THE ADIT (IT)-2(2), MUMBAI V. M/S. ZEE TV USA INC., MUMBAI

ITA 3082/MUM/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2255 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: L
• Assessment Year: 2002-2003
• Appeal Filed On: 20-04-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDER SINGH
• Keywords: Permanent establishment; Tax effect
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'L' BENCH, MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA 3082/MUM/2007 (ASSESSMENT YEAR: 2002-03) ADIT (INTERNATIONLA TAXATION) 2(2) M/S. ZEE TV USA INC. SCINDIA HOUSE, ROOM NO. 116 C/O. ZEE TELEFILMS LTD. 1ST FLOOR, N.M. ROAD VS. 135,, DR. ANNIE BESANT ROAD MUMBAI 400038 WORLI, MUMBAI 400018 PAN - AAACF 1291 K APPELLANT RESPONDENT APPELLANT BY: SHRI NARENDER SINGH RESPONDENT BY: SHRI MOHANLAL BHANDARI/ SHRI RAJESH CHAMARIA O R D E R PER B. RAMAKOTAIAH, A.M. THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER OF THE CIT(A)-XXXI, MUMBAI DATED 31.01.2007 ON FOLLOWING GROUNDS : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD.CIT(A) HAS ERRED IN HOLDING THAT THE ASSESSEE DOES NOT HAV E A PERMANENT ESTABLISHMENT IN INDIA AND ACCORDINGLY IT S BUSINESS PROFITS ARE NOT TAXABLE IN INDIA. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD.CIT(A) HAS ERRED IN HOLDING THAT NO INTEREST UNDER SECTION 234B IS PAYABLE BY A NON-RESIDENT WHOSE TOTAL INCOME IS SUB JECT TO DEDUCTION OF TAX AT SOURCE AND ACCORDINGLY DELETING THE INTEREST CHARGED UNDER SECTION 234B OF THE I.T. ACT, 1961. 2. DURING THE COURSE OF HEARING, IT ISSUBMITTED TH AT THE TAX EFFECT IN THIS APPEAL IS BELOW THE PRESCRIBED LIMIT, I.E. RS.2 LAK HS. AS SUCH THIS APPEAL DESERVES TO BE DISMISSED IN LIMINE IN VIEW OF THE J UDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS PIT HWA ENGINEERING WORKS 276 ITR 519. THE LEARNED DEPARTMENTAL REPRESENTATI VE DID NOT OBJECT TO THE FACTUAL ASPECT. 3. HAVING CAREFULLY CONSIDERED THE SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE AFORESAID JUDGMENT OF JURISDICTIONAL HIGH COURT IN WHICH IT ITA 3082/MUM/2007 M/S. ZEE TV USA INC. 2 HAS BEEN HELD THAT IF THE REVENUE FILES AN APPEAL C ONTRARY TO THE INSTRUCTIONS ISSUED BY THE CBDT WHICH ARE BINDING UPON THE REVEN UE, THE SAME IS LIABLE TO BE DISMISSED BEING NOT MAINTAINABLE. THEREFORE, WE ARE OF THE VIEW THAT THE APPEAL DESERVES TO BE DISMISSED IN LIMINE BEING FILED CONTRARY TO THE INSTRUCTIONS OF CBDT AND ACCORDINGLY, WE DISMISS TH E SAME. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH APRIL 2010. SD/- SD/- (D.K. AGARWAL) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 5 TH APRIL 2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XXXI, MUMBAI 4. THE DIT (INTERNATIONAL TAXATION), MUMBAI 5. THE DR, L BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.