Bharti Airtel Limited, Hyd, Hyderabad V. DCIT, Circle-14(1), Hyd, Hyderabad

MA 70/HYD/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3612 (ITAT-HYDERABAD)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 27-11-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 04-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M SITARAM
• Assessee Lawyers: AVINASH DESAI
• Keywords: Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORESHRI B.RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER MA NO.63/HYD/2015 (IN ITA NO.956/HYD/13) : ASSESSMENT YEAR 200 8-09 MA NO.68/HYD/2015 (IN ITA NO.957/HYD/13) : ASSESSMENT YEAR 201 0-11 MA NO.69/HYD/15 (IN ITA NO.1287/HYD/13) : ASSESSMENT YEAR 20 06-07 MA NO.70/.HYD/2015 (IN ITA NO.1288/HYD/13) : ASSESSMENT YEAR 2007 -08 MA NO.71/HYD/2015 (IN ITA NO.1289/HYD/13) : ASSESSMENT YEAR 2009 -10 M/S. BHARATI AIRTEL LIMITED, HYDERABAD (PAN AAACB 2894 G) V/S. DY. COMMISSIONER OF INCOME - TAX, CIRCLE 14(1), HYDERABAD (APPICLANT) (RESPONDENT) APPLICANT BY : SHRI AVINASH DESAI RESPONDENT BY : SHRI M.SITARAM, DR DATE OF HEARING 2 7 .11.015 DATE OF PRONOUNCEMENT 27.11.2015 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER : BY THESE MISCELLANEOUS APPLICATIONS UNDER S.254(2 )OF THE ACT, ASSESSEE SEEKS RECTIFICATION/RECALL OF THE ORDER OF THIS TRIBUNAL DATED 29.10.2014 IN ITA NOS.956-957 AND 1287-1289/HYD/201 3 FOR THE ASSESSMENT YEARS 2006-07 TO 2010-11, ON THE GROUND THAT CERTA IN MISTAKE APPARENT FROM RECORDS HAS CREPT INTO THE SAME. 2. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED BEFO RE US THAT IN THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE TRIBUNAL ALL MATERIAL FACTS WERE MA NOS.63, 68 TO 71/HYD/2015 (IN ITA NOS.956/HYD/2013 AND ORS) M/S. BHARTI AIRTEL LIMTIED, HYDERABAD 2 SUBMITTED, WHICH DEMONSTRATE THAT ITS ACTIVITIES WE RE CARRIED OUT WITH HUMAN INTERVENTION. LEARNED COUNSEL SUBMITTED THAT AS PE R S.194J READ WITH S.9(1)(VII) OF THE ACT, RENDERING OF SERVICES WITH HUMAN INTERFACE WOULD NOT BY ITSELF RENDER THE CHARACTER OF SUCH SERVICES TO BE IN THE NATURE OF TECHNICAL SERVICES. HE SUBMITTED THAT HUMAN INTERFACE ALONGWI TH PROFESSIONAL EXPERTISE OR TECHNICAL SPECIALIZATION IS REQUIRED TO CATEGORI SE A SERVICE TO BE TECHNICAL SERVICE. IT WAS SUBMITTED THAT S.194C ALSO VISUALI SES USE OF MAN POWER AND THAT PROVISIONS OF S.194C ALSO PROVIDES FOR DEDUCTI ON OF TAX. IT WAS SUBMITTED THAT UNLIKE S.194C, S.194J INVOLVES NOT JUST MANPOW ER, BUT A HIGHER DEGREE OR LEVEL OF MANPOWER, WHICH COULD PROVIDE TECHNICAL SK ILL AND KNOW-HOW IN THE FIELD, INVOLVING OR CONCERNING APPLIED AND INDUSTRY SCIENCE. THUS. IT WAS SUBMITTED THAT WHEN THE ASSESSEE ITSELF DOES NOT DI SPUTE INVOLVEMENT OF HUMAN INTERFACE IN THE ACTIVITIES CARRIED OUT, THER E IS NO NEED OR NECESSITY FOR THE TRIBUNAL TO DIRECT THE ASSESSING OFFICER TO EXA MINE AGAIN THE INVOLVEMENT OF HUMAN ELEMENT OR HUMAN INTERFACE IN THE SERVICES RENDERED BY M/S. RECORDS AND DATA WAREHOUSING PVT. LTD., WHICH WOULD AMOUNT TO AN UNNECESSARY EXERCISE. 3. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THA T INSTEAD OF REMITTING THE MATER BACK TO THE FILE OF THE ASSESSI NG OFFICER, THE TRIBUNAL COULD HAVE DECIDED THE ISSUE ON THE BASIS OF FACTS AND MA TERIAL AVAILABLE ON RECORD. HE THEREFORE, SUBMITTED THAT THE DIRECTION OF THE T RIBUNAL AS CONTAINED IN PARA 14 OF THE ORDER CONSTITUTES A MISTAKE APPARENT FROM RECORD. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON TH E OTHER HAND, DISTINGUISHING THE CLAIM OF THE ASSESSEE SUBMITTED THAT THE TRIBUNAL AFTER CONSIDERING EVERY ASPECT OF THE ISSUE AND TAKING IN TO CONSIDERATION THE PRINCIPLES OF LAW DECIDED IN JUDICIAL PRECEDENTS HA S TAKEN A CONSCIOUS DECISION. HENCE, SUCH A DECISION TAKEN CANNOT CONSTITUTE A MI STAKE APPARENT FROM RECORD, SO AS TO BRING IT WITHIN THE PURVIEW OF S. 254(2) OF THE ACT. MA NOS.63, 68 TO 71/HYD/2015 (IN ITA NOS.956/HYD/2013 AND ORS) M/S. BHARTI AIRTEL LIMTIED, HYDERABAD 3 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTI ES AND PERUSED THE MATERIALS ON RECORD. ON A CAREFUL READING OF THE O RDER OF THE TRIBUNAL DATED 29.10.014 OF THE TRIBUNAL, IT IS SEEN THAT THE TRIB UNAL HAS EXHAUSTIVELY DEALT WITH NOT ONLY ALL THE FACTS AND MATERIALS, BUT ALSO THE CONTENTIONS RAISED BY THE ASSESSEE AS WELL AS BY THE DEPARTMENT. THE TRIBUNAL ALSO ANALYSED THE PRINCIPLES LAID DOWN IN THE DECISIONS REFERRED TO BY THE COUNSELS OF THE PARTIES. ON A PERUSAL OF THE FINDING OF THE TRIBUNAL AS RECO RDED FROM PARA 9 ONWARDS OF THE ORDER, IT IS SEEN THAT THE TRIBUNAL, AFTER ANAL YSING THE TERMS OF THE AGREEMENT BETWEEN THE ASSESSEE AND THE SERVICE PROV IDER AND THE NATURE OF WORK UNDERTAKEN, HAS OBSERVED THAT THE SERVICES REN DERED IN PURSUANCE OF MASTER SERVICE AGREEMENT, WHETHER IN THE NATURE OF PAYMENT TO A CONTRACTOR, AS ENVISAGED UNDER S.194C OR FEE FOR TECHNICAL SERV ICES AS COVERED BY S.194J, HAS TO BE DECIDED KEEPING IN VIEW THE TERMS OF MAST ER SERVICE AGREEMENT. THE TRIBUNAL AFTER CONSIDERING THE PRINCIPLE OF LAW DEC IDED BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF BHARTI CELLULAR LIMITED( 319 ITR 139) AND THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE SAME C ASE, AS REPORTED IN 330 ITR 239, FINALLY DIRECTED THE ASSESSING OFFICER TO EXAMINE THE ISSUE OF INVOLVEMENT OF HUMAN ELEMENT OR HUMAN INTERFACE IN THE SERVICES RENDERED BY THE SERVICE PROVIDER TO THE ASSESSEE TO FINALLY DET ERMINE, WHETHER IT IS SIMPLY A CONTRACT AS ENVISAGED IN S.194C OR IN THE CHARACTER OR NATURE OF TECHNICAL SERVICES AS PER S.194J. THE TRIBUNAL, AFTER CONSIDE RING ALL THE FACTS AND MATERIALS ON RECORD, HAVING TAKEN A CONSCIOUS DECI SION TO REMIT THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR DECID ING THE ISSUE, KEEPING IN VIEW THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT I N THE CASE OF BHARTI CELLULAR LTD. (SUPRA), THE ASSESSEE CANNOT CHALLENGE THE AP PROPRIATENESS OF SUCH A DIRECTION, BY TERMING IT AS A MISTAKE APPARENT FROM RECORD. ON PERUSING THESE MISCELLANEOUS APPLICATIONS, AS WELL AS AFTER CONSID ERING THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE, WE ARE OF THE OPI NION THAT IN THE GARB OF RECTIFICATION OF MISTAKE, THE ASSESSEE ACTUALLY WAN TS A REVIEW OF THE ORDER PASSED BY THE TRIBUNAL, WHICH IS NOT PERMISSIBLE IN LAW OR WITHIN THE SCOPE AND MA NOS.63, 68 TO 71/HYD/2015 (IN ITA NOS.956/HYD/2013 AND ORS) M/S. BHARTI AIRTEL LIMTIED, HYDERABAD 4 AMBIT OF S.254(2) OF THE ACT. THESE APPLICATIONS FI LED BY THE ASSESSEE, ARE THEREFORE, DEVOID OF MERIT, AND ARE LIABLE TO BE DI SMISSED. WE ACCORDINGLY DISMISS THE SAME. 5. IN THE RESULT, THESE APPLICATIONS OF THE ASSES SEE ARE DISMISSED. PRONOUNCED IN THE COURT ON 27 TH NOVEMBER, 2015 SD/- SD/- (B.RAMAKOTAIAH) (SAKTIJIT DEY) ACCOUNTANT MEMBER. JUDICIAL MEMBER DT/- 27 TH NOVEMBER, 2015 COPY FORWARDED TO: COPY FORWARDED TO: 1. M/S. BHARATI AIRTEL LIMITED, CIRCLE OFFICE, 1-8-437,438 364 & 445, SPLENDID TOWER, OPP. BEGUMPET POLICE STATION, HUDA ROAD, BGUMPET, H YDERABAD 2 . DY. COMMISSIONER OF INCOME - TAX CIRCLE 14(1), HYDERABAD 3. 4. COMMISSIONER OF INCOME - TAX(APPEALS) II, H YDERABAD COMMISSIONER OF INCOME - TAX I, HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S