DISH TV INDIA LTD, V. ASST CIT RG 11(1), MUMBAI

ITA 3739/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7054 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 30-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Earning of tax free income; Services rendered outside India; Retrospective amendment; Additional evidence; Non-deduction of tax
• Section: 142(1); 14A; 194C; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI RAJESH KUMAR , ACCOUNTANT MEMBER ITA NO. 3739 / MUM/2016 ( ASSESSMENT YEAR : 20 10 11 ) DISH TV INDIA LTD. FC 19, FIRM CITY, SECTOR 16A NOIDA 400 063 PAN AAACA5478M . APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX RANGE 11(1), MUMBAI . RESPONDENT ITA NO.3383/MUM/2016 ( ASSESSMENT YEAR : 2010 11 ) ASSTT. COMMISSIONER OF INCOME TAX RANGE 16(1), MUMBAI . APPELLANT V/S DISH TV INDIA LTD. 135, CONTINENTAL BUILDING DR. A.B. ROAD, WORLI MUMBAI 400 018 PAN AAACA5478M . RESPONDENT ASSESSEE BY : SHRI NIRAJ SETH A/W SHRI JAY BHANSALI REVENUE BY : SHRI BHUPENDRA KUMAR SINGH DATE OF HEARING 16 .0 4 .2018 DATE OF ORDER 08.06.2018 2 DISH TV INDIA LTD. O R D E R PER SAKTIJIT DEY, J.M. A FORESAID CROSS APPEALS ARISE OUT OF ORDER DATED 8 TH FEBRUARY 2016, PASSED BY THE LEARNED COMMISSIONER (APPEALS) 4, MUMBAI, FOR THE ASSESSMENT YEAR 2010 11. ITA NO.3739/MUM./2016 ASSESSEES APPEAL 2 . IN GROUND NO.1, THE ASSESSEE HAS CHALLENGED DISALLOWANCE OF ` 1,76,29,278, UNDER SECTION 14A OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ) R/W RULE 8D OF THE I.T. RULES, 1962 3 . BRIEF FACTS ARE, DU RING THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO EXPLAIN WHY EXPENDITURE RELATING TO EARNING OF EXEMPT INCOME SHOULD NOT BE DISALLOWED UNDER SECTION 14A R/W RULE 8D. IN RESPONSE, IT WAS SUBMITTED BY THE ASSESSEE THAT SINCE THE ASSESSEE HAS NOT INCURRED A NY EXPENDITURE FOR MAKING INVESTMENT IN EXEMPT INCOME YIELDING ASSET, NO DISALLOWANCE UNDER SECTION 14A OF THE ACT CAN BE MADE. THE ASSESSING OFFICER, HOWEVER, DID NOT FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE AND HELD THAT EXPENDITURE HAS TO BE DISALL OWED UNDER SECTION 14A OF THE ACT. THEREAFTER, APPLYING THE PROVISIONS OF RULE 8D, THE ASSESSING OFFICER WORKED OUT THE TOTAL DISALLOWANCE AT ` 1,76,29,278, COMPRISING OF INTEREST EXPENDITURE OF ` 3 DISH TV INDIA LTD. 1,29,06,728 UNDER RULE 8D(2)(II) AND ADMINISTRATIVE EXPENDI TURE OF ` 47,22,550 UNDER RULE 8D(2)(III). THE ASSESSEE CHALLENGED THE DISALLOWANCE BEFORE THE LEARNED COMMISSIONER (APPEALS). HOWEVER, THE LEARNED COMMISSIONER (APPEALS) ALSO SUSTAINED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. 4 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED BEFORE US THAT DURING THE RELEVANT PREVIOUS YEAR THE ASSESSEE HAS NOT EARNED ANY EXEMPT INCOME . THEREFORE, NO DISALLOWANCE UNDER SECTION 14A OF THE ACT CAN BE MADE. IN SUPPORT OF SUCH CONTENTION, THE LEARNED AUTHORISED R EPRESENTATIVE RELIED UPON THE DECISION OF THE TRIBUNAL, MUMBAI BENCH, IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2008 09 AND 2009 10 IN ITA NO.2066 AND 2067/MUM./2015, DATED 20 TH DECEMBER 2016. TO IMPRESS UPON THE FACT THAT DU RING THE RELEVANT PREVIOUS YEAR THE ASSESSEE HAD NOT EARNED ANY EXEMPT INCOME , THE LEARNED AUTHORISED REPRESENTATIVE DREW OUR ATTENTION TO THE NOTICE DATED 22 ND NOVEMBER 2012, ISSUE UNDER SECTION 142(1) OF THE ACT BY THE ASSESSING OFFICER AND ASSESSEES REPLY DATED 8 TH DECEMBER 201 2. 5 . THE LEARNED DEPARTMENTAL REPRESENTATIVE RELYING UPON THE OBSERVATIONS OF THE LEARNED COMMISSIONER (APPEALS) SUBMITTED THAT PROVISIONS OF SECTION 14A OF THE ACT ARE APPLICABLE EVEN TO STRATEGIC INVESTMENT. IN SUPPORT OF SUCH CONTENTIONS, HE RELIED UPON THE 4 DISH TV INDIA LTD. DECISION OF THE HON'BLE SUPREME COURT IN CASE OF MAXOPP INVESTMENT LTD. V/S CIT, [2018] 91 TAXMANN.COM 154 (SC). 6 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD IN THE LIGHT OF THE DECISION S RELIED UPON. AS COULD BE SEEN FROM THE FACTS ON RECORD, THE CONTENTION OF THE ASSESSEE THAT IT HAS NOT EARNED ANY EXEMPT INCOME DURING THE RELEVANT PREVIOUS YEAR, HENCE, SECTION 14A OF THE ACT WOULD NOT BE APPLICABLE WAS RAISED FOR THE FIRST TIME BEFORE US. HOWEVER, O N A PERUSAL OF NOTICE DATED 22 ND NOVEMBER 2012, ISSUED BY THE ASSESSING OFFICER UNDER SECTION 142(1) OF THE ACT, IT IS SEEN THAT AGAINST ITEM 9 OF THE SAID NOTICE, THE ASSESSING OFFICER HAS CALLED UPON THE ASSESSEE TO EXPLAIN WHETHER ANY TAX FREE INCOME WA S EARNED DURING THE YEAR. IN REPLY TO THE AFORESAID QUERY, THE ASSESSEE VIDE LETTER DATED 8 TH DECEMBER 2012 HAS SUBMITTED THAT IT HAS NOT RECEIVED ANY TAX FREE INCOME DURING THE RELEVANT PREVIOUS YEAR. THE AFORESAID REPLY OF THE ASSESSEE APPEARS TO HAVE BE EN IGNORED BY THE ASSESSING OFFICER WHILE MAKING THE DISALLOWANCE UNDER SECTION 14A R/W RULE 8D. IN FACT, NOWHERE IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS RECORDED A POSITIVE FINDING THAT IN THE RELEVANT PREVIOUS YEAR THE ASSESSEE HAS EARNED ANY E XEMPT INCOME. THE ORDER OF THE LEARNED COMMISSIONER (APPEALS) IS ALSO SILENT ON THIS ASPECT. THE HON'BLE DELHI HIGH COURT IN CHEMINVEST LTD. V/S CIT, 378 ITR 33 (DEL.) HAS HELD THAT IN THE ABSENCE OF EXEMPT INCOME EARNED IN A 5 DISH TV INDIA LTD. PARTICULAR ASSESSMENT YEAR , NO DISALLOWANCE UNDER SECTION 14A OF THE ACT CAN BE MADE. APPLYING THE AFORESAID RATIO OF THE HON'BLE DELHI COURT, THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2008 09 AND 2009 10 (SUPRA) HAS HELD THAT IN THE ABSENCE OF ANY EXEMPT INCOME EARNE D DURING THE YEAR NO DISALLOWANCE UNDER SECTION 14A OF THE ACT CAN BE MADE. IN VIEW OF THE AFORESAID, WE DIRECT THE ASSESSING OFFICER TO VERIFY ASSESSEES CLAIM THAT NO EXEMPT WAS EARNED DURING THE RELEVANT PREVIOUS YEAR AND IN CASE AFORESAID CLAIM OF THE ASSESSEE IS FOUND TO BE CORRECT NO DISALLOWANCE UNDER SECTION 14A R/W RULE 8D SHOULD BE MADE. THE GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 7 . IN GROUND NO.2, ASSESSEE HAS CHALLENGED DISALLOWANCE OF ` 7,18,15,595, UNDER SECTION 40(A)(IA) OF THE ACT. 8 . BRIE F FACTS ARE, THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DIRECT TO HOME (DTH) OPERATOR, SATELLITE TELEVISION SERVICES, TELEPORT SERVICES, ETC. AS OBSERVED BY THE ASSESSING OFFICER, THE ASSESSEE DISTRIBUTES VARIOUS CHA NNELS THROUGH DTH PLATFORM. IN COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICING THAT THE ASSESSEE HAS PAID COMMISSION CHARGES OF ` 7,18,15,595 CALLED UPON THE ASSESSEE TO FURNISH THE DETAILS OF SUCH EXPENSES AND ALSO TO JUSTIFY THE REASON FOR NOT DEDUCTING TAX AT SOURCE WHILE MAK ING SUCH PAYMENT, AS , ACCORDING TO THE ASSESSING OFFICE SUCH PAYMENT IS COVERED UNDER SECTION 194H OF THE ACT. IN REPLY, IT WAS SUBMITTED BY 6 DISH TV INDIA LTD. THE ASSESSEE THAT AS PER THE SYSTEM ADOPTED BY THE ASSESSEE THE DISTRIBUTOR PAYS LUMP SUM AMOUNT IN ADVANCE WHICH I S CREDITED TO HIS CARD / EPRS AND ASSESSEE GETS THIS AMOUNT AS SUBSCRIPTION. IT WAS SUBMITTED THAT TO INCENTIVIZE THE PAYMENT IN ADVANCE, THE ASSESSEE GIVES CASH DISCOUNT TO THE DISTRIBUTORS. THE DISTRIBUTORS PAY IN ADVANCE TO THE ASSESSEE AND COLLECT THE SAID AMOUNT FROM VARIOUS SUBSCRIBERS OVER A PERIOD OF TIME WHICH MAY SOMETIME RUN INTO FEW MONTHS. THE ASSESSEE GETS THIS AMOUNT IN ADVANCE AND ALLOCATES THIS TO SUBSCRIPTION REVENUE ACCOUNT ON RECEIPT OF SUBSCRIPTION FROM THE SUBSCRIBERS. IT WAS SUBMITTED , THE DISCOUNT ALLOWED TO THE DISTRIBUTOR ON PAYMENT IN ADVANCE IS IN THE NATURE OF CASH DISCOUNT AND IS GIVEN IN THE INVOICE OF CASH RECHARGE. IT WAS SUBMITTED THAT THOUGH THE CASH DISCOUNT IS SHOWN UNDER THE HEAD C OMMISSION FOR SALES AND RELATED SERVICES TO THE DISTRIBUTORS, HOWEVER, THE PAYMENT MADE IS IN THE NATURE OF CASH DISCOUNT AND NOT COMMISSION. THE ASSESSING OFFICER , HOWEVER, DID NOT FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE AND PROCEEDED TO DISALLOW THE PAYMENT UNDER SECTION 40(A)(IA) OF THE ACT SINCE THE ASSESSEE HAS FAILED TO DEDUCT TAX AT SOURCE ON SUCH PAYMENT IN TERMS OF SECTION 194H OF THE ACT. 9 . THOUGH, THE ASSESSEE CHALLENGED THE AFORESAID DISALLOWANCE BEFORE THE LEARNED COMMISSIONER (APPEALS) , HE ALSO S USTAINED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. 7 DISH TV INDIA LTD. 10 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED BEFORE US THAT IDENTICAL ISSUE CAME UP FOR CONSIDERATION BEFORE THE TRIBUNAL IN ASSESSEES OWN CASE IN ASSESSMENT YEARS 2011 12 AND 2012 13 . HE SUBMIT TED , BEFORE THE TRIBUNAL THE ASSESSEE PRODUCED CERTAIN ADDITIONAL EVIDENCES TO PROVE THE NATURE OF PAYMENT TO BE NOT COMMISSION BUT CASH DISCOUNT. HE SUBMITTED , AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE THE TRIBUNAL RESTORED THE ISSUE TO THE ASSESS ING OFFICER FOR FRESH CONSIDERATION AFTER EXAMINING THE ADDITIONAL EVIDENCES PRODUCED BY THE ASSESSEE. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , SIMILAR EVIDENCES HAVE TO BE PRODUCED FOR THE IMPUGNED ASSESSMENT YEAR ALSO, HENCE, THE ISSUE HAS TO BE RESTORED BACK TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION. 11 . THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS NOT OPPOSED THE AFORESAID SUBMISSIONS OF THE ASSESSEE. 12 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. AS CO ULD BE SEEN, IDENTICAL ISSUE ARO SE IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2011 12 AND 2012 13. THE TRIBUNAL AFTER CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE AND THE EVIDENCES PRODUCED PASSED AN ORDER IN ITA NO.3061 3062/MUM./2017 , DATED 10.10.2017 RESTORING THE ISSUE TO THE ASSESSING OFFICER WITH THE FOLLOWING OBSERVATIONS: 8 DISH TV INDIA LTD. 8. WE HAVE GONE THROUGH THE COPY OF THE AGREEMENT ENTERED INTO BY THE ASSESSEE WITH THE DISTRIBUTOR AVAILABLE ON PAGES 138 TO 148 AS WELL AS THE SAMPLE SUBSCRIPTION APPLICATION FORM AV AILABLE ON PAGES 149 TO 150 OF THE PAPER BOOK. ON THE BASIS OF THE DOCUMENT AND THE ISSUE INVOLVED WE ARE OF THE VIEW THAT EXAMINATION OF THESE DOCUMENTS AS A WHOLE ALONG WITH THE TERMS AND CONDITIONS OF THE AGREEMENT ENTERED INTO BETWEEN THE ASSESSEE AND THE DISTRIBUTOR IN RESPECT OF TALK TIME CARD IS ESSENTIAL TO DETERMINE THE TRUE NATURE OF THE TRANSACTION WHETHER THE TRANSACTION ENTERED INTO BETWEEN THE ASSESSEE AND THE DISTRIBUTOR RELATES TO DISCOUNT OR COMMISSION. THE TDS PROVISIONS ARE APPLICABLE UND ER SECTION 194H IN CASE IT IS HELD THAT THE NATURE OF THE TRANSACTION ENTERED INTO BETWEEN THE ASSESSEE AND THE DISTRIBUTOR IS THAT OF COMMISSION BUT IN CASE IF IT IS DECIDED THAT THE NATURE OF TRANSACTIO N IS NOT COMMISSION BUT DISCOUNT GIVEN ON SALES IT CANNOT BE REGARDED TO BE COMMISSION WHICH IS HIT BY THE PROVISIONS OF SECTION 194H OF THE INCOME TAX ACT. WE, THEREFORE, IN THE INTEREST OF JUSTICE AND F AIR PLAY TO BOTH THE PARTIES SET ASIDE THIS ISSUE AND RESTORE IT TO THE FILE OF THE AO WITH THE DIRECTION THAT THE AO SHALL REDECIDE THIS ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER GOING THOUGH THE AGREEMENT WHICH THE ASSESSEE HAS ENTERED INTO WITH THE DIST RIBUTOR AS WELL AS THE SAMPLE SUBSCRIPTION APPLICATION FORM, WHETHER THE AMOUNT REPRESENTS THE EXPENDITURE INCURRED BY THE ASSESSEE TOWARDS COMMISSION OR WHETHER THE 6 ITA 3061, 3062, 3691&3602/MUM/2017 M/S. DISH TV INDIA LTD. 13 . FACTS BEING IDENTICAL, RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF TH E CO ORDINATE BENCH, WE RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION KEEPING IN VIEW THE DIRECTIONS OF THE TRIBUNAL IN ASSESSMENT YEAR 2011 12 AND 2012 13. THIS GROUND IS A LLOWED FOR STATISTICAL PURPOSES. 14 . IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 9 DISH TV INDIA LTD. ITA NO.3383/MUM./2016 REVENUES APPEAL 15 . THE GROUNDS RAISED BY THE DEPARTMENT ARE AGAINST THE DECISION OF THE LEARNED COMMISSIONER (APPEALS) IN DELETING THE DISALLOWANCES MADE UNDER SECTION 40(A)(I) AND (IA) OF THE ACT IN RESPECT OF VARIOUS PAYMENTS MADE BY THE ASSESSEE WITHOUT DEDUCTING TAX AT SOURCE. SINCE , THE GROUNDS RAISED BY THE REVENUE ARE OVER LAPPING, WE CONSIDER IT APPROPRIATE TO DECIDE T HE ISSUES RELATING TO PAYMENT MADE UNDER EACH HEAD. 16 . BRIEF FACTS ARE, DURING THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS CLAIMED EXPENDITURE OF ` 361,13,12,718, TOWARDS CHANNEL SUBSCRIPTION CHARGES. THE ASSESSING OFFICE R NOTICED THAT THE ASSESSEE TREATING THE SERVICES RENDERED BY THE PAYEE IN RESPECT OF SUCH PAYMENT TO BE IN THE NATURE OF CONTRACT HAS DEDUCTED TAX @ 2% BY APPLYING THE PROVISIONS OF SECTION 194C OF THE ACT. THE ASSESSING OFFICER WAS OF THE VIEW THAT CHANNEL SUBSCRIPTION CHARGES ARE IN THE NATURE OF ROYALTY , HENCE, THE ASSESSEE SHOULD HAVE DEDUCTED TAX AT SOURCE @ 10% BY APPLYING THE PROVISIONS OF SECTION 194J OF THE ACT. THEREFORE, HE CALLED UPON THE ASSESSEE TO SHOW CAUSE AS TO WHY THE PAYMENT MADE SHOULD NOT BE DISALLOWED UNDER SECTION 40(A)(I A ) OF THE ACT FOR NOT DEDUCTING TAX AT THE APPROPRIATE RATE. THOUGH, THE ASSESSEE OBJECTED TO THE PROPOSED DISALLOWANCE, HOWEVER, 10 DISH TV INDIA LTD. THE ASSESSING OFFICER REJECTING THE OBJECTIONS OF THE ASSESSEE DISALLOWED THE AMOUNT OF ` 361,13,12,717 UNDER SECTION 40(A)(IA) OF THE ACT. ASSESSEE CHALLENGED THE DISALLOWANCE BEFORE THE FIRST APPELLATE AUTHORITY. 17 . THE LEARNED COMMISSIONER (APPEALS) TAKING NOTE OF THE FACT THAT THE ASSESSEE HAS DEDUCTED TAX AT SOURCE @ 2% BY APPLYING PROVISIONS OF SECTION 194C OF THE ACT HELD THAT IT IS A CASE OF SHORT DEDUCTION OF TAX AND NOT A CASE OF NO TDS. THEREFORE, FOLLOWING THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN CIT V/S S.K. TEKRIWAL, 206 CTR 73 (CAL.), HE HELD THA T NO DISALLOWANCE UNDER SECTION 40(A) (IA) OF THE ACT CAN BE MADE. OF COURSE, THE LEARNED COMMISSIONER (APPEALS) ALSO REFERRED TO THE ORDER PASSED BY THE FIRST APPELLATE AUTHORITY IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2008 09 AND 2010 11 AGAINST THE OR DER PASSED UNDER SECTION 201(1) AND 201(1A) OF THE ACT , WHEREIN , THE ASSESSEES CLAIM THAT THE PAYMENT MADE IS NOT IN THE NATURE OF ROYALTY WAS ACCEPTED. 18 . THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE LEARNED COMMISSIONER (APPEALS) WAS NOT JUS TIFIED IN DELETING THE DISALLOWANCE MADE UNDER SECTION 40(A)(IA) OF THE ACT BY APPLYING THE RATIO LAID DOWN BY THE HON'BLE CALCUTTA HIGH COURT IN S.K. TEKRIWAL (SUPRA). HE SUBMITTED, THE HON'BLE KERALA HIGH COURT IN CIT V/S PVS MEMORIAL HOSPITAL LTD., [201 5] 60 TAXMANN.COM 69 (KER.) AFTER TAKING 11 DISH TV INDIA LTD. NOTE OF THE DECISION IN S.K. TEKRIWAL (SUPRA) HAS HELD THAT THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT ARE ALSO APPLICABLE TO SHORT DEDUCTION OF TAX AT SOURCE. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED , EVEN THE OBSERVATIONS OF THE LEARNED COMMISSIONER (APPEALS) THAT THE PAYMENT MADE IS NOT IN THE NATURE OF ROYALTY, HENCE, IS OUTSIDE THE PURVIEW OF SECTION 194J OF THE ACT , IS A LEGALLY INCORRECT FINDING , SINCE , SUCH PAYMENT IS IN THE NATURE OF ROYALTY AS HELD BY THE ASSESSING OFFICER. 19 . THE LEARNED AUTHORISED REPRESENTATIVE SUPPORTING THE DECISION OF THE LEARNED COMMISSIONER (APPEALS) SUBMITTED THAT THE RATIO LAID DOWN BY THE HON'BLE CALCUTTA HIGH COURT IN S.K. TEKRIWAL (SUPRA) SQUARELY APPLIES TO THE FACTS OF ASSESSEES CASE. HE SUBMITTED , THE ASSESSEE HAVING DEDUCTED TAX @ 2% WHICH, THOUGH, ACCORDING TO THE ASSESSING OFFICER IS NOT THE APPROPRIATE RATE , BUT, THE ASSESSEE HAVING DEDUCTED TAX AT SOURCE , THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT ARE NOT APPLICABLE. HE SUBMITTED , IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2011 12 AND 2012 13, THE TRIBUNAL WHILE DECIDING IDENTICAL ISSUE RAISED BY THE REVENUE HAS HELD THAT NO DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT CAN BE MADE IN RESPECT OF SHORT DEDUCTION OF TAX AT SOURCE. THUS, HE SUBMITTED , LEARNED COMMISSIONER (APPEALS)S ORDER ON THE ISSUE DESERVES TO BE UPHELD. 12 DISH TV INDIA LTD. 20 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. WE HAVE ALSO APPLIED OUR MIND TO THE DECISIONS RELIED UPON. IT IS EVIDENT ON RECORD THAT THE ASSESSEE HAS DEDUCTED TAX AT SOURCE ON THE CHANNEL SUBSCRIPTION CHARGES OF ` 361,13,12,718, @ 2% BY APPLYING THE PROVISIONS OF SECTION 194C OF THE ACT. THE ASSESSING OFFICER, HOWEVER, WAS OF THE VIEW THAT THE PAYMENT MADE BY THE ASSESSEE IS IN THE NATURE OF ROYALTY, HENCE, THE ASSESSEE SHOULD HAVE DEDUCTED TAX AT SOURCE @ 10% UNDER THE PROVISIONS OF SECTION 194C OF THE ACT. THUS, AS COULD BE SEEN FROM THE FACT ON RECORD, THE DISPUTE BETWEEN THE ASSESSEE AND THE DEPARTMENT IS CONFINED TO THE APPROPRIATE RATE AT WHICH TAX SHOULD HAVE BEEN DEDUCTED AT SOURCE WHILE MAKING THE PAYMENT OF CHANNEL SUBSCRI PTION CHARGES. THUS, IT IS NOT A CASE OF FAILURE TO DEDUCT TAX AT SOURCE BUT , IF AT ALL , IT IS A CASE OF DEDUCTION OF TAX AT SOURCE AT A LOWER RATE. ON A READING OF THE PROVISIONS CONTAINED UNDER SECTION 40(A)(IA) OF THE ACT IT APPEARS THAT ANY PAYMENT TO A RESIDENT WHICH IS SUBJECT TO DEDUCTION OF TAX AT SOURCE , IF PAID , WITHOUT DEDUCTING TAX OR AFTER DEDUCTION IT WAS NOT PAID TO THE GOVERNMENT ACCOUNT BEFORE THE DUE DATE OF RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT , IT HAS TO BE DISALLOWED UNDER SE CTION 40(A)(IA) OF THE ACT. THUS, THE AFORESAID PROVISION OPERATES UNDER TWO CONDITIONS; FIRSTLY, IF TAX IS NOT DEDUCTED AT SOURCE; AND SECONDLY, IF AFTER DEDUCTION IT IS NOT PAID TO THE GOVERNMENT ACCOUNT BEFORE THE PRESCRIBED DATE. IN THE PRESENT CASE, A DMITTEDLY, THE ASSESSEE HAS 13 DISH TV INDIA LTD. DEDUCTED TAX AT SOURCE ON THE PAYMENT MADE, THOUGH, AT A LOWER RATE. THEREFORE, THE FIRST CONDITION OF SECTION 40(A)(IA) OF THE ACT DOES NOT APPLY. EVEN , THERE IS NO ALLEGATION THAT AFTER DEDUCTION OF TAX THE ASSESSEE HAS NOT RE MITTED IT TO THE GOVERNMENT ACCOUNT BEFORE THE PRESCRIBED DATE. THEREFORE, THE SECOND CONDITION OF SECTION 40(A)(IA) OF THE ACT ALSO DOES NOT APPLY. THE HON'BLE CALCUTTA HIGH COURT IN CASE OF S.K. TEKRIWAL (SUPRA) HAS HELD THAT THE PROVISIONS OF SECTION 40 (A)(IA) OF THE ACT WILL NOT APPLY TO A CASE OF SHORT DEDUCTION OF TAX AT SOURCE. FOLLOWING THE AFORESAID DECISION, THE HON'BLE KARNATAKA HIGH COURT IN CASE OF CIT V/S KISHOR RAO AND OTHERS HUF[2016]387 ITR 196 , HAS ALSO EXPRESSED SIMILAR VIEW. OF COURSE, T HE HON'BLE KERALA HIGH COURT IN PVS MEMORIAL HOSPITAL LTD. (SUPRA) HAS EXPRESSED A CONTRARY VIEW. HOWEVER, IT IS SETTLED LEGAL PRINCIPLE , IF THERE IS NO DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT ON THE ISSUE IN DISPUTE AND THERE ARE DECISIONS OF NO N JURISDICTIONAL HIGH COURT EXPRESSING CONFLICTING VIEWS, THE VIEW WHICH IS FAVORABLE TO THE ASSESSEE HAS TO BE ACCEPTED. APPLYING THE AFORESAID LEGAL PRINCIPLE, WE PREFER TO FOLLOW THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN CASE OF S.K. TEKRIWAL ( SUPRA) AND THE DECISION OF HON'BLE KARNATAKA HIGH COURT IN CASE OF CIT V/S KISHOR RAO(SUPRA) . IT IS NECESSARY TO PUT ON RECORD , DIFFERENT BENCHES OF THE TRIBUNAL RELYING UPON THE AFORESAID DECISION OF THE HON'BLE CALCUTTA HIGH COURT HAVE ALSO HELD TH AT TH E PROVISIONS OF SECTION 40 (A)(IA) OF THE ACT ARE NOT APPLICABLE TO A CASE OF SHORT DEDUCTION OF TAX. 14 DISH TV INDIA LTD. MOREOVER, WHILE DECIDING IDENTICAL ISSUE IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2011 12 AND 2012 13 IN ITAS NO. 3061 AND 3062/MUM./2017, DATED 10 TH OCTOBER 2017, THE CO ORDINATE BENCH FOLLOWING THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN S.K. TEKRIWAL (SUPRA) AND OTHER DECISIONS OF THE TRIBUNAL HAS HELD THAT THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT WILL NOT BE APPLICABLE TO A CASE OF SHO RT FALL OF DEDUCTION OF TAX AT SOURCE. ACCORDINGLY, ON THE BASIS OF THE AFORESAID REASONING WE UPHOLD THE DELETION OF DISALLOWANCE MADE BY THE ASSESSING OFFICER . 21 . THE NEXT ISSUE IS WITH REGARD TO DELETION OF DISALLOWANCE MADE UNDER SECTION 40(A)(IA) OF THE ACT IN RESPECT OF UP LINKING FEES OF ` 4,43,42,474, TO ANTRIX CORPORATION LTD. 22 . BRIEF FACTS ARE, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS PAID UP LINKI NG FEES OF ` 4,43,42,474, ON WHICH IT HAS DEDUCTED TAX @ 2% UNDER SECTION 194C OF THE ACT. THE ASSESSING OFFICER BEING OF THE VIEW THAT THE PAYMENT MADE IS IN THE NATURE OF ROYALTY, THE ASSESSEE SHOULD HAVE DEDUCTED TAX @ 10% AS PER SECTION 194J OF THE ACT . A LLEGING SHORT DEDUCTION OF TAX AT SOURCE, THE ASSESSING OFFICER DISALLOWED THE PAYMENT BY APPLYING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. 15 DISH TV INDIA LTD. 23 . THE LEARNED COMMISSIONER (APPEALS) WHILE DECIDING ASSESSEES APPEAL ON THIS ISSUE DELETED THE DISALLOWANC E , SINCE; IT IS NOT A CASE OF NO DEDUCTION OF TAX BUT SHORT DEDUCTION OF TAX. 24 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. AS COULD BE SEEN FROM THE FACTS ON RECORD, WHILE PAYING THE UP LINKING FEES THE ASSESSEE HAS DEDUCTED TAX A T SOURCE @ 2% BY APPLYING THE PROVISIONS OF SECTION 194C OF THE ACT. IT IS THE CASE OF THE REVENUE THAT THE ASSESSEE SHOULD HAVE DEDUCTED TAX @ 10% AS PER SECTION 194J OF THE ACT. THUS, THERE IS NO DISPUTE THAT THE ASSESSEE HAS DEDUCTED TAX AT SOURCE , BUT , MAY BE AT A LOWER RATE. IT IS NOT A CASE OF FAILURE TO DEDUCT TAX AT SOURCE. THAT BEING THE CASE, FOLLOWING OUR REASONING IN PARA 20 OF THIS ORDER, WE UPHOLD THE DELETION OF DISALLOWANCE MADE UNDER SECTION 40(A)(IA) OF THE ACT. 25 . THE NEXT DISPUTE IS WITH R EGARD TO PAYMENT OF UP LINKING FEES OF ` 6,62,06,997 , TO A NON RESIDENCE ENTITY VIZ. B.T. WORLDWIDE. 26 . DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICING THAT THE ASSESSEE HAS PAID UP LINKING FEES OF ` 6,62,06,997, TO A SINGAPORE BASED COMPAN Y VIZ. B.T. WORLDWIDE WITHOUT WITHHOLDING TAX UNDER SECTION 195 OF THE ACT CALLED UPON THE ASSESSEE TO EXPLAIN WHY THE PAYMENT SHOULD NOT BE D ISALLOWED UNDER SECTION 40(A)(I ) OF THE ACT AS IT IS IN THE NATURE OF ROYALTY AS PER SECTION 9(1)(VI) R/W 16 DISH TV INDIA LTD. EXPLANAT ION 2 AND 6 OF THE ACT. IN RESPONSE, IT WAS SUBMITTED BY THE ASSESSEE THAT SINCE THE PAYMENT MADE WAS FOR SERVICES RENDERED OUTSIDE INDIA, THE INCOME D ID NOT ACCRUE OR ARISE IN INDIA. T HEREFORE, THERE WAS NO NEED TO WITHHOLD TAX UNDER SECTION 195 OF THE ACT. HOWEVER, THE ASSESSING OFFICER DID NOT FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE. REFERRING TO EXPLANATION 2 AND 6 OF SECTION 9(1)(VI) OF THE ACT, THE ASSESSING OFFICER HELD THAT THE PAYMENT IS IN THE NATURE OF ROYALTY AS IT INVOLVES PROCESS AND F URTHER SUCH INCOME HAS ACCRUED AND ARISEN IN INDIA IN VIEW OF THE RETROSPECTIVE AMENDMENT TO SECTION 9(1)(VI) OF THE ACT. THUS, HE DISALLOWED TH E PAYMENT UNDER SECTION 40(A)(I ) OF THE ACT FOR NON DEDUCTION OF TAX AT SOURCE UNDER SECTION 195 OF THE ACT. ASS ESSEE CHALLENGED THE DISALLOWANCE BEFORE THE FIRST APPELLATE AUTHORITY. 27 . THE LEARNED COMMISSIONER (APPEALS) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE DELETED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. 28 . THE LEARNED DEPARTMENTAL REPRESENTATIVE S UBMITTED THAT THE LEARNED COMMISSIONER (APPEALS) HAS DELETED THE DISALLOWANCE ON A WRONG IMPRESSION THAT THE ASSESSEE HAS DEDUCTE D TAX AT SOURCE AT A LOWER RATE. WHEREAS , IN RESPECT OF THIS PAYMENT, THE ASSESSEE HAS NOT AT ALL DEDUCTED TAX AT SOURCE. HE SU BMITTED, THE UP LINKING FEES PAID IS IN THE NATURE OF ROYALTY AS IT IS A PROCESS AS DEFINED UNDER 17 DISH TV INDIA LTD. EXPLANATION 6 TO SECTION 9(1)(VI) OF THE ACT. HE SUBMITTED , EXPLANATION 6 TO SECTION 9(1)(VI) OF THE ACT BROUGHT TO THE STATUTE WITH RETROSPECTIVE EFFECT FROM 1 ST JUNE 1976, IS CLARIFICATORY IN NATURE AND DOES NOT AMEND THE DEFINITION OF ROYALTY PER SE. THUS, THE ASSESSEE HAVING FAILED TO DEDUCT TAX UNDER SECTION 195 OF THE ACT , THE PAYMENT WAS LIABLE TO BE DIS ALLOWED UNDER SECTION 40(A)(I ) OF THE ACT. 29 . THE LEA RNED AUTHORISED REPRESENTATIVE SUPPORTING THE DECISION OF THE LEARNED COMMISSIONER (APPEALS) SUBMITTED THAT AT THE TIME OF PAYMENT OF UP LINKING FEES TO B.T . WORLDWIDE , AS PER THE EXISTING PROVISIONS OF SECTION 9(1)(VI) OF THE ACT PROCESS WAS NOT IN THE NA TURE OF ROYALTY. HE SUBMITTED THAT SUBSEQUENTLY BY WAY OF RETROSPECTIVE AMENDMENT THE SCOPE OF ROYALTY WAS WIDENED BY INTRODUCING EXPLANATION 6 TO SECTION 9(1)(VI) OF THE ACT. HE SUBMITTED , SINCE , THE AFORESAID PROVISION WAS NOT IN EXISTENCE AT THE TIME OF PAYMENT MADE BY THE ASSESSEE, THE ASSESSEE COULD NOT HAVE DEDUCTED TAX AT SOURCE ANTICIPATING A CHANGE IN LAW. IN THIS CONTEXT, THE LEARNED AUTHORISED REPRESENTATIVE RELIED UPON THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN CIT V/S M/S. N.G.C . NETWORK (INDIA) PVT. LTD., ITA NO.397 OF 2015, JUDGMENT DATED 29 TH JANUARY 2018. FURTHER, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , IN ASSESSEES OWN CASE FOR THE IMPUGNED ASSESSMENT YEAR THE INCOME TAX OFFICER (TDS) HAS PASSED AN ORDER UNDER SECTION 201(1) / 201(1A) OF THE ACT ON 7 TH 18 DISH TV INDIA LTD. FEBRUARY 2014, HOLDING THAT THE UP LINKING FEES PAID TO B.T. WORLDWIDE IS NOT LIABLE TO DEDUCTION OF TAX AT SOURCE AS SUCH PAYMENT IS TOWARDS SERVICES RENDERED OUTSIDE INDIA. THUS, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , LEARNED COMMISSIONER (APPEALS) WAS JUSTIFIED IN DELETING THE DISALLOWANCE. 30 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. AT THE OUTSET, WE MUST OBSERVE THAT THE LEARNED COMMISSIONER (APPEALS) DELETED THE DISALLOWANCE ON A FACTUAL MISCONCEPTION THAT THE ASSESSEE HAS DEDUCTED TAX ON THE PAYMENT AT A LOWER RA TE. HOWEVER, THE FACT S ON RECORD REVEAL THAT THE ASSESSEE HAS NOT DEDUCTED ANY TAX AT SOURCE ON THE PAYMENT OF ` 6,62,06,997, TO B.T. WORL D WIDE TOWARDS UP LINKING FEES. TO THAT EXTENT, THE OBSERVATIONS OF THE LEARNED COMMISSIONER (APPEALS) ARE NOT CORRECT. HOWEVER, THE ISSUE TO BE DECIDED IS, WHETHER THE ASSESSEE WAS LIABLE TO DEDUCT TAX AT SOURCE ON SUCH PAYMENT. IT IS THE CASE OF THE DEPARTMENT THAT THE PAYMENT MADE ATTRACTS THE PROVISIONS OF SECTION 9(1)(VI) OF THE ACT A S IT IS IN THE NATURE OF PROCESS AS DEFINED UNDER EXPLANATION 6 TO SECTION 9(1)(VI) OF THE ACT. IT IS THE CONTENTION OF THE DEPARTMENT THAT EXPLANATION 6 WHICH DEFINES PROCESS TO INCLUDE TRANSMISSION BY SATELLITE THROUGH UP LINKING , SINCE , IS CLARIFICATORY IN NATURE , IT CANNOT BE CONST RUED TO BE AMENDING THE TERM ROYALTY UNDER SECTION 9(1)(VI) OF THE ACT. HOWEVER, IT IS THE CONTENTION OF THE ASSESSEE THAT , SINCE , AT 19 DISH TV INDIA LTD. THE TIME OF MAKING PAYMENT EXPLANATION 6 TO SECTION 9(1)(VI) OF THE ACT WAS NOT IN THE STATUTE AND WAS INTRODUCED BY FINANCE ACT, 2012 WITH RETROSPECTIVE EFFECT FROM 1 ST JUNE 1976, THE ASSESSEE CANNOT BE HELD TO BE LIABLE FOR DEDUCTION OF TAX AT SOURCE. WE FIND SUBSTANTIAL FORCE IN THE AFORESAID SUBMISSIONS ASSESSEE. UNDISPUTEDLY, EXPLANATION 6 TO SECTION 9(1)(VI) OF THE ACT WHICH DEFINES PROCESS TO INCLUDE TRANSMISSION BY SATE L LITE THROUGH UP LINKING TO BE IN THE NATURE OF ROYALTY WAS INTRODUCED TO THE STATUTE BY FINANCE ACT, 2012 WITH RETROSPECTIVE EFFECT FROM 1 ST JUNE 1976. THUS, IT IS CLEAR, AT THE TIME OF PAYMENT M ADE BY THE ASSESSEE THE AFORESAID PROVISIONS WAS NOT IN THE STATUTE. THAT BEING THE CASE, AT THE RELEVANT POINT OF TIME, UP LINKING FEES WAS NOT INCLUDED IN THE TERMS OF PROCESS . THEREFORE, THE ASSESSEE COULD NOT HAVE WITHHELD TAX UNDER SECTION 195 OF TH E ACT ANTICIPATING AN AMENDMENT TO BE MADE IN FUTURE. IN SUCH A SITUATION, THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN CIT V/S M/S. N.G.C. NETWORK (INDIA) PVT. LTD. SQUARELY APPLIES. THE HON'BLE JURISDICTIONAL HIGH COURT WHILE DEALING WITH THE ISSUE OF WITHHOLD ING OF TAX UNDER IDENTICAL FACT SITUATION HELD THAT A PARTY CANNOT BE CALLED UPON TO PERFORM AN IMPOSSIBLE ACT I.E., TO COMPLY WITH A PROVISION NOT IN FORCE AT THE RELEVANT TIME BUT INTRODUCE LATER BY RETROSPECTIVE AMENDMENT. MOREOVER, AS COULD BE SEEN FROM THE MATERIAL PLACED BEFORE US, INCOME TAX OFFICER (TDS), INTERNATIONAL TAXATION, NOIDA, VIDE ORDER DATED 7 TH FEBRUARY 2014, PASSED UNDER SECTION 201(1) / 20 DISH TV INDIA LTD. 201(1A) OF THE ACT FOR ASSESSMENT YEARS 2009 10, 2010 11 AND 2011 12, HAS HELD THA T ASSESSEE WAS NOT LIABLE TO DEDUCT TAX AT SOURCE ON THE PAYMENT MADE TO THIS COMPANY AS SUCH PAYMENT WAS TOWARDS SERVICES RENDERED OUTSIDE INDIA. IN VIEW OF THE AFORESAID, THE DISALLOWANCE MADE UNDER SECTION 40(A)(IA) OF THE ACT DESERVES TO BE DELETED. TH EREFORE, WE UPHOLD THE DECISION OF THE COMMISSIONER (APPEALS) ON THE ISSUE, THOUGH, ON OUR OWN REASONING. 31 . THE NEXT DISPUTE IS WITH REGARD TO PAYMENT OF TRANSPO NDER FEES AMOUNTING TO ` 50,25,99,456. 32 . THE ASSESSING OFFICER NOTICING THAT THE ASSESSEE WHILE MAKING THE AFORESAID PAYMENT HAS DEDUCTED TAX AT SOURCE @ 2% UNDER SECTION 194C OF THE ACT AS AGAINST @ 10% UNDER SECTION 194J OF THE ACT CALLED UPON THE ASSESSEE TO EXPLAIN WHY THE PAYMENT MADE SHOULD NOT BE DISALLOWED UNDER SECTION 40(A)(IA) OF THE ACT. THOUGH, THE ASSESSEE OBJECTED TO THE PROPOSED DISALLOWANCE, HOWEVER, THE ASSESSING OFFICER PROCEEDED TO DISALLOW THE PAYMENT MADE , SINCE , THE ASSESSEE HAS NOT DEDUCTED TAX AT THE APPROPRIATE RATE AS PROVIDED UNDER SECTION 194J OF THE ACT. 33 . ASSESSEE CHALLE NGED THE DISALLOWANCE BEFORE THE LEARNED COMMISSIONER (APPEALS) WHO DELETED THE DISALLOWANCE. 21 DISH TV INDIA LTD. 34 . THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE LEARNED COMMISSIONER (APPEALS) WITHOUT ANY DISCUSSION ON THE ISSUE HAS DELETED THE DISALLOWANCE MADE B Y THE ASSESSING OFFICER. 35 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ASSESSEE HAVING DEDUCTED TAX AT SOURCE, THOUGH AT A LOWER RATE, NO DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT CAN BE MADE. 36 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PE RUSED MATERIALS ON RECORD. THOUGH, IT IS A FACT THAT THE LEARNED COMMISSIONER (APPEALS) BEFORE DELETING THE DISALLOWANCE MADE UNDER SECTION 40(A)(IA) OF THE ACT HAS NOT MADE ANY DISCUSSION, HOWEVER, IT IS VERY MUCH CLEAR FROM THE ASSESSMENT ORDER THAT THE ASSESSEE HAS DEDUCTED TAX AT SOURCE ON SUCH PAYMENT BY APPLYING THE RATE OF 2% AS PER SECTION 194C OF THE ACT. THE ASSESSING OFFICER HAS DISALLOWED THE PAYMENT ONLY ON THE REASONING THAT THE ASSESSEE SHOULD HAVE DEDUCTED TAX @ 10% UNDER SECTION 194J OF THE ACT. THUS, AS COULD BE SEEN FROM THE FACTS ON RECORD, IT IS A CASE OF SHORT DEDUCTION OF TAX AT SOURCE AND NOT A CASE OF FAILURE TO DEDUCT TAX AT SOURCE. THAT BEING THE CASE, FOLLOWING OUR REASONING IN PARA 20 OF THE ORDER, WE UPHOLD THE DELETION OF DISAL LOWANCE MADE BY THE ASSESSING OFFICER UNDER SECTION 40(A)(IA) OF THE ACT. ACCORDINGLY, GROUND S RAISED ARE DISMISSED. 37 . IN THE RESULT, REVENUES APPEAL IS DISMISSED. 22 DISH TV INDIA LTD. 38 . TO SUM UP, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES AND REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON SD/ - RAJESH KUMAR ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI