2022 (6) TMI 129

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....tion of law:- "Whether the ITAT was correct in holding that no TDS under Section 194J of the Income Tax Act was required to be deducted by the assessee on payment of interconnect user charges as it could not be categorized as fee for technical services?" 2. Admittedly the Karnataka High Court in Commissioner of Income Tax, TDS, Bangalore vs. Vodafone South Ltd., 2016 (72) taxmann.com 347 (Karnataka) has decided the aforesaid issue in favour of the respondent-assessee. However, learned counsel for the appellant-revenue states that the Bombay High Court has admitted the similar question of law for consideration. 3. Learned predecessor Division Bench vide order dated 22nd March, 2021 had opined that as no Special Leave Petition ....

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....harges paid could not be held to be in the nature of fees for technical services for the purposes of section 9(1) and section 194J of the Act." In view of above, SLP in the case of CIT (TDS), Bangalore vs. Vodafone South Ltd. (2016) was not filed. This is for your kind information and the needful." 5. Learned counsel for the respondent emphasises that JDIT(OSD)(L&R) functions under the Directorate, L&R, CBDT. Therefore, he contends that the decision to accept the decision of the Karnataka High court in Vodafone South Ltd. (supra) was taken at the highest level of the appellant-revenue. He further states that the Bombay High Court was not aware of the aforesaid judgment of the Karnataka High court when it admitted the questions o....

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....ness in the case of some other assesses. Revenue cannot pick and choose......" 7. Admittedly, the Karnataka High Court and various Tax Tribunals have taken the view that there is no human intervention involved in providing the interconnect services whether it be for data link or roaming. 8. The Supreme Court in Berger Paints India Ltd. vs. Commissioner of Income Tax, (2004) 135 Taxman 586 has held that if the revenue has not challenged the correctness of the law laid down by the High Court and has accepted it in the case of one assessee, then it is not open to the revenue to challenge its correctness in the case of other assessee without just cause. 9. Keeping in view the aforesaid mandate of law and the letter dated 21^st April, 2....