The ACIT, TDS Circle, Ahmedabad V. M/s. Bharti Airtel Ltd., Ahmedabad

ITA 2196/AHD/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2797 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 24-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS
• Section: 194C; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NOS. 2195 & 2196/AHD/2016 (ASSESSMENT YEARS : 2008-09 & 2009-10) THE ACIT, TDS CIRCLE, AHMEDABAD-380014 VS. M/S. BHARTI AIRTEL LTD., CIRCLE OFFICER, II FLOOR, RUDRA SQUARE, OPP: GURUDWARA, S.G. HIGHWAY, AHMEDABAD 380 009. [PAN NO. AAACB 2894 G] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI VINOD TANWANI, SR. D.R. RESPONDENT BY : SHRI ANIL BHALLA, A.R. DATE OF HEARING 10/12/2018 DATE OF PRONOUNCEMENT 28/02/2019 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEALS FILED BY THE REVENUE ARE AGAINS T THE ORDER DATED 10.06.2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- 8, AHMEDABAD UNDER SECTION 201(1)/201(1A) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED A S TO THE ACT) ARISING OUT OF THE ORDER DATED 26.03.2014 BY THE DY. COMMIS SIONER OF INCOME TAX, TDS CIRCLE, AHMEDABAD FOR THE ASSESSMENT YEARS 2008-09 & 2009-1 0. 2. THE REVENUE HAS CHALLENGED THE ORDER MAINLY ON T HE ASPECT THAT THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELETING THE DEMAN D RAISED U/S 201(1A)/201(1) OF THE ACT ON ROAMING CHARGES PAID TO OTHER TELECOM COMPANIES OF RS.71,30,810/- (INCLUDING INTEREST U/S 201(1A) OF THE ACT) FOR A.Y. 2008-09 & RS. 38,0 7,820/- (INCLUDING INTEREST U/S - 2 - ITA NOS.2195 & 2196/AHD/2016 THE ACIT VS. M/S. BHARTI AIRTEL LTD. ASST. YEARS 2008-09 & 2009-10 201(1A) OF THE ACT) FOR A.Y. 2009-10 BY INVOKING PR OVISIONS OF SECTION 194J OF THE INCOME TAX ACT. 3. SINCE COMMON ISSUES ARE INVOLVED IN BOTH THE MAT TERS THE SAME ARE HEARD ANALOGOUSLY AND ARE BEING DISPOSED OF BY A COMMON O RDER. 4. THE ASSESSEE COMPANY IS RUNNING BUSINESS OF TELE COM OPERATIONS AND PROVIDING TELECOM SERVICES. INITIALLY ON 02.01.2009, THE ASSE SSING OFFICER PASSED AN ORDER U/S 201(1)/201(1A) OF THE ACT HOLDING THAT THE PAYMENT BY THE COMPANY TO THE OTHER TELECOM COMPANY FOR ROAMING CHARGES SHOULD HAVE BEEN SUBJEC TED TO DEDUCTION U/S 194J AND 194C OF THE ACT THEREBY TREATING THE ASSESSEE AS ASSESS EE IN DEFAULT FOR NOT DEDUCTING TDS. THE SAID ORDER WAS UPHELD BY THE LEARNED CIT(A) WHEN AN ALTERNATE PLEA WAS RAISED BY THE LEARNED AO STATING THAT ROAMING CHARGES IS NOTHING BUT THE RENT PAID FOR THE USE OF MACHINERY EQUIPMENT AND THE ASSESSEE IS REQUIRE TO DEDUCT TDS AT SOURCE UNDER THE PROVISIONS OF SECTION 194I OF THE ACT, WHICH WAS CO NFIRMED BY THE SAID LEARNED CIT(A). IN APPEAL, PREFERRED BY THE ASSESSEE, THE HONBLE TRIB UNAL RELYING UPON THE JUDGMENT PASSED IN THE MATTER OF CIT-VS-BHARTI CELLULAR LTD. REPORT ED IN 330 ITR 239 DATED 12.08.2010 RESTORED THE MATTER TO THE FILE OF THE ASSESSING OF FICER TO DETERMINE WHETHER ANY MANUAL INTERVENTION IS IN EXISTENCE IN THE PROCESS OF TRAF FIC OF CALLS AND CONSEQUENTLY APPLICABILITY OF SECTION 194J UPON SEEKING OPINION OF TECHNICAL E XPERT ON THE MODALITIES OF OPERATIONS OF ROAMING FACILITIES. AS A RESULT WHEREOF THE LEARNED AO INITIATED FRESH PROCEEDING AND ULTIMATELY BY AND UNDER AN ORDER DATED 26.03.2014 P ASSED U/S 201(1)/201(1A) R.W.S. 254 OF THE ACT REJECTED THE CLAIM OF THE ASSESSEE BY DECLA RING THE ASSESSEE AS ASSESSEE IN DEFAULT FOR NON-DEDUCTION OF TDS ON ROAMING CHARGES PAYMENT OF RS.5,56,59,409/- AND RS. 3,14,09,608/- RESPECTIVELY FOR A.Y. 2008-09 AND 200 9-10 THEREBY RAISED THE DEMAND OF RS.71,30,810/- AND RS.38,07,820/- RESPECTIVELY. - 3 - ITA NOS.2195 & 2196/AHD/2016 THE ACIT VS. M/S. BHARTI AIRTEL LTD. ASST. YEARS 2008-09 & 2009-10 5. IN APPEAL, THE LEARNED CIT(A) DELETED SUCH DEMAN D ON THE ROAMING CHARGES PAID TO THE OTHER TELECOM COMPANIES FOR BOTH THE A.Y. 2008- 09 & 2009-10 FOLLOWING THE JUDGMENT PASSED BY THE HONBLE ITAT KOLKATA BENCH IN THE CAS E OF VODAFONE EAST LTD., IN ITA NO.1864/KOL/2012 FOR A.Y. 2009-10, THE DECISION PAS SED BY THE HONBLE ITAT CHENNAI IN THE CASE OF DCIT-VS-M/S. DISHNET WIRELESS LTD. IN T S-409-ITAT-2015(CHNY) AND THE DECISION OF DELHI ITAT IN ASSESSEES OWN CASE IN IT A NO.3593 TO 3596/DEL/2012 WHERE IT WAS CONSISTENTLY HELD THAT THERE IS NO MANUAL OR HUMAN INTERVENTION INVOLVED IN THE PROCESS OF INTERCONNECTION CHARGES UPON CONSIDERING THE TECHNICAL EXPERT OPINION AND THEIR CROSS EXAMINATION. IT WAS HELD BY THOSE PRONOUNCEME NTS THAT INTERCONNECTION CHARGES PAID BY THE APPELLANT TO OTHER TELECOM OPERATORS ARE NOT IN THE NATURE OF FEE FOR TECHNICAL SERVICES AND THEREFORE THERE IS NO LIABILITY TO DED UCT TAX THEREON. IN APPEAL, THE LEARNED CIT(A) DELETED THE SUCH ADDITION MADE BY THE LEARNE D AO. HENCE THE INSTANT APPEAL PREFERRED BY REVENUE BEFORE US. 6. AT THE TIME OF HEARING OF THE INSTANT APPEAL THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE CASE OF THE A SSESSEE IS COVERED BY NUMBER OF JUDGMENTS PASSED BY THE DIFFERENT TRIBUNALS WHERE I T WAS HELD THAT IN THE PROCESS OF ROAMING SERVICES NO HUMAN INTERVENTION IS REQUIRED AND THEREFORE PAYMENT OF ROAMING CHARGES DOES NOT FALL UNDER THE AMBIT OF TDS PROVIS IONS U/S 194J OF THE ACT. HE FURTHER RELIED UPON THE ORDER PASSED BY THE CIRCUIT BENCH A T MYSORE IN THE MATTER OF M/S. BHARTI AIRTEL LTD.-VS.-ACIT IN ITA NO.990/BANG/2014 FOR A. Y. 2005-06 AND ITA NOS.743, 744/BANG/2015 FOR A.YS. 2006-07 & 2007-08 RESPECTIV ELY. THE ORDER PASSED BY THE LEARNED TRIBUNAL OF JAIPUR BENCH IN THE MATTER OF M /S. BHARTI HEXACOM LTD.-VS-ITO(TDS) PASSED IN ITA NO.656/JP/2010 FOR A.Y. 2009-10. THE ORDER PASSED BY THE HONBLE HIGH COURT OF KARNATAKA IN THE MATTER OF CIT(TDS)-VS-M/S . VODAFONE SOUTH LTD. WERE ALSO RELIED UPON BY THE LEARNED AR. ON THE CONTRARY THE LEARNED DR FAILED TO CONTROVERT THE CONTENTIONS MADE BY THE ASSESSEE. - 4 - ITA NOS.2195 & 2196/AHD/2016 THE ACIT VS. M/S. BHARTI AIRTEL LTD. ASST. YEARS 2008-09 & 2009-10 7. HEARD THE LEARNED REPRESENTATIVE OF THE RESPECTI VE PARTIES, PERUSED THE RELEVANT MATERIALS AVAILABLE ON RECORD. WE FIND FROM DIFFERE NT JUDGMENTS PLACED BEFORE US THAT THE ISSUE INVOLVED IN THE MATTER AS TO WHETHER ROAMING SERVICES REQUIRE ANY HUMAN INTERVENTION AND THEREBY PAYMENT OF ROAMING CHARGES WHETHER FALL S UNDER THE AMBIT AND PURVIEW OF TDS PROVISIONS U/S 194J OF THE ACT HAS BEEN HELD IN FAVOUR OF THE ASSESSEE HOLDING THAT THERE IS NO MANUAL OR HUMAN INTERVENTION INVOLVED I N THE PROCESS OF INTERCONNECTION CHARGES. IN FACT IT IS COMMON KNOWLEDGE THAT WHEN O NE OF THE SUBSCRIBERS IN THE ASSESSEES CIRCLE TRAVELS TO THE JURISDICTION OF ANOTHER CIRCL E, THE CALLS GET CONNECTED AUTOMATICALLY WITHOUT ANY HUMAN INTERVENTION AND IT IS FOR THIS, THE ROAMING CHARGES IS PAID BY THE ASSESSEE TO THE VISITING OPERATOR FOR PROVIDING THI S SERVICE. THE INTERCONNECTION CHARGES PAID BY THE APPELLANT TO OTHER TELECOM OPERATORS AR E THEREFORE, NOT IN THE NATURE OF FEES FOR TECHNICAL SERVICES AND THEREFORE THERE IS NO LIABIL ITY TO DEDUCT TAX THEREON. THE JUDGMENT PASSED BY THE MYSORE BENCH RELIED UPON THE ORDER PA SSED BY THE JURISDICTIONAL KARNATAKA HIGH COURT IN THE MATTER OF CIT-VS-VODAFONE SOUTH L TD. REPORTED IN 290 CTR 436 (KAR) HELD THAT THE PROCESS INVOLVED IN THE ROAMING CONNE CTIVITY DOES NOT INVOLVE THE HUMAN INTERVENTION AND THUS THE SERVICES DO NOT FALL WITH IN THE AMBIT OF TECHNICAL SERVICES. THEREFORE, THE ASSESSEE WAS NOT REQUIRED TO DEDUCT TAX AT SOURCE ON SUCH PAYMENT. THE OPERATIVE PORTION WHEREOF IS AS FOLLOWS: 13. AFTER HEARING THE LD STANDING COUNSEL FOR THE REVENUE AND PERUSING MATERIAL ON RECORD, WE FIND THAT THE ISSUE IN THIS PRESENT A PPEALS IS COVERED AGAINST THE REVENUE BY THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. VODAFONE SOUTH LTD., VIDE 290 CTR 436 (KAR) WHE REIN THE HONBLE HIGH COURT AFTER REFERRING TO THE TECHNICAL EXPERTISE OF C-DOT ON 29/09.2010 IN RESPECT OF IUC LTD., AND THE TECHNICAL EXPERTS REEX AMINED THE MATTER AND OPINED THAT THE ROAMING SERVICES DOES NOT REQUIRE A NY HUMAN INTERVENTION AND IT OPERATES AUTOMATICALLY, WHEREIN AT PARAS 7 T O 12 OF THE ORDER IT IS HELD AS UNDER: WE HAVE HEARD MR. K.V. ARAVIND, LEARNED C OUNSEL APPEARING FOR THE APPELLANTS - REVENUE IN ALL THE APPEALS. THE LEARNED COUNSEL RELIED TWO DECISIONS OF THE APEX COURT FOR CANVASSING THE CO NTENTION THAT THE ROAMING CHARGES PAID BY THE ASSESSEE TO THE OT HER SERVICE PROVIDER CAN - 5 - ITA NOS.2195 & 2196/AHD/2016 THE ACIT VS. M/S. BHARTI AIRTEL LTD. ASST. YEARS 2008-09 & 2009-10 BE SAID AS 'TECHNICAL SERVICES'; ONE WAS THE DE CISION OF THE APEX COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX, DELHI VS. BHARTI CELLULAR LIMITED, REPORTED AT [2010] 193 TAXINAN 97 (SC); AND THE ANOTHER WAS THE DECISION OF THE APEX COURT IN THE CASE OF COMMISSIO NER OF INCOME-TAX-A, MUMBAI VS. KOTAK SECURITIES LIMITED, REPORTED AT [ 2016] 67 TAXMANN.COM 356 (SC) AND IT WAS SUBMITTED THAT IF THE OBSERVATI ONS MADE BY THE APEX COURT IN THE ABOVE REFERRED DECISIONS ARE CONSIDERE D, THE DECISION OF THE TRIBUNAL WOULD BE UNSUSTAINABLE AND CO NSEQUENTLY, THE QUESTIONS MAY ARISE FAR CONSIDERATION BEFORE THIS COURT IN TH E PRESENT APPEALS. 9. WE MAY RECORD THAT IN THE DECISION OF THE APEX COURT IN THE CASE OF BHARTI CELLULAR LIMITED (SUPRA) THE APEX COURT AFTE R HAVING FOUND THAT WHETHER HUMAN INTERVENTION IS REQUIRED IN UTILIZING ROAMING SERVICES BY ONE TELECOM MOBILE SERVICE PROVIDER COMPANY FROM ANOTHE R MOBILE SERVICE PROVIDER COMPANY, IS AN ASPECT WHICH MAY REQUIRE FU RTHER OF THE EVIDENCE AND THEREFORE, THE MATTER WAS REMANDED BACK TO THE ASSESSING OFFICER. FURTHER, IN THE IMPUGNED ORDER OF THE TRIBUNAL, AFT ER CONSIDERING THE ABOVE REFERRED DECISION OF BHARTI CELLULAR LIMIT ED, THE TRIBUNAL HAS FURTHER NOT ONLY CONSIDERED THE OPINION, BUT FOUND THAT AS PER THE SAID OPINION THE ROAMING PROCESS BETWEEN PARTICIPATI NG ENTITIES IS FULLY AUTOMATIC AND DOES NOT REQUIRE ANY HUMAN INTERVENTI ON. THEREFORE, WE DO NOT FIND THAT THE AFORESAID DECISION IN THE CASE OF BHARTI CELLULAR LIMITED, WOULD BE OF ANY HELP TO THE APPELLANTS - REVENUE. 10. IN THE ANOTHER DECISION OF THE APEX COURT, IN THE CASE OF KOTAK SECURITIES LIMITED, THE MATTER WAS PERTAINING TO THE CHARGES OF THE STOCK EXCHANGE AND THE APEX COURT, ULTIMATELY , FOUND THAT NO TDS ON SUCH PAYMENT WAS DEDUCTIBLE UNDER SECTION 194J OF T HE ACT. BUT THE LEARNED COUNSEL FOR THE APPELLANTS - REVENUE ATTEMPTED TO CONTEND THAT IN PARAGRAPHS 7 AND 8 OF THE ABOVE REFERRED DECISION OF THE APEX COURT, IT HAS BEEN OBSERVED THAT IF A DISTI NGUISHABLE AND IDENTIFIABLE SERVICE IS PROVIDED, THEN IT CAN BE SAID AS A 'TECH NICAL SERVICES '. THEREFORE, HE SUBMITTED THAT IN THE PRESENT ROAMING SERVICES TO BE PROVIDED TO A PARTICULAR MOBILE SUBSCRIBER BY A MOBILE COMPA NY IS A CUSTOMIZE BASED SERVICE AND THEREFORE, DISTINGUISHABLE AND SE PARATELY IDENTIFIABLE AND HENCE, IT CAN BE TERMED AS 'TECHNICAL SERVICES '. 11. IN OUR VIEW, THE CONTENTION IS NOT ONLY MISCO NCEIVED, BUT IS ON NON EXISTENT PREMISE, BECAUSE THE. SUBJECT MATTER OF TH E PRESENT APPEALS IS NOT ROAMING SERVICES PROVIDED BY MOBILE SERVICE PROVIDE R TO ITS SUBSCRIBER OR - 6 - ITA NOS.2195 & 2196/AHD/2016 THE ACIT VS. M/S. BHARTI AIRTEL LTD. ASST. YEARS 2008-09 & 2009-10 CUSTOMER, BUT THE SUBJECT MATTER IS UTILIZATION OF THE ROAMING FACILITY BY PAYMENT OF ROAMING CHARGES BY ONE MOBILE SERVICE PR OVIDER COMPANY TO ANOTHER MOBILE SERVICE PROVIDER COMPANY. HENCE, WE DO NOT FIND THAT THE OBSERVATIONS MADE ARE OF ANY HELP TO THE REVENUE. 12. AS SUCH, EVEN IF WE CONSIDER TH E OBSERVATIONS MADE BY THE APEX COURT IN THE CASE OF BHARTI CELLULAR LIMITED, SUPRA, WHETHER USE OF ROAMING SERVICE BY ONE MOBILE SERVICE PROVIDER C OMPANY FROM ANOTHER MOBILE SERVICE PROVIDER COMPANY, CAN BE TERMED AS TECHNICAL SERVICES' OR NOT, IS ESSENTIALLY A QUESTION OF FACT. THE TRIBUNAL, AFTER CONSIDERING ALL THE MATERIAL PRODUCED BEFORE IT, HAS FOUND THAT ROAMING PROCESS BETWEEN PARTICIPATING ENTITIES IS FULLY AUTOMATIC AND DOES NOT REQUIRE ANY HUMAN INTERVENTION. COUPLED WITH TH E ASPECT THAT THE TRIBUNAL HAS RELIED UPON THE DECISION OF THE DELHI HIGH COURT FOR TAKING SUPPORT OF ITS VIEW. 13. IN OUR VIEW, THE TRIBUNAL IS ULTIMATELY FACT F INDING AUTHORITY AND HAS HELD THAT THE ROAMING PROCESS BETWEEN PARTICIPATING COMPANY CANNOT HE TERMED AS TECHNICAL SERVICES AND, THEREFORE, NO TDS WAS DEDUCTIBLE. WE DO NOT FIND THAT ANY ERROR HAS BEEN COMMITTED BY THE TRIBUNAL IN REACHING TO THE AFORESAID CONCLUSION. AP ART FROM THE ABOVE, THE QUESTIONS ARE ALREADY COVERED BY THE ABOVE REFERRED DECISION OF THE DELHI HIGH COURT, WHICH HAS BEEN CONSID ERED BY THE TRIBUNAL IN THE IMPUGNED DECISION. 14. THUS, FOLLOWING THE DECISION OF HONBLE JURISDI CTIONAL HIGH COURT WE HOLD THAT THE PROCESS INVOLVED IN THE ROAMING CONNECTIVITY DOES N OT INVOLVE ANY HUMAN INTERVENTION AND, THEREFORE, THE SERVICES DOES NOT FALL WITHIN THE AM BIT OF TECHNICAL SERVICES. HENCE, IT IS NOT REQUIRED TO DEDUCT TAX AT SOURCE ON SUCH PAYMEN TS. 8. THE ORDER PASSED BY THE LEARNED TRIBUNAL JAIPUR BENCH IN ITA NO.656/JP/2010 HAD ALSO BEEN CAREFULLY CONSIDERED BY US. WHILE PASSING ORDERS IN FAVOUR OF THE ASSESSEE, THE LEARNED TRIBUNAL OBSERVED AS FOLLOWS: 11. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH TH E PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. AFTER GOING THROU GH THE ORDER OF THE ASSESSING OFFICER, LD CIT(A); SUBMISSIONS OF THE ASSESSEE AS WELL AS GOING THROUGH THE PROCESS OF PROVIDING ROAMING SERVICES; EXAMINATION OF TECHNICAL EXPERTS BY THE ACIT TDS, NEW DELHI IN THE CASE OF BHARTI CELLULAR LTD.; THEREAFTER CROSS - 7 - ITA NOS.2195 & 2196/AHD/2016 THE ACIT VS. M/S. BHARTI AIRTEL LTD. ASST. YEARS 2008-09 & 2009-10 EXAMINATION MADE BY M/S BHARTI CELLULAR LTD.; ALSO OPINION OF HONBLE THE THEN CHIEF JUSTICE OF INDIA MR. S.H. KAPADIA DATED 03/09 /2013 AND ALSO VARIOUS JUDGMENTS GIVEN BY THE ITAT AHMADABAD BENCH IN THE CASE OF CANARA BANK ON MICR AND PUNE BENCH DECISION ON DATA LINK SERVICES. WE FIND THAT FOR INSTALLATION/SETTING UP/REPAIRING/SERVICING/MAINTEN ANCE CAPACITY AUGMENTATION ARE REQUIRE HUMAN INTERVENTION BUT AFTER COMPLETING THI S PROCESS MERE INTERCONNECTION BETWEEN THE OPERATORS IS AUTOMATIC AND DOES NOT REQ UIRE ANY HUMAN INTERVENTION. THE TERM INTER CONNECTING USER CHARGES (IUC) ALSO S IGNIFIES CHARGES FOR CONNECTING TWO ENTITIES. THE COORDINATE BENCH ALSO CONSIDERED THE HON'BLE SUPREME COURT DECISION IN THE CASE OF BHARTI CELLUL AR LTD. IN THE CASE OF I-GATE COMPUTER SYSTEM LTD. AND HELD THAT DATA LINK TRANSF ER DOES NOT REQUIRE ANY HUMAN INTERVENTION AND CHARGES RECEIVED OR PAID ON ACCOUNT OF THIS IS NOT FEES FOR TECHNICAL SERVICES AS ENVISAGED IN SECTION 194J REA D WITH SECTION 9(1)(VII) READ WITH EXPLANATION-2 OF THE ACT. IN CASE BEFORE US, T HE ASSESSEE HAS PAID ROAMING CHARGES I.E. IUC CHARGES TO VARIOUS OPERATORS AT RS . 10,18,92,350/-. RESPECTFULLY FOLLOWING ABOVE JUDICIAL PRECEDENTS, WE HOLD THAT T HESE CHARGES ARE NOT FEES FOR RENDERING ANY TECHNICAL SERVICES AS ENVISAGED IN SE CTION 194J OF THE ACT. THEREFORE, WE REVERSE THE ORDER OF THE LD CIT(A) AN D ASSESSEES APPEAL IS ALLOWED ON THIS GROUND ALSO. 9. THE HONBLE HIGH COURT OF KARNATAKA IN THE MATTE R OF CIT(TDS)-VS-M/S. VODAFONE SOUTH LTD. ALSO HAD TAKEN THE SAME VIEW IN FAVOUR O F THE ASSESSEE. WHILE DOING SO, THE JUDGMENT PASSED BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE MATTER OF VODAFONE ESSAR GUJARAT LTD-VS-ACIT(TDS) WAS ALSO TAKEN INTO CONSID ERATION. THE RELEVANT PORTION OF THE SAID JUDGMENT IS AS FOLLOWS: 13. IN OUR VIEW, THE TRIBUNAL IS ULTIMATELY FACT F INDING AUTHORITY AND HAS HELD THAT THE ROAMING PROCESS BETWEEN PARTICIPATING COMP ANY CANNOT BE TERMED AS TECHNICAL SERVICES AND, THEREFORE, NO TDS WAS DEDUC TABLE. WE DO NOT FIND THAT ANY ERROR HAS BEEN COMMITTED BY THE TRIBUNAL IN REACHIN G TO THE AFORESAID CONCLUSION. APART FROM THE ABOVE, THE QUESTIONS ARE ALREADY COV ERED BY THE ABOVE REFERRED DECISION OF THE DELHI HIGH COURT, WHICH HAS BEEN CO NSIDERED BY THE TRIBUNAL IN THE IMPUGNED DECISION. WE FIND FROM THE ORDER PASSED BY THE LEARNED CIT(A) THAT ALL THE JUDGMENTS AS DISCUSSED HEREINABOVE WERE CONSIDERED BY THE LEARNE D CIT(A) WHILE ALLOWING THE CLAIM OF THE APPLICANT IN DELETING THE DEMAND OF RS.71,30 ,810/- & RS.38,07,820/- RAISED U/S - 8 - ITA NOS.2195 & 2196/AHD/2016 THE ACIT VS. M/S. BHARTI AIRTEL LTD. ASST. YEARS 2008-09 & 2009-10 194J FOR A.Y. 2008-09 & 2009-10 RESPECTIVELY WITH T HE CONCLUSION THAT THE ROAMING CHARGES PAID BY THE APPELLANT TO OTHER TELECOM COMP ANIES ARE NOT COVERED UNDER FEE FOR TECHNICAL SERVICE AND SUCH PAYMENTS ARE OUT OF THE PURVIEW OF TDS PROVISION OF 194J OF THE ACT. WE FIND NO INFIRMITY IN THE ORDER PASSED B Y THE LEARNED CIT(A). WE, THEREFORE, DO NOT HESITATE TO CONFIRM THE SAME. THEREFORE, REV ENUES APPEAL IS DEVOID OF ANY MERIT AND HENCE DISMISSED. 10. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 28/02/2019 SD/- SD/- ( PRAMOD KUMAR ) ( MS. MADHUMITA ROY ) VICE PRESIDENT JUDICIAL MEMBER AHMEDABAD; DATED 28/02/2019 PRITI YADAV, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A)-8, AHMEDABAD. 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 18/02/2019 (DICTATION PAGES -9) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 19/02/2019. 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 28/02/2019. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER