ASSTT.CIT 16(1), MUMBAI V. STAR DEN MEDIA SERVICES PVT.LTD, MUMBAI

ITA 1553/MUM/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4546 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: K
• Next Hearing Date: 06-01-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 16-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 6

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL L BE NCH, MUMBAI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI C.N. PRASAD, JUDICIAL MEMBER / I .TA NO. 1525/MUM/2015 ( / ASSESSMENT YEAR: 2010-11 THE ACIT - 16(1), AAYAKAR BHAVAN, MUMBAI-400 020 / VS. M/S. NGC NETWORKS (I) PVT. LTD., STAR HOUSE, OFF. DR. E. MOSES ROAD, MAHALAXMI, MUMBAI-400 011 ./ ./ PAN/GIR NO. AABCN 1401A C.O. NO. 61/MUM/2015 (ARISING OUT OF I .TA NO. 1525/MUM/2015) ( / ASSESSMENT YEAR: 2010-11 M/S. NGC NETWORKS (I) PVT. LTD., STAR HOUSE, OFF. DR. E. MOSES ROAD, MAHALAXMI, MUMBAI-400 011 / VS. THE ACIT - 16(1), AAYAKAR BHAVAN, MUMBAI-400 020 / I .T (TP)A NO. 1553/MUM/2015 ( / ASSESSMENT YEAR: 2010-11 THE ACIT - 16(1), AAYAKAR BHAVAN, MUMBAI-400 020 / VS. M/S. STAR DEN MEDIA SERVICES PVT. LTD. STAR HOUSE, URMI ESTATE, 95, GANPATRAO KADAM MARG, LOWER PAREL (W), MUMBAI-400 013 C.O. NO. 62/MUM/2015 (ARISING OUT OF I .TA NO. 1553/MUM/2015 M/S. NGC NETWORKS PVT. LTD M/S. STAR DEN MEDIA SERVIC ES PVT. LTD. 2 ( / ASSESSMENT YEAR: 2010-11 M/S. STAR DEN MEDIA SERVICES PVT. LTD. STAR HOUSE, URMI ESTATE, 95, GANPATRAO KADAM MARG, LOWER PAREL (W), MUMBAI-400 013 / VS. THE ACIT - 16(1), AAYAKAR BHAVAN, MUMBAI-400 020 ./ ./ PAN/GIR NO.AACCD 7658Q ( / APPELLANT ) .. ( / RESPONDENT ) / DEPARTMENT BY: SHRI JASBIR CHAUHAN / ASSESEE BY: SHRI PORUS KAKA SHRI DIVESH CHAWLA / DATE OF HEARING :12.01.2016 !' / DATE OF PRONOUNCEMENT : 12.01.2016 / O R D E R PER N.K. BILLAIYA, AM: THESE APPEALS BY THE REVENUE AND C ROSS OBJECTIONS BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDERS OF THE DRP -IV, MUMBAI IN CASE OF TWO DIFFERENT ASSESSEES VIZ., M/S. NGC NETW ORKS (I) PVT. LTD., AND M/S. STAR DEN MEDIA SERVICES PVT. LTD. P ERTAINING TO ASSESSMENT YEAR 2010-11 IN TWO DIFFERENT ORDERS DATED 19.12.2014 AND 29.12.2014 RESPECTIVELY. SINCE THE GRIEVANCE OF THE REVENUE AND THE CROSS OBJECTIONS OF THE ASSE SSEE RELATE TO THE SAME SET OF FACTS, ALL THESE APPEALS WERE HEARD TOG ETHER AND ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CO NVENIENCE. M/S. NGC NETWORKS PVT. LTD M/S. STAR DEN MEDIA SERVIC ES PVT. LTD. 3 2. THE GRIEVANCE OF THE REVENUE RELATES TO THE DIRE CTIONS OF THE DRP IN DIRECTING THE AO NOT TO MAKE DISALLOWANCE OF CHANNEL PLACEMENT FEES U/S. 40(A)(IA) OF THE ACT. 3. THE GRIEVANCE OF THE REVENUE RELATES TO THE CLAI M THAT CHANNEL PLACEMENT FEE IS IN THE NATURE OF ROYALTY U/S. 9(I) (VI) OF THE ACT AND THEREFORE SUBJECT TO TDS U/S. 194J OF THE ACT. 4. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSE SSEE STATED THAT THE ISSUES IN APPEAL HAVE BEEN DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE IN ASSESSEES OWN CASE FOR A.Y. 2009-10 IN ITA NO. 1382/M/2014 AND C.O. NO. 68/M/14 AND ALSO IN TH E CASE OF M/S. STAR DEN MEDIA SERVICES PVT. LTD IN ITA NO. 1413/M/ 14 WITH C.O. NO. 71/M/14 AND ITA NO. 1414/M/14 WITH C. O. NO. 72/M/14. THE LD. COUNSEL FURTHER STATED THAT S IMILAR ISSUES WERE ALSO THERE IN THE CASE OF UTV ENTERTAIN MENT TELEVISION LTD. IN ITA NO. 2699-270, 4204-4205/M/12 , TIMES GL OBAL BROADCASTING CO. LTD., IN ITA NO. 69-670/M/12 AND ALSO IN ITA NO. 4809 & 4807/M/2013. 5. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY REBUTTED THE CLAIM OF THE LD. COUNSEL STATING THAT THE CO-ORDINATE BENCH OF THE TRIBUNAL HAS DECIDED THIS ISSUE IN FAV OUR OF THE REVENUE AND AGAINST THE ASSESSEE IN THE CASE OF VIACOM 18 MEDIA (P) LTD 162 TTJ 336 AND IN SUPPORT OF HIS CONTENTION, THE DR F ILED A WRITTEN SUBMISSION CLAIMING THAT THE MATTER MAY BE REFERRED TO SPECIAL BENCH TO DECIDE ON THE ISSUE WHETHER THE PRINCIPLE OF LEX NON COGIT AD IMPOSSIBILIA IS APPLICABLE TO THE MATTERS PERTAINING TO EXPLANATION 6 TO SEC -9(1)(VI) OF THE ACT. M/S. NGC NETWORKS PVT. LTD M/S. STAR DEN MEDIA SERVIC ES PVT. LTD. 4 6. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS. WE HAVE ALSO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND THE DECISIONS OF THE TRIBUNAL RELIED UPON BY THE LD. COUNSEL AND BROUGHT TO OUR NOTICE. 6.1. AT THE VERY OUTSET WE HAVE TO SAY THAT THE CON TENTION OF THE LD. DR TO REFER THE MATTER TO THE SPECIAL BENCH IS ILL FOUNDED. THE DECISION OF THE CO-ORDINATE BENCH IN THE CASE OF VI ACOM 18 MEDIA (P) LTD (SUPRA) WAS BASED ON THE PAYMENTS FOR TRANSPOND ER WHEREAS THE ISSUE IN APPEAL BEFORE US PERTAINS TO PAYMENT OF CH ANNEL PLACEMENT FEES. THE FACTS ARE TOTALLY DIFFERENT. ACCORDINGLY , THE RELIANCE BY THE LD. DR ON THE JUDGEMENT IN THE CASE OF VIACOM 18 ME DIA (SUPRA) IS MISPLACED. 6.2. MOREOVER, WE FIND THAT THE TRIBUNAL IN THE CAS E OF VIACOM 18 MEDIA PVT. LTD. IN ITA NO. 3515/M/12 WITH C.O. NO. 131/M/13, ITA NO. 4208/M/12 WITH C.O. NO. 156/M/13 AND ITA 4209/M /12 WITH C.O. NO. 157/M/13 HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY RELYING UPON THE DECISIO N OF THE HONBLE DELHI HIGH COURT IN THE CASE OF PRASAR BHARATI (BRO ADCASTING CORPORATION OF INDIA) 158 TAXMANN 470. THIS DECISIO N OF THE CO- ORDINATE BENCH ALSO STRENGTHENS OUR VIEW THAT THE R ELIANCE PLACED BY THE LD. DR ON THE DECISION OF VIACOM 18 MEDIA PVT. LTD. 162 TTJ 336 IS MISPLACED. IN OUR CONSIDERED OPINION, THERE IS NO CONFLICT IN THE DECISION OF NGC NETWORK (I) PVT. LTD 150 ITD 772 AN D VIACOM 18 MEDIA PVT. LTD. 162 TTJ 336 SINCE BOTH THE DECISIO NS RELATE TO DIFFERENT SET OF FACTS AND PAYMENTS ARE FOR DIFFER ENT PURPOSES. IN THE M/S. NGC NETWORKS PVT. LTD M/S. STAR DEN MEDIA SERVIC ES PVT. LTD. 5 CASE OF FORMER, THE PAYMENT WAS MADE FOR CHANNEL PL ACEMENT WHEREAS IN THE CASE OF LATER THE PAYMENTS WERE MADE OF TRANSPONDER. 6.3. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF THE JUDICIAL DECISIONS MENTIONED ELSEWHERE WHICH ARE IN FAVOUR O F THE ASSESSEE AND AGAINST THE REVENUE, RESPECTFULLY FOLLOWING THE FINDINGS OF THE CO-ORDINATE BENCH (SUPRA), APPEAL OF THE REVENUE AR E DISMISSED AND CROSS OBJECTION OF THE ASSESSEE BECOME OTIOSE. 7. THE REQUEST FOR REFERRING THE MATTER TO SPECIAL BENCH IS ACCORDINGLY DENIED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 12 TH JANUARY, 2016. SD/- SD/- (C.N. PRASAD) (N.K. BILLAIYA) %& /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; ) DATED : 12 TH JANUARY, 2016 . & . ./ RJ , SR. PS !'#$#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT(A)- 4. * / CIT 5. +,-&&./ , ./' , / DR, ITAT, MUMBAI 6. -012 / GUARD FILE. / BY ORDER, M/S. NGC NETWORKS PVT. LTD M/S. STAR DEN MEDIA SERVIC ES PVT. LTD. 6 +& //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI