TDS U/s. 194J not applicable on Fee for allowing use of technical System

By CA Sandeep Kanoi Income Tax Judiciary December 8, 2017

TaxGuru Citation: 2017 taxguru.in 1143
Case Name: ACIT Vs. M/s Noida Power Company Ltd. (ITAT Delhi)
Appeal Number: Only available for paid members
Date of Judgement/Order: Only available for paid members
Related Assessment Year: 2012- 13
Courts: All ITAT, ITAT Delhi

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ACIT Vs. M/s Noida Power Company Ltd. (ITAT Delhi)

Section 194J would have application only when the technology or technical knowledge, experiences/ skills of a person is made available to others which can be further used by him for its own purpose and not where by using technical systems, services are rendered to others. Rendering of services by allowing use of technical System is different than charging fees for rendering technical services. In the present case no scientific knowledge, experience or skill is made available/rendered by the PGCIL to the assessee. From the records, we have seen that the assessee itself has its own engineers and technicians who consistently monitor and supervise the flow of the electricity to its system and ultimately supplies to its customers which according to Ld. CIT(A) are the designated function of power grid which do not amount to providing technical services within the meaning of expln.2 to section 9(i)(vii) of the Act. Moreover, we also in complete agreement with the judgment of Hon’ble Delhi High Court in the case of CIT vs. Bharati Cellular Limited [175 Taxmann 573 (Del)] affirmed by the Hon’ble Supreme Court in 193 Taxman 97(SC) wherein, it has been held that technical services which are relevant for the purpose of section 194J would be those technical services which involve human interface/element. In other words, the expression ‘technical service’ could have reference to only technical service rendered by a human and that it would not include my service provided by machines or robots. However as against above contention we find that the AO has completely failed to bring relevant materials, whatsoever, on record to prove the existence of human interface/ element in the present case. In view of the above, we find that such transmission and wheeling charges paid by the assessee does not come within the purview of fees for technical service as defined under Explanation 2 to sec 9(1)(vii) of the Act and accordingly no tax is required to be deducted by the assessee u/s. 194J therefrom.