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16. On appeal, the ld. CIT(A) in para 11.1 of the impugned order held that various Courts have decided that mere servicing an equipment of high technical nature would not amount to fee for technical services but still the facts of each case would decide whether a particular service is a service contract or fees for technical services. He accordingly decided these items as under:

A.Y. 2009-10

(i) Payment of Rs.79,775/- for maintenance of telephone exchange. This payment is for maintenance of the telephone exchange. It is mentioned in clause-02 that necessary exchange programming in the exchange shall be done by the party for connection AVAYA exchange through radio link or OFC link. I agree with the appellant that normal maintenance of telephone exchange would be part of service contract U/S.194C but where the programming is required to be done and if radio linking up or OFC linking up is required to be done then it amounts to providing technical services. Hence this payment is subjected to deduction u/s.194J.

ITA Nos. 3059 to 3061 & 3081-Ahd-09

(vi) Payment of Rs.38,20,240/- under account code 77764. This is for indegration of ECIL, installation, commissioning, stimulating testing and training of modified FHS computer system. The description clearly shows that it is a contract of technical nature covered u/s.!94J. The payment is fee for technical services and not for works contract. Hence this is covered u/s.!94J.

"The term 'fees for technical services' as per Explanation (b) to section 194J means as defined in Explanation 2 below clause (vii) of sub-section (1) of section 9.

As per said Explanation 'fees for technical services means any consideration (including any lump sum consideration) for the rendering of any managerial, technical or consultancy services (including the provision of services of technical or other personnel), but does not include consideration for any construction, assembly, mining or like project undertaken by the recipient chargeable under the head 'Salaries'. The Madras High Court in the case of Skycell Communications Ltd. v. Dy. CIT [2001] 251 ITR 53 has held that the installation and operation of sophisticated equipments with a view to earn income by allowing customers to avail of the benefit of the user of such equipment does not result in the provision of technical service to the customer for a fee. In the instant case, there might be use of services of technically qualified persons to render the services, but that itself did not bring the amount paid as 'fees for technical services' within the meaning of Explanation 2 to section 9(1)(vii). The amount paid was towards annual maintenance contract of certain machinery or for converting POY into textured/twisted yarn. The technology or the technical knowledge of the persons were not made available to the assessee but only by using such technical knowledge, services were rendered to the assessee. Therefore, it could not be said that the amount was paid as 'fees for technical services'. Further, rendering services by using technical knowledge or skill is different than charging fees for technical services. In the latter case, the technical services are made available due to which the assessee acquired certain right which can be further used. In the instant case, it was not so. The persons rendering services had only maintained machinery or converted yarn, but that knowledge was not now vested with the assessee by which itself it could do research work. Therefore, the amount paid in question could not be considered as fees for technical services within the meaning of section 194J."

19. After hearing both the sides, we have carefully gone through the orders of the authorities below. The Hon'ble Madras High Court, in the case of Skycell Communication Ltd. -vs- DCIT (supra), held that installation and operation of sophisticated equipments with a view to earn income by allowing customers to avail of benefit of the user of such equipment does not result in the provision of technical service to the customer for a fee. Keeping in view the ratio of this decision, in the instant case, there might be use of services of technically qualified persons to render for maintenance of telephone exchange, annual maintenance contract for VHF wireless set, repairs and annual maintenance of computers, etc., but that itself did not bring the amount paid as 'fees for technical services' within the meaning of Explanation 2 to section 9(1)(vii). Therefore, the amount paid towards annual maintenance contract of Telephone Exchange and Computers by the assessee, in the present case, could not be considered as fee for technical services within the meaning of section 194J. We, therefore, following the decision of the Hon'ble Madras High Court in the case of Skycell Communications Ltd. (supra), which is followed by the ITAT, Delhi Bench 'H' in the case of Parasrampuria Synthetics Ltd. (supra), held that the assessee was required to deduct TDS under section 194C and not under section 194J of the I.T. Act. Consequently, it is held that the assessee cannot be deemed to be "assessee in default" within the meaning of section 201(1) in respect of such tax. Accordingly, it is held that the assessee rightly deducted the TDS under section 194C ITA Nos. 3059 to 3061 & 3081-Ahd-09 of the I.T. Act, 1961. Consequently, no interest under section 201(1A) of the I.T. Act is leviable. Hence, ground nos. 4 of the assessee's appeals for all the three assessment years are allowed. The ground nos. 5 and 6 in respect of all the assessment years need no separate adjudication, in view of our decision in respect of each and every item of shortfall (supra).