ITAT: Payments by SMS-provider to telecom-operator towards connectivity charges not royalty; Sec. 194J inapplicable

Mumbai ITAT reverses CIT(A)’s order for AY 2011-12, payments made by assessee (a bulk SMS provider) to domestic telecom operator towards connectivity charges not taxable as royalty within the meaning of Sec. 194J; Revenue held that TDS u/s 194J was applicable on payments on the ground that transmission of bulk SMS was pursuant to “use of equipment” of the telecom operator in view of explanation 6 to Sec. 9(1)(vi) [bought with retrospective effect by Finance Act, 2012], as against TDS u/s 194C applied by the assessee and thus regarded assessee as "assessee in default" for short-deduction of TDS; Notes that the payee created customers account and provided IP address, user name and password to the assessee, also notes that the assessee integrated such details in its application for transmitting bulk messages to the telecom operator; Further notes that the payments received by the assessee from its customers, including the IT Department were subject to TDS u/s 194C and that assessee neither had any access/control over any of the connectivity facilities/ server/network of the telecom operator; Thus rules that agreement entered into between the assessee and the telecom operator was in the nature of works contract as “it was kind of standard connectivity facility which has been provided by Telecom Operator and nothing else”:ITAT

The ruling was delivered by ITAT bench of Shri. Amit Shukla and Shri. Ashwani Taneja. Mr. Mihir Naniwadekar argued on behalf of the assessee while Revenue was represented by Mr. Prakash Mane.