Gujarat Urja Vikas Nigam Ltd., Baroda V. The ACIT.,TDS Circle, Baroda

ITA 3381/AHD/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63236 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 11-10-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 23-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 194C; 201(1)

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER APPEAL(S) BY SL. NO(S). ITA NO(S) ASSESSMENT YEAR(S) APPELLANT(S) RESPONDENT(S) 1. 3381/AHD/2009 2007-08 GUJARAT URJA VIKAS NIGAM LTD. SARDAR PATEL VIDYUT BHAVAN RACE COURSE CIRCLE BARODA PAN:BRDG 00972G THE ACIT TDS CIRCLE BARODA 2. 3382/AHD/2009 2008-09 -DO-ASSESSEE -DO-REVENUE 3. 3383/AHD/2009 2009-10 -DO- -DO- 4. 141/AHD/2010 2006-07 REVENUE ASSESSEE 5. 142/AHD/2010 2007-08 REVENUE ASSESSEE 6. 143/AHD/2010 2008-09 REVENUE ASSESSEE 7. 144/AHD/2010 2009-10 REVENUE ASSESSEE ASSESSEE(S) BY : SHRI J.P.SHAH WITH M.J.SHAH REVENUE BY : SHRI D.C.PATWARI CIT-DR / / / / DATE OF HEARING : 11.10.12 !' / DATE OF PRONOUNCEMENT: 14.12.2012 #$ / O R D E R PER BENCH: THESE 3 APPEALS OF ASSESSEE AND 4 APPEALS OF REVENU E ARE DIRECTED AGAINST THE COMMON ORDER THE ORDER OF THE LD.CIT(A) -VI, BARODA DATED 29/10/2009.SINCE THE FACTS ARE SIMILAR IN ALL THE A PPEALS, THEY ARE HEARD TOGETHER AND DECIDED BY THIS CONSOLIDATED ORDER. ITA NOS.3381,3382 & 3383/AHD/2009 (BY ASSESSEE) & ITA NOS.141,142,143 & 144/AHD/2010 (BY REVENUE) ASST.YEARS - 2006-07 TO 2009-10 - 2 - 2. LEAD CASE IS ITA NO(S). 3381/AHD/2009 & 142/AH D/2010. SINCE THE ISSUE IN BOTH THE APPEALS ARE CONNECTED BOTH ARE HE ARD TOGETHER AND DISPOSED. 2.1. ASSESSEE IS A COMPANY INCORPORATED UNDER T HE ELECTRICITY ACT, 2003 AND COMPANIES ACT 1956 AND IS A HOLDING COMPAN Y OF VARIOUS COMPANIES THAT ARE ENGAGED IN THE BUSINESS OF GENER ATION, TRANSMISSION AND DISTRIBUTION OF ELECTRICITY IN THE STATE OF GUJ ARAT. 3. IN SEPTEMBER 2009, A SPOT VERIFICATION WAS CO NDUCTED IN THE CASE OF ASSESSEE FOR VERIFICATION OF COMPLIANCE OF TDS PROV ISIONS. DURING THE COURSE OF VERIFICATION IT WAS NOTICED THAT ASSESSEE HAD ENTERED INTO AN AGREEMENTS WITH GSECL AND OTHER ELECTRICITY GENERAT ION COMPANIES (FOR PURCHASE OF ELECTRICITY), WITH GETCO, POWER GRID CO RPORATION AND OTHER COMPANIES (FOR TRANSMISSION OF ELECTRICITY) AND WIT H MGVCL (FOR SUPPLY OF ELECTRICITY). IN TERMS OF THE AGREEMENT, ASSESSE E WAS PURCHASING ELECTRICITY FROM GSECL AND OTHER GENERATING COMPANI ES AND THROUGH THE SYSTEM OF GETCO AND POWER GRID CORPORATION, ELECTR ICITY WAS SUPPLIED TO MGVCL. ASSESSEE WAS PAYING TRANSMISSION/ WELLING CHARGES TO GETCO, POWER GRID CORPORATION ETC. IT WAS ALSO NOTI CED THAT APART FROM THE PURCHASE OF ELECTRICITY FROM GSECL, THE ASSESSE E WAS ALSO PURCHASING ELECTRICITY FROM VARIOUS OTHER ELECTRICI TY COMPANIES LIKE NTPC, NUCLEAR POWER PLANT ETC. THE AO WAS OF THE VI EW THAT THE TRANSMISSION OF ELECTRICITY BEING A TECHNICAL SERVI CE, THE ASSESSEE SHOULD HAVE DEDUCTED TDS U/S 194J OF THE ACT. AO WAS OF TH E VIEW THAT SINCE THE ASSESSEE HAS NOT DEDUCTED TDS BEFORE MAKING PAY MENT OF ACCOUNT OF TRANSMISSION/WHEELING CHARGES THE ASSESSEE WAS AN ' ASSESSEE IN DEFAULT' ITA NOS.3381,3382 & 3383/AHD/2009 (BY ASSESSEE) & ITA NOS.141,142,143 & 144/AHD/2010 (BY REVENUE) ASST.YEARS - 2006-07 TO 2009-10 - 3 - AS PER THE PROVISIONS OF SECTION 201(1) AND 201(1A) OF THE ACT. HE, THEREFORE VIDE CONSOLIDATED ORDER DATED 20.3.2009 F OR AY 2006-07 TO AY 2009-10, DETERMINED THE LIABILITY OF TAX U/S 201(1) AND 201(1A) AT RS104,80,92,226/-. AGGRIEVED BY THE ORDER OF AO, TH E ASSESSEE CARRIED THE MATTER BEFORE CIT(A). 4. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF TH E ASSESSEE, HELD THAT THE ASSESSEE IS LIABLE TO DEDUCT TAX U/S 194C AT 2% AND NOT UNDER 194J AT 10%. HE ACCORDINGLY GRANTED PARTIAL RELIEF TO ASSE SSEE BY HOLDING AS UNDER: 4.3.1. I HAVE CONSIDERED THE SUBMISSIONS OF THE LD .AR AND FACTS OF THE CASE. AT THE OUTSET, IT MAY BE MENTIO NED HERE THAT AS PER THE AR, THE APPELLANT HAS BEEN DEDUCTING TAX AT SOURCE AT THE RATE OF 2% IN TERMS OF THE PROVISIONS OF SECTION 19 4C, IN AS MUCH AS THE TDS MATTERS ARE CONCERNED AND FILING TDS RET URNS AS WELL AS RETURNS U/S.139(1), ADMITTING THE INCOME SO AS T O SYNCHRONIZE THE TAX LIABILITY TO THE TDS DEDUCTED. THE CASE LA WS CITED BY THE APPELLANT LIKE SKYCELL COMMUNICATIONS LTD AND ANR V S. DCIT AND ORS, 251 ITR 53 (MAD) AND DCIT VS. PARASRAMPURIA SY NTHETICS LTD., 20 SOT 248 (DELHI) SUPPORTS THE CASE OF THE A PPELLANT THAT IN TRANSMISSION OF ELECTRICITY, PRIMARILY TECHNOLOGY W AS USED, BUT NO MANPOWER WAS INVOLVED TO ASSIST THE TECHNOLOGY SO A S TO ATTRACT THE PROVISIONS OF SECTION 194J. IT IS RELEVANT TO NOTE THAT THE APPELLANT USED TRANSMISSION LINES FOR CARRYING THE POWER, TRANSFORMERS TO REGULATE THE FLOW OF CURRENT, METER S TO MEASURE THE CONSUMPTION WOULD NOT BE REGARDED AS AMOUNTING TO P ROVISION OF TECHNICAL SERVICES TO THE CONSUMER BUT ONLY RENDERI NG OF SERVICES ATTRACTING THE PROVISIONS OF SECTION 194C. 4.3.2. AS SEEN FROM THE RECORDS, THE APPELLANT PU RCHASES ELECTRICITY FROM THE GENERATING COMPANIES AND SELLS IT TO THE DISTRIBUTION COMPANIES. FOR THIS PURPOSE, THE APPE LLANT COMPANY HAS ENTERED INTO TRANSMISSION SERVICE AGREEMENTS WI TH GETCO BEING STATE TRANSMISSION UTILITY AND POWER GRID COR PORATION OF ITA NOS.3381,3382 & 3383/AHD/2009 (BY ASSESSEE) & ITA NOS.141,142,143 & 144/AHD/2010 (BY REVENUE) ASST.YEARS - 2006-07 TO 2009-10 - 4 - INDIA LIMITED(PGCIL). IT IS SUBMITTED THAT THE ENT IRE MECHANISM OF PAYMENT OF TRANSMISSION TARIFF IS DETERMINED BY AN INDEPENDENT REGULATORY BODY I.E., GUJARAT ELECTRICITY REGULATOR Y COMMISSION TO REIMBURSE THE ACTUAL COST INCURRED BY GETCO IN DEVE LOPING / MAINTAINING ITS TRANSMISSION SYSTEM. THE AR'S SUBM ISSION THAT THE TRANSMISSION COMPANY IS NOT ALLOWED ANY RETURN ON I TS CAPITAL IS NOT TENABLE, AS PER THE FACTS OF THE CASE. THE SUB MISSION THAT TARIFF IS DETERMINED ON THE PRINCIPLES OF NO PROFIT NO LOS S IS ALSO NOT TENABLE FOR THE SAME REASONS. THUS, THE ASSERTION OF THE APPELLANT THAT NO AMOUNT IS PAID BY THE DISTRIBUTION COMPANIE S TO THE TRANSMISSION COMPANY BUT ONLY COST INCURRED BY TRAN SMISSION COMPANY IS REIMBURSED BY DISTRIBUTION COMPANIES THR OUGH THE MECHANISM OF TARIFF FIXED BY REGULATORY COMMISSION ALSO FALLS FLAT IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE. 4.3.3 IT IS A FACT THAT THE APPELLANT PAYS FOR TRAN SMISSION OF ELECTRICITY, WHICH IS NOT DENIED. IT IS ALSO A FAC T THAT WHILE PAYING THE CHARGES, TDS IS DEDUCTED AT THE RATE OF 2%. GE TTING THESE AMOUNTS REIMBURSED IS AN INTERNAL ARRANGEMENT, WHER E FUNDS AVAILABLE ARE SO ARRANGED SO AS TO PROVIDE UNINTERR UPTED POWER SUPPLY TO THE END CUSTOMERS. IN THE CASE OF ITO VS . DR.WILMAR SCHWAVE (I) PVT.LTD. 95 TTJ 53 (DELHI), THE TECHNI CIAN WAS TAKEN ON A VEHICLE FOR PERFORMING TECHNICAL SERVICES AND IN THOSE CIRCUMSTANCES, IT WAS HELD THAT REIMBURSEMENT OF VE HICLE EXPENSES WAS OUTSIDE THE TDS PROVISIONS, WHERE AS IN THE CAS E OF THE APPELLANT, THE POWER ITSELF WAS TRANSMITTED TO THE END USER AND AS SUCH THE CITATION RELIED ON BY THE APPELLANT WAS OU T OF CONTEXT AND OF NO HELP TO THE APPELLANT. 4.3.4 THE CITATION OF JAIPUR TRIBUNAL DECISION IN T HE CASE OF THE PRINCIPAL OFFICER (CMD) JAIPUR VIDYUT VITRAN NIGAM LTD. VS. ITO, TDS-2 JAIPUR, IN ITA NO.127 TO 131/JP/2009, DATED 3 0-04-2009, IS OF NO HELP, AS IN THIS CASE, APART FROM OTHER ISSUE S, THE APPELLANT HAS BEEN RIGHTLY DEDUCTING THE TDS AT THE RATE OF 2 %, WHERE AS IT WAS NOT THE CASE IN THE CASE RELIED ON BY THE APPEL LANT. IN THIS CASE THE MAIN POINT IS WHETHER SERVICE CHARGES PAID TO T HE GETCO BY THE APPELLANT FOR TRANSMITTING THE ELECTRICITY TO E ND USERS AND COMPENSATED BY GUJARAT ELECTRICITY REGULATORY COMMI SSION WOULD BE IN THE NATURE OF TRANSPORTING THE TECHNICAL PERS ONNEL FROM PLACE TO PLACE FOR ASSISTING THE PROCESS OF TRANSMISSION OR TRANSMITTING ITA NOS.3381,3382 & 3383/AHD/2009 (BY ASSESSEE) & ITA NOS.141,142,143 & 144/AHD/2010 (BY REVENUE) ASST.YEARS - 2006-07 TO 2009-10 - 5 - THE ELECTRICITY ITSELF. OBVIOUSLY, IT IS FOR TRANS MITTING ELECTRICITY FOR WHICH SERVICE CHARGES WERE PAID TO GENCO BY THE APP ELLANT. 4.3.5. TO CONCLUDE, THE APPELLANT IS PAYING TRANSMI SSION CHARGES TO GETCO. THE TRANSMITTER IS MOSTLY USING ELECTRICAL EQUIPMENT AND TRANSMISSION NET WORK TO TRANSMIT THE POWER TO END USERS, WHERE INVOLVEMENT OF HUMAN ELEMENT IS MINIMUM, THAT TOO I TS OWN ENGINEERS AND TECHNICIANS. NO TECHNICIAN OR MANAGE RS WERE HIRED OUT TO ASSIST IN TRANSMISSION OF ELECTRICITY TO END USERS. THE REIMBURSEMENT TO THE APPELLANT FROM GUJARAT ELECTRI CITY REGULATORY COMMISSION IS NOT TOWARDS MOVING TECHNIC AL PERSONS FROM PLACE TO PLACE BUT FOR MOVEMENT OF ELECTRICITY ITSELF TO THE END USERS AND AS SUCH IT IS WITHIN THE PURVIEW OF PAYME NT FOR SERVICES RENDERED ATTRACTING THE PROVISIONS OF SECTION 194C AND NOT THE PROVISIONS OF SECTION 194 AS OPINED BY THE AO. SIN CE THE AO HAS APPLIED HIGHER RATE OF 10%, AND AS DISCUSSED ABOVE, THE CORRECT RATE BEING 2%, IN ADDITION TO SURCHARGE, CESS ETC, HE IS DIRECTED TO RECOMPUTED THE LIABILITY UNDER SECTION 201(1) AND 2 01(1A) FOR ALL THE ASSESSMENT YEARS, IF NECESSARY AFTER OBTAINING NECESSARY CLARIFICATIONS FROM THE APPELLANT. 5. AGGRIEVED BY THE ORDER OF CIT(A), REVENUE AND A SSESSEE BOTH ARE NOW IN APPEAL BEFORE US. THE GROUNDS OF REVENUE IN ITA NO.142/AHD/2010 READ AS UNDER: 1. THE LD.CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE TREATING THE ASSESSEE IN DEFAULT FOR NON DEDUCTING TDS ON PAYMEN T OF TRANSMISSION CHARGE U/S.194C INSTEAD OF 194J BY THE A.O. 2. THE LD.CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE TREATING THE ASSESSEE IN DEFAULT FOR NON-DEDUCTING TDS ON PAYMEN T OF TRANSMISSION CHARGE U/S.194C BECAUSE IN THIS CASE T RANSMISSION LINE IS OWNED BY GETCO WHICH WAS USED BY GUVN LTD. (M/S.GUJARAT URJA VIKAS NIGAM LTD., BARODA) THEREFO RE, PAYMENT OF TRANSMISSION CHARGE MAY BE CONSIDERED AS RENT U/ S.1941 FOR USE ITA NOS.3381,3382 & 3383/AHD/2009 (BY ASSESSEE) & ITA NOS.141,142,143 & 144/AHD/2010 (BY REVENUE) ASST.YEARS - 2006-07 TO 2009-10 - 6 - OF PLANT AND MACHINERY (TRANSMISSION LINE) ALTERNAT IVELY TO U/S.194J OF THE ACT. THIS GROUND IS RAISED BEING A LEGAL ISSUE INVOLVED AS PER SUPREME COURTS DECISION IN THE CAS E OF NATIONAL THERMAL POWER CO.LTD. 229 ITR 383 (SC). 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD.CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. 5.1. THE GROUND OF ASSESSEE IN ITA NO.3381/AHD/2009 READS AS UNDER: 1.0 THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE TRANSMISSIO N CHARGES PAYABLE BY THE APPELLANT COMPANY ARE LIABLE FOR DED UCTION OF TAX AT SOURCE AT 2% UNDER SECTION 194C OF THE I T ACT A ND HAS THEREBY CONFIRMED CHARGING OF INTEREST UNDER SECTION 201(1A ) OF THE I T ACT. 6. BEFORE US THE LD.D.R. SUBMITTED THAT THE TRA NSMISSION/WHEELING CHARGES PAID BY THE ASSESSEE TO GETCO AND OTHERS WA S IN THE NATURE OF TECHNICAL SERVICES FOR THE REASON THAT TRANSMISSION OF ELECTRICITY REQUIRES SCIENTIFIC INFRASTRUCTURE AND IT ALSO INVOLVES USE OF HIGH TECH MACHINES AND EQUIPMENTS AND SERVICES OF QUALIFIED ENGINEERS ARE REQUIRED TO REGULARLY MONITOR THE ARRANGEMENT OF RENDERING OF S ERVICES OF TRANSMISSION OF ELECTRICITY AND THEREFORE THE ASSES SEE SHOULD HAVE DEDUCTED THE TDS U/S 194J @ 10% ON THE TOTAL PAYMENTS. SINCE THE ASSESSEE HAS FAILED TO COMPLY WITH THE PROVISIONS O F S. 194J, THE AO WAS JUSTIFIED IN TREATING THE 'ASSESSEE IN DEFAULT' AND ACCORDINGLY LEVYING INTEREST U/S 201(1) AND 201(1A). HE PLACED RELIANCE ON THE DECISIONS IN THE CASE OF CIT VS KOTAK SECURITIES LTD (2011) 203 TAXMAN 86 (BOM) & CIT VS. BHARTI CELLULAR LTD (2011) 330 ITR 239 (SC). ITA NOS.3381,3382 & 3383/AHD/2009 (BY ASSESSEE) & ITA NOS.141,142,143 & 144/AHD/2010 (BY REVENUE) ASST.YEARS - 2006-07 TO 2009-10 - 7 - 7. ON THE OTHER HAND THE LD.A.R. SUBMITTED THAT ON IDENTICAL FACTS, THE HON'BLE MUMBAI TRIBUNAL HAS DECIDED THE ISSUE IN AS SESSEES FAVOUR. HE PLACED ON RECORD THE DECISIONS OF THE TRIBUNALS IN THE CASE OF MAHARASHTRA STATE ELECTRICITY DISTRIBUTION CO. LTD VS ADDL. C.I.T (2012) 25 TAXMANN.COM 164 (MUM), JAIPUR VIDYUT VITRAN NIGA M LTD. VS DCIT (2009) 123 TTJ (JP) 888 AND IN THE CASE OF CHATTISG ARH STATE ELECTRICITY BOARD VS ITO (2012) 143 TTJ (MUM) 151. HE THEREFOR E URGED THAT THE AFORESAID DECISIONS OF TRIBUNALS BE FOLLOWED IN THE ASSESSEES CASE. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUS ED THE MATERIAL ON RECORD. THE UNDISPUTED FACTS OF THE CASE ARE THAT T HE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF GENERATING,TRANS MISSION & DISTRIBUTION OF ELECTRICITY. IT PURCHASES ELECTRIC ITY FROM VARIOUS ELECTRICITY GENERATING COMPANIES AND IN TURN SUPPLI ES TO MGVCL FOR ONWARD TRANSMISSION. THE ASSESSEE PAYS TRANSMISSIO N AND WHOLLY CHARGES FOR TRANSMISSION OF ELECTRICITY. THE DISP UTE IN THE PRESENT APPEAL IS, THEREFORE, WHETHER THE TRANSMISSION AND WHEELIN G CHARGES PAID BY THE ASSESSEE FOR TRANSMISSION OF ELECTRICITY CAN BE SAI D TO BE IN THE NATURE OF TECHNICAL SERVICES SO AS TO ATTRACT THE PROVISIONS OF DEDUCTION OF T AX U/S 194J? 8.1. IN THE CASE OF JAIPUR VIDYUT VITRAN (SUPRA) THE JAIPUR TRIBUNAL HAS CONCLUDED AS UNDER: ASSESSEE, AN ELECTRICITY DISTRIBUTION COMPANY, WAS NOT LIABLE TO DEDUCT TAX AT SOURCE UNDER S.194J FROM THE PAYMENT OF TRANSMISSION/SLDC CHARGES TO THE TRANSMISSION COMPA NY RVPN AS ITA NOS.3381,3382 & 3383/AHD/2009 (BY ASSESSEE) & ITA NOS.141,142,143 & 144/AHD/2010 (BY REVENUE) ASST.YEARS - 2006-07 TO 2009-10 - 8 - THE OPERATION AND MAINTENANCE OF TRANSMISSION LINES BY RVPN AND THE USER OF THESE LINES BY THE ASSESSEE FOR TRANSMI TTING ENERGY DOES NOT RESULT IN ANY TECHNICAL SERVICES BEING RENDERED TO THE ASSESSEE, APART FROM THE FACT THAT THE PAYMENT OF TRANSMISSION/WHEELING/SLDC CHARGES IS REIMBURSEMENT OF THE COST AND, THEREFORE, THE PAYMENTS COULD NOT BE DISALLOWE D UNDER S.40(A) (IA); PROVISIONS OF S.40(A)(IA) ARE NOT APPLICABLE ALSO FOR THE REASON THAT THEY APPLY ONLY WHEN THE AMOUNT IS PAYA BLE I.E., DUE WHEREAS THE ASSESSEE HAS MADE ACTUAL PAYMENT. 8.2 IN THE CASE OF MAHARASHTRA STATE ELECTRICITY DI STRIBUTION (SUPRA) THE MUMBAI TRIBUNAL HAS RELYING ON THE DECISION IN THE CASE OF JAIPUR VIDYUT HAS HELD THAT WHEELING AND TRANSMISSION CHARGES PAI D BY ASSESSEE STATE ELECTRICITY DISTRIBUTION COMPANY IN CASE OF WHICH P ROVISIONS OF ELECTRICITY ACT 2003 IS APPLICABLE ARE NOT LIABLE FOR DEDUCTION OF TAX EITHER U/S 194J OR 194C OF THE ACT. 8.3. IN THE CASE OF CHATTISGARH STATE ELECTRICIT Y BOARD (SUPRA) THE MUMBAI TRIBUNAL HAS CONCLUDED AS UNDER: 'PAYMENT MADE BY THE ASSESSEE, A STATE ELECTRICITY BOARD, TO PGCIL FOR TRANSMISSION OF POWER PURCHASED BY IT FRO M NTPC WAS MADE FOR THE SERVICES OF TRANSMISSION OF ELECTRICIT Y AND NOT FOR THE USE OF TRANSMISSION WIRES PER SE IN AS MUCH AS THES E TRANSMISSION LINES ARE USED NOT ONLY FOR TRANSMISSION OF ELECTRI CITY TO THE ASSESSEE BUT ALSO FOR TRANSMISSION OF ELECTRICITY T O VARIOUS OTHER ENTITIES, AND THE ASSESSEE HAS NO SAY IN THE MANNER IN WHICH SUCH TRANSMISSION LINES CAN BE CONTROLLED OR USED BY PGC IL AND THEREFORE, S. 194-1 HAS NO APPLICATION.' 9. BEFORE US, THE LD. D.R. HAS RELIED ON THE DECIS ION IN THE CASE OF KOTAK SECURITIES (SUPRA). THE FACTS OF THE CASE RELIED UP ON BY REVENUE ARE DISTINGUISHABLE IN VIEW OF THE FACT THAT IN THAT CA SE THE ISSUE WITH RESPECT ITA NOS.3381,3382 & 3383/AHD/2009 (BY ASSESSEE) & ITA NOS.141,142,143 & 144/AHD/2010 (BY REVENUE) ASST.YEARS - 2006-07 TO 2009-10 - 9 - TO TRANSACTION FEES PAID TO BSE IN RESPECT OF TRANS ACTIONS CARRIED OUT THROUGH BOLT SYSTEM OF BSE. IN THE FACTS OF THAT CA SE IT WAS HELD THAT THERE WAS DIRECT LINKAGE BETWEEN THE MANAGERIAL SER VICES RENDERED AND THE TRANSACTION CHARGES LEVIED BY THE STOCK EXCHANG E. THUS THE FACTS HAVE NO APPLICATION IN THE PRESENT CASE. 10. THE CONTENTION OF THE ASSESSEE THAT THE FACTS IN THE PRESENT CASE ARE IDENTICAL TO THAT OF JAIPUR VIDYUT VITARAN, MAHARAS HTRA STATE ELECTRICITY DISTRIBUTION HAS NOT BEEN CONTROVERTED BY THE REVEN UE BY BRINGING ANY CONTRARY MATERIAL ON RECORD. HE COULD NOT THUS BRI NG ON RECORD THE DISTINCTION IN THE FACTS OF THE PRESENT CASE WITH T HAT OF JAIPUR VIDYUT & MAHARASHTRA STATE ELECTRICITY. THE REVENUE COULD NO T ALSO PLACE ON RECORD ANY CONTRARY DECISION OF TRIBUNAL OR HIGH CO URT ON RECORD. SINCE THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THAT OF JAIPUR VIDYUT AND THAT OF MAHARASHTRA ELECTRICITY BOARD, RESPECTFULLY FOLL OWING THE DECISIONS OF THE CO-ORDINATE BENCH, WE ARE OF THE CONSIDERED VIE W THAT THE AO WAS NOT JUSTIFIED IN HOLDING THAT THE ASSESSEE IS LIABL E FOR DEDUCTION OF TDS ON PAYMENT OF TRANSMISSION CHARGES PAID BY ASSESSE E IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED AND OF ASSESSEE IS ALLOWED. ITA NOS. 3382/AHD/2009,3383/AHD/2009 (BY ASSESSEE), 141, 143 & 144/AHD/2010 (BY REVENUE) 10. BOTH THE PARTIES HAVE SUBMITTED THAT THE FA CTS AND ISSUES ARE IN THE PRESENT APPEALS SIMILAR TO THAT OF APPEAL IN ITA N O.3381/AHD/2009 AND ITA NO.142/AHD/2012(SUPRA) AND, THEREFORE, THEY HAV E SAME SUBMISSIONS IN THE PRESENT APPEALS ALSO. ITA NOS.3381,3382 & 3383/AHD/2009 (BY ASSESSEE) & ITA NOS.141,142,143 & 144/AHD/2010 (BY REVENUE) ASST.YEARS - 2006-07 TO 2009-10 - 10 - 11. IN VIEW OF ABOVE FACTS, THE FINDINGS AND DEC ISION GIVEN IN THE ABOVE APPEAL THEREFORE APPLIES TO GROUND IN APPEAL IN PRE SENT APPEAL ALSO. THIS GROUND HAS ALREADY BEEN DECIDED IN FAVOUR OF THE AS SESSEE FOR A.Y. 2007-08 IN ITA NO.3381/AHD/2009(SUPRA). THUS, FOR SIMILAR REASONS AND OBSERVATIONS, THE APPEALS OF THE REVENUE ARE DI SMISSED AND OF ASSESSEE ARE ALLOWED. SD/- SD/- ( D.K.TYAGI ) ( ANIL CHATURVEDI ) JUDICIAL MEMBER ACCOUNTA NT MEMBER AHMEDABAD; DATED 14/ 12 /2012 %.., .../ T.C. NAIR, SR. PS #$ '( )#(' #$ '( )#(' #$ '( )#(' #$ '( )#(' / COPY OF THE ORDER FORWARDED TO : 1. *+ / THE APPELLANT 2. ',*+ / THE RESPONDENT. 3. -- . / CONCERNED CIT 4. .() / THE CIT(A)-VI, BARODA 5. (12 ' , , / DR, ITAT, AHMEDABAD 6. 234 5 / GUARD FILE. #$ #$ #$ #$ / BY ORDER, ,( ' //TRUE COPY// 6 66 6/ // / -7 -7 -7 -7 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DIRECT DICTATION ON COMPUTER : 26.11.12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 27.11.12 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S14.12.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14.12.12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER