ITO, New Delhi V. M/s. Oasis Software Pvt. Ltd., New Delhi

ITA 5174/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97666 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 21-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 05-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA SENIOR
• Assessee Lawyers: K K SHARMA; SUMEET KAUL S
• Keywords: Additional evidence; Revised return
• Section: 143(3); 10B; 2; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI A.T. VARKEY, JUDICIAL MEMBER ITA NO.5174/DEL./2012 (ASSESSMENT YEAR : 2009-10) ITO, WARD 13 (4), VS. M/S. OASIS SOFTWARE PVT. L TD., NEW DELHI. B 1, 1 ST FLOOR, ARJUN NAGAR, NEW DELHI 110 029. (PAN : AAACO3302J) (APPELLANT) (RESPONDENT) ASSESSEE BY : S/SHRI K.K. SHARMA & SUMEET KAUL, AD VOCATES REVENUE BY : SHRI P. DAM. KANUNJNA, SENIOR DR DATE OF HEARING : 21.07.2015 DATE OF PRONOUNCEMENT : 16.10.2015 O R D E R PER A.T. VARKEY, JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 31.05.2012 PASSED BY THE LD. COMMISSIONER OF INCOME -TAX (APPEALS) XVI, NEW DELHI FOR THE ASSESSMENT YEAR 2009-10. 2. THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF EXPORT OF MEDICAL TRANSCRIPTION SERVICES AND ITS UNIT IS LOCATED IN S TPI, NOIDA. THE RETURN OF INCOME WAS FILED ON 30.09.2009 DECLARING NIL INCOME . LATER, THE ASSESSEE FILED A REVISED RETURN ON 10.02.2010 AT NIL INCOME. TH E CASE WAS PROCESSED U/S 2 ITA NO.5174/DEL/2012 143(1) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER TH E ACT). SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143(2 ) WAS ISSUED ON 18.08.2010. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT AT A TOTAL TAXABLE INCOME OF RS.47,77,520/-. 3. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL TO T HE FIRST APPELLATE AUTHORITY. THE CIT (A) HAD DELETED THE ADDITIONS. 4. THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEFOR E US. 5. THE EFFECTIVE GROUNDS OF APPEAL TAKEN BY THE ASS ESSEE READ AS UNDER :- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(A) HAS ERRED IN ALLOWING THE DEDU CTION U/S 10A OF THE INCOME-TAX ACT, 1961 BY ACCEPTING THE AD DITIONAL EVIDENCE UNDER RULE 46A, WITHOUT PROVIDING AN OPPOR TUNITY TO THE A.O. TO EXAMINE THE SAME . 2. WHETHER ON THE FACTS & IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THE FA CT THAT WHEN THE DEDUCTION CLAIMED U/S 10-B IN ORIGINAL RETURN I S INCORRECT THAN DEDUCTION U/S 10A CAN BE CLAIMED INSTEAD THROU GH A REVISED RETURN. 3. WHETHER ON THE FACTS & IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) HAS ERRED IN ALLOWING THE RENT EXPEN DITURE FOR KANPUR OFFICE BY HOLDING THAT THE OFFICE WAS USED F OR TRAINING OF NEWLY RECRUITED STAFF FOR MEDICAL TRANSCRIPTION WORK. 4. WHETHER ON THE FACTS & IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION O F RS.18,30,780/- MADE U/S 40(A)(IA) OF THE ACT, 1961 BY HOLDING THAT MEDICAL TRANSCRIPTION SERVICES ARE MORE OF THE NATURE OF LABOR ORIENTED SERVICES, WHICH DID NOT REQUIRE ANY SPECIALIZED KNOWLEDGE. 3 ITA NO.5174/DEL/2012 6. GROUND NOS.1 & 2 IS AGAINST ALLOWING THE DEDUCTI ON U/S 10A OF THE ACT, BY ACCEPTING THE ADDITIONAL EVIDENCE UNDER RULE 46A , WITHOUT PROVIDING AN OPPORTUNITY TO THE AO TO EXAMINE THE SAME; AND ALSO THAT THE CIT (A) HAS NOT APPRECIATED THE FACT THAT IN THE ORIGINAL RETURN FI LED, THE DEDUCTION WAS CLAIMED U/S 10-B WAS INCORRECT AND FINDING IT INCORRECT THE ASSESSEE HAS CLAIMED DEDUCTION U/S 10A BY FILING REVISED RETURN WHICH TH E CIT (A) HAS NOT TAKEN NOTE OF. 7. THE FACTS RELATING TO THESE GROUNDS ARE THAT THE ASSESSEE IS IN THE BUSINESS OF EXPORT OF MEDICAL TRANSCRIPTION SERVICES AND ITS UNIT IS LOCATED IN STPI, NOIDA. THE ASSESSEE COMMENCED ITS OPERATIONS DURING THE AS SESSMENT YEAR 2000-01 AND UP TO THE ASSESSMENT YEAR 2008-09 (IN THE YEARS IN WHICH IT WAS NOT INCURRING LOSSES), IT WAS CLAIMING EXEMPTION U/S 10B OF THE A CT; BUT DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR AY 2009-10, THE ASSESSIN G OFFICER HELD THAT SINCE THE ASSESSEE WAS NOT HAVING THE REQUISITE APPROVAL OF THE BOARD, IT WAS NOT ENTITLED FOR EXEMPTION U/S 10B. ACCORDINGLY, THE AS SESSEE REVISED ITS RETURN FOR THE ASSESSMENT YEAR UNDER APPEAL, CLAIMING EXEMPTIO N U/S 10A INSTEAD OF SECTION 10B. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE COULD NOT SWITCH OVER FROM THE CLAIM OF EXEMPTION U/S 10B, TO EXEMPTION U/S 10A MERELY BECAUSE IT HAD BEEN DENIED EXEMPTION UNDER THE FORM ER SECTION. THE AO FURTHER OBSERVED THAT THE DEDUCTION U/S 10A IS AVAI LABLE AFTER THE UNDERTAKING HAD BEGUN TO MANUFACTURE OR PRODUCE COMPUTER SOFTWA RE IN ANY STP. HE ALSO 4 ITA NO.5174/DEL/2012 OBSERVED THAT THE PLACE OF MANUFACTURE (AREA WHICH IS STP), WHICH IS AN IMPORTANT REQUIREMENT OF SECTION 10A, IS NOT A REQU IREMENT AT ALL FOR SECTION 10B. HE FURTHER OBSERVED THAT NO DOCUMENTS WERE PR OVIDED IN THE ASSESSMENT PROCEEDINGS FOR THE RELEVANT ASSESSMENT YEAR TO SUG GEST THAT IF DEDUCTION U/S 10B IS NOT ALLOWED, DEDUCTION U/S 10A COULD BE CLAI MED. THE AO FURTHER OBSERVED THAT WHEN AN UNDERTAKING WAS FORMED, THE A SSESSEE HAD TO DECIDE THE SCHEME UNDER WHICH THE SAME SHOULD FALL; AND NOTED THAT THE CERTIFICATE PRESCRIBED FOR TWO SECTIONS ARE DIFFERENT. THE AO WONDERED THAT HAD THERE BEEN NO DIFFERENCE THEN WHAT WAS THE NEED TO HAVE TWO DI FFERENT CERTIFICATES. THUS, THE AO WAS OF THE OPINION THAT IN NO CASE, THE ASSE SSEE COULD CLAIM THE DEDUCTION U/S 10A BECAUSE IT FAILED TO SATISFY THE CONDITIONS OF SECTION 10B. ACCORDINGLY, HE DISALLOWED THE DEDUCTION CLAIMED U/ S 10A OF THE ACT. 8. THE ASSESSEE FILED AN APPEAL BEFORE THE FIRST AP PELLATE AUTHORITY AND THE LD. CIT (A) ALLOWED THE DEDUCTION BY HOLDING AS UNDER : - 4.2 I HAVE CONSIDERED THE DISCUSSION IN THE ASSESS MENT ORDER AND THE SUBMISSIONS OF THE AR OF THE APPELLANT COMPANY. EXEMPTION U/S 10B WAS DENIED TO THE APPELLANT BY THE ASSESSIN G OFFICER IN A.Y. 2007-08 FOR THE REASON THAT THE APPELLANT WAS NOT HAVING THE REQUISITE STATUTORY APPROVAL OF THE BOARD. ACCORDIN GLY, THE APPELLANT REVISED ITS RETURN FOR 2009-10 AND MADE A CLAIM FOR EXEMPTION U/S 10A, ALONG WITH FORM NO.56F. THE REVI SED RETURN HAS BEEN TAKEN INTO CONSIDERATION BY THE AO FOR THE PUR POSE OF ASSESSMENT. DURING THE COURSE OF APPELLATE PROCEEDI NGS, THE AR OF THE APPELLANT WAS REQUIRED TO FURNISH DOCUMENTARY E VIDENCE IN SUPPORT OF ITS CLAIM U/S 10A, AS PER THE POWERS VES TED IN THE CIT (APPEALS) U/S 250(4) OF THE ACT. THE APPELLANT HAS FILED COPY OF LETTER OF APPROVAL FROM THE STPI, NOIDA, AS WELL AS COPIES OF THE 5 ITA NO.5174/DEL/2012 FIRCS (FOREIGN INWARD REMITTANCE CERTIFICATES) WHIC H SHOW THAT THE SALE PROCEEDS WERE RECEIVED BY THE APPELLANT IN INDIA BEFORE THE EXPIRY OF SIX MONTHS FROM THE END OF THE RELEVANT F INANCIAL YEAR 2008-09. IT HAS ALSO BEEN ELABORATED IN THE SUBMISS IONS IN REGARD TO GROUND OF APPEAL NO. 2 THAT THE APPELLANT SATISFIES THE CONDITIONS LAID DOWN IN SECTION 10A OF THE ACT AND IT IS ACCOR DINGLY HELD THAT THE APPELLANT WAS ENTITLED FOR DEDUCTION UNDER THE SAID SECTION DURING A.Y. 2009-10, WHICH IS THE TENTH AND FINAL Y EAR FOR CLAIMING THE EXEMPTION SINCE THE APPELLANT COMMENCED ITS OPE RATIONS IN A.Y. 2000-01. GROUND NO. 2 OF THE APPEAL IS ALLOWED . 9. LD. DR SUBMITTED THAT THE LD. CIT (A) ALLOWED TH E CLAIM OF THE ASSESSEE WITHOUT GETTING A REMAND REPORT FROM THE AO ON THE NEW EVIDENCES FILED BY THE ASSESSEE. HE RELIED ON THE ORDER OF THE AO AND PLE ADED THAT THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE AO FOR DE NOVO ADJ UDICATION. 10. LD. AR REITERATED THE SUBMISSIONS SUBMITTED BEF ORE THE LD. CIT (A). HE SUBMITTED THAT ALL THE CONDITIONS REQUIRED U/S 10A FOR CLAIMING THE DEDUCTION WERE FULFILLED BY THE ASSESSEE COMPANY. HE SUBMIT TED THAT THE ASSESSEE HAD CLAIMED DEDUCTION U/S 10A AND CONTINUED TO CLAIM AC CORDINGLY. HE FURTHER SUBMITTED THAT IN COMPLIANCE, THE INCOME-TAX RETURN S WERE REVISED WITHIN DUE TIME PRESCRIBED BY SECTION 139 (5) AND AUDIT REPORT S IN THE PRESCRIBED 56F FORMS WERE SUBMITTED. HE FURTHER EMPHASIZED THAT T HE REVISED RETURN HAD BEEN ACCEPTED BY THE AO AND ASSESSMENT WAS COMPLETED ON THIS REVISED RETURN. LD. AR FURTHER SUBMITTED THAT THE ASSESSEE COMPANY HAD CARRIED ON ITS BUSINESS FROM A REGISTERED AREA UNDER STP U/S 10A. IN REPL Y TO AOS OBSERVATION THAT NO DOCUMENTS WERE PROVIDED IN THE ASSESSMENT PROCEEDIN GS TO SUGGEST THAT IF 6 ITA NO.5174/DEL/2012 DEDUCTION U/S 10B IS NOT ALLOWED DEDUCTION U/S 10A COULD BE CLAIMED, LD. AR SUBMITTED BEFORE THE CIT (A) THAT THE FIRST AND FOR EMOST CLAIM MADE BY THE ASSESSEE FOR CLAIMING DEDUCTION U/S 10A WAS INCORPO RATED IN THE REVISED RETURN FILED BY THE ASSESSEE; THE RETURN WAS ACCEPTED BY T HE AO AND ASSESSMENT WAS COMPLETED REJECTING CLAIM U/S 10A NOT U/S 10B; THE MIGRATION FROM 10B TO 10A WAS ALLOWED BY THE AO BUT CLAIM MADE BY THE ASSESSE E COMPANY U/S10A WAS NOT VERIFIED BY THE AO; COPY OF LEGAL AGREEMENT AND GREEN CARD WERE SUBMITTED VIDE LETTER DATED 28.11.2011 AND OTHER DOCUMENTS WE RE SUBMITTED FOR REASONS FOR EXEMPTION U/S 10A. HE SUBMITTED THAT STILL THE AO OBSERVED THAT NO DOCUMENTS WERE SUBMITTED FOR CLAIM U/S 10A. LD. AR PLEADED T HAT THE ORDER OF THE CIT (A) ON THIS ISSUE MAY BE UPHELD AND FOR THIS, HE ALSO M ADE REFERENCE TO THE DECISIONS RELIED UPON BEFORE THE CIT (A). 11. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE AND P ERUSED THE MATERIAL ON RECORD. AFTER GOING THROUGH THE ORDER OF THE LD. C IT (A), WE FIND FORCE IN THE SUBMISSION OF THE LD. DR THAT THE CIT (A) HAS NOT A SKED FOR THE REMAND REPORT ON THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE A ND GAVE RELIEF ON THAT BASIS. ACCORDINGLY, WE RESTORE THIS ISSUE TO THE FILE OF T HE AO FOR DECIDING THIS ISSUE DE NOVO, OF COURSE AFTER PROVIDING AN OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. THIS GROUND OF REVENUE IS ALLOWED FOR STATISTICAL P URPOSES. 7 ITA NO.5174/DEL/2012 12. GROUND NO.3 IS AGAINST ALLOWING THE RENT EXPEND ITURE FOR KANPUR OFFICE BY HOLDING THAT THE OFFICE WAS USED FOR TRAINING OF NEWLY RECRUITED STAFF FOR MEDICAL TRANSCRIPTION WORK. 13. THE AO DISALLOWED THE RENT FOR THE KANPUR OFFIC E FOR THE REASON THAT THIS PREMISES WAS NOT REGISTERED WITH THE STPI/CUSTOMS. THE CIT (A) HELD THAT THE EXPENDITURE INCURRED BY THE ASSESSEE BY WAY OF RENT OF THE KANPUR OFFICE WAS RELATED TO THE ACTIVITY OF EXPORT OF MEDICAL TRANSC RIPTION SERVICES OF THE ASSESSEE, WHICH HAD BEEN HELD TO BE ELIGIBLE FOR EXEMPTION U/ S 10A, THEREFORE, THE RENT PAID TO THE KANPUR OFFICE WAS ALSO AN ALLOWABLE EXP ENDITURE. ACCORDINGLY, HE ALLOWED THIS GROUND. 14. LD. DR RELIED ON THE ORDER OF THE AO AND SUBMI TTED THAT THE AO ASKED THE ASSESSEE TO REPLY WHETHER CUSTOM BONDING WAS AV AILABLE TO ALL THE UNITS OF THE ASSESSEE COMPANY AND THE ASSESSEE WAS UNABLE TO GIVE A REPLY; AND MOREOVER, THE ORIGINAL APPROVAL, BEFORE THE CLAIM O F DEDUCTION U/S 10B DATED 28/3/2000 FROM DEPUTY COMMISSIONER OF CUSTOMS, INDI CATING THE DESCRIPTION/LOCATION OF THE PREMISES AS THAT OF ARJ UN NAGAR, NEW DELHI AND NO OTHER PREMISES. HE SUBMITTED THAT THE LICENSE WAS R ENEWED SEVERAL TIMES BUT NEVER THE ADDRESS OF KANPUR WAS MENTIONED. HE FURTH ER SUBMITTED THAT NO SEPARATE ACCOUNTS WERE MAINTAINED FOR KANPUR IN CAS E ANY BUSINESS ACTIVITY WAS BEING CARRIED OUT THERE. HE SUBMITTED THAT THE AO ASKED THE ASSESSEE IF THE PAYMENT HAD BEEN MADE FOR RENT, TDS MIGHT HAVE BEEN DEDUCTED BUT THE 8 ITA NO.5174/DEL/2012 ASSESSEE WAS UNABLE TO PROVIDE ANY EVIDENCE TO INDI CATE THAT THE ASSESSEE WAS CARRYING OUT ANY BUSINESS ACTIVITY FROM KANPUR. TH EREFORE, HE PLEADED TO SET ASIDE THE ORDER OF THE LD. CIT (A) ON THIS ISSUE. 15. LD. AR RELIED ON THE ORDER OF THE LD. CIT (A) A ND REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT (A). HE SUBMIT TED THAT THE OFFICE AT KANPUR WAS BEING USED AS STAFF PROCUREMENT OFFICE T O PROCURE AND TRAIN THE NEW RECRUITS FOR MEDICAL TRANSCRIPTION WORK. HE SUBMIT TED THAT THE STAFF USED FOR MEDICAL TRANSCRIPTION WAS NOT PROFESSIONALLY QUALIF IED, SO GRADUATES WHO UNDERSTOOD ENGLISH WERE HIRED AND THEN THEY WERE GI VEN FEW WEEKS TRAINING FOR THIS MEDICAL TRANSCRIPTION WORK. HE FURTHER SUBMIT TED THAT THIS KANPUR OFFICE WAS USED TO PROCURE LOW COST STAFF FROM INTERIORS O F UP AND AFTER GIVING BASIC TRAINING, THEY WERE SENT TO DELHI OFFICE FOR WORK. LD. AR SUBMITTED THAT THE WORK OF MEDICAL TRANSCRIPTION MEANT FOR EXPORTS WER E NOT BEING CARRIED OUT FROM THIS OFFICE (KANPUR), SO THERE WAS NO REQUIREMENT F OR GETTING THE PREMISES REGISTERED WITH STPI AND/OR CUSTOMS. HE THEREFORE PRAYED THAT THE ORDER OF THE CIT (A) MAY BE UPHELD ON THIS ISSUE. 16. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE AND P ERUSED THE RECORDS. WE FIND THAT THE DECISION OF THE AO IN RESPECT TO GROU NDS NO.1 & 2 HAS A BEARING ON THE ISSUE OF GROUND NO.3 WHICH IS BEFORE US AND SINCE WE HAVE REMANDED THE MATTER BACK TO THE FILE OF THE AO TO DECIDED GROUND S NO.1 & 2 IN RESPECT TO THE CLAIM OF THE ASSESSEE FOR EXEMPTION U/S 10A, WE ARE INCLINED TO REMAND THIS 9 ITA NO.5174/DEL/2012 ISSUE ALSO BACK TO THE FILE OF THE AO FOR DE NOVO C ONSIDERATION AFTER DECIDING GROUNDS NO.1 & 2. NEEDLESS TO SAY, OPPORTUNITY OF HEARING IS GRANTED TO THE ASSESSEE BEFORE PASSING THE ORDER. WE ORDER ACCORD INGLY. 17. GROUND NO.4 IS AGAINST THE DELETION OF ADDITION OF RS.18,30,780/- MADE U/S 40(A)(IA) OF THE ACT. 18. THE ASSESSING OFFICER HAS HELD THAT THE JOB WOR K EXPENSES WERE OF THE NATURE OF TECHNICAL SERVICES ON WHICH HIGHER RATE O F TAX WAS TO BE DEDUCTED AT SOURCE. THE CIT (A) ALLOWED THE ISSUE OF THE ASSE SSEE BY HOLDING AS UNDER :- 6.2 I HAVE CONSIDERED THE RIVAL CONTENTIONS IN THE MATTER AND AM INCLINED TO AGREE WITH THE APPELLANT THAT MEDICA L TRANSCRIPTION SERVICES ARE MORE OF THE NATURE OF LA BOUR ORIENTED SERVICES, WHICH DO NOT REQUIRE ANY SPECIALIZED KNOW LEDGE OR EDUCATION. THE NATURE OF THE WORK IS THAT OF AN ASS ISTANT IN THE MEDICAL PROFESSION, WHERE BASIC KNOWLEDGE OF ENGLIS H AND INFORMATION TECHNOLOGY ARE SUFFICIENT. THEREFORE, T HE JOB WORK EXPENSES INCURRED BY THE APPELLANT CANNOT BE TERMED AS TECHNICAL SERVICES ON WHICH TAX WAS REQUIRED TO BE DEDUCTED AS PER SECTION 194J. THE APPELLANT HAS RIGHTLY CLASSIF IED THE EXPENSES AS CONTRACT SERVICES AND THERE HAS BEEN NO SHORT DEDUCTION OF TAX AT SOURCE. THE DISALLOWANCE MADE O N THIS COUNT IS DIRECTED TO BE DELETED. 19. LD. DR RELIED ON THE ORDER OF THE AO WHEREAS TH E LD. AR RELIED ON THE ORDER OF THE CIT (A). 20. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE AND P ERUSED THE MATERIAL ON RECORD. AS PER SECTION 194J, THE TDS HAS TO BE DED UCTED FOR FEES FOR PROFESSIONAL SERVICES OR FEES FOR TECHNICAL SERVI CES. IN THE SECTION 194J, THE 10 ITA NO.5174/DEL/2012 DEFINITION OF BOTH THE TERMS I.E. PROFESSIONAL SERV ICES AND FEE FOR TECHNICAL SERVICES HAS BEEN GIVEN. AS PER THAT DEFINITION, PROFESSIONAL SERVICES MEANS SERVICES RENDERED BY A PERSON IN THE COURSE OR CAR RYING ON LEGAL, MEDICAL, ENGINEERING OR ARCHITECTURAL PROFESSION OR THE PROF ESSION OF ACCOUNTANCY OR TECHNICAL CONSULTANCY OR INTERIOR DECORATION OR ADV ERTISING OR SUCH OTHER PROFESSION AS IS NOTIFIED BY THE BOARD FOR THE PURP OSES OF SECTION 44AA OF THIS SECTION; AND FEE FOR TECHNICAL SERVICES SHALL HAV E THE SAME MEANING AS IN EXPLANATION 2 TO CLAUSE (VII) OF SUB-SECTION (1) OF SECTION 9. AS PER WHICH, IT MEANS ANY CONSIDERATION (INCLUDING ANY LUMP CUM CON SIDERATION) FOR THE RENDERING OF ANY MANAGERIAL, TECHNICAL OR CONSULTAN CY SERVICES (INCLUDING THE PROVISION OF SERVICES OF TECHNICAL OR OTHER PERSONN EL) BUT DOES NOT INCLUDE CONSIDERATION FOR ANY CONSTRUCTION, ASSEMBLY, MININ G OR LIKE PROJECT UNDERTAKEN BY THE RECIPIENT OR CONSIDERATION WHICH WOULD BE IN COME OF THE RECIPIENT CHARGEABLE UNDER THE HEAD SALARIES. NOW, LET US SEE HOW THE AO DEALT WITH THE SAID ISSUE. THE AO HAS SIMPLY NOTED THE FOLLOWING :- AN INDIVIDUAL WHO PERFORMS MEDICAL TRANSCRIPTION I S KNOWN AS A MEDICAL TRANSCRIPTIONIST OR AN MY. AN MT IS ALSO KN OWN AS A MEDICAL LANGUAGE SPECIALIST OR MLS. THE EQUIPMENT THE MT US ES IS CARRIED A MEDICAL TRANSCRIBER. THE INDIVIDUAL WHO PERFORMS ME DICAL TRANSCRIPTION SHOULD ALWAYS BE CALLED A 'MEDICAL TR ANSCRIPTIONIST.' A MEDICAL TRANSCRIPTIONIST IS THE PERSON RESPONSIBLE FOR CONVERTING THE PATIENT'S MEDICAL RECORDS INTO TEXT FROM RECORDED D ICTATION. THE TERM TRANSCRIBER DESCRIBES THE ELECTRONIC EQUIPMENT USED IN PERFORMING MEDICAL TRANSCRIPTION, E.G., A CASSETTE PLAYER WITH FOOT CONTROLS OPERATED BY THE MT FOR REPORT PLAYBACK AND TRANSCRI PTION. THERE HAVE BEEN INDUSTRY DISCUSSIONS CENTERED AROUND WHETHER O R NOT MEDICAL TRANSCRIPTIONISTS SHOULD BE CALLED SOMETHING ELSE; NO OTHER INDUSTRY- WIDE HAS BEEN ADOPTED. EDUCATION AND TRAINING CAN B E OBTAINED 11 ITA NO.5174/DEL/2012 THROUGH CERTIFICATE OR DIPLOMA PROGRAMS, DISTANCE L EARNING, AND/OR ON- THE-JOB TRAINING OFFERED IN SOME HOSPITALS, ALTHOUG H THERE ARE COUNTRIES CURRENTLY EMPLOYING TRANSCRIPTIONISTS THAT REQUIRE 18 MONTHS TO 2 YEARS OF SPECIALIZED MT TRAINING. WORKING IN MEDICAL TRAN SCRIPTION LEADS TO A MASTERY IN MEDICAL TERMINOLOGY AND EDITING, MT AB ILITY TO LISTEN AND TYPE SIMULTANEOUSLY, UTILIZATION OF PLAYBACK CONTRO LS ON THE TRANSCRIBER (MACHINE), AND USE OF FOOT PEDAL TO PLAY AND ADJUST DICTATIONS - ALL WHILE MAINTAINING A STEADY RHYTHM OF EXECUTION. THE AO HAS SAID THAT THE WORK OF A MEDICAL TRANSCRI PTIONIST IS A TECHNICAL NATURE. HOWEVER, FROM A PERUSAL OF THE AFORESAID DEFINITION GIVEN BY SECTION 194J, IT CANNOT BE HELD THAT SERVICES RENDERED BY THE MEDICA L TRANSCRIPTORS CANNOT FALL IN THE KEN OF SECTION 194J OF THE ACT BECAUSE IT DOES NOT QUALIFY THE DEFINITION GIVEN UNDER THAT SECTION FOR PROFESSIONAL SERVICES AND FEE FOR TECHNICAL SERVICE S. TAKING INTO CONSIDERATION THE SERVICES RENDERED BY THE SAID MEDICAL TRANSCRIPTORS TO THE ASSESSEE IS PURELY CONTRACTUAL SERVICES OR A T THE BEST BE TERMED AS A SPECIALTY CONTRACTUAL SERVICES. THEREFORE, WE FIND NO MERITS IN THIS GROUND OF THE APPEAL AND SO THIS GROUND IS DISMISSED. 21. IN THE RESULT, THE APPEAL OF THE REVENUE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 1 6 TH DAY OF OCTOBER, 2015. SD/- SD/- (S. V. MEHROTRA) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: THE 16 TH DAY OF OCTOBER, 2015 TS 12 ITA NO.5174/DEL/2012 COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A)-XVI, NEW DELHI. 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI