Commissioner Of Income Tax - Tds - 2 vs The Hongkong And Shanghai Banking ...

[Cites 2, Cited by 0] Bombay High Court Commissioner Of Income Tax - Tds - 2 vs The Hongkong And Shanghai Banking ... on 4 March, 2019 Bench: Akil Kureshi, M.S. Sanklecha 4. os itxa 543-548-552-568-17.doc R.M. AMBERKAR (Private Secretary) IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. INCOME TAX APPEAL NO. 543 OF 2017 WITH INCOME TAX APPEAL NO. 548 OF 2017 INCOME TAX APPEAL NO. 552 OF 2017 INCOME TAX APPEAL NO. 568 OF 2017 Commissioner of Income Tax (IT)-2 .. Appellant Versus M/s. Hongkong and Shanghai Banking Corporation Ltd .. Respondent ...................  Mr. Tejveer Singh for the Appellant  Mr. Percy Pardiwalla, Sr. Counsel a/w Mr. Niraj Sheth i/by Kanga & Co for the Respondent ................... CORAM : AKIL KURESHI & M.S. SANKLECHA, JJ. DATE : MARCH 4, 2019. P.C.: 1. These appeals are filed by the Revenue challenging the common judgment of the Income Tax Appellate Tribunal ("the Tribunal" for short. 2. Facts being common, we may notice them from Income Tax Appeal No. 543 of 2017. The appeal relates to the assessment year 2009-10. Following question is presented for our consideration:- 1 of 3 ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 07:36:01 ::: 4. os itxa 543-548-552-568-17.doc " Whether on the facts and in the circumstances of the case and in law, the Tribunal has erred in dismissing the appeal of the Revenue, without appreciating the fact that the maintenance rendered by CMC Computer Ltd., to the assessee required technical skill?" 3. Short controversy is about the correctness of the assessee's action of deducting tax at source while making payment towards computers maintenance charges under Section 194C of the Income Tax Act, 1961("the Act" for short) as against the contention of the Revenue that the same ought to have been deducted in terms of Section 194J. The CIT(A) while allowing the appeal of the assessee had come to the conclusion that the contract in question was for routine maintenance and that it was for further replacement of the parts and consumables. The assessee had not availed any technical service from CNC Computers i.e the payee. The CIT(A) was, therefore, of the opinion that the assessee had rightly deducted tax under Section 194C of the Act. 4. The Revenue carried the matter in appeal. The Tribunal dismissed the appeal making following observations:- " 5. We have heard the rival submissions and perused the material available on 2 of 3 ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 07:36:01 ::: 4. os itxa 543-548-552-568-17.doc records. We find that the AO had held that the assessee had availed technical services from CMC, that he had nowhere mentioned as to which technical services were availed by the assessee, the agreement entered into by the assessee with CMC is about annual maintenance of computers and printers etc., that the FAA has given a categorical finding of fact that CMS Ltd., was offering only routine services. We find that Question 29 of the Board Circular deals with annual maintenance contracts and it has clarified that such contracts are not be taken as contracts providing technical services. In these circumstances, we are of the opinion that the order of the FAA does not suffer from any legal or factual infirmity. So, confirming his order, we decide effective ground of appeal against the AO." 5. Having heard the learned counsel for the parties and having perused the documents on record, we find that the CIT(A) and the Tribunal have concurrently came to the conclusion that the assessee had merely availed technical services. The agreement itself was entered into between two parties about annual maintenance of the computers and printers. The assessee had merely offering routine services. In that view of the matter, we do not find any error in the view of the Tribunal. The appeals are dismissed [ M.S. SANKLECHA, J. ] [ AKIL KURESHI, J ] 3 of 3 ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 07:36:01 :::