THE DCIT, (TDS), Indore V. M/s. Madhya Pradesh Paschim Kshetra Vidyut Vitran Company Limited, Indore

ITA 550/IND/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5615 (ITAT-INDORE)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 19-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALCHAND
• Assessee Lawyers: LUCKY JAIN
• Keywords: Question of law
• Section: 194C; 201(1)

Judgement Text

ITA 550, 551 & 712 OF 2016 M.P. PASCHIM KSHETRA VIDYUT VITRAN CO. LTD. 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER ITA NOS. 550, 551 & 712/IND/2016 A.YS. 2013-14 (FIRST THREE QUARTERS), 13-14 (FOURTH QUARTER) & 2014-15 DCIT-TDS, INDORE :: APPELLANT VS M/S. MADHYA PRADESH PASCHIM KSHETRA VIDYUT VITRAN CO. LTD., INDORE PAN BPLMO4716 F :: RESPONDENT DEPARTMENT BY SHRI LAL CHAND, CIT RESPONDENT BY SHRI LUCKY JAIN, ADV. DATE OF HEARING 21.11.2016 DATE OF PRONOUNCEMENT 21.11.2016 O R D E R PER SHRI D.T. GARASIA, JM THESE APPEALS ARE FILED BY THE REVENUE CHALLENGING THE DIFFERENT ORDERS OF LD. CIT(A)-I, INDORE, DATED 10.2.2016 & 2 3.3.2016. THE REVENUE HAS RAISED THE ISSUE THAT LD. CIT(A) HAS ER RED IN HOLDING THAT THE PROVISIONS OF SECTION 194J OF THE ACT WERE NOT ATTRACTED ON PAYMENT OF WHEELING CHARGES. ITA 550, 551 & 712 OF 2016 M.P. PASCHIM KSHETRA VIDYUT VITRAN CO. LTD. 2 2. FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS A CO. INC ORPORATED UNDER THE COMPANIES ACT, 1956 AND IS ENGAGED IN THE DISTR IBUTION OF POWER IN THE STATE OF MADHYA PRADESH. THE ASSESSEE IS PURCHA SING POWER FROM THE GENERATION CO. NAMELY, M/S. MADHYA PRADESH POWE R GENERATING CO. LTD. AND SELLING IT TO THE CONSUMERS. THE POWER FRO M THE GENERATION POINT TO THE ASSESSEE CO. IS TRANSMITTED THROUGH THE TRAN SMISSION NETWORK OF TRANSCO. ACCORDING TO THE ASSESSING OFFICER, THE AS SESSEE MADE PAYMENT OF WHEELING CHARGES TO TRANSCO FOR TECHNICA L SERVICES, WHICH WAS LIABLE FOR TDS U/S 194J (FEES FOR PROFESSIONAL OR TECHNICAL SERVICES) OF THE ACT BUT IT WAS NOT BEING DEDUCTED BY THE ASS ESSEE AT ALL. ACCORDINGLY, THE ASSESSING OFFICER RAISED THE DEMAN D U/S 201(1) & 201(1A). 3. AGGRIEVED WITH THE ACTION OF THE AO, THE ASSESSE E PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO, FOLLOWING THE DE CISIONS IN CASES OF CIT (TDS) VS. MAHARASHTRA STATE ELECTRICITY DISTRIB UTION CO. LTD., 275 ITR 23 (BOM) (2015) AND CIT VS. HUBLI ELECTRIC SUPPLY C O., 65 TAXMANN.COM 208 (KAR) (2016) ALLOWED THE APPEALS OF THE ASSESSE E ON THE PRESENT ISSUE. 4. AGGRIEVED WITH THE ACTION OF THE LD. CIT(A), THE REVENUE IS IN APPEALS BEFORE US. ITA 550, 551 & 712 OF 2016 M.P. PASCHIM KSHETRA VIDYUT VITRAN CO. LTD. 3 5. BEFORE US, THE LD. SENIOR D.R. RELIED ON THE ORD ERS OF THE AO WHEREAS THE ASSESSEE HAS, RELYING ON THE ORDER OF T HE LD. CIT(A), REITERATED THE SUBMISSIONS MADE BEFORE LD. CIT(A) A ND SUBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY T HE DECISIONS OF HON'BLE SUPREME COURT, DELHI HIGH COURT, BOMBAY HIG H COURT, M.P. HIGH COURT ETC. COPIES OF THE RELEVANT DECISIONS W ERE ALSO FILED BEFORE US BY THE LEARNED COUNSEL FOR THE ASSESSEE. 6. WE HAVE PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. BEFORE US, THE LD. DR COULD NO T CONTROVERT THE ASSERTION MADE BY THE LEARNED COUNSEL FOR THE ASSES SEE. WE FIND THAT THE SIMILAR ISSUE HAS BEEN DECIDED BY THE HONBLE D ELHI HIGH COURT IN THE CASE OF CIT-II AND ORS VS. DELHI TRANSCO LTD. V IDE ORDER DATED 06.8.2015 IN ITA NOS. 384/12, 566, 570/2013, 323, 3 24, 325 AND 241/2015. 1. THESE ARE SEVEN APPEALS RELATING TO VARIOUS ASSESS MENT YEARS FILED BY THE REVENUE WHERE ONE SUBSTANTIAL QUESTION OF LAW ARI SES, AND WHICH HAS BEEN FRAMED BY THE ORDER DATED 18TH SEPTEMBER 2012 IN I TA NO. 384 OF 2012, RELEVANT TO THE ASSESSMENT YEAR (AY) 2005-06, AS UNDER: DID THE TRIBUNAL FALL INTO ERROR IN HOLDING THAT THE WHEELING CHARGES PAID BY THE ASSESSEE, IN THE FACTS OF THIS CASE, WA S DEDUCTABLE AS IT DID NOT AMOUNT TO FEES FOR TECHNICAL SERVICES WITHIN TH E MEANING OF SECTION 194J OF THE ACT. THE BPTA 2. THE RESPONDENT DELHI TRANSCO LTD. (DTL) ENTERED INTO BULK POWER TRANSMISSION AGREEMENT (BPTA) ON 21ST JULY 2004 WIT H THE POWER GRID CORPORATION INDIA LTD. (PGCIL). IN ONE OF THE PREAM BLE CLAUSES OF THE ITA 550, 551 & 712 OF 2016 M.P. PASCHIM KSHETRA VIDYUT VITRAN CO. LTD. 4 BPTA, IT WAS RECORDED THAT DTL IS DESIROUS OF RECEIVIN G ENERGY THROUGH POWER GRID TRANSMISSION SYSTEM ON MUTUALLY AGREED TERMS AND CONDITIONS. THE BPTA DEFINED SEVERAL TERMS INCLUDING THE TERM WHEELING AS UNDER: THE OPERATION WHEREBY THE DISTRIB UTION SYSTEM AND ASSOCIATED FACILITIES OF A TRANSMISSION LICENSEE OR D ISTRIBUTION LICENSEE, AS THE CASE MAY BE, ARE USED BY ANOTHER PERSON FOR THE CO NVEYANCE OF ELECTRICITY ON PAYMENT OF CHARGES TO BE DETERMINED UND ER SECTION OF SECTION 62 (SIC) OF THE ELECTRICITY ACT, 2003 AND IT S SUBSEQUENT AMENDMENTS. ITA NOS.384/2012, 566/2013, 570/2013, 323-324-325 &341/2015 PAGE 5 OF 21 3. UNDER CLAUSE 8 OF THE BPTA, IT WAS AGREED THAT THE TRANSMISSION CHARGES WOULD BE PAID TO PGCIL BY DTL FOR TRANSMITTIN G PRIVATE SECTOR POWER THROUGH PGCIL LINES AS PER THE GUIDELINES OF T HE CENTRAL ELECTRICITY REGULATORY COMMISSION (CERC). CLAUSE 10 STATED THAT THE TRANSMISSION TARIFF AND TERMS AND CONDITIONS FOR THE POWER TO BE TRANSFERRED BY PGCIL WOULD BE IN TERMS OF THE NOTIFICAT ION TO BE ISSUED BY CERC FROM TIME TO TIME. ON THE COMMISSIONING OF THE NEW TRANSMISSION SYSTEM DTL WAS TO PAY THE PROVISIONAL TRANSMISSION T ARIFF IN LINE WITH THE TARIFF NORMS ISSUED BY CERC. THE TARIFF WAS SUBJECT T O ADJUSTMENT IN TERMS OF CERC NOTIFICATION. THE WHEELING FOR THE TRANS MISSION POWER WAS TO BE IN TERMS OF THE CERC GUIDELINES. THE BPTA CAM E INTO FORCE WITH EFFECT FROM 1 ST APRIL 2002 AND WAS TO REMAIN VALID FO R A PERIOD OF FIVE YEARS, THAT IS, UP TO 31ST MARCH 2007. COMMENCEMENT O F PROCEEDINGS 4. A SURVEY WAS CARRIED OUT IN THE BUSINESS PREMISES OF DTL UNDER SECTION 133-A OF THE INCOME TAX ACT, 1961 (ACT) ON 22ND J ANUARY 2009. IT WAS NOTICED THAT DTL HAD DEDUCTED TAX AT SOURCE (TDS) AT 2% UNDER SECTION 194C OF THE ACT ON THE WHEELING CHARGES PAID TO PGCI L. THE STATEMENT OF ONE MR. SURENDRA BABBAR, DEPUTY GENERAL MANAGER (FINANCE ) OF DTL WAS RECORDED. FOLLOWING THE SURVEY, DTL WROTE A LETTER DATED 29TH JANUARY 2009 PROTESTING THAT THE SURVEY WAS WITHOUT JURISDICTI ON AS IT COULD ONLY HAVE BEEN CARRIED OUT BY ACIT CIRCLE 10 (1), NEW DELHI . A SHOW CAUSE NOTICE WAS ISSUED TO DTL ON 20TH FEBRUARY 2009. DTL F ILED A REPLY ON 26TH FEBRUARY 2009. AFTER ITA NOS.384/2012, 566/2013, 570/ 2013, 323-324- 325 &341/2015 PAGE 6 OF 21 CONSIDERING THE RESPONSE TO THE SHOW CAUSE NOTICE AND AFTER HEARING THE VARIOUS REPRESENTATIVES OF THE DTL, THE AO PASSED AN ORDER DATED 27TH MARCH 2009, UNDER SECTIONS 2 01 (1)/201 (1A) OF THE ACT. THE ORDER OF THE AO 5.THE AO HELD THAT DTL WAS NOT ONLY USING THE TRANSM ISSION SYSTEM SET UP OF PGCIL BUT ALSO AVAILING OF OTHER SERVICES FROM PGCI L SUCH AS MAINTAINING THE DELIVERY VOLTAGE, ECONOMIC TRANSMISSI ON, MINIMUM LOSS OF ELECTRICITY IN TRANSMISSION OF REGULAR AND UNINTERRUPT ED SUPPLY ETC., ITA 550, 551 & 712 OF 2016 M.P. PASCHIM KSHETRA VIDYUT VITRAN CO. LTD. 5 WHICH ARE TECHNICAL SERVICES'. ACCORDING TO THE AO, T HE VALUE OF THESE SERVICES CANNOT BE BIFURCATED FROM THE TOTAL VALUE PAI D BY THE ASSESSEE TO PGCIL FOR TRANSMISSION SERVICES IN THE NAME OF WHEELIN G CHARGES. THE TRANSMISSION LINES COULD NOT BE OF ANY USE IN ISOLAT ION AND WITHOUT OTHER ASSOCIATED SERVICES THE TRANSMISSION OF ELECTRICITY CO ULD NOT HAVE BEEN POSSIBLE. ACCORDINGLY, THE AO HELD THAT WHEELING CH ARGES PAID BY DTL WERE FEES FOR TECHNICAL SERVICES LIABLE FOR TDS UNDER SE CTION 194J OF THE ACT. THE AO REFERRED TO THE REPLIES PROVIDED BY MR. R. RA JAGOPALAN, CHIEF MANAGER (FINANCE) OF PGCIL ON 24TH MARCH 2009 TO A QU ESTIONNAIRE SENT TO HIM. 6. THE AO THEN PROCEEDED TO SET OUT THE CALCULATION OF SHORT DEDUCTION OF TDS AND COMPUTED IT AT RS.44752382. THE AO TREATED D TL AS A DEFAULTER UNDER SECTION 201(1) OF THE ACT AND THE MATTER WAS REF ERRED TO THE ADDITIONAL COMMISSIONER OF INCOME TAX (ACI) FOR INI TIATING PENALTY PROCEEDINGS UNDER SECTION 271-C OF THE ACT. THE AO HE LD THAT IN TERMS OF THE CBDT CIRCULAR THE DEMAND UNDER SECTION 201(1) WOUL D ITA NOS.384/2012, 566/2013, 570/2013, 323-324-325 &341/ 2015 PAGE 7 OF 21 NOT BE ENFORCED BUT THAT WOULD NOT AFFECT THE LIA BILITY OF DTL REGARDING INTEREST UNDER SECTION 201(1A) OF THE ACT AND THIS WO RKED OUT TO RS.78,40,426. THE TOTAL DEMAND WAS WORKED OUT AS RS 3,19,87,617. THE ORDER OF THE CIT (A) 7. AGGRIEVED BY THE AO'S ORDER, DTL FILED AN APPEAL B EFORE THE COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] BEING APPEAL NO. 34/09- 10 FOR THE AY 2004-05. IN THE ORDER DATED 8TH DECEMBER 2010, DISMISSING THE APPEAL, THE CIT(A) AGREED WITH THE CONTENTION OF DTL THAT SECTION 194C OF THE ACT WOULD APPLY SINCE ELECTRICITY WAS G OODS AS DEFINED UNDER SECTION 2 OF THE SALES OF GOODS ACT AND IN TERM S OF THE CONTRACT, PGCIL WAS IN FACT TRANSPORTING SUCH GOODS TO DTL. THE CIT (A), HOWEVER, HELD THAT IN THE ABSENCE OF SUFFICIENT LEGAL PRECE DENT ON THE SUBJECT, I AM UNABLE TO REJECT THE VIEW TAKEN BY LD. ASSESSING OFF ICER. THE CIT (A), THEREFORE, CONFIRMED THE SAID ORDER OF THE AO. SOME RELIE F WAS GRANTED AS FAR AS THE CALCULATION OF INTEREST PAYABLE. THE ORDER OF THE ITAT 8. DTL THEN CARRIED THE MATTER FURTHER IN APPEAL TO THE INCOME TAX APPELLATE TRIBUNAL (ITAT) BY FILING ITA NO. 755(DE L) 2011 (FOR AY 2004- 05). THE ITAT AGREED WITH THE DTL THAT WHAT HAD BEEN AVAILED BY IT FROM PGCIL WAS NOT A TECHNICAL SERVICE. IT WAS HELD THAT DTL WAS NOT LIABLE TO BE SADDLED WITH HIGHER LIABILITY OF TDS. THE APPEAL WAS ACCORDINGLY ALLOWED. 9. THE ITAT BASED ITS OPINION ON THE DECISION OF TH IS COURT IN CIT V. ITA NOS.384/2012, 566/2013, 570/2013, 323-324-325 &341/ 2015 PAGE 8 OF 21 BHARTI CELLULAR LTD. (2008) 220 CTR (DEL) 258 AND OF THE MADRAS HIGH ITA 550, 551 & 712 OF 2016 M.P. PASCHIM KSHETRA VIDYUT VITRAN CO. LTD. 6 COURT IN SKYCELL COMMUNICATIONS LTD. V. DCIT (2001) 251 ITR 53 (MAD). THE ITAT NOTED THAT BOTH THE DECISIONS LAID EMPHASI S ON THE INVOLVEMENT OF A 'HUMAN ELEMENT' FOR RENDERING TECHNICAL SERVICES A ND IMPARTING OF TECHNICAL KNOWLEDGE. THE ITAT HELD THAT NONE OF THO SE CONDITIONS WERE SATISFIED IN THE PRESENT CASE. WHILE THERE MIGHT BE S UPERVISION OF TRANSMISSION WORK BY THE TECHNICAL PERSONNEL OF THE PA YEE THERE IS NO HUMAN INTERVENTION IN SO FAR AS THE ASSESSEE IS CONC ERNED REGARDING THE TRANSMISSION. IT WAS FURTHER HELD THAT EVEN IF TECHNI CAL KNOWLEDGE COULD BE UPGRADED WITHOUT PRESENCE OF HUMAN BEINGS BY WAY OF HANDING OVER DRAWINGS AND DESIGNS OR A TECHNICAL SERVICE CAN BE REND ERED BY ROBOT (MACHINES) WITHOUT INTERVENTION OF HUMAN ELEMENT, TH E CLASSIFICATION OF THE SERVICES RENDERED BY THE ASSESSEE AS TECHNICAL SERV ICE IS NOT FREE FROM DOUBT. 10. WHEN THE CASE WAS HEARD ON 16TH JULY 2015, MR. A. B. DIAL, LEARNED SENIOR COUNSEL FOR DTL, DREW THE ATTENTION OF THIS COU RT TO THE DECISION DATED 8TH MAY 2015 OF THE DIVISION BENCH OF THE BOM BAY HIGH COURT IN CIT V. MAHARASHTRA STATE ELECTRICITY DISTRIBUTION CO.LT D. [2015] 375 ITR 23 (BOM) WHICH HELD THAT WHEELING CHARGES WOULD NOT AMO UNT TO PAYMENT OF FEES FOR TECHNICAL SERVICES. MR. KAMAL SAWHNEY, LEA RNED SENIOR STANDING COUNSEL FOR THE REVENUE THEN SOUGHT TIME TO EXAMINE THE SAID DECISION AND MAKE SUBMISSIONS. SUBMISSIONS ON BEHAL F OF THE REVENUE 11. THE SUBMISSIONS OF MR. SAWHNEY WERE HEARD BY THIS COURT ON THE ITA NOS.384/2012, 566/2013, 570/2013, 323-324-325 &341/ 2015 PAGE 9 OF 21 30TH JULY, 2015. THE PRINCIPAL SUBMISSION OF MR. S AWHNEY WAS WITH REFERENCE TO SECTION 194J OF THE ACT AND THE CENTRAL E LECTRICITY AUTHORITY (GRID STANDARDS) REGULATIONS, 2010. THE SUBMISSIONS O F MR. SAWHNEY WAS BASICALLY TWOFOLD. IN THE FIRST PLACE, HE SUBMITTED THAT WHETHER THE FEES PAID IN THE CONTEXT OF RENDERING OF SERVICES AMOUNTED TO FEES FOR TECHNICAL SERVICE COULD BE ANSWERED ONLY BY EXAMINING THE VERY N ATURE OF SERVICE BEING PERFORMED, AND IN THAT CONTEXT THE WORKING OF T HE INDUSTRY, IN THIS CASE, THE POWER GENERATION AND TRANSMISSION INDUSTRY. ACCORDING TO HIM, A DETAILED ANALYSIS WOULD HAVE TO BE UNDERTAKEN BY E XAMINING EXPERTS AND SINCE THAT WAS NOT PERFORMED BY THE ITAT OR PERH APS EVEN THE AO, THE CASE WOULD HAVE TO BE REMANDED FOR A FRESH DETERMIN ATION. 12. THE SECOND BROAD SUBMISSION OF MR. SAWHNEY WAS T HAT THE TEST ADOPTED BY THE ITAT WAS PLAINLY ERRONEOUS. THE QUESTI ON WAS NOT ONLY ABOUT WHETHER THERE WAS ANY HUMAN INTERVENTION IN REND ERING OF THE SERVICES, BUT WHETHER WITHOUT TECHNICAL SUPPORT OR TECH NICAL INPUTS IT WOULD AT ALL BE POSSIBLE TO AVAIL OF THE SERVICES. H E SUBMITTED WITH REFERENCE TO THE AFOREMENTIONED REGULATIONS THAT THERE WAS A STATUTORY REQUIREMENT OF THE POWER GENERATION COMPANY AND THE POW ER ITA 550, 551 & 712 OF 2016 M.P. PASCHIM KSHETRA VIDYUT VITRAN CO. LTD. 7 TRANSMISSION COMPANY TO MAINTAIN THEIR EQUIPMENTS IN CONFORMITY WITH CERTAIN MINIMUM STANDARDS. THIS REQUIRED CONSIDERABLE TE CHNICAL KNOWLEDGE AND SKILL. HE REFERRED TO THE DECISION OF TH IS COURT IN DIT VS. LUFTHANSA CARGO INDIA (2015) 375 ITR 85 (DEL) AND SU BMITTED THAT THE OBSERVATIONS THEREIN HELPED THE REVENUE IN SO FAR AS I T WAS CLAIMED THAT WITHOUT TECHNICAL INPUTS THE QUESTION OF AVAILING T HE SERVICES OF THE KIND ITA NOS.384/2012, 566/2013, 570/2013, 323-324-325 & 341/2015 PAGE 10 OF 21 CONTEMPLATED IN THE PRESENT CASE WAS NOT PO SSIBLE. HE URGED THAT THE MATTER SHOULD BE REMANDED TO THE AO FOR CARRYIN G OUT A DETAILED ENQUIRY. 13. MR. SAWHNEY SPENT CONSIDERABLE TIME DISTINGUISHIN G THE JUDGMENT OF THE BOMBAY HIGH COURT IN MAHARASHTRA STATE ELECTRICITY DISTRIBUTION CO. LTD.(SUPRA). IT WAS SUBMITTED THAT IN FACTS OF THE C ASE BEFORE IT, THE BOMBAY HIGH COURT DID NOT HAVE AN OCCASION TO ACTUA LLY EXAMINE WHETHER 'WHEELING' WAS IN FACT A TECHNICAL SERVICE. R ELIANCE WAS ALSO PLACED BY MR. SAWHNEY ON CERTAIN OBSERVATIONS MADE BY THIS COURT IN DIT(INTERNATIONAL TAXATION)V. PANALFA AUTOELECKTRIK L TD. (2014) 272 CTR 117(DEL). SUBMISSIONS ON BEHALF OF THE ASSESSEE 14. REPLYING TO THE ABOVE SUBMISSIONS, MR. DIAL, LE ARNED SENIOR COUNSEL FOR DTL, AT THE OUTSET POINTED OUT THAT THE JUDGMENT OF THE BOMBAY HIGH COURT IN MAHARASHTRA STATE ELECTRICITY DISTRIBUTION CO. LTD.(SUPRA) ANSWERED THE ISSUE ENTIRELY IN FAVOUR OF THE ASSESSEE . HE REFERRED TO THE DEFINITION OF WHEELING CONTAINED IN THE BPTA. HE REI TERATED THAT THE ASSESSEE WAS ONLY PAYING FOR THE ELECTRICITY TRANSMITT ED TO IT THROUGH THE EQUIPMENT AND LINES MAINTAINED BY PGCIL. WHATEVER SE RVICES THE TECHNICAL PERSONNEL OF PGCIL WERE PERFORMING WAS FOR TH E BENEFIT OF PGCIL ITSELF. PGCIL WAS ACTING LIKE A TRANSPORTER OF E LECTRICITY THROUGH ITS EQUIPMENTS AND THE CHARGES FOR THAT WERE BEING PAID BY THE ASSESSEE IN TERMS OF THE TARIFF DETERMINED BY THE CERC. IN THE CIRC UMSTANCES, IT WAS ESSENTIALLY A PAYMENT FOR TRANSPORTATION OF THE ITA NO S.384/2012, 566/2013, 570/2013, 323-324-325 &341/2015 PAGE 11 O F 21 ELECTRICITY AND NOTHING MORE. HE REFERRED TO THE ANSWERS PROVIDED BY MR. RAJAGOPALAN, CHIEF MANAGER (FINANCE) OF PGCIL IN RESP ONSE TO THE QUESTIONNAIRE SENT TO HIM BY THE AO. 15. MR. DIAL ALSO REFERRED TO THE DECISION DATED 12TH J UNE 2015OF THE ITAT IN JAIPUR IN BHARTI HEXACOM LTD. V. INCOME TAX OFFICE R (TDS) II (ITA NO. 656/JP/2010), WHICH WAS RENDERED AFTER THE DECISION OF THIS COURT IN CIT V. BHARTI CELLULAR [2009] 319 ITR 139 WAS SET ASIDE B Y THE SUPREME COURT IN CIT V. BHARTI CELLULAR LTD. [2011] 330 ITR 239, AN D THE MATTER WAS REMANDED TO THE AO WITH DIRECTIONS TO EXAMINE TECHNIC AL EXPERTS. MR. DIAL ALSO REFERRED TO THE DICTIONARY MEANING OF THE WORD SERVICES. MS. ITA 550, 551 & 712 OF 2016 M.P. PASCHIM KSHETRA VIDYUT VITRAN CO. LTD. 8 RASHMI CHOPRA, LEARNED COUNSEL SUPPLEMENTED THE ABOVE SUBMISSIONS AND REFERRED TO THE DECISION IN UNION OF INDIA V. MART IN LOTTERY AGENCIES (2009) 12 SCC 209. THE RELEVANT STATUTORY PROVISIONS 16.THE RELEVANT PORTION OF SECTION 194 J OF THE ACT READS AS UNDER: 194J (1) ANY PERSON, NOT BEING AN INDIVIDUAL OR A HINDU UN DIVIDED FAMILY, WHO IS RESPONSIBLE FOR PAYING TO A RESIDENT ANY SUM BY WAY OF (A) FEES FOR PROFESSIONAL SERVICES, OR (B) FEES FOR TECHNICAL SERVICE S, OR (BA) ANY REMUNERATION OR FEES OR COMMISSION BY WHATEVER NAME CALL ED, OTHER THAN THOSE ON WHICH TAX IS DEDUCTIBLE UNDER SECTION 192, TO A DIRECTOR OF A COMPANY, OR (C) ROYALTY, OR ITA NOS.384/2012, 566/2013 , 570/2013, 323- 324-325 &341/2015 PAGE 12 OF 21 (D) ANY SUM REFERRED T O IN CLAUSE (VA) OF SECTION 28, SHALL, AT THE TIME OF CREDIT OF SUCH SUM TO THE ACCOUNT OF THE PAYEE OR AT THE TIME OF PAYMENT THEREOF IN CASH OR BY ISSUE OF A CHEQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEVER IS EARLIER, DEDUC T AN AMOUNT EQUAL TO TEN PER CENT OF SUCH SUM AS INCOMETAX ON INCOME C OMPRISED THEREIN....................... EXPLANATION- FOR THE P URPOSES OF THIS SECTION, (A) PROFESSIONAL SERVICES MEANS SERVICES RENDERED BY A PERS ON IN THE COURSE OF CARRYING ON LEGAL, MEDICAL, ENGINEERING OR ARCHITECTU RAL PROFESSION OR THE PROFESSION OF ACCOUNTANCY OR TECHNICAL CONSULTANC Y OR INTERIOR DECORATION OR ADVERTISING OR SUCH OTHER PROFESSION AS I S NOTIFIED BY THE BOARD FOR THE PURPOSES OF SECTION 44AA OR OF THIS SECT ION; (B) FEES FOR TECHNICAL SERVICES SHALL HAVE THE SAME MEANING AS I N EXPLANATION 2 TO CLAUSE (VII) OF SUB-SECTION (1) OF SECTION 9; 17. EXPLANATION 2 OF CLAUSE (VII) OF SUB-SECTION (1 ) OF SECTION 9 READS AS UNDER: (VII) INCOME BY WAY OF FEES FOR TECHNICAL SERV ICES PAYABLE BY- (A) THE GOVERNMENT; OR (B) A PERSON WHO IS A RESIDENT, EXCE PT WHERE THE FEES ARE PAYABLE IN RESPECT OF SERVICES UTILIZED IN A BUSIN ESS OR PROFESSION CARRIED ON BY SUCH PERSON OUTSIDE INDIA OR FOR THE PURP OSES OF MAKING OR EARNING ANY INCOME FROM ANY SOURCE OUTSIDE INDIA; OR EXPLANATION 2-FOR THE PURPOSES OF THIS CLAUSE, FEES FOR TECHNICAL SERVICES MEANS ANY CONS IDERATION (INCLUDING ANY ITA NOS.384/2012, 566/2013, 570/2013, 323-324-3 25 &341/2015 PAGE 13 OF 21 LUMP SUM CONSIDERATION) FOR THE RENDERING OF ANY MANAGERIAL, TECHNICAL OR CONSULTANCY SERVICES (INCLUDI NG THE PROVISION OF SERVICES OR TECHNICAL OR OTHER PERSONNEL) BUT DOES NOT I NCLUDE CONSIDERATION FOR ANY CONSTRUCTION, ASSEMBLY, MINING O R LIKE PROJECT UNDERTAKEN BY THE RECIPIENT OR CONSIDERATION WHICH WOUL D BE INCOME OF THE RECIPIENT CHARGEABLE UNDER THE HEAD SALARIES. 18. IN ADDITION SECTION 2 (76) OF THE ELECTRICITY AC T, 2003 ('EA') DEFINES 'WHEELING' AS UNDER: SECTION 2 (76): WHEELING MEA NS THE OPERATION WHEREBY THE DISTRIBUTION SYSTEM AND ASSOCIATED FACILI TIES OF A ITA 550, 551 & 712 OF 2016 M.P. PASCHIM KSHETRA VIDYUT VITRAN CO. LTD. 9 TRANSMISSION LICENSEE OR DISTRIBUTION LICENSEE, AS THE CASE MAY BE, ARE USED BY ANOTHER PERSON FOR THE CONVEYANCE OF ELECTRICIT Y ON PAYMENT OF CHARGES TO BE DETERMINED UNDER SECTION 62. 19. THE QUESTION THAT REQUIRES TO BE ADDRESSED IS WHET HER THERE IS ANY 'RENDERING OF ANY MANAGERIAL, TECHNICAL OR CONSULTANCY SERVICES (INCLUDING THE PROVISION OF SERVICES OR TECHNICAL OR OTHER PERSONNEL )' BY PGCIL TO DTL BY VIRTUE OF THE BPTA WITHIN THE MEANING OF SECTION 194 J (1) READ WITH EXPLANATION 2 OF CLAUSE (VII) OF SUB-SECTION (1) OF SECTION 9 OF THE ACT? IN OTHER WORDS IS THE 'WHEELING' OF ELECTRICITY, DEFINED IN THE BPTA (AND SECTION 2 (76) OF THE EA AS AN 'OPERATION WHEREBY THE DISTRIBUTION SYSTEM AND ASSOCIATED FACILITIES OF A TRANSMISSION LICENSEE OR DISTRIBUTION LICENSEE, AS THE CASE MAY BE, ARE USED BY ANOTHER PERS ON FOR THE CONVEYANCE OF ELECTRICITY ON PAYMENT OF CHARGES', A RE NDERING OF SERVICE BY PGCIL TO DTL? THE DECISIONS REGARDING 'TECHNICAL SERVICES' ITA NOS.384/2012, 566/2013, 570/2013, 323-324-325 &341/ 2015 PAGE 14 OF 21 20. THE ITAT HAS REFERRED TO THE DECISION OF THE SUPREM E COURT IN BHARTI CELLULAR (SUPRA) WHERE THE QUESTION EXAMINED WAS WHET HER MANUAL INTERVENTION IS INVOLVED IN THE TECHNICAL OPERATIONS BY WHICH A CELLULAR SERVICE PROVIDER, LIKE M/S. BHARTI CELLULAR LIMITED, IS GIVEN THE FACILITY BY BSNL/MTNL FOR INTERCONNECTION. WHILE SETTING ASIDE T HE DECISION OF THIS COURT IN CIT VS. BHARTI CELLULAR LTD [2009] 319 ITR 13 9 (DEL), THE SUPREME COURT OBSERVED THAT THE PROBLEM WHICH AROSE IN SUCH CAS ES WAS THAT THERE IS NO EXPERT EVIDENCE FROM THE SIDE OF THE DEPA RTMENT TO SHOW HOW HUMAN INTERVENTION TAKES PLACE, PARTICULARLY, DURIN G THE PROCESS WHEN CALLS TAKE PLACE...... IT WAS OBSERVED FURTHER T HAT THESE TYPES OF MATTERS CANNOT BE DECIDED WITHOUT ANY TECHNICAL ASSI STANCE AVAILABLE ON RECORD. ACCORDINGLY THE CASE WAS REMANDED TO THE AO T O EXAMINE TECHNICAL EXPERTS FROM THE SIDE OF THE DEPARTMENT AND TO DECIDE THE MATTER WITHIN FOUR MONTHS. 21. FROM THE DECISION OF THE ITAT JAIPUR IN BHARTI HEX ACOM LTD. (SUPRA), IT IS APPARENT THAT AFTER THE EXERCISE OF EXAMINATION OF EXPERTS WAS COMPLETED, AND THE AO GAVE HIS DECISION, THE ITAT C AME TO THE CONCLUSION THAT WHILE FOR INSTALLATION, SETTING-UP, REPAIRING, SE RVICING, MAINTENANCE AND CAPACITY AUGMENTATION, HUMAN INTERVENTION MIGHT BE REQUIRED BUT 'AFTER COMPLETING THIS PROCESS MERE INTERCONNECTION BET WEEN THE OPERATORS IS AUTOMATIC AND DOES NOT REQUIRE ANY HUMAN INTERVENTION. CONSEQUENTLY, INTERCONNECT USER CHARGES RECEIVED OR PAID WERE HELD NOT TO BE FEES FOR TECHNICAL SERVICES WITHIN THE MEANING OF SECTION 194J READ WITH SECTION 9 (1) (VII) READ WITH EXPLANATION 2 OF THE ACT. ITA ITA 550, 551 & 712 OF 2016 M.P. PASCHIM KSHETRA VIDYUT VITRAN CO. LTD. 10 NOS.384/2012, 566/2013, 570/2013, 323-324-325 &341/ 2015 PAGE 15 OF 21 22. IN SKYCELL COMMUNICATIONS (SUPRA), THE MADRAS HIG H COURT WENT INTO THE DICTIONARY MEANING OF THE WORD TECHNICAL AND TH EN CONCLUDED THAT THE EXPRESSION FEE FOR TECHNICAL SERVICES COULD ONLY BE MEANT TO COVER SUCH THINGS TECHNICAL AS ARE CAPABLE OF BEING PROVIDE D BY WAY OF SERVICE FOR A FEE. BUT IT IS NOT IN EVERY CASE THAT THE PROVI SION OF SERVICE MIGHT INVOLVE THE ELEMENT OF HUMAN INTERVENTION. 23. IN PANALFA AUTOELECKTRIK (SUPRA), THIS COURT OBSERV ED THAT TECHNICAL SERVICES CONSIST OF SERVICES OF TECHNICAL NATURE WHE N SPECIAL SKILLS OR KNOWLEDGE RELATING TO TECHNICAL FIELD ARE REQUIRED FOR T HEIR PROVISION, MANAGERIAL SERVICES ARE RENDERED FOR PERFORMING MANAGEMENT FUNCTIONS AND CONSULTANCY SERVICES RELATE TO PROVISION OF ADVICE BY SOMEONE HAVING SPECIAL QUALIFICATION THAT ALLOW HIM TO DO SO. IT WAS HELD THAT TECHNICAL, MANAGERIAL AND CONSULTANCY SERVICES MIGHT OVERLAP AND IT WOULD NOT BE PROPER TO VIEW THEM IN WATERTIGHT COMPARTMENTS. IN THAT CASE IT WAS HELD THAT THE COMMISSION PAID BY THE ASSESSEE TO ITS FORE IGN AGENT FOR ARRANGING EXPORT SALES AND RECOVERY OF PAYMENT COULD NOT BE REGARDED AS FEE FOR TECHNICAL SERVICES. 24. IN LUFTHANSA CARGO INDIA (SUPRA) THE COURT WAS ADD RESSING THE QUESTION WHETHER THE FEE PAID TO THE NON-RESIDENT COM PANY OUTSIDE INDIA BY THE ASSESSEE FOR CARRYING OUT MAINTENANCE, REPAIRS TO RUN THE LEASED AIRCRAFT FLYING HOURS AND FOR COMPONENT OVERHAUL AND MAI NTENANCE WAS FEE FOR TECHNICAL SERVICES. ANSWERING THE QUESTION I N AFFIRMATIVE, THE COURT OPINED THAT UNLIKE NORMAL MACHINERY REPAIR, THE A IRCRAFT ITA NOS.384/2012, 566/2013, 570/2013, 323-324-325 &341/ 2015 PAGE 16 OF 21 MAINTENANCE AND REPAIRS, AND THEIR COMPONENT OVERHAU L MAINTENANCE WOULD REQUIRE SPECIFIC LEVEL OF TECHNICAL EXPERTISE. T HE EXCLUSIVE NATURE OF THESE SERVICES COULD NOT BUT LEAD TO THE INFERENCE TH AT THEY ARE TECHNICAL SERVICES. 25. IN UNION OF INDIA V. MARTIN LOTTERY AGENCIES (SUP RA), THE SUPREME COURT CONSIDERED THE MEANING OF WORD SERVICE, AND WHE THER IT WOULD INCLUDE PROMOTING AND ORGANIZING A LOTTERY. IT WAS HEL D THAT DEALING WITH LOTTERY WAS RES EXTRA COMMERCIUM, AND THEREFORE IT COULD NOT AMOUNT TO RENDITION OF ANY SERVICE. IN PARA 20 (SCC), THE DICT IONARY MEANING OF THE WORD SERVICE WAS NOTED AS FOLLOWS: WORK DONE OR DUTY PERFORMED FOR ANOTHER OR OTHERS; A SERVING; AS, PROFESSIONAL SERVICES, REPAIR SERVICE, A LIFE DEVOTED TO PUBLIC SERVICE. AN ACTIVITY CARRIED ON TO P ROVIDE PEOPLE WITH THE USE OF SOMETHING, AS ELECTRIC POWER, WATER, TRANS PORTATION, MAIL DELIVERY, TELEPHONES, ETC. ANYTHING USEFUL, AS MAINT ENANCE, SUPPLIES, ITA 550, 551 & 712 OF 2016 M.P. PASCHIM KSHETRA VIDYUT VITRAN CO. LTD. 11 INSTALLATION, REPAIRS, ETC., PROVIDED BY A DEALER OR MA NUFACTURER FOR PEOPLE WHO HAVE BOUGHT THINGS FROM HIM. 26. THE BOMBAY HIGH COURT IN THE MAHARASHTRA STATE EL ECTRICITY (SUPRA) CONSIDERED, INTER ALIA, WHETHER WHEELING CHARGES COULD BE CHARACTERIZED AS FEE FOR TECHNICAL SERVICES. IT WAS ACKNOWLEDGED T HAT AS A TRANSMISSION LICENSEE THE STATE UNDERTAKING, MSEDCL, COULD ENGAGE IN WHEELING OPERATIONS' AS DEFINED UNDER SECTION 2(76) MEANING TH EREBY THAT THE DISTRIBUTION SYSTEM. THE FACILITIES OF MSEDCL, IN IT S CAPACITY AS TRANSMISSION LICENSEE, WERE PERMITTED TO BE USED BY OT HER ITA NOS.384/2012, 566/2013, 570/2013, 323-324-325 &341/ 2015 PAGE 17 OF 21 PERSONS FOR CONVEYANCE OF ELECTRICITY UPON PAYMENT OF CHARGES TO BE DETERMINED UNDER SECTION 62 OF THE EA. THE BOMBAY HIG H COURT CONCLUDED THAT 'WHEELING CHARGE' 'WOULD NEITHER BE REN T NOR FEES FOR TECHNICAL SERVICES. THEY REPRESENTED 'THE CHARGE FOR PE RMITTING USE OF THE STU BY PERSONS OTHER THAN THE DISTRIBUTION LICENCE . THE TRANSMISSION CHARGES SIMPLY CONSTITUTE FEES FOR AVAILING OF THE S AID TRANSMISSION UTILITY TO BE USED BY OPEN ACCESS CONCEPT FOR DISTRIBUTION OF ELECTRICITY TO LICENSEES AND CONSUMERS. 27. IN LIGHT OF THE ABOVE DECISIONS, IT IS CLEAR THA T WHAT CONSTITUTES TECHNICAL SERVICES CANNOT BE UNDERSTOOD IN A RIGID FORM ULAIC MANNER. IT WILL VARY FROM INDUSTRY TO INDUSTRY. THERE WILL HAVE TO BE A SPECIFIC LINE OF ENQUIRY FOR DETERMINING WHAT IN A PARTICULAR INDUSTRY WO ULD CONSTITUTE RENDERING OF A TECHNICAL SERVICE. WHILE IN THE CASE OF LUFTHANSA CARGO INDIA (SUPRA) THE QUESTION WAS NOT DIFFICULT TO ANSW ER SINCE CLEARLY THE SERVICE PROVIDED WAS OF A TECHNICAL NATURE, VIZ., THE REPAIR OVERHAUL AND MAINTENANCE OF AIRCRAFT, IN THE CASE OF BHARTI CELLULA R (SUPRA), THE ULTIMATE CONCLUSION WAS THAT FACILITATING INTERCONNE CTION DID NOT REQUIRE ANY ELEMENT OF HUMAN INTERVENTION AND WAS NOT IN FAC T THE PROVISION OF TECHNICAL SERVICE. THE LATTER CASE DID REQUIRE EXAMINAT ION OF TECHNICAL EXPERTS. THE DECISION OF THE BOMBAY HIGH COURT, DISCU SSED THE VERY ISSUE INVOLVED IN THE PRESENT CASE VIZ., WHETHER WHEELING C HARGES COULD BE CHARACTERISED AS PAYMENT FOR TECHNICAL SERVICE AND ANS WERED IT IN THE NEGATIVE. ANALYSIS OF THE EVIDENCE OF EXPERTS ITA NO S.384/2012, 566/2013, 570/2013, 323-324-325 &341/2015 PAGE 18 O F 21 28. TURNING TO THE CASE ON HAND, TO UNDERSTAND THE NA TURE OF THE TRANSACTION FORMING THE SUBJECT MATTER OF THE BPTA BET WEEN DTL AND PGCIL, IT IS NECESSARY TO EXAMINE THE EMPIRICAL EVIDE NCE THAT HAS COME ON RECORD AND WHICH HAS BEEN REFERRED TO IN THE ORDER OF THE AO. MR. SURINDER BABBAR THE DEPUTY GM OF DTL APPEARS TO HAVE GI VEN STATEMENT REGARDING MODE AND METHOD OF TRANSPORTATION. HE STATED THAT THE ITA 550, 551 & 712 OF 2016 M.P. PASCHIM KSHETRA VIDYUT VITRAN CO. LTD. 12 QUESTION WHETHER THE MAINTENANCE OF THE SOPHISTICATE D SYSTEM WOULD INVOLVE COMPETENT MAN POWER WAS ITSELF A 'HIGHLY TEC HNICAL' ONE. 29. THE OTHER PERSON TO WHOM A QUESTIONNAIRE WAS SENT AND REPLIES ELICITED WAS MR. RAJAGOPALAN, CHIEF MANAGER (FINANCE ) OF PGCIL. THE AO APPEARS TO HAVE EXTRACTED IN HIS ORDER ONLY TWO OF THE QUESTIONS REGARDING DETAILS OF THE TRANSMISSION RECEIPTS AND OF T HE TAX LIABILITY. WHAT APPEARS TO HAVE BEEN OMITTED ARE THE SPECIFIC QU ESTIONS TO MR. RAJAGOPALAN, ASKING HIM TO EXPLAIN THE PROCESS OF TRA NSMISSION. THE RELEVANT QUESTIONS AND THE ANSWERS GIVEN BY HIM ARE AS UNDER: Q. PLEASE EXPLAIN THE PROCESS OF TRANSMISSION? A. CENTRAL POWER G ENERATING COMPANIES SUCH AS NTPC/NHPC/THDC ETC. ARE GENERATING POWER WHICH ARE BEING CARRIED THROUGH ONE BULK TRANSMISSION AND DEL IVERED TO VARIOUS STATE TRANSMISSION BOARD BENEFICIARIES. BASICALLY WE A RE FUNCTIONING AS BULK CARRIERS OF ELECTRONICS. Q. PLEASE GIVE THE DETAIL S OF EMPLOYEES WHETHER THEY ARE SKILLED PROFESSIONAL BECAUSE TRANSMISS ION OF ELECTRICITY IS A TECHNICAL SERVICE AND IT REQUIRES CONSTANT INVOLVEME NT OF TECHNICAL SYSTEM CONSISTING OF SOPHISTICATED INSTRUMENTS AND T ECHNICAL KNOWLEDGE TO OPERATE AND MAINTAIN THE ITA NOS.384/2012, 566/20 13, 570/2013, 323-324-325 &341/2015 PAGE 19 OF 21 SYSTEM AND REQUI RES TECHNICAL COMPETENT MANPOWER SUCH AS QUALIFIED ENGINEER ETC.? A . THE POWER GRID SUBSTATION CONSISTS OF SUBSTATION AND TRANSMISSION T OWERS AND CONDUCTORS. THE MAIN EQUIPMENTS ARE AUTO TRANSFORMERS, S HUNT REACTORS, ISOLATED CIRCUIT BREAKERS ETC. ALL EQUIPMENTS ARE AUTO FUNCTIONING. POWER GRID HAS BOTH SKILLED AND UNSKILLED MAN POWER. THE PO WER IS CARRIED THROUGH EQUIPMENTS AND TRANSMISSION LINES ONLY. 30. IT IS APPARENT FROM THE ABOVE QUESTIONS AND ANSWE RS THAT DESPITE A LEADING SUGGESTION PUT TO MR. RAJAGOPALAN THAT THE T RANSMISSION OF ELECTRICITY WAS A TECHNICAL SERVICE, HIS ANSWER WAS TO THE EFFECT THAT THE TECHNICAL SERVICE PROVIDED WAS NOT TO THE PURCHASER OF ELECTRICITY BUT IN OPERATING AND MAINTAINING THE VARIOUS EQUIPMENTS AND TRANSMISSION OF LINES. 31. THIS WAS AN IMPORTANT INPUT FOR UNDERSTANDING THE NATURE OF THE SERVICE THAT IS PROVIDED. THE PLEA OF DTL THAT THE BP TA BETWEEN IT AND PGCIL WAS ESSENTIALLY FOR TRANSPORTING ELECTRICITY FROM ONE POINT TO ANOTHER AND THAT THIS IS AUTOMATIC THROUGH THE NETWORK OR EQUIPMENTS WITHOUT ANY HUMAN INTERVENTION APPEARS TO BE CORRECT. T HE SYSTEM OPERATED BY PGCIL AND USED FOR TRANSMISSION OF ELECTRIC ITY IS NO DOUBT MAINTAINED BY SKILLED TECHNICAL PERSONNEL PROFESSIONA L. THIS ALSO ENSURES THAT PGCIL COMPLIES WITH THE STANDARDS AND NORMS PUT IN PLACE BY THE STATUTORY REGULATIONS. HOWEVER, THE BENEFICIARY OF SU CH SERVICES IS PGCIL ITSELF. PGCIL IS OPERATING AND MAINTAINING ITS OWN S YSTEM USING THE ITA 550, 551 & 712 OF 2016 M.P. PASCHIM KSHETRA VIDYUT VITRAN CO. LTD. 13 SERVICE OF ENGINEERS AND QUALIFIED TECHNICIANS. PGCIL IS IN THAT PROCESS NOT PROVIDING TECHNICAL SERVICES TO OTHERS, INCLUDING DTL . ITA NOS.384/2012, 566/2013, 570/2013, 323-324-325 &341/2015 PAGE 20 O F 21 32. A COMPARISON COULD BE MADE WITH THE SYSTEM OF DI STRIBUTION OF SOME OTHER COMMODITY LIKE WATER. IT MIGHT REQUIRE THE OPERAT ION AND MAINTENANCE OF WATER PUMPING STATION AND THE MAINTEN ANCE OF A NETWORK OF PIPES. HOWEVER, WHAT IS CONVEYED THROUGH T HE PIPES AND THE EQUIPMENT TO THE ULTIMATE CONSUMER IS WATER. THE EQUI PMENT AND PIPES HAVE TO NO DOUBT BE MAINTAINED BY TECHNICAL STAFF B UT THAT DOES NOT MEAN THAT A PERSON TO WHOM THE WATER IS DISTRIBUTED TH ROUGH USING THE PIPES AND EQUIPMENT IS AVAILING OF ANY TECHNICAL SE RVICE AS SUCH. 33. ALTHOUGH THE WHEELING CHARGES MAY BE FIXED BY TH E CERC, THAT BY ITSELF IS NOT A DETERMINATIVE FACTOR. IN THE PRESENT CASE, DTL IS SEEKING TO CHARACTERIZE THE WHEELING CHARGES AS PAYMENT FOR USE OF PGCIL'S EQUIPMENT WITHIN THE MEANING OF SECTION 194C OF THE ACT. INTERESTINGLY, THE CIT (A) IN ITS ORDER HAS ACCEPTED THE PLEA THAT T HE JOB OF DTL IS TO TRANSPORT THE ELECTRICITY AND IT IS THEREFORE LIKE CARRIAG E OF GOODS. DESPITE ACCEPTING THE ABOVE PLEA, THE CIT (A) HAS SIMPLY CO NCURRED WITH THE AO ONLY BECAUSE OF ABSENCE OF SUFFICIENT LEGAL PRECEDE NT ON THE SUBJECT. ONCE IT IS ACCEPTED THAT ALL WHAT PGCIL DOES IS TO TRANSMIT THE ELECTRICITY TO DTL THROUGH THE NETWORK WITHOUT ANY HUMAN INTERVEN TION, IT CANNOT BE CHARACTERIZED AS A PROVISION OF TECHNICAL SERVICES AND SOUGHT TO BE BROUGHT WITHIN THE FOLD OF SECTION 194 J OF THE ACT. ITA NOS.384/2012, 566/2013, 570/2013, 323-324-325 &341/2015 PAGE 21 O F 21 CONCLUSION 34. TO REITERATE, BY VIRTUE OF THE BPTA AGREEMENT BETWE EN DTL AND PGCIL THERE IS TRANSPORTATION OF THE ELECTRICITY FROM PGCIL T O DTL, THROUGH THE EQUIPMENT AND NETWORK REQUIRED STATUTORILY TO BE MAINTA INED BY PGCIL THROUGH ITS TECHNICAL PERSONNEL USING TECHNICAL EXPERT ISE. THIS, HOWEVER, DOES NOT RESULT IN PGCIL PROVIDING TECHNICAL SERVICES TO DTL. THEREFORE THE WHEELING CHARGES PAID BY DTL TO PGCIL FOR SUCH TRANSPO RTATION OF ELECTRICITY CANNOT BE CHARACTERIZED AS FEE FOR TECHNICA L SERVICE. 35. THE ULTIMATE CONCLUSION OF THE ITAT IS THEREFORE NOT ERRONEOUS. ACCORDINGLY THE QUESTION FRAMED BY THE COURT IS ANSWE RED IN THE NEGATIVE I.E., AGAINST THE REVENUE AND IN FAVOUR OF THE ASSES SEE. SINCE THE SAME QUESTION IS INVOLVED IN ALL THE AYS IN QUESTION, AL L THESE APPEALS ARE DISMISSED AFFIRMING THE IMPUGNED ORDER OF THE ITAT, B UT IN THE CIRCUMSTANCES WITH NO ORDER AS TO COSTS. ITA 550, 551 & 712 OF 2016 M.P. PASCHIM KSHETRA VIDYUT VITRAN CO. LTD. 14 SUBSEQUENTLY, THE REVENUE FILED SLPS BEARING CC NOS . 853/2016, 7898/2016, 22801/2015 BEFORE THE HON'BLE SUPREME C OURT AGAINST THE ABOVE ORDER OF THE HONBLE DELHI HIGH COURT AND THE HON'BLE SUPREME COURT HAS DISMISSED THE SAME ON 22.1.2016, 29.4.201 6, 08.1.2016, RESPECTIVELY. THUS, RESPECTFULLY, FOLLOWING THE ABO VE DECISIONS, WE CONFIRM THE ACTION OF THE LD. CIT(A). ACCORDINGLY, THIS ISSUE RAISED BY THE REVENUE IN THE PRESENT YEARS IS DISMISSED. 7. IN THE RESULT, DEPARTMENTAL APPEALS ARE DISMISSE D. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 21.11.201 6. SD/- (O.P. MEENA) ACCOUNTANT MEMBER SD/- ( D.T. GARASIA) JUDICIAL MEMBER DATED : 21.11.2016 !VYS! COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR, INDORE