M/s Good Media News (P) Ltd., Shimla V. Pr. Commissioner of Income Tax, Shimla

ITA 44/CHANDI/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2937 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 06-08-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 25-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHARANJIT SINGH CIT DR
• Keywords: TDS; Set aside
• Section: 40A(3); 194C; 263; 63; 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, A, CHANDIGARH . . , , BEFORE SHRI N.K. SAINI, VICE PRESIDENT & SHRI SANJAY GARG, JUDICIAL MEMBER ./ ITA NO . 44/CHD/2016 / ASSESSMENT YEAR : 2012-13 M/S GOOD MEDIA NEWS (P) LTD., BRIDGE VIEW HOTEL, THE MALL, SHIMLA VS. ! THE PRINCIPAL COMMISSIONER OF INCOME TAX, RAILWAY BOARD BUILDINGS, SHIMLA ' # ./ PAN NO:AAACB3859R '$/ APPELLANT &' '$ / RESPONDENT ()*+ / ASSESSEE BY : SH. TEJ MOHAN SINGH, ADVOCATE *+ / REVENUE BY : SHRI CHARANJIT SINGH, CIT DR , -*) .# / DATE OF HEARING : 06.08.2019 /0 *) .# / DATE OF PRONOUNCEMENT : .08.2019 / ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE CONTESTING THE VALIDITY OF THE ORDER DATED 30.12.2015 OF THE LD. PRINCIPAL COMMISSIONER OF INCOME TAX, SHIMLA [HEREINAFTER RE FERRED TO AS PCIT] EXERCISING HIS REVISION JURISDICTION U/S 2 63 OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT'). 2. THE BRIEF FACTS OF THE CASE ARE THAT THE LD. CIT (A), FROM THE RECORD OF THE CASE, NOTICED THAT THE ASSESSEE HAD D EBITED A SUM OF RS. ITA NO. 44-C-2016 M/S GOOD MEDIA NEWS (P) LTD, SHIMLA. 2 6,36,19,146/- UNDER THE HEAD PAY CHANNEL SUBSCRIP TION IN THE PROFIT & LOSS ACCOUNT. THE LD. PCIT WAS OF THE VIEW THAT AS PER THE PROVISIONS OF SECTION 194C EXPLANATION III OF THE ACT, THE A SSESSEE WAS REQUIRED TO DEDUCT TAX AT SOURCE ON THE PAYMENTS MADE TO VA RIOUS TV CHANNELS WHICH WAS NOT DONE BY THE ASSESSEE. HE OBSERVED TH AT THOUGH THE ASSESSING OFFICER HAD RAISED A QUERY IN THIS RESPEC T TO THE ASSESSEE, HOWEVER, THE ASSESSING OFFICER WITHOUT PROPER APPLI CATION OF MIND ACCEPTED THE PLEA OF THE ASSESSEE THAT IT WAS NOT L IABLE TO DEDUCT TAX AT SOURCE ON THE BASIS OF THE DECISION OF THE AGRA BEN CH OF THE ITAT IN ITO VS BALKRISHAN GUPTA 36 TAXMAN 518 (2013). THE LD. PCIT OBSERVED THAT THE ASSESSING OFFICER IGNORED THE DEC ISION OF THE HON'BLE JURISDICTIONAL HIGH COURT OF PUNJAB & HARYANA IN TH E CASE OF KURUKSHETRA DARPANS (P) LTD VS CIT 217 CTR 326 D ATED 3.3.2008 WHICH WAS APPLICABLE TO THE FACTS OF THE CASE OF T HE ASSESSEE, WHEREIN, IT HAD BEEN HELD THAT THE PAYMENTS MADE TO THE LICENS OR FOR OBTAINING TV SIGNALS FOR CABLE TV NETWORK WAS LIABLE FOR TDS U/S 194C OF THE ACT. THE LD. PCIT FURTHER OBSERVED THAT THE ASSESSING OFFICER HAD ALSO IGNORED THE OBSERVATIONS MADE BY THE AUDITOR IN HIS REPORT, WHEREIN, IT WAS REPORTED THAT THE ASSESSEE HAD NOT GIVEN ANY CE RTIFICATE TO THE EFFECT THAT ALL THE PAYMENTS COVERED U/S 40A(3) HAD BEEN MADE ON ACCOUNT OF ACCOUNT PAYEE CHEQUES. THE LD. PCIT HELD THAT WHE N THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT WAS AVAILABLE , THE RELIANCE OF THE ASSESSING OFFICER ON THE AGRA BENCH OF THE TRIBUNAL WAS WRONG AND, ITA NO. 44-C-2016 M/S GOOD MEDIA NEWS (P) LTD, SHIMLA. 3 THUS, AN ERROR HAD OCCURRED IN THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER AND THAT THE ASSESSMENT ORDER PAS SED BY THE ASSESSING OFFICER WAS ALSO ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. HE, ACCORDINGLY, SET ASIDE THE ASSESSMENT ORDER DA TED 26.11.2014 PASSED BY THE ASSESSING OFFICER AND DIRECTED THE AS SESSING OFFICER TO PASS ASSESSMENT ORDER AFRESH. 3. THE LD. COUNSEL FOR THE ASSESSEE BEFORE US HAS S UBMITTED THAT THE ASSESSING OFFICER HAD DULY APPLIED HIS MIND AS HE HAD RAISED QUERY REGARDING THE NON-DEDUCTION OF TDS WHICH WAS REPLIE D BY THE ASSESSEE. THAT AT THE TIME OF ASSESSMENT, THE ASSESSING OFFIC ER HAD VERIFIED THE BILLS AND VOUCHERS ETC. AND DID NOT FIND ANY EXPEND ITURE LIABLE FOR DISALLOWANCE U/S 40A(3) OF THE ACT. THAT EVEN THE DECISION OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF KURUKSHETRA DARPANS (P) LTD VS CIT (SUPRA) WAS ALSO DISCUSSED IN THE DECISION OF THE AGRA BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS BALKRISHAN GUPTA (SUPRA), THEREFORE, IT CANNOT BE SAID THAT THE ASSE SSING OFFICER HAD NOT APPLIED HIS MIND. FURTHER, THAT THE VIEW TAKEN BY T HE ASSESSING OFFICER WAS ONE OF THE POSSIBLE VIEWS, HENCE, THE ORDER CAN NOT BE SAID TO BE ERRONEOUS. 4. ON THE OTHER HAND, THE LD. DR HAS RELIED ON THE ORDER OF THE LD. PCIT. ITA NO. 44-C-2016 M/S GOOD MEDIA NEWS (P) LTD, SHIMLA. 4 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E ALSO GONE THROUGH THE RECORD. AFTER GOING THROUGH THE DECISIO N OF THE AGRA BENCH OF THE TRIBUNAL IN ITO VS BALKRISHAN GUPTA (SUPRA ), WE FIND THAT THE FACTS OF THE SAID CASE WERE DIFFERENT FROM THE FACT S IN THE CASE OF BEFORE KURUKSHETRA DARPANS (P) LTD VS CIT (SUPRA). THA T THE ISSUE BEFORE THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF KURUKESHTRA DARPANS (P) LTD VS CIT (SUPRA) WAS A CASE OF CABLE OPERATOR ENGAGED IN PROCURING AND GIVING SIGNALS TO THE CUSTOMERS, W HEREAS, THE ISSUE IN THE CASE OF ITO VS BALKRISHAN GUPTA (SUPRA) WAS G IVING PACKED SIGNALS RECEIVED FROM CHANNELS I.E. STAR TV & OTHERS TO THE CABLE OPERATORS WITHOUT MODIFICATION. WE, THEREFORE, RAISED A SPEC IFIC QUERY TO THE LD. COUNSEL FOR THE ASSESSEE AS TO THE FACTS OF THE CAS E OF THE ASSESSEE WERE COVERED BY THE AGRA BENCH OF THE TRIBUNAL IN ITO V S BALKRISHAN GUPTA (SUPRA) OR FACTS OF THE CASE WERE IDENTICAL TO THAT OF THE CASE OF KURUKESHTRA DARPANS (P) LTD VS CIT (SUPRA), DECID ED BY THE HON'BLE PUNJAB & HARYANA HIGH COURT. THE LD. COUNSEL FOR THE ASSESSEE HAS BEEN FAIR ENOU GH TO ADMIT THAT THE ASSESSEE IN THIS CASE IS A CABLE OPERATOR AND THAT THE FACTS OF THE CASE OF THE ASSESSEE WERE IDENTICAL TO THAT OF THE KURUKSHETRA DARPANS (P) LTD VS CIT (SUPRA) DECIDED BY HON'BLE PUNJAB & HARYANA HIGH COURT . IN VIEW OF THIS, THE DECISION OF THE HONBL E PUNJAB & HARYANA ITA NO. 44-C-2016 M/S GOOD MEDIA NEWS (P) LTD, SHIMLA. 5 HIGH COURT (SUPRA) IS APPLICABLE IN THE CASE OF TH E ASSESSEE. THERE WAS A WRONG ASSUMPTION OF FACTS AND LAW IN THIS CASE BY THE ASSESSING OFFICER BECAUSE OF WHICH HE DID NOT MAKE THE DISALL OWANCE U/S 40A(IA) OF THE ACT. IT IS ALSO APPARENT THAT THE ASSESSING OFFICER HAS ALSO IGNORED THE OBSERVATIONS MADE BY THE AUDITOR IN HIS REPORT THAT THE ASSESSEE HAD NOT GIVEN ANY CERTIFICATE TO THE EFFECT THAT ALL TH E PAYMENTS COVERED U/S 40A(3) HAVE BEEN MADE BY ACCOUNT PAYEE CHEQUES. IN VIEW OF THIS, WE DO NOT FIND ANY INFIRMITY IN TH E ORDER OF THE LD. PCIT IN HOLDING THAT THE ORDER OF THE ASSESSING OF FICER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. WE, THE REFORE, DO NOT FIND ANY MERIT IN THIS APPEAL OF THE ASSESSEE AND THE SA ME IS ACCORDINGLY DISMISSED. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06.08.2019. SD/- SD/- ( . . / N.K. SAINI) ( / SANJAY GARG) !'# / VICE PRESIDENT $% / JUDICIAL MEMBER DATED : 06.08.2019 .. 2*&)3454) / COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. &' '$ / THE RESPONDENT 3. , 6) / CIT 4. , 6) ( )/ THE CIT(A) 5. 47 &)8 , . 8 , 9:;< / DR, ITAT, CHANDIGARH 6. ;= - / GUARD FILE 2 , / BY ORDER, ITA NO. 44-C-2016 M/S GOOD MEDIA NEWS (P) LTD, SHIMLA. 6 > / ASSISTANT REGISTRAR