UNITED HOME ENTERTAINMENT P.LTD, MUMBAI V. ADIT (IT) 2(2), MUMBAI

ITA 5171/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1627 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: L
• Next Hearing Date: 25-10-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 18-07-2013
• Court: TRIBUNAL
• Department Lawyers: RAMPRIYA RAGHAVAN
• Keywords: Double taxation relief; Retrospective amendment; Reasonable cause; Condonation of delay
• Section: 244A; 246

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES L, MUMBAI BEFORE SHRI AMIT SHUKLA (JUDICIAL MEMBER) AND SHRI ASHWANI TANEJA (ACCOUNTANT MEMBER) I.T.A. NO.5171/MUM/2013 -A.Y. 2012-13 I.T.A. NO.5172/MUM/2013 -A.Y. 2012-13 I.T.A. NOS.5173/MUM/2013 -A.Y. 2013-14 I.T.A. NOS.5174/MUM/2013 -A.Y. 2013-14 I.T.A. NOS.5175/MUM/2013 -A.Y. 2013-14 I.T.A. NOS.5176/MUM/2013 -A.Y. 2013-14 I.T.A. NOS.5177/MUM/2013 -A.Y. 2013-14 I.T.A. NOS.5178/MUM/2013 -A.Y. 2013-14 I.T.A. NOS.5179/MUM/2013 -A.Y. 2013-14 I.T.A. NOS.5180/MUM/2013 -A.Y. 2013-14 I.T.A. NOS.5181/MUM/2013 -A.Y. 2013-14 UNITED HOME ENTERTAINMENT PVT LTD 4 TH FLOOR, PENINSULA TOWER-1 GANPATRAO KADAM MARG, LOWER PAREL, MUMBAI VS ADIT (INTERNATIONAL TAXATION) 2(2), MUMBAI PAN : AAACU6668D (APPELLANT) (RESPONDENT) APPELLANT BY SHRI MADHUR AGARWAL RESPONDENT BY SMT RAMPRIYA RAGHAVAN, SR DR DATE OF HEARING : 17-11-2016 DATE OF ORDER : 28 -11-2016 O R D E R PER BENCH: THESE APPEALS HAVE BEEN FILED BY THE AFORESAID ASSE SSEE AGAINST THE CONSOLIDATED ORDER PASSED BY THE COMMISSIONER OF IN COME-TAX (APPEALS)- 2 I.T.A. NOS.5171 TO 5181/MUM/2013 11, MUMBAI [HEREINAFTER CALLED CIT(A)] FOR ASSESSME NT YEARS 2012-13 AND 2013-14 COMPRISING OF 11 APPEALS. IT WAS INFORMED THAT IDENTICAL ISSUE IS INVOLVED IN ALL THESE APPEALS, THEREFORE, THESE APP EALS WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON ORDER. 2. FIRST, WE SHALL TAKE UP THE APPEAL IN ITA NO.517 1 /MUM/2013 FILED BY THE ASSESSEE ON THE FOLLOWING GROUNDS:- BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE, UNITED HOME ENTERTAINMENT PRIVATE LIMITED (' APPELLANT') RESPEC TFULLY CRAVES LEAVE TO PREFER AN APPEAL UNDER SECTION 253 OF THE LNCOME-TAX ACT, 1961 ('ACT') AGAINST THE ORDER PASSED BY THE L EARNED COMMISSIONER OF INCOME-TAX (APPEALS) - 11 ['CIT(A)' ]. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LEARNED CIT(A): GENERAL 1. ERRED IN NOT CONDONING THE DELAY IN FILING THE A PPEAL BEFORE HIM AND ACCORDINGLY DISMISSING THE APPEAL AS NOT MA INTAINABLE; 2. ERRED IN HOLDING THAT TAX IS REQUIRED TO BE DEDU CTED AT SOURCE ON THE AMOUNT PAYABLE BY THE APPELLANT TO INTELSAT GLOBAL SALES AND MARKETING LIMITED ('INTELSAT') [MENTIONED BY TH E CIT(A) AS PANAMSAT CORPORATION] UNDER THE TRANSPONDER SERVICE AGREEMENT (' AGREEMENT') ; TREATING THE IMPUGNED SERVICE CHARGES AS ROYALTY 3. ERRED IN HOLDING THAT THE TRANSPONDER SERVICE CH ARGES PAID BY THE APPELLANT TO INTELSAT UNDER THE AGREEMENT ARE I N THE NATURE OF ROYALTY UNDER THE PROVISIONS OF THE DOUBLE TAXAT ION AVOIDANCE AGREEMENT BETWEEN INDIA AND UNITED KINGDOM [MENTION ED BY THE CIT(A) AS INDIA - USA TAX TREATY] AND THE ACT; TAXABILITY OF THE SERVICE CHARGES 4. ERRED IN HOLDING THAT INTELSAT HAS A 'BUSINESS C ONNECTION' IN INDIA, THROUGH THE UPLINK STATION LOCATED IN PAREL, INDIA; . 5. ERRED IN HOLDING THAT THE UPLINK STATION FORMS T HE SOURCE OF INCOME FOR INTELSAT AS FAR AS TRANSMISSION OF PROGR AMS OF THE APPELLANT'S TELEVISION CHANNELS UPLINKED FROM INDIA ARE CONCERNED; 6. SHOULD HAVE APPRECIATED THAT THE HON'BLE DELHI H IGH COURT IN CASE OF INTELSAT (IE PAYEE) HAS HELD THAT THE RECEI PTS FOR RENDERING TRANSPONDER SERVICES ARE NOT TAXABLE IN I NDIA AND HENCE THERE CANNOT BE ANY DEDUCTION OF TAX AT SOURC E; 3 I.T.A. NOS.5171 TO 5181/MUM/2013 INTEREST UNDER SECTION 244A OF THE ACT 7. ERRED IN NOT GRANTING INTEREST UNDER SECTION 244 A OF THE ACT (ON TDS), ARISING CONSEQUENT TO THE ABOVE GROUNDS. THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE T O EACH OTHER. 3. DURING THE COURSE OF HEARING IT WAS STATED AT THE O UTSET BY THE LD. COUNSEL OF THE ASSESSEE THAT THE ISSUE ARISING IN T HIS APPEAL IS IDENTICAL TO THE ISSUES WHICH AROSE IN THE EARLIER YEARS IN THE CASE OF ASSESSEE WHICH HAD REACHED BEFORE THE TRIBUNAL IN APPEALS FOR A.YR S. 2011-12 AND 2012- 13 WHERE THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVO UR OF THE ASSESSEE VIDE ITS ORDER DATED 25-10-2016 IN ITA NOS 2841 TO 2856/ MUM/2012. THE ONLY DISTINCTION IN THIS YEAR IS THAT THE APPEALS BEFORE THE CIT(A) WERE FILED BELATEDLY AND THEREFORE, PRAYER WAS MADE FOR CONDON ATION, BUT THE LD.CIT(A) DID NOT GRANT CONDONATION AND REJECTED TH E PRAYER OF THE ASSESSEE. HOWEVER, THE LD. CIT(A) ALSO DECIDED THE APPEALS ON MERITS. THE LD. COUNSEL DREW OUR ATTENTION UPON COPY OF THE ORDER OF THE TRIBUNAL AND ALSO UPON THE PETITION SEEKING CONDONATION OF D ELAY AS WELL AS SUPPORTING DOCUMENTARY EVIDENCES AND ALSO AFFIDAVIT FILED BY SHRI MANOJ SHARMA FOR JUSTIFYING THE DELAY. 4. PER CONTRA, THE LD. DR SUBMITTED THAT THE DELAY OCC URRED ON THE PART OF THE ASSESSEE DUE TO CARELESS APPROACH AND, THEREFORE, THE LD. CIT(A) RIGHTLY REJECTED THE PRAYER FOR CONDONATION. IT WAS SUBMITTED BY HER ON MERITS OF THE CASE THAT THOUGH, ADMITTEDLY, THERE IS NO DISTINCTION IN FACTS IN THE EARLIER APPEALS DECIDED BY THE TRIB UNAL AND THE PRESENT APPEALS, BUT SHE STILL RELIED UPON THE JUDGMENT IN THE CASE OF VIACOM 18 MEDIA PVT LTD VS ADIT 153 ITD 384 (MUM) AND REQUEST ED FOR FOLLOWING THE JUDGMENT IN PREFERENCE TO THE JUDGMENT OF THE TRIBU NAL RENDERED IN ASSESSEES OWN CASE. IT WAS SUBMITTED BY HER THAT IN THIS CASE IT WAS HELD 4 I.T.A. NOS.5171 TO 5181/MUM/2013 BY THE MUMBAI BENCH OF THE TRIBUNAL THAT USE OF TRA NSPONDER BY THE ASSESSEE FOR TELECASTING / BROADCASTING PROGRAMMES INVOLVED TRANSMISSION BY SATELLITE INCLUDING UPLINKING, AMPLICATION, CONV ERSION BY DOWNLINKING OF SIGNALS AND IS COVERED WITHIN THE DEFINITION OF PR OCESS AND PAYMENTS MADE FOR USE / RIGHT TO USE OF PROCESS IS ROYALT Y IN TERMS OF INDIA USA DTAA AS WELL AS THE ACT. IT WAS ALSO HELD THAT DEF INITION OF ROYALTY IN ARTICLE 12(3)(4) INCLUDES PAYMENTS FOR PROCESS AND SINCE TERM PROCESS IS NOT DEFINED IN INDIA US DTAA, ITS DEFINITION IN THE INCOME-TAX ACT, 1961 SHOULD BE APPLIED. 5. IN THE REJOINDER, THE LD. COUNSEL SUBMITTED THAT TH E TRIBUNAL HAD DELIVERED THE JUDGMENT OF CO-ORDINATE BENCH OF MUMB AI TRIBUNAL IN THE CASE OF ADIT VS TAJ TV LTD DATED 05-07-2016 WHEREIN THE BENCH HAD CONSIDERED THE JUDGMENT RELIED UPON BY THE LD. DR I N THE CASE OF VIACOM 18 MEDIA PVT LTD AND HELD THAT THE IMPUGNED PAYMENT SHALL NOT AMOUNT TO ROYALTY. UNDER THESE CIRCUMSTANCES, HE REQUES TED FOR FOLLOWING THE JUDGMENT OF THE TRIBUNAL RENDERED IN ASSESSEES OWN CASE IN EARLIER YEARS. 6. WE HAVE GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. AS FAR AS, PRAYER FOR CONDONATION OF DELAY IN FILING T HE APPEAL BEFORE LD.CIT(A) IS CONCERNED, IT IS NOTED THAT THE ASSESSEE SUBMITT ED BEFORE US APPLICATION DATED 15-11-2016 WHEREIN ALL THE FACTS AND CIRCUMST ANCES OF THE CASE, WHICH LED TO DELAY IN FILING THE APPEALS BEFORE LD. CIT(A) WERE EXPLAINED IN DETAIL. RELEVANT PART OF THE SAME READS AS FOLLOWS : IT IS RELEVANT TO NOTE THAT EARLIER APPEALS FILED BEFORE THE CIT(A) ON THIS MATTER HAD BEEN FILED WITHIN THE PRESCRIBED TIME AND THE CIT(A)'S ORDER IN RESPECT OF THOSE APPEALS HAD BEEN THE SUBJECT MATTER OF ADJUDICATION BEFORE YOUR HONOURS AT THE H EARING ON 25 OCTOBER 2016 (ITA NO. 2841 TO 2856/MUM/2012). IN THIS REGARD WE WISH TO SUBMIT AS FOLLOWS: BACKGROUND 5 I.T.A. NOS.5171 TO 5181/MUM/2013 1. THE APPELLANT, A PART OF THE DISNEY INDIA GROUP HAS ENTERED INTO AN AGREEMENT WITH INTELSAT GLOBAL SALES AND MA RKETING LIMITED', UK (,INTELSAT'), EFFECTIVE FROM 1 JANUARY 2011 FOR AVAILMENT OF TRANSPONDER FACILITY. 2. IN CONSIDERATION FOR THE AVAILMENT OF TRANSPONDE R FACILITY, THE APPELLANT PAYS A MONTHLY SERVICE FEE TO INTELSAT. T HE CONTRACT BETWEEN INTELSAT AND THE APPELLANT IS TAX PROTECTED IE THE WITHHOLDING TAX LIABILITY (IF APPLICABLE) ON SUCH P AYMENTS WOULD BE ON THE APPELLANT. 3. THE APPELLANT HAS BEEN FILING MONTHLY APPEALS WI TH THE CIT(A) UNDER SECTION 248 OF THE INCOME TAX ACT, 1961 ('ACT ') AGAINST THE ORDER ISSUED BY THE ASSESSING OFFICER UNDER SECTION 195(2) OF THE ACT, WHICH HELD THAT INTELSAT'S RECEIPTS FROM THE A PPELLANT FOR THE PROVISION OF TRANSPONDER FACILITY WAS TAXABLE IN IN DIA AS ROYALTY AND HENCE WAS SUBJECT TO TAX WITHHOLDING. 4. THE APPELLANT HAD FILED MONTHLY APPEALS TO THE C IT(A) FOR THE PERIOD PRIOR TO FEBRUARY 2012 WITHIN THE TIME PRESC RIBED UNDER SECTION 249 OF THE ACT. 5. FOR THE SAME MATTER, THERE WAS AN INADVERTENT DE LAY IN FILING THE APPEALS BEFORE THE CIT(A) FOR THE PERIOD FEBRUA RY 2012 TO JANUARY 2013. ACCORDINGLY, THE APPELLANT WHILE FILI NG THE APPEAL WITH THE CIT(A) HAD ALSO FILED AN APPLICATION PROVI DING REASONS FOR THE DELAY AND REQUESTED FOR CONDONATION OF THE DELAY. THE CIT(A) WHILE ADJUDICATING THE APPEAL ON MERITS, HAD DISMISSED THE APPEALS AS NOT MAINTAINABLE ON ACCOUNT OF SUCH DELAY, STATING THAT THE REASONS FOR THE DELAY WERE 'VAGUE, NON-SPECIFIC AND TOO GENERAL'. OUR SUBMISSIONS 6. IT IS SUBMITTED THAT THE SUBJECT APPEALS RELATE TO PAYMENTS FOR THE PERIOD FEBRUARY 2012 TO JANUARY 2013 AND IN FEB RUARY 2012, THE DISNEY GROUP ACQUIRED A MAJORITY STAKE IN THE L ISTED ENTITY UTV SOFTWARE COMMUNICATIONS LIMITED ('UTV') (WHICH ADDITIONALLY HAD 9 OPERATING INDIAN SUBSIDIARIES. U TV WAS SUBSEQUENTLY DELISTED FROM THE STOCK EXCHANGES IN M ARCH 2012. A COPY OF THE LETTER FILED WITH THE STOCK EXCHANGES IN THIS REGARD IS ENCLOSED AS ANNEXURE 1. 7. IT IS SUBMITTED THAT THE APPELLANT DOES NOT HAVE ITS OWN INDEPENDENT TAX PERSONNEL AND RELIES ON THE CENTRAL IZED TAX FUNCTION OF THE DISNEY INDIA GROUP. UPTO FEBRUARY 2 012 AND THEREAFTER TILL SEPTEMBER 2012, DISNEY INDIA GROUP' S CENTRALIZED 6 I.T.A. NOS.5171 TO 5181/MUM/2013 TAX FUNCTION WAS HANDLED BY A SINGLE PERSONNEL AND HE WAS ENTRUSTED WITH ADDITIONAL RESPONSIBILITY ON ACCOUNT OF THE ABOVE ACQUISITION OF UTV. FURTHER, POST THE ACQUISITION, ALL TAX MATTERS OF UTV AND ITS SUBSIDIARIES WERE ALSO TRANSITIONED TO THE EXISTING PERSONNEL. GIVEN THIS SIGNIFICANT WORK LOAD THERE W AS AN INADVERTENT LAPSE IN FILING THE APPEALS BEFORE THE CIT(A) WITHIN THE PRESCRIBED TIME. 8. THE DISNEY INDIA GROUP RECRUITED AN ADDITIONAL P ERSONNEL, MANOJ SHARMA IN OCTOBER 2012 (A COPY OF HIS APPOINT MENT LETTER IS ENCLOSED AS ANNEXURE 2) AND GIVEN THE SIGNIFICAN T GROUND THAT WAS REQUIRED TO BE COVERED, THE LAPSE IN FILING THE APPEALS WAS DISCOVERED IN MARCH 2013. IMMEDIATELY UPON DISCOVER Y OF THE LAPSE, MR SHARMA REGULARIZED THE LAPSE AND FILED TH E APPEALS WITH THE CIT(A) ON 7 MARCH 2013, REQUESTING FOR CON DONATION IN THE DELAY IN FILING THE APPEAL. BASED ON THE ABOVE, IT IS SUBMITTED THERE EXISTED A REASONABLE CAUSE FOR DELAY IN FILING THE APPEAL AND REQUEST YO UR HONOURS TO TAKE A SYMPATHETIC VIEW AND CONDONE THE DELAY ON AC COUNT OF BONAFIDE REASONS AND BEING AN UNINTENDED DEFAULT. 7. OUR ATTENTION WAS ALSO DRAWN ON VARIOUS SUPPORTING DOCUMENTS IN SUPPORT OF THE AVERMENTS MADE IN THE AFORESAID PETI TION. COPY OF APPOINTMENT LETTER ISSUED TO MR. MANOJ SHARMA DATED 22-10-2012 IS FILED ON RECORD. OUR ATTENTION WAS ALSO DRAWN ON THE DET AILED AFFIDAVIT FILED BY MR. MANOJ SHARMA WHEREIN HE DEPOSED ON OATH THE FAC TS AS WERE NARRATED IN THE AFORESAID PETITION, WHICH READS AS UNDER:- AFFIDAVIT I, MANOJ SHARMA, AM EMPLOYED BY THE WAIT DISNEY COMPANY (INDIA) PRIVATE LIMITED AS SENIOR MANAGER, TAXATION (DIRECT TAX), CORPORATE AND DO HEREBY STAT E AS UNDER: 1. THAT I WAS APPOINTED BY MY CURRENT EMPLOYER ON 22 OCTOBER 2012 AS PART OF THE CENTRALIZED TAX FUNCTION OF THE DISNEY INDIA GROUP, WHICH INTER ALI A CONSISTED OF THE WAIT DISNEY COMPANY (INDIA) PRIVAT E LIMITED, UNITED HOME ENTERTAINMENT PRIVATE LIMITED, 7 I.T.A. NOS.5171 TO 5181/MUM/2013 UTV SOFTWARE COMMUNICATIONS LIMITED AND ITS SUBSIDIARIES. 2. THAT I WAS ON PROBATION FOR THE FIRST THREE MONTHS FROM MY APPOINTMENT DATE AND MY EMPLOYMENT WAS CONFIRMED THEREAFTER. 3. THAT I WAS APPOINTED TO ASSIST VENKATA SUBRAMANIAN WHO PRIOR TO MY APPOINTMENT WAS THESOLE PERSONNEL IN THE CENTRALISED TAX FUNCTION O F THE DISNEY INDIA GROUP AND WAS ENTRUSTED WITH ADDITIONAL RESPONSIBILITIES ON ACCOUNT OF DISNEY'S ACQUISITION OF UTV SOFTWARE COMMUNICATIONS LIMITED AND ITS SUBSIDIARIES IN FEBRUARY 2012 AND TAX MATTE RS OF THESE COMPANIES. 4. THAT SUBSEQUENT TO MY APPOINTMENT, I WAS RESPONSIBLE FOR UNDERTAKING CORPORATE INCOME-TAX COMPLIANCE FOR THE DISNEY INDIA GROUP COMPANIES AND IN MARCH 2013,I DISCOVERED THAT THERE WAS AN INADVERTENT LAPSE IN UNITED HOME ENTERTAINMENT PRIVATE LIMITED NOT FILING MONTHLY APPEALS UNDER SECTION 248 OF THE INCOME TAX ACT, 1961 ('ACT') WIT H RESPECT TO WITHHOLDING TAXES ON PAYMENT TO INTELSAT GLOBAL SALES AND MARKETING LTD, UK FOR THE AVAILMEN T OF TRANSPONDER FACILITY, FOR THE PERIOD FROM MARCH 2012 TO JANUARY 2013. 5. THAT ON DISCOVERY OF SUCH LAPSE, I TOOK MEASURES TO RECTIFY THE SITUATION AND ARRANGED TO F ILE THE APPEALS UNDER SECTION 248 OF THE ACT ON 7 MARCH 2013 ALONG WITH AN APPLICATION REQUESTING FOR CONDONATION OF DELAY IN FILING THE APPEALS. 6. THAT WHATEVER STATED ABOVE IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF-.- SOLEMNLY STATED IN MUMBAI ON 16TH NOVEMBER 2016 SD/- MANOJ SHARMA 8. WE HAVE CONSIDERED THE ENTIRE MATRIX OF THE FACTS A ND CIRCUMSTANCES AS WAS BROUGHT BEFORE US. IT IS NOTE D THAT IT WAS NOT A CASE OF FILING OF ORDINARY APPEAL U/S 246 A BEFORE 8 I.T.A. NOS.5171 TO 5181/MUM/2013 THE CIT(A). THESE APPEALS WERE FILED IN TERMS OF S ECTION 248 OF THE ACT UNDER WHICH SEPARATE APPEAL WAS REQUIRED FOR EVERY TRANSACTION / PAYMENT. IT HAS BEEN STATED TH AT THERE HAS BEEN RESTRUCTURING IN THE ORGANIZATION OF THE A SSESSEE, MULTIPLE APPEALS WERE REQUIRED TO BE FILED. ON EARL IER OCCASIONS, APPEALS WERE FILED ON TIME AND RELIEF WA S GRANTED TO THE ASSESSEE. UNDER THESE CIRCUMSTANCES, IT CAN NOT BE SAID THAT THERE WAS A CONSCIOUS OR INTENTIONAL DECI SION ON THE PART OF THE ASSESSEE FOR NOT FILING APPEAL OR F OR FILING THE APPEAL BELATEDLY. IT IS APPARENTLY A CASE OF INADV ERTENT DELAY THAT OCCURRED DUE TO PECULIAR CIRCUMSTANCES AS NARR ATED IN DETAIL IN THE PETITION BY THE ASSESSEE AS WELL AS A FFIDAVIT BY THE SHRI MANOJ SHARMA. THE AVERMENTS MADE IN THE P ETITION OR IN THE AFFIDAVIT WERE NOT FACTUALLY NEGATED BY T HE REVENUE. UNDER THESE CIRCUMSTANCES, WE FIND THAT I T WILL NOT BE APPROPRIATE TO SHUT THE DOORS OF JUSTICE TO THE ASSESSEE ESPECIALLY ON THOSE ISSUES WHICH HAVE ALREADY BEEN ADJUDICATED IN FAVOUR OF THE ASSESSEE ON EARLIER OC CASIONS. THUS, TAKING INTO ACCOUNT ALL THE FACTS OF THE CASE AND PECULIAR CIRCUMSTANCES OF THIS CASE, WE FIND IT APP ROPRIATE TO GRANT CONDONATION OF DELAY IN FILING OF APPEALS BEF ORE LD. CIT(A). 9. NOW WE SHALL TAKE UP THE ISSUES ON MERITS. THE MAI N ISSUE INVOLVED IN THIS APPEAL IS THAT AMOUNT PAID T O M/S INTELSAT INTER CORPORATION, USA UNDER THE TRANSPOND ER SERVICE AGREEMENT FOR THE TRANSPONDER SERVICE CHARG ES PAID BY THE ASSESSEE TO INTELSAT UNDER THE SAID AGREEMEN T HAS 9 I.T.A. NOS.5171 TO 5181/MUM/2013 BEEN TREATED AS ROYALTY UNDER THE PROVISIONS OF T HE ACT. ACCORDING TO THE ASSESSEE, IT WAS NEITHER ROYALTY NOR FEE FOR TECHNICAL SERVICES (FTS). IT IS NOTED BY US TH AT THIS ISSUE HAS BEEN DEALT IN EXTENSO BY THE TRIBUNAL IN ITS ORDER DATED 25-10-2016. RELEVANT PART OF THE SAME IS REPRODUCE D HEREUNDER:- 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDERS AS WELL AS VARIOUS DECISIONS AS RELIED UPON BY THE PARTIES BEFORE US. AT THE THRESH OLD IT IS NOTICED THAT, IN THE CASE OF THE PAYEE, I.E., INTELSAT CORPORATION US, THE HON'BLE DELHI HIGHCOUR T VIDE ORDER DATED 19.08.2011 AND THEN AGAIN REAFFIRMED VIDE ORDER DATED 28.09.2012 IN ITA NO. 530 & 545/2012, FOLLOWING THE ORDER OF ITS OWN COUR T IN ASIA SATELLITE COMMUNICATIONS LTD (ITA 131/2003 DECIDED ON 31.01.2011),HAVE CATEGORICALLY HELD THAT PAYMENT RECEIVED BY INTELSAT IS NOT TAXABLE IN INDI A UNDER THE PROVISIONS OF INDO-US-DTAA. ONCE IN THE CASE OF THE PAYEE IT HAS BEEN CATEGORICALLY HELD TH AT THE SAID AMOUNT IS NOT TAXABLE, THEN ASSESSEE IS NO T OBLIGED TO DEDUCT TDS AND, THEREFORE, THE IMPUGNED PROCEEDINGS UNDER SECTION 195 DESERVES TO BE QUASHED. OTHERWISE ALSO, THIS ISSUE OF PAYMENT OF TRANSPONDER CHARGES MADE TO PANAMSAT (LATER ON NAME WAS CHANGED TO INTELSAT CORPORATION) HAS BEEN SUBJECT MATTER OF ISSUE BEFORE VARIOUS COURTS INCLUDING THAT OF THE ITAT, MUMBAI BENCH IN THE CAS E TAJ TV LTD. IN THE SAID CASE, THE TRIBUNAL HAS OBSERVED AND HELD AS UNDER:- 18. NOW, COMING TO THE ISSUE OF DISALLOWANCE OF VARIOUS EXPENSES UNDER SECTION 40(A)(I) LIKE,'TRANSPONDER CHARGES' AND 'UP LINKING CHARGES' AS RAISED IN GROUND NO.2(I) AND 2 (II), IT IS SEEN THAT THESE, PAYMENTS HAS BEEN PAID TO 10 I.T.A. NOS.5171 TO 5181/MUM/2013 PANAMSAT INTERNATIONAL SYSTEMS INC. USA FOR PROVIDING FACILITY OF TRANSPONDER FOR TELECASTING 'TEN SPORTS' CHANNEL IN VARIOUS COUNTRIES INCLUDING INDIA. THE ASSESSEE ENTERED INTO AN AGREEMENT WITH PANAMSAT TO UTILIZE THE TRANSPONDER FACILITY PROVIDING BY THE SAID US BASED COMPANY FOR TELECASTING ITS SPORTS CHANNEL WHICH ARE ON THE FOOTPRINT OF TRANSPONDER OF PANAMSAT. THE REVENUE'S CASE BEFOREUS IS THAT, FIRSTLY, IT IS TAXABLE UNDER SECTION 9(1)(VI) AS 'ROYALTY]' AND ALSO UNDER ARTICLE 12(3){B) OF INDO- US-DTAA. SIMILARLY, THE UP LINKING CHARGES PAID FOR UP LINKING THE CHANNELS TO PANAMSAT SATELLITE FOR DELAY INTRANSMISSION AND FOR UP LINKING SIGNALS FOR LIVE EVENTS FROM THE VENUE OF THE EVENTS TO THE SATELLITE HAVE BEEN TREATED TO BE 'ROYALTY'. SINCE, THE ASSESSEE HAD NOT DEDUCTED 'FDS UNDER SECTION 195, DISALLOWANCE UNDER SECTION 40(A){I) HAS BEEN MADE. THE ASSESSEE'S CASE BEFORE US IS THAT, FIRSTLY, PANAMSAT IS A USA BASED COMPANY, THEREFORE, INDO-U'S DTAA IS APPLICABLE AND SINCE IT DOES NOT HAVE ANY PE OR BUSINESS CONNECTION ININDIA, THEREFORE, THE PAYMENT MADE TO A NON-RESIDENTOUTSIDE INDIA FOR AUAILINQ SERVICE OF EQUIPMENT PLACED OUTSIDE INDIA CANNOT BE TAXED IN INDIA. IN SUPPORT OF SUCH A CONTENTION DECISION OF HON 'BLE BOMBAY HIGH COURT IN THE CASE OF DIT VS. SET SATELLITE (SUPRA) HAS BEEN RELIED UPON. IN ANY CASE, IT HAS BEEN SUBMITTED THAT, EVEN OTHERWISE ALSO THE DEFINITION OF 'ROYALTY' UNDER ARTICLE 12(3) OF INDO-US-DTAA IS ALSO NOT APPLICABLE, BECAUSE TRANSPONDER CHARGES IS ONLY USE OF FACILITY AND IT IS NOT AN EQUIPMENT AND DOES NOT AMOUNT TO USE OF ANY COPYRIGHT EFFECTING WORK, SECRET FORMULA, PROCESS ETC OR ANY OTHER TERM DESCRIBED IN PARA 3 OF ARTICLE 12. THE LD. CIT(A) HAS HELD THAT IT IS NOT A 'ROYALTY' AND SECONDLY, EVEN OTHERWISE ALSO BY VIRTUE OF ARTICLE' 12(7) SUCH A ROYALTY CANNOT BE TAXED 'IN INDIA, BECAUSE IT IS NOT BORNE BY PE 11 I.T.A. NOS.5171 TO 5181/MUM/2013 OR FIXED PLACE OF THE US COMPANY IN INDIA. THE LD. DR HAS STRONGLY RELIED UPON AMENDED DEFINITION OF THE 'ROYALTY' UNDER THE ACT, WHEREIN THE SCOPE AND DEFINITION OF 'ROYALTY' HAS BEEN ENLARGED BY THE NEWLY INSERTED EXPLANATION (V) AND (VI)BY THE FINANCE ACT, 2012 WITH RETROSPECTIVE EFFECT FROM01-06-19761 AND HAS CONTENDED THAT THE SAID DEFINITION INTO DTAA ALSO, THAT IS, THE DEFINITION OF ROYALTY HAS TO BE TAKEN FROM THE DOMESTIC LAW. IN SUPPORT, THE LD.DR HAS STRONGLY RELIED UPON THE DECISION OF _ HIGH COURT IN THE CASE OF VERIZON COMMUNICATIONS SINGAPORE PTE LTD. (SUPRA) AND THE ITAT DECISION IN THE CASE OF VIACOM.18 MEDIA PVT LTD. 19. FIRST OF ALL, LET US EXAMINE THE DEFINITION OF 'ROYALTY' AS BEEN DEFINED UNDER ARTICLE 12 OF THE LNDO- US-DTAA, WHICH HAS BEEN DEFINED IN THE FOLLOWING MANNER: '3. THE TERM 'ROYALTIES' AS USED IN THIS ARTICLE MEANS: A) PAYMENTS OF ANY KIND RECEIVED AS A CONSIDERATION FOR THE USE OF OR THE RIGHT TO USE, ANY COPYRIGHT OF A LITERARY, ARTISTIC, OR SCIENTIFIC WORK, INCLUDING CINEMATOGRAPH FILMS OR WORK ON FILM, TAPE OR OTHER MEANS OF REPRODUCTION FOR USE IN CONNECTION WITH RADIO OR TELEVISION BROADCASTING, ANY PATENT, TRADEMARK, DESIGN OR MODEL, PLAN, SECRET FORMULA OR PROCESS, OR FOR INFORMATION CONCERNING INDUSTRIAL, COMMERCIAL OR SCIENTIFIC EXPERIENCE, INCLUDINQ GAINS DERIVED FROM THE ALIENATION OF ANY SUCH RIGHT OR PROPERTY WHICH ARE CONTINGENT ON THE PRODUCTIVITY, USE, OR DISPOSITION THEREOF; AND B) PAYMENTS OF ANY KIND RECEIVED AS 12 I.T.A. NOS.5171 TO 5181/MUM/2013 CONSIDERATION FOR THE USE OF OR THE RIGHT TO USE, ANY INDUSTRIAL, COMMERCIAL, OR SCIENTIFIC EQUIPMENT, OTHER THAN PAYMENTS DERIVED BY AN ENTERPRISE DESCRIBED IN PARAGRAPH 1 OF ARTICLE 8 (SHIPPING AND AIR TRANSPORT)FROM ACTIVITIES DESCRIBED IN PARAGRAPH 2(C) OR 3 OF ARTICLE 8'. THE ARTICLE GIVES EXHAUSTIVE DEFINITION OF THE TERM ROYALTY' AND THEREFORE, THE DEFINITION AND SCOPE OF 'ROYALTY' IS TO BE SEEN FROM THE ARTICLE ALONE AND NO DEFINITION UNDER THE DOMESTIC ACT OR LAW IS REQUIRED TO BE CONSIDERED OR SEEN OR ANY AMENDMENT MADE IN SUCH DEFINITION WHETHER RETROSPECTIVE OR PROSPECTIVE WHICH CAN BE READ IN A MANNER SO AS TO EXTEND ANY OPERATION TO THE TERMS AS DEFINED OR UNDERSTOOD IN THE TREATY. THE LEGISLATURE OR PARLIAMENT WHILE CARRYING OUT AMENDMENT TO INTERPRET OR DEFINE A GIVEN PROVISION UNDER THE DOMESTIC LAW OF THE COUNTRY CANNOT SUPERSEDE OR CONTROL THE MEANING OF THE WORD WHICH HAS BEEN EXPRESSLY DEFINED IN A TREATY NEGOTIATED BETWEEN EXECUTIVES OF TWO FOREIGN NATIONS. THE PAYMENT OF TRANSPONDER CHARGES TO PANAMSAT AND UP LINKING CANNOT BE TREATED AS A CONSIDERATION FOR 'USE' OR RIGHT TO USE' ANY COPYRIGHT OF VARIOUS TERMS USED IN PARA 3(A) LIKE COPYRIGHT OF A LITERARY, ARTISTIC, OR SCIENTIFIC WORK, INCLUDING CINEMATOGRAPH FILMS OR WORK ON FILM, TAPE OR OTHER MEANS OF REPRODUCTION FOR USE IN CONNECTION WITH RADIO OR TELEVISION BROADCASTING OR IN ANY MANNER RELATES TO ANY PATENT OR TRADEMARK, DESIGN, SECRET FORMULA OR PROCESS, IT IS ALSO NOT USE OR RIGHT TO USE ANY INDUSTRIAL, COMMERCIAL, OR SCIENTIFIC EQUIPMENT. THERE IS NO SUCH KIND OF RIGHT TO USE WHICH IS GIVEN BY PAN AM SAT TO ASSESSEE. THUS, THE SAID PAYMENT DOES NOT FALL WITHIN THE AMBIT OF THE TERMS USED IN PARA 3 OF ARTICLE 12. SO FAR AS THE READING OF AMENDED DEFINITION OF ROYALTY AS GIVEN IN SECTION 9(1)(VI) INTO TREATY, HONBLE 13 I.T.A. NOS.5171 TO 5181/MUM/2013 DELHI HIGH COURT IN ITS LATEST JUDGMENT IN THE CASE OF DIT VS NEW SKIES SATELLITE (SUPRA), WHEREIN IT HAS CONSIDERED HONBLE MADRAS HIGH COURT DECISION IN THE CASE OF VERIZON COMMUNICATIONS SINGAPORE PTE LTD (SUPRA) ALSO, HAVE DISCUSSED THE ISSUE THREADBARE AND CAME TO THE CONCLUSION IN THE FOLLOWING MANNER:- '60. CONSEQUENTLY, SINCE WE HAVE HELD THAT THE FINANCE ACT, 2012 WILL NOT AFFECT ARTICLE 12 OF THE DTAAS, IT WOULD FOLLOW THAT THE FIRST DETERMINATIVE INTERPRETATION GIVEN TO THE WORD 'ROYALTY' IN ASIA SATELLITE, SUPRA NOTE 1, WHEN THE DEFINITIONS WERE IN FACT PARI MATERIAL (IN THE ABSENCE OF ANY CONTOURING EXPLANATIONS), WILL CONTINUE TO HOLD THE FILED FOR THE PURPOSE OF ASSESSMENT YEARS PRECEDING (NE-FINANCE ACT, 2012 AND IN ALL CASES WHICH INVOLVE A, DOUBLE TAXATION AVOIDANCE AGREEMENT, UNLESS THE SAID DTAAS ARE AMENDED JOINTLY BY BOTH PARTNERS TO INCORPORATE INCOME FROM DATA TRANSMISSION SERVICES AS PARTAKING OF THE NATURE OF ROYALTY, OR AMEND THE DEFINITION IN A MANNER SO THAT SUCH INCOME , AUTOMATICALLY BECOMES ROYALTY. IT IS REITERATED THAT THE COURT HAS NOT RETURNED A FINDING ON WHETHER THE AMENDMENT IS IN FACT RETROSPECTIVE AND APPLICABLE TO CASES PRECEDING THE FINANCE ACT OF 20 12 WHERE THERE EXISTS NO DOUBLE TAX AVOIDANCE AGREEMENT'. THE AFORESAID DECISION TAKES CARE OF ALL THE ARGUMENTS RELIED UPON BY THE LD. DR INCLUDING THAT OF THE VERIZON COMMUNICATIONS SINGAPORE PTE LTD'S. THE HONI'BLE HIGH COURT SPECIFICALLY CLARIFI ED AS TO WHY THE SAID DECISION MADRAS HIQH COURT CANNOT BE APPLIED IN SUCH CASE AFTER OBSERVING AS UNDER.- 31. IN A JUDGMENT BY THE MADRAS HIGH COURT IN VERIZON COMMUNICATIONS SINGAPORE PTE LLD. V.THE 14 I.T.A. NOS.5171 TO 5181/MUM/2013 INCOME TAX OFFICER, INTERNATIONAL TAXATION 1,[2014J 361 ITR 575 (MAD), THE COURT HELD THE EXPLANATIONS TO BE APPLICABLE TO NOT ONLY THE DOMESTIC DEFINITIO N BUT ALSO CARRIED THEM TO INFLUENCE THE MEANING OF ROYALTY UNDER ARTICLE 12. NOTABLY, IN BOTH CASES.TH E CLARIFICATORY NATURE OF THE AMENDMENT IOO S NOT QUESTIONED, BUT WAS INSTEAD APPLIED SQUARELY TO ASSESSMENT YEARS PREDATING THE AMENDMENT. THE CRUCIAL DIFFERENCE BETWEEN THE JUDGMENTS HOWEVER LIES IN THE APPLICATION OF THE AMENDMENTS TO THE DTAA. THUS, RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE DELHI HIGH COURT, WE HOLD THAT, THE DEFINITION OF ROYALTY AS ENLARGED BY FINANCE ACT, 2 012 WITH RETROSPECTIVE EFFECT WILL NOT HAVE ANY AFFECT IN ARTICLE 12 OF DTAA. IN THE AFORESAID DECISION, THE TRIBUNAL HAS TAKEN N OTE OF THE RATIO AND LAW UPHELD BY THE HON'BLE DELHI HI GH COURT IN THE LATEST CASE OF NEW SKIES SATELLITE (SU PRA) AND ASIA SATELLITE TELECOMMUNICATIONS AND HAS HELD THAT THE PAYMENT MADE FOR TRANSPONDER CHARGES WILL NOT FALL IN THE NATURE OF 'ROYALTY' AND ALSO THE SC OPE OF ENLARGED DEFINITION OF 'ROYALTY' GIVEN IN SECTIO N 9(L)(VI) WILL NOT APPLY IN DTAA. 8. BEFORE US LD DR HAS HEAVILY RELIED UPON THE DECISION OF BOMBAY HIGH COURT IN THE SIEMENS AG TO CONTEND THAT NOWHERE THE COURT HAS LAID DOWN THAT AMENDMENT IN THE DOMESTIC LAW CANNOT BE READ INTO TREATY RATHER IT IS OTHERWISE. WE FIND THAT IN TH E LATEST DECISION THE HON'BIE DELHI HIGH COURT IN THE CASE OF DIT VS. NEWS SKY SATELLITE BV (SUPRA) HAVE EXPLAINED THE RATIO AND PRINCIPLE OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF SIEMENS AKTIONGESELLSCHAFT(SUPRA). THE RELEVANT OBSERVATION OF THE HON'BLE DELHI HIGH COURT IN THE SAID CASE RE ADS AS UNDER:- 15 I.T.A. NOS.5171 TO 5181/MUM/2013 48. IN COMMISSIONER OF INCOME TAX V. SEIMENS AKTIONGESSELLSCHAJT, [2009J 310 ITR 320 (BOM), THE BOMBAY HIGH COURT CITING R V. MELFORD DEVELOPMENTS INC. HELD THAT 'THE RATIO OF THE JUDGMENT, IN OUR OPINION, WOULD MEAN THAT BY A UNILATERAL AMENDMENT IT IS NOT POSSIBLE FOR ONE NATION WHICH IS PARTY TO AN AGREEMENT TO TAX INCOME WHICH OTHERWISE WAS NOT SUBJECT TO TAX. SUCH INCOME WOULD NOT BE SUBJECT TO TAX UNDER THE EXPRESSION 'LAWS IN FORCE'. ******** ********* ******** WHILE CONSIDERING THE DOUBLE TAX A VOIDANCE AGREEMENT THE EXPRESSION 'LAWS IN FORCE WOULD NOT ONLY INCLUDE A TAX ALREADY COVERED BY THE TREATY BU T WOULD ALSO INCLUDE ANY OTHER TAX AS TAXES OF A SUBSTANTIALLY SIMILAR CHARACTER SUBSEQUENT TO THE DATE OF THE AGREEMENT AS SET OUT IN ARTICLE 1(2). CONSIDERING THE EXPRESS LANGUAGE OF ARTICLE 1(2) IT IS NOT POSSIBLE TO ACCEPT THE BROAD PROPOSITION URGED ON BEHALF OF THE ASSESSEE THAT THE LAW WOULD BE THE LAW AS APPLICABLE OR AS DEFINE WHEN THE DOUBLE TAX AVOIDANCE AGREEMENT WAS ENTERED INTO'. 49. IT IS ESSENTIAL TO NOTE THE CONTEXT IN WHICH TH IS JUDGMENT WAS DELIVERED. THERE, THE COURT WAS CONFRONTED WITH A SITUATION WHERE THE WORD ROYALLY WAS NOT DEFINED IN THE GERMAN DTAA. FOLLOWING FROM OUR PREVIOUS DISCUSSION ON THE BIFURCATION OF TERMS WITHIN THE TREATY, IN SITUATIONS WHERE WORDS REMAIN UNDEFINED, ASSISTANCE IS TO BE DRAWN FROM THE DEFINITION AND IMPORT OF THE WORDS AS THEY EXIST IN THE DOMESTIC 'LAWS IN FORCE'. IT WAS IN THIS. CONTE XT THAT THE BOMBAY HIGH COURT HELD THAT THEY WERE UNABLE TO ACCEPT THE ASSESSEE'S CONTENTION THAT THE LAW APPLICABLE WOULD BE THE LAW AS IT EXISTED AT TH E TIME THE DOUBLE TAX AVOIDANCE AGREEMENT WAS ENTERED INTO. 16 I.T.A. NOS.5171 TO 5181/MUM/2013 THIS IS THE CONTEXT IN WHICH THE AMBULATORY APPROAC H TO TAX TREATY INTERPRETATION WAS NOT REJECTED. THE SITUATION BEFORE THIS COURT HOWEVER IS MATERIALLY DIFFERENT AS THERE IS IN FACT A 'DEFINITION OF THE WORD ROYALTY UNDER ARTICLE 12 OF BOTH DTAA, THUS DISPENSING WITH THE NEED FOR RECOURSE TO ARTICLE 3. 50. THERE ARE THEREFORE TWO SETS OF CIRCUMSTANCES. FIRST, WHERE THERE EXISTS NO DEFINITION OF A WORD I N ISSUE WITHIN THE DTAA ITSELF, REGARD IS TO BE HAD T O THE LAWS IN FORCE IN THE JURISDICTION OF THE STATE CALLED UPON TO INTERPRET THE WORD. THE BOMBAY HIGH COURT SEEMS TO ACCEPT THE AMBULATORY APPROACH IN SUCH A SITUATION, THUS ALLOWING FOR SUCCESSIVE AMENDMENTS INTO THE REALM OF LAWS IN FORCE. WE EXPRESS NO OPINION IN THIS REGARD SINCE IT IS NOT I N ISSUE BEFORE THIS COURT. THIS COURTS FINDING IS I N THE CONTEXT OF THE SECOND SITUATION, WHERE THERE DOES EXIST A DEFINITION OF A TERM WITHIN THE DTAA. WHEN THAT IS THE CASE, THERE IS NO NEED TO REFER TO THE LAWS IN FORCE IN THE CONTRACTING STATES, ESPECI ALLY TO DEDUCE THE MEANING OF THE DEFINITION UNDER THE DTAA AND THE ULTIMATE TAXABILITY OF THE INCOME UNDE R THE AGREEMENT. THAT IS NOT TO SAY THAT THE COURT MA Y BE INCONSISTENT IN ITS INTERPRETATION OF SIMILAR DEFINITIONS. WHAT THAT DOES IMPLY HOWEVER, .IS THAT JUST BECAUSE THERE IS A DOMESTIC DEFINITION SIMILAR TO THE ONE UNDER THE DTAA, AMENDMENTS TO THE DOMESTIC LAW, IN AN ATTEMPT TO CONTOUR, RESTRICT OR EXPAND THE DEFINITION UNDER ITS STATUTE, CANNOT EXTEND TO THE DEFINITION UNDER THE DTAA. IN OTHER WORDS, THE DOMESTIC LAW REMAINS STATIC FOR THE PURPOSES OF THE DT AA. THUS THE CONTENTION OF THE LD. DR CANNOT BE ACCEPTE D IN VIEW OF CLARIFICATION GIVEN BY THE HON'BLE DELHI HIGH COURT THAT WHERE THE DEFINITION HAS BEEN GIVEN IN THE TREATY THEN THERE IS NO REQUIREMENT TO LOOK INTO DOMESTIC LAW OR ANY AMENDMENT MADE THEREIN. 17 I.T.A. NOS.5171 TO 5181/MUM/2013 IN VIEW OF THE AFORESAID DECISIONS, WE HOLD THAT TH E PAYMENT MADE BY THE ASSESSEE TO INTELSAT IS NOT TAXABLE AS ROYALTY IN INDIA AND, THEREFORE, ASSESSE E WAS NOT REQUIRED TO DEDUCT TDS OR WITHHOLD ANY TAX ON SUCH PAYMENTS. THIS PROPOSITION HAS BEEN UPHELD BY HON 'BLE SUPREME COURT IN THE CASE OF GE TECHNOLOGY CENTRE, 327 ITR 456. 7. SO FAR AS THE ISSUE RELATING TO FTS IS CONCERNED, W E FIND THAT, THIS TRIBUNAL IN B4U INTERNATIONAL HOLDINGS (SUPRA) ON SIMILAR PAYMENT MADE TO PANAMSAT, IT WAS HELD THAT THEY DO NOT SATISFY THE TEST OF MAKE AVAILABLE AS ENSHRINED IN ARTICLE 12(3) IN INDO-US-DTAA AND THUS, THE SAID PAYMENT CANNOT BE HELD TO BE TAXABLE AS BEING FOR TECHNICAL SERVICES AND SECONDLY, ON THIS GROUND ALSO, THE PROVISION OF TDS IS' NOT ATTRACTED. IN ANY CASE LD. CIT '(A) CANNOT HOLD THAT SAME PAYMENT WOULD FALL IN THE NATURE OF 'ROYALTY' AND AT SAME TIME WOULD BE RECKONED AS 'FTS' ALSO. LASTLY, AS REGARDS THE ISSUE OF BUSINESS COMMUNICATION IN INDIA, AS POINTED BY THE LD COUNSEL, SHRI MADHUR AGARWAL THAT HONBLE DELHI HIGH COURT IN THE CASE OF INTELSAT HAS TAKEN NOTE OF THIS FACT WHILE DECIDING THE ISSUE OF TAXABILITY OF RECEIPTS IN FAVOUR OF INTELSAT THAT, IT HAS LEASED ITS TRANSPONDER CAPACI TY AND BANDWIDTH TO THE VARIOUS CUSTOMERS IN INDIA AND OUTSIDE INDIA WHO HAVE USED THE TRANSPONDER FOR BUSINESS IN INDIA. THUS, IN THE LIGHT OF THIS OBSERVATION AND FACT NOTED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF THE PAYEE AND OTHERWISE ALSO WE DO NOT FIND ANY MERITS THAT, SIMPLY BECAUSE THE TRANSPONDERS HAVE BEEN USED IN FOR BUSINESS IN INDIA WILL TANTAMOUNT TO BUSINESS CONNECTION OF INTELSAT IN INDIA AND, ACCORDINGLY, SUCH AN OBSERVATION AND FINDING OF THE CIT(A) IS HEREBY REJECTED BY US. THUS, THE ISSUES RAISED BY THE ASSESSEE IN GROUNDS NO.1 TO 7 ARE SQUARELY COVERED BY VARIOUS DECISIONS AS DISCUSSED ABOVE AND RESPECTFULLY FOLLOWING THE SAME WE HOLD THAT 18 I.T.A. NOS.5171 TO 5181/MUM/2013 ASSESSEE IS NOT LIABLE TO DEDUCT TDS. 10. IT IS NOTED FROM THE ABOVE THAT THE BENCH RELIED UP ON VARIOUS JUDGMENTS INCLUDING THE JUDGMENT OF TAJ TV LTD WHEREIN DECISION RELIED UPON BY THE LD. DR IN THE C ASE OF VIACOM.18 HAS BEEN CONSIDERED IN DETAIL. APART FRO M THAT THE MAIN POINT TO BE NOTED HERE IS THAT THE BENCH T OOK NOTE OF A VITAL FACT THAT HONBLE DELHI HIGH COURT IN TH E CASE OF PAYEE, VIZ. M/S INTELSAT CORPORATION, USA HAS CATEG ORICALLY HELD THAT PAYMENT RECEIVED BY INTELSAT CORPORATION IS NOT TAXABLE IN INDIA UNDER THE PROVISIONS OF INDO US DT AA. THUS, IN THE CASE OF PAYEE, IT HAS BEEN CATEGORICALLY HEL D THAT SAID PAYMENT IS NOT TAXABLE, THEN THE ASSESSEE IS NOT OB LIGED TO DEDUCT TDS, THEREFORE, THE IMPUGNED PROCEEDINGS U/S 195 DESERVES TO BE QUASHED. THUS, AFTER TAKING INTO AC COUNT ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND TH AT THE ISSUE STANDS SQUARELY COVERED BY THE DECISION OF TH E MUMBAI BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE AND, T HEREFORE, THE ISSUE RAISED IN THE APPEAL BEFORE US STANDS ALL OWED IN TERMS OF EARLIER ORDER OF THE TRIBUNAL WHICH SHALL APPLY MUTATIS MUTANDIS ON THE ISSUE RAISED IN THIS APPEAL BEFORE US. ACCORDINGLY WE HOLD THAT THE ASSESSEE WAS NOT LIABLE TO DEDUCT TAX AT SOURCE. 11. SO FAR AS THE ISSUE OF INTEREST U/S 244A ON REFUND OF EXTRA TDS DEPOSIT U/S 195 AS RAISED IN GROUND 7 IS CONCERNED, WE FIND THAT THIS ISSUE HAS BEEN SENT BY THE TRIBUN AL IN ITS AFORESAID ORDER BACK TO THE FILE OF THE AO TO BE DE CIDED AFTER 19 I.T.A. NOS.5171 TO 5181/MUM/2013 CONSIDERING LATEST CBDT CIRCULAR NO.11 OF 2016 DATE D 26 TH APRIL, 2016. THUS, WE DIRECT THE AO TO FOLLOW EARL IER ORDER OF THE TRIBUNAL ON THIS ISSUE. THIS ISSUE SHOULD BE D ECIDED AFRESH BY THE AO ACCORDINGLY. THIS GROUND MAY BE T REATED AS ALLOWED FOR STATISTICAL PURPOSE. 12. IT WAS FAIRLY STATED BY THE LD. DR THAT ISSUES IN A LL OTHER APPEALS ARE IDENTICAL. THUS, WE DIRECT THE AO TO F OLLOW OUR ORDER IN ITA NO.5171/MUM/2013 TO ALL OTHER APPEALS MUTATIS MUTANDIS . 13. AS A RESULT, ALL THE APPEALS ARE ALLOWED IN TERMS O F OUR DIRECTIONS AS GIVEN ABOVE. ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE CONCL USION OF HEARING. SD/- SD/- (AMIT SHUKLA) (ASHWANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT: 28 TH NOVEMBER, 2016 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE , G-BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES