Itta/252/2012 Of The Commissioner Of Income Tax - I v. M/S. Beam Cable Systems Pvt. Ltd

IN THE HIGH COURT OF JUDICATURE, ANDHRAPRADESH AT HYDERABAD WEDNESDAY, THE TENTH DAY OF JULYTWO THOUSAND AND THIRTEEN PRESENT THE HON’BLE THE CHIEF JUSTICESRI KALYAN JYOTI SEN GUPTA AND THE HON'BLE MS. JUSTICE G.ROHINI I.T.T.A. No.252 OF 2012 Between: Commissioner of Income Tax-IHyderabad ..... Appellant AND M/s. Beam Cable Systems Pvt. Ltd., 2[nd] Floor, Khaleel Mansion, Road No.1, Banjara Hills, Hyderabad .....Respondent The Court made the following : JUDGMENT:(per the Hon’ble the Chief Justice Sri K.J. Sengupta) This appeal is directed against the judgment and orderof the learned Tribunal dated 07.08.2009 in relation to theassessment year 2006-2007, on the following suggestedquestions of law: 1.Whether on the facts and in the circumstances of thecase, can it be said that the ITAT appreciated thefacts of the case correctly?case, can it be said that the ITAT appreciated thefacts of the case correctly? 2.Whether on the facts and in the circumstances of thecase the Tribunal is correct in law in holding that thefees paid by the assessee for internet accessservices availed from M/s. Bharathi Info Airtel andM/s. Hathway Cable and Data com are not in thenature of ‘fee for technical services’ within themeaning of Sec.194J of the Act?case the Tribunal is correct in law in holding that thefees paid by the assessee for internet accessservices availed from M/s. Bharathi Info Airtel andM/s. Hathway Cable and Data com are not in thenature of ‘fee for technical services’ within themeaning of Sec.194J of the Act? We have heard the learned counsel for the appellantand we have gone through the impugned judgment andorder of the learned Tribunal. As far as the question No.1 is concerned, this groundcannot be interfered with by this court in exercise of thejurisdiction under Sec.260-A of the Income Tax Act.Whether a finding of fact has been correct or not cannot bedecided by a third appellate court and it can only be touchedwhen it is absurd, irrational or perverse. Insofar as the ground No.2 is concerned, the learnedTribunal has given a finding, after relying on severalauthorities that the services availed by the assessee fromM/s. Bharathi Info Airtel Limited and Hathway Cable andDatacom Private Limited, are not considered as technicalservices within the meaning of Sec. 9(i)(vii) read withExplanation 2 and Sec. 194J of the Income Tax Act. Thisidentical issue was decided by the Delhi High Court in thecase of M/s. Estel Communications Private Limted, reportedin 217 CTR (Delhi) 102. The learned Tribunal, with a view tomaintain consistency of the decision, relying upon the DelhiHigh Court decision, has dismissed the appeal preferred by the Revenue. We do not see any error or illegality in the impugnedjudgment and order of the learned Tribunal. Consequently,we dismiss the appeal. No order as to costs ______________________ Kalyan Jyoti Sengupta, CJ. July 10, 2013MAS __________G.Rohini, J.