TaxTMI 
TaxTMI 
TaxTMI 
2025 (2) TMI 1467
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....d in passing order u/s 250 by merely relying on adverse order passed u/s 201 by a Subordinate officer without appreciating the fact that order passed u/s 201 is a pending subject matter of appeal before CIT(A) b) On the facts and under the circumstances of the case and in law, the learned CIT(A) erred in passing adverse order u/s 250 on basis of order u/s 201 which thereby taxes the appellant u/s 112, a capital gain section instead of any TDS section under chapter XVII. 3. a) On the facts and under the circumstances of the case and in law, the entire re-assessment u/s 147 is purely based on conjectures and surmises without any concrete evidence b) On the facts and under the circumstances of the case and in law, the leaned CIT(A) erred passing an adverse order by treating purchase of minutes from foreign party as a technical service by merely relying on Union Carrier Services Agreement without passing a speaking order as to why the same would fall within the definition of technical service u/s 9(1)(vii) and without providing any justification to the reasons submitted by the appellant. c) On the facts and under the circumstances of the case and in ....
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....ich defines the terms of engagement between the assessee and NSPL. The AO after perusing the agreement and the other details furnished by the assessee held that NSPL is providing technical services which taxable in India and that the tax ought to have been deducted on the said payments. The AO further held that the assessee is a PE of NSPL and therefore, the payment is taxable in India. Accordingly, the AO disallowed the entire amount of Rs. 3,44,82,784/- under section 40(a)(i) of the Act. 4. Aggrieved the assessee filed further appeal before the CIT(A) who upheld the order of the AO by holding that "5.3.0 I have gone through the grounds of appeal, assessment order and Statement of facts submitted by the appellant. In this case, separate proceedings was initiated against the appellant under sec. 201 of the Act wherein a demand of Rs. 53,00,415/- was raised on the assessee. In the said proceedings, the concerned officer has concluded that assess liable to deduct tax at source on payment made to Novanet Singapore Pte. Ltd. The concerned officer has observed that 'the exact nature of transaction remained unverified. 5.3.1 In the present appellate proceedings, ....
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....ailable any knowledge to the assessee and therefore the income cannot be treated as FTS in the hands of NSDL. The ld AR further argued that the VoIP process is entirely system driven without human intervention and therefore it cannot be said that NSPL is providing any technical services to the assessee. In this regard the ld. AR placed reliance on the following decisions "1. Commissioner of Income Tax V. Bharti Cellular Ltd. [2008] 175 Taxman 573 (Delhi). 2. Vodafone Digilink Ltd. Vs. Commissioner of Income-Tax, (TDS) [2017] 87 taxmann.com 315 (Delhi-Trib.) 3. Atos Information Technology HK Ltd. Vs. Deputy Commissioner of Income-tax, (IT)-1 (1)(2), [2017] 79 taxmann.com 26 (Mumbai-Trib.) 4. Atos Information Technology HK Ltd. Vs. Deputy Commissioner of Income-tax, (International Taxation) [2022] 138 taxmann.com 439 (Mumbai-Trib.)" 6. The ld. DR on the other hand relied on the order of the lower authorities. 7. We heard the parties and perused the material on record. The issue arising in this appeal for our consideration is whether the amount paid by the assessee to NSPL toward purchase of VoIP minutes is to be treated as FTS and accordingly....
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....s a fully automatic process with no human intervention i.e. the conversion of voice in to digital data, transmitting data packets through optimum routing, and reconverting into voice at the receiving end etc. The role of NSPL and for that matter even that of the assessee is to ensure that the customer who has bought the dedicated VoIP network is provided with the same. NSPL is not involved in the technology of VoIP but acts as an intermediary to obtain the network services and sell the same to the customers. Therefore it cannot be said that NSPL is providing any technical services to the assessee by procuring and selling the VoIP network. There are judicial precedences as relied on by the assessee where it has been held that when there is no human intervention and process is carried out through a fully automated software, then there is no FTS. Considering unique nature of business of providing VoIP network to the customers, we are of the view that NSPL cannot be said to be providing any technical service to the assessee and therefore the payment made by the assessee cannot be treated as FTS. Further NSPL does not have a PE in India and that no technical services are made available ....