2016 (11) TMI 1465

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....g the tax withholding demands raised under section 201(1) r.w.s. 194J, and under section 201(1A) r.w.s. 194J, in respect of licence fees paid to Indian Railway Catering & Tourism Corporation Limited (IRCTC) as follows:- Assessment Year Amount (Rs.) 2006-07 1,67,09,358/- 2007-08 4,96,03,342/- 2008-09 4,95,44,808/- 2009-10 5,42,69,182/- 2010-11 5,91,89,716/- 2011-12 3,34,86,993/- 3. To adjudicate on these appeals, only a few material facts need to be taken note of. There is no dispute about the fact that the assessee has made the payments, as set out above, as licence fees for being awarded licence for rendition and management of on board services on certain trains. There is also no dispute about t....

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....s. Payments cannot be construed for rendering any specialized services or passing on of any managerial or technical skill or services, much less even a service. The license fee payments are attributable to a set of legal obligations flowing from license. Viewing from the parameters laid down by Hon'ble Supreme court in the cases of Kotak securities and Bharti Cellular, there is neither any element of service or rendering of technical services whatsoever. In our considered view sec. 194J is not applicable to assessees case. b. Similarly sec. 194C is also not applicable since the basis of allotment of catering rights on license fee involves peculiar features. The IRCTC is the contractor who awards rights and assessee is the contracte....

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.... strict regulatory and financial control and are complimentary arms of Govt. to perform particular functions. Looking into all these necessities and practical difficulty the word 'STATE' has been interpreted to avoid the rigor of literal construction which was leading to unintended results, Hon'ble supreme court laid down these parameters. They have been deftly followed by Pune Bench in Kirloskar Bros. case. In our considered view in the given facts and circumstances IRCTC falls within those parameters. Following Hon'ble Supreme Court in Som Prakash Rekhi and coordinate ITAT Pune Bench, we hold that IRCTC amounts to Govt. Therefore, assuming even there was any TDS liability; assessee was not liable to deduct any TDS from license fee paid to....