the lease rent payment has to be treated as an allowable expenditure.Therefore, in our opinion, the order of the FAA does not require any interference from our side. 4