ASST CIT (TDS) 3(2), MUMBAI V. REDIFF. COM INDIA LTD, MUMBAI

ITA 3116/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2702 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 05-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BE NCH, MUMBAI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER / I .TA NOS. 3116 & 3117/MUM/2014 ( / ASSESSMENT YEARS:2010-11 & 2011-12 THE ACIT (TDS)3(2), SMT. K.G. MITTAL AYURVEDIC HOSPITAL BLDG., CHARNI ROAD, MUMBAI-400 002 / VS. M/S. REDIFF. COM INDIA LTD., 1 ST FLOOR, MAHALAXMI ENGINEERING ESTATE, L.J. ROAD NO. 1, MAHIM (W), MUMBAI ./ ./ PAN/GIR NO. :AAACR 2762F ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI SANJEEV KASHYAP / RESPONDENT BY: SHRI JITENDRA JAIN / DATE OF HEARING :28.10.2015 !' / DATE OF PRONOUNCEMENT :04.11.2015 #$ / O R D E R PER N.K. BILLAIYA, AM: THESE TWO APPEALS BY THE REVENUE ARE PREFERRED AGAI NST THE VERY SAME ORDER OF THE LD. CIT(A)-13, MUMBAI DATED 3.03.2014 PERTAINING TO ASSESSMENT YEARS 2010-11 & 2011-12. SINCE THE FIRST APPELLATE AUTHORITY HAS DISPOSED OF THESE APPEALS B Y A CONSOLIDATED ORDER AND AS THE GRIEVANCE OF THE REVENUE IS IDENTI CAL IN BOTH THESE YEARS, THESE APPEALS WERE HEARD TOGETHER AND ARE DI SPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA. NOS. 3116 & 3117/M/2014 2 2. THE COMMON GRIEVANCE OF THE REVENUE RELATES TO T HE DELETION OF THE ADDITION ON ACCOUNT OF NON TDS ON PAYMENT TO WARDS INTERNET CHARGES (BAND WIDTH CHARGES). 3. THE GRIEVANCE OF THE REVENUE IS THAT THE IMPUGNE D PAYMENTS REQUIRED TDS AS PER THE PROVISIONS OF SEC. 194J AN D AS THE ASSESSEE HAS NOT DEDUCTED TAX AT SOURCE, THE ASSESSEE WAS LI ABLE FOR INTEREST U/S. 201(1A) OF THE ACT. THE FIRST APPELLATE AUTH ORITY HAS DELETED THE IMPUGNED ADDITIONS, THEREFORE THE REVENUE IS IN APPEAL BEFORE US. 4. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSE SSEE STATED THAT THE ISSUES INVOLVED IN THESE APPEALS AND THE GRIEVA NCE OF THE REVENUE HAS BEEN DECIDED IN PLETHORA OF CASES AGAINST THE R EVENUE AND IN FAVOUR OF THE ASSESSEE. 5. THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY CONCE DED TO THIS. 6. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTH ORITIES BELOW. IN OUR CONSIDERED OPINION, THE DISPUTE WITH REGARD TO THE NATURE OF PAYMENT MADE FOR PURCHASE OF SOFTWARE WAS SETTLED A T REST ONLY BY FINANCE ACT 2012 THROUGH WHICH EXPLANATION-4 WAS AD DED TO SEC. 9(1)(VII). ALTHOUGH THE SAID AMENDMENT WAS GIVEN R ETROSPECTIVE EFFECT, LEGAL MAXIM, LEX NON COGIT AD IMPOSSIBILLIA , MEANING THEREBY THAT THE LAW CANNOT POSSIBLY COMPEL A PERSON TO DO SOMETHING WHICH IS IMPOSSIBLE TO PERFORM. 6.1. AS MENTIONED ELSEWHERE, THE AMENDMENT WAS GIVE N A RETROSPECTIVE EFFECT BUT BY THAT TIME THE ASSESSEE HAS ALREADY DONE THE TRANSACTIONS WITHOUT DEDUCTING TAX AT SOURCE. ON THESE FACTS, THE ASSESSEE CANNOT BE HELD TO HAVE VIOLATED THE PROVIS IONS OF SEC. 194J OF ITA. NOS. 3116 & 3117/M/2014 3 THE ACT. OUR VIEW IS FORTIFIED BY THE DECISIONS OF THE TRIBUNAL IN THE CASE OF CHANNEL GUIDE INDIA LTD. VS ACIT 139 ITD 00 49 AND RICH GRAVISS PRODUCTS (P) LTD. 166 TTJ 329 AND ALSO BY T HE DECISION IN THE CASE OF NEW BOMBAY PARK HOTEL PVT. LTD VS ITO IN IT A NO. 7641/M/2011. RESPECTFULLY FOLLOWING THE DECISIONS OF THE CO- ORDINATE BENCH (SUPRA), WE DO NOT FIND ANY REASON T O INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE REV ENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH NOVEMBER, 2015. SD/- SD/- (AMARJIT SINGH ) (N.K. BILLAIYA) %& # /JUDICIAL MEMBER # / ACCOUNTANT MEMBER ' ( MUMBAI; )# DATED :4 TH NOVEMBER, 2015 . & . ./ 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. -01 2 / GUARD FILE. % / BY ORDER, + & //TRUE COPY// & / %' ( (DY./ASSTT. REGISTRAR) , ' ( / ITAT, MUMBAI