In all these appeals, common questions arise for consideration. Hence, they are being considered simultaneously.

2. All the appeals are preferred by appellants – Revenue by raising the following substantial questions of law:

1. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the assessee could not have been deemed as one in default for non-deduction of tax at source on roaming charges paid by it to other service providers when the Assessing Authority has rightly held as assessee in default due to no deduction of TDS as required under Section 194H and 194J of the Income Tax Act, 1961 (for short, ‘the Act’)?

2. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the data link charges does not require any human intervention and that the charges received or paid on account of this is not technical fees and does not fall under purview of Section 194J of the Act even when the Assessing Authority rightly treated the payment made by Vodafone South Limited to various operators as technical services falling within the ambit of the provisions of Section 194J of the Act?

3. Whether the Tribunal was correct in holding that credit card charges, discount on etop ups and rechargeable coupons does not amount to commission under Section 194H of the Act, when the transaction is in the nature of principal and agent and recorded perverse finding?

3. Learned counsel for appellants – Revenue, at the outset, submitted that he is not pressing question No.3 and therefore, the appeals would rest only on the above referred question Nos.1 and 2.

4. The assessee, in all the appeals, is a mobile service provider Company. As per the assessee, whenever any roaming facilities is provided to the customer and subscriber, it is taking connectivity of that with another mobile service provider Company. As per the assessee, the payment made to the another mobile service provider Company is by way of revenue sharing contract and no technical services are involved nor any payment is made for technical services. However, as per the appellants Revenue, the payment made by the assessee to the another mobile service provider Company for utilization of the roaming mobile data and the connectivity would fall in the arena of “technical services” and, therefore, TDS was required to be deducted under Section 194H read with Section 194J of the Income Tax Act, 1961 (‘the Act’ for short).

5. The Assessing Officer passed the order, whereby he held that the TDS was deductible and as TDS was not deducted, the amount as per Section 201 and 201(1A) of the Act were ordered to be recovered.

6. The assessee Company carried the matter in appeal before CIT (Appeals) and the Commissioner, CIT (Appeals) confirmed the view of the Assessing Officer and the appeals to that extent were dismissed. But other part of the allowing of the appeals was of the verification in the reduction of the liability under Section 201(1) read with Section 201(1A) of the Act and the directions were given by the Appellate Authority. But it was found in the appeal that the TDS was deductible. The matter was carried further in appeal before the Tribunal. The Tribunal recorded the reasons from paragraphs 13 to 15, which reads thus;

“13. We have perused the orders and heard the rival contentions. Question before us is whether roaming charges paid by assessee to other service providers for using their services by assessee’s customers could be treated as technical services falling u/s.194J of the Act. We find that similar issue had come up before the Jaipur bench of the Tribunal in the case of Bharti Hexacom Ltd (supra). It was held as under at paras 7 to 12 of the order:

7. Ground No.2 of the appeal is against confirming the addition U/s 194J of the Act on not deducting TDS on roaming charges paid by the assessee being a fee for technical services. The ld ITO (TDS) observed that the assessee had paid roaming charges