ITO (TDS) 2(3), MUMBAI V. MUSIC BROADCAST P.LTD, MUMBAI

ITA 548/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1518 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 23-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGH
• Keywords: Bad and doubtful debts
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI RAVISH SOOD, JM I.T.A. NO. 548/MUM/2015 & C.O NO. 138/MUM/2016 (ARISING FROM ITA NO. 548/MUM/2015) ( [ [ / ASSESSMENT YEAR: 2011-12) ACIT (TDS) 1(3), R. NO. 703, 7 TH FLOOR, SMT. K.G. MITTAL AYURVEDIC HOSPITAL BUILDING, CHARNI ROAD, MUMBAI 400 002 / VS. M/S. MUSIC BROADCAST PVT. LTD. 5 TH FLOOR, RNA CORPORATE PARK, KALANAGAR, BANDRA (EAST), MUMBAI 400 051 ./ ./PAN/GIR NO. AACCM4036H ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : MISS ANUPAMA SINGH (DR) / RESPONDENT BY : SHRI MANISH MALIK (AR) / DATE OF HEARING : 06.09.2016 / DATE OF PRONOUNCEMENT : 07.12.2016 / O R D E R PER RAVISH SOOD, JUDICIAL MEMBER: THE PRESENT APPEAL AND THE CROSS-OBJECTION FILED BY THE REVENUE AND THE ASSESSEE, RESPECTIVELY, ARE DIRECTED AGAINST THE ORDER OF THE CIT(A) DATED 2 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. 05.11.2014, WHICH ARISES FROM THE ORDER PASSED BY THE AO U/S 201(1)/201(1A) OF THE INCOME TAX ACT, 1961, (FOR SHORT ACT). I.T.A. NO. 548/MUM/2015 THE REVENUE HAD ASSAILED THE ORDER OF THE CIT(A) BEFORE US BY RAISING THE FOLLOWING GROUNDS: 1. I. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT THE COMMISSION PAID IN THE GUISE OF DISCOUNT BY THE ASSESSEE ON BROADCASTING SERVICES TO ITS AGENTS DOES NOT ATTRACT PROVISIONS OF SECTION 194H OF THE ACT AND THEREBY ERRED IN DELETING THE SHORT DEDUCTION U/S 201(1) AND INTEREST U/S 201(1A) OF THE I.T. ACT. II. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT THE AMOUNT PAID TO RADIO JOCKEYS DOES NOT FALL WITHIN THE AMBIT OF PROVISIONS OF SECTION 192 OF THE ACT AND CONSEQUENTLY DELETING THE DEMANDS RAISED U/S 201(1) AND 201(1A) OF THE ACT. 2. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY AT THE TIME OF THE HEARING OF THE CASE OR THEREAFTER. 3. THE ORDER OF THE CIT(A) BEING ERRONEOUS BE SET ASIDE AND LD. A.OS ORDER BE RESTORED. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGED IN BROADCASTING PRIVATE FM RADIO AND HAD STARTED INDIAS FIRST 3 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. PRIVATE FM STATION, RADIO CITY, IN BANGALORE IN JULY 2001. THAT SURVEY PROCEEDINGS U/S 133A(1) OF THE ACT, IN ORDER TO VERIFY COMPLIANCE/DEFAULTS OF THE STATUTORY PROVISIONS CONTEMPLATED UNDER CHAPTER XVII B OF THE ACT, WERE CONDUCTED ON THE ASSESSEE AS ON 18.05.2012. THE A.O THEREAFTER DELIBERATING ON THE COMPLIANCE CARRIED OUT BY THE ASSESSSEE AS REGARDS DEDUCTION OF TAX AT SOURCE UNDER CHAPTER XVII B OF THE ACT, HELD THE ASSESSEE AS BEING IN DEFAULT ON THE FOLLOWING TWO ISSUES:- A. COMMISSION TO ADVERTISING AGENCIES:- (I). THE AO OBSERVED THAT THE ASSESSEE HAD IN THE INVOICES SO RAISED ON THE ADVERTISING AGENCIES THROUGH WHOM IT WAS PROCURING ADVERTISEMENTS, WAS CONSISTENTLY GIVING A DISCOUNT @ 15 PERCENT OF THE BILL AMOUNT, WHICH AGGREGATED TO AN AMOUNT OF RS. 18,36,07,728/- DURING THE YEAR UNDER CONSIDERATION. THE AO BEING OF THE VIEW THAT THE ASSESSEE IN THE GARB OF DISCOUNT BEING ALLOWED TO THE ADVERTISING AGENCIES, WAS AS A MATTER OF FACT PAYING/PASSING OF COMMISSION FOR THE SERVICES SO RENDERED BY THEM, THEREFORE CALLED UPON THE ASSESSEE TO SHOW-CAUSE AS TO WHY NO TAX WAS DEDUCTED AT SOURCE ON THE SAID AMOUNTS. (II). THE ASSESSEE IN COMPLIANCE TO THE AFORESAID QUERY SO RAISED BY THE A.O, THEREIN SUBMITTED THAT THE DISCOUNT ALLOWED TO THE ADVERTISING AGENCIES COULD NOT BE CHARACTERIZED AS COMMISSION, AS THE RELATIONS BETWEEN THE ASSESSEE AND THE ADVERTISING AGENCIES WAS THAT OF PRINCIPAL-TO-PRINCIPAL BASIS, AND NOT THAT OF A 4 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. PRINCIPAL-AGENT RELATIONSHIP. THE ASSESSEE SUBSTANTIATED HIS AFORESAID CONTENTION ON THE BASIS OF THE FOLLOWING FACTS:- A. THE ASSESSEE DID NOT CONTROL THE BUSINESS OF THE ADVERTISING AGENTS. B. THE ADVERTISING AGENTS WERE FREE TO APPOINT SUB-AGENTS FOR THEIR WORK. C. THE ADVERTISING AGENTS MAY OR MAY NOT WORK ON EXCLUSIVE BASIS FOR THE ASSESSEE, I.E. THE ADVERTISING AGENTS AFTER CONSULTATION WITH THE CLIENT AND AS PER THEIR RESEARCH MUTUALLY DECIDED THE BROADCASTERS FOR THE ADVERTISEMENT. D. THE ADVERTISING AGENTS AND NOT THE ULTIMATE ADVERTISER WERE THE DEBTORS OF THE ASSESSEE FOR THE PENDING PAYMENTS. E. RECEIPTS TO THE ASSESSEE WERE NOT DEPENDENT ON RECEIPTS BY THE CLIENT. F. THE ADVERTISING AGENCIES WERE LIABLE TO PAY TO THE ASSESSEE, IRRESPECTIVE OF THE FACT WHETHER THEY HAD RECEIVED ANY MONEY FROM ITS CUSTOMER OR NOT. G. THAT THE RISK OF COLLECTION FROM THE CLIENT AND BAD DEBTS OF THE CLIENT WERE TO BE BORNE BY THE ADVERTISING AGENCIES ON THEIR OWN. THE A.O HOWEVER BEING OF THE VIEW THAT AS THE COMMISSION OR BROKERAGE DEFINED UNDER EXPLANATION (I) OF SECTION 194H HAD A WIDE MEANING, WHICH COVERED ANY PAYMENT RECEIVED DIRECTLY OR INDIRECTLY BY A PERSON ACTING ON BEHALF OF ANOTHER PERSON FOR SERVICES RENDERED, THUS CONCLUDED THAT THE 15 PERCENT DISCOUNT WHICH WAS CONSISTENTLY ALLOWED BY THE ASSESSEE IN THE INVOICES RAISED ON THE ADVERTISING AGENCIES, WAS AS A MATTER OF FACT COMMISSION PAID/PASSED OVER TO THEM IN THE GARB 5 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. OF DISCOUNT. THE A.O THUS ON THE BASIS OF HIS AFORESAID OBSERVATIONS REJECTED THE CLAIM OF THE ASSESSEE AND HELD IT AS BEING IN DEFAULT U/S 201(1) OF THE ACT FOR FAILING TO DEDUCT TAX AT SOURCE U/S 194H OF THE ACT, AND RAISED DEMAND ON THE ASSESSEE U/SS. 201(1)/201(1A) OF THE ACT, AS UNDER:- DESCRIPTION DEFAULT U/S 201(1) DETERMINED (AMOUNT) INTEREST U/S 201(1A) UPTO THE DATE OF ORDER 35 MONTHS DISCOUNT/COMMISSION 1,88,82,424 66,08,848 B. PAYMENTS TO THE RADIO JOCKEYS : (I). THE A.O FURTHER OBSERVING THAT THE ASSESSEE WHICH HAD ENTERED INTO AGREEMENTS WITH RADIO JOCKEYS FOR HOSTING SHOWS ON RADIO, HAD DURING THE YEAR UNDER CONSIDERATION PAID AN AMOUNT AGGREGATING TO RS. 4,41,21,870/- TO THEM, AFTER TREATING THE SAME AS PAYMENTS TO PROFESSIONALS THUS SUBJECTED THE SAME TO DEDUCTION OF TAX AT SOURCE U/S 194J OF THE ACT. THE A.O HOWEVER BEING OF THE VIEW THAT AS AN EMPLOYER-EMPLOYEE RELATION DID EXIST BETWEEN THE ASSESSEE AND THE RADIO JOCKEYS, THEREFORE THE PAYMENTS WERE TO BE LOOKED INTO AS BEING MADE TO THE EMPLOYEES, WHICH THEREIN RENDERED THE ASSESSEE LIABLE FOR DEDUCTION OF TAX AT SOURCE U/S 192 OF THE ACT. THE ASSESSEE ON BEING CALLED UPON BY THE A.O TO EXPLAIN AS TO WHY THE DEDUCTION OF TAX AT SOURCE ON THE PAYMENTS MADE TO THE RADIO JOCKEYS WAS NOT CARRIED OUT U/S 192 OF THE ACT, THEREIN SUBMITTED THAT NO EMPLOYER-EMPLOYEE RELATIONSHIPS EXISTED BETWEEN THE ASSESSEE AND THE RADIO 6 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. JOCKEYS, AND AS SUCH THE PAYMENTS MADE BY THE ASSESSEE TO THE RADIO JOCKEYS WHO WERE FREE LANCE PROFESSIONALS, HAD THUS RIGHTLY BEEN SUBJECTED TO DEDUCTION OF TAX AT SOURCE U/S 194J OF THE ACT. THE ASSESSEE FORTIFIED ITS CLAIM ON THE BASIS OF THE FOLLOWING FACTS :- (A). THE PROFILE OF RADIO JOCKEYS CLEARLY INDICATED THAT THE CONTRACT WAS FOR SERVICE, AND NOT OF SERVICE. (B).THE RADIO JOCKEYS WERE NOT ON THE PAYROLL OF THE ASSESSEE. THEY WERE ALSO NOT ENTITLED TO STATUTORY WELFARE BENEFITS LIKE PROVIDENT FUND, GRATUITY AND BONUS ETC. (C).THE RADIO JOCKEYS WERE NOT SUBJECTED TO ANY PROBATION PERIOD, AS WAS APPLICABLE TO THE EMPLOYEES OF THE ASSESSEE. THAT AS A MATTER OF POLICY, THE EMPLOYEES OF THE ASSESSEE WERE SUBJECTED TO THREE MONTH PROBATION PERIOD BEFORE THEY WERE CONFIRMED ON THE JOB. (D).THE EMPLOYEES OF THE ASSESSEE HAD TO STRICTLY ABIDE BY THE STANDARDS OF BUSINESS CONDUCT AND THE EMPLOYMENT GUIDELINES SET FORTH BY THE ASSESSEE. THE SAME WERE HOWEVER NOT APPLICABLE TO THE RADIO JOCKEYS, AS THEY WERE NOT THE EMPLOYEES OF THE ASSESSEE. THAT THE EMPLOYEES OF THE ASSESSEE HAD TO ABIDE BY SPECIFIC DRESS CODE ETC., WHICH HOWEVER WERE ALSO NOT APPLICABLE TO PROFESSIONALS WORKING FOR THE ASSESSEE ON CONTRACT BASIS (E). THE RADIO JOCKEYS WERE EXPECTED TO INDEMNIFY THE ASSESSEE IN CERTAIN EVENTS, WHILE FOR NO SUCH INDEMNITY CLAUSE WAS APPLICABLE TO THE EMPLOYEES OF THE ASSESSEE. 7 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. (II). THE A.O HOWEVER DID NOT FIND FAVOR WITH THE CLAIM OF THE ASSESSEE, AND BEING OF THE VIEW THAT AS THE RADIO JOCKEYS WERE UNDER OBLIGATION OF RULES, REGULATIONS, PROTOCOLS AND CODE OF CONDUCT AS PRESCRIBED BY THE ASSESSEE FROM TIME TO TIME, THE SAME THUS ESTABLISHED BEYOND ANY SCOPE OF DOUBT THAT THE EMPLOYER- EMPLOYEE RELATIONS EXISTED BETWEEN THE ASSESSEE AND THE RADIO JOCKEYS. THE A.O THUS REJECTED THE CLAIM OF THE ASSESSEE THAT NO EMPLOYER-EMPLOYEE RELATIONS DID EXIST BETWEEN THE ASSESSEE AND THE RADIO JOCKEYS, AND THE PAYMENTS MADE TO THE SAID PERSONS WERE IN LIEU OF THE PROFESSIONAL SERVICES SO RENDERED BY THEM, AND AS SUCH WERE RIGHTLY SUBJECTED TO DEDUCTION OF TAX AT SOURCE U/S 194J OF THE ACT. THAT INTERESTINGLY, THE A.O AFTER CONCLUDING AS MENTIONED HEREINABOVE, HOWEVER FURTHER HELD THAT TO THE EXTENT THE PAYMENTS MADE BY THE ASSESSEE TO THE RADIO JOCKEYS DURING THE YEAR, INVOLVED AN AMOUNT OF LESS THAN RS. 3 LAC, THE SAME WERE TO BE TREATED AS PAYMENTS MADE BY THE ASSESSEE TO THE SAID RADIO JOCKEYS TOWARDS PROFESSIONAL FEES, AND THE CLAIM OF THE ASSESSEE THAT THE SAID PAYMENTS WERE IN LIEU OF PROFESSIONAL SERVICES AND WERE LIABLE TO BE SUBJECTED TO DEDUCTION OF TAX AT SOURCE U/S 194J, WAS NOT TO BE DISLODGED, AND WAS TO BE ACCEPTED AS SUCH. THE AO THUS IN THE BACKDROP OF HIS AFORESAID OBSERVATIONS, BEING OF THE VIEW THAT THE ASSESSEE HAD FAILED TO DEDUCT TAX AT SOURCE U/S 192 OF THE ACT ON THE PAYMENTS MADE TO THE RADIO JOCKEYS (WHICH THOUGH WERE TO BE RESTRICTED TO THOSE CASES WHERE PAYMENTS DURING THE YEAR WERE IN EXCESS OF RS. 3 LAC), HELD THE ASSESSEE AS 8 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. BEING IN DEFAULT U/S 201(1) OF THE ACT, FOR SHORT DEDUCTION OF TAX AT SOURCE, AS HAD EMERGED ON ACCOUNT OF WRONG DEDUCTION OF TAX AT SOURCE U/S 194J, AS AGAINST THE STATUTORY OBLIGATION OF HAVING DEDUCTED THE SAME U/S 192 OF THE ACT. THE A.O HOWEVER AFTER PERUSING THE RETURNS OF INCOME OF SOME OF THE RESPECTIVE PAYEES WHICH WERE PLACED ON RECORD BY THE ASSESSEE DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, AND THUS REVEALED THAT THE SAID RESPECTIVE PAYEES AFTER TAKING CREDIT OF THE TDS U/S 194J, HAD DEPOSITED THE BALANCE TAX LIABILITY AND FILED THE RETURN OF INCOME, THEREIN RESTRICTED THE LIABILITY OF THE ASSESSEE TO BE TREATED AS BEING IN DEFAULT FOR SHORT DEDUCTION OF TAX AT SOURCE U/S 192, AS REGARDS THE BALANCE AMOUNT OF TAX OF RS. 6,03,251/-, ALONGWITH INTEREST U/S 201(1A) ON THE SAID AMOUNT, AS WELL AS ON THE AMOUNT OF TAX WHICH THOUGH WAS DEPOSITED BY THE PAYEES WHOSE RETURNS OF INCOME WERE PLACED ON RECORD, BUT RESTRICTED TO THE PERIOD OF DELAY AS HAD EMERGED IN LIGHT OF THE DATE OF DEPOSIT OF THE TAX BY THE RESPECTIVE PAYEES, AND THUS ON THE BASIS OF HIS SAID OBSERVATIONS, RAISED DEMAND ON THE ASSESSEE U/SS. 201(1)/201(1A) OF THE ACT, AS UNDER:- DESCRIPTION DEFAULT U/S 201(1) FOR SHORT DEDUCTION OF TAX (DUE TO DEDUCTION U/S 194J, AS AGAINST SEC. 192), AFTER APPLYING JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF : HINDUSTAN COCA COLA. INTEREST U/S 201(1A) TOTAL TOTAL PAYMENT (ABOVE RS. 3,00,000) OF RS. 2,89,29,903/- PAID BY THE ASSESSEE TO THE RADIO JOCKEYS. RS. 6,03,251/- (I). ON SHORT DEDUCTION OF TAX AT SOURCE. RS.2,11,138 /- (II).ON ACCOUNT OF DELAY IN DEPOSITING OF TAXES RS. 1,09,657/- 9 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. BY RESPECTIVE PAYEES WHO HAD FILED THEIR RETURNS OF INCOME. TOTAL RS. 3,20,795/- THE AO THUS ON THE BASIS OF HIS AFORESAID OBSERVATIONS, HOLDING THE ASSESSEE AS BEING IN DEFAULT U/SS. 201(1)/201(1A) OF THE ACT ON BOTH OF THE AFORESAID TWO ISSUES, THEREIN RAISED A DEMAND AGGREGATING TO RS. 2,64,15,318/-IN THE HANDS OF THE ASSSESSEE. 3. THE ASSESSEE BEING AGGRIEVED THEREIN CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A), WHO ADJUDICATED THE ISSUES SO ASSAILED BY THE ASSESSEE BEFORE HIM, AS UNDER:- A. COMMISSION TO ADVERTISING AGENCIES:- (I). THE CIT(A) AFTER APPRECIATING THE FACT THAT THE ASSESSEE WAS RECOGNIZING THE REVENUE FROM SALE OF AIR TIME, AS PER THE INVOICES/BILLS AT WHICH THE AIRTIME WAS SOLD TO THE ADVERTISING AGENCY, AND THE AMOUNT OF DISCOUNT WAS NOT SEPARATELY TREATED AS AN EXPENDITURE ON ACCOUNT OF SALE OF AIRTIME, AND AS SUCH WAS NOT SEPARATELY DEBITED TO THE PROFIT & LOSS ACCOUNT; THE ASSESSEE HAD NOT APPOINTED THE ADVERTISING AGENCIES TO WHOM THE DISCOUNTS WERE ALLOWED, AS ITS AGENTS, DIRECTLY OR INDIRECTLY, NOR ANY EVIDENCE WAS BROUGHT ON RECORD BY THE A.O WHICH COULD GO TO SHOW THAT THE ADVERTISING AGENCY WAS APPOINTED BY THE ASSESSEE FOR SALE OF ITS AIRTIME AND WAS WORKING AS PER ITS DICTATES; DISCOUNTS GIVEN BY THE ASSESSEE TO THE ADVERTISING AGENCIES WERE AS PER THE PREVAILING INDUSTRY PRACTICE, 10 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. AND THE ASSESSEE WAS GIVING SUCH DISCOUNTS TO ANY PERSON WHO WAS BUYING AIRTIME FROM IT, I.E. A DIRECT ADVERTISER OR THE ADVERTISING AGENCIES; THE INVENTORY OF THE AIRTIME WAS ALWAYS WITH THE ASSESSEE ; THE ADVERTISING AGENCIES BUYS THE AIRTIME SLOTS AS PER THEIR DESIRE AND REQUIREMENTS OF THE ADVERTISER, IN WHICH THE APPELLANT HAS NO SAY, AND IF A PARTICULAR TIME SLOT REMAINS VACANT, THE LOSS IS OF THE ASSESSEE, THUS ON A CONJOINT PERUSAL OF THE AFORESAID FACTS, THEREIN CONCLUDED THAT THE DISCOUNT OFFERED BY THE ASSESSEE TO THE ADVERTISING AGENCIES ON SALE OF AIRTIME DID NOT PARTAKE THE COLOR AND CHARACTER OF COMMISSION, AND COULD SAFELY BE HELD TO BE A DISCOUNT ALLOWED IN THE NORMAL COURSE OF THE BUSINESS BY THE ASSESSEE. B). PAYMENTS TO THE RADIO JOCKEYS : THAT THE CIT(A) FURTHER ADVERTED TO THE ISSUE PERTAINING TO THE PAYMENTS MADE BY THE ASSESSEE TO THE RADIO JOCKEYS, WHICH WERE CLAIMED BY THE ASSESSEE TO BE IN THE NATURE OF PROFESSIONAL PAYMENTS, AND AS SUCH WERE SUBJECTED TO DEDUCTION OF TAX AT SOURCE U/S 194J OF THE ACT, WERE HOWEVER ON THE CONTRARY HELD BY THE A.O AS PAYMENTS IN THE NATURE OF SALARY, AS A RESULT WHEREOF THE A.O HAD HELD THE ASSESSEE LIABLE FOR DEDUCTION OF TAX AT SOURCE U/S 192 OF THE ACT. THE CIT(A) AFTER DULY APPRECIATING THE FACT THAT THE AGREEMENT EXECUTED BETWEEN THE ASSESSEE AND THE RADIO JOCKEYS, NOWHERE REVEALED THAT THE LATTER WERE THE EMPLOYEES OF THE ASSESSEE, COUPLED WITH THE FACT THAT IT WAS A FACT BORNE FROM THE RECORDS THAT THE RADIO JOCKEYS WERE NOT ENTITLED TO BENEFITS WHICH THE EMPLOYEES 11 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. OF THE ASSESSEE WERE ENTITLED, SAY ENTITLEMENT TOWARDS PROVIDENT FUND, GRATUITY, RETIREMENT BENEFITS ETC., THUS IN THE ABSENCE OF SUCH CONCLUSIVE AND CLINCHING EVIDENCE ON RECORD, WHICH COULD GO TO PROVE THAT RADIO JOCKEYS WERE THE EMPLOYEES OF THE ASSESSEE, THE CLAIM OF THE ASSESSEE COULD NOT BE DISLODGED. THE CIT(A) FURTHER TAKING COGNIZANCE OF THE FACT THAT THE A.O DESPITE RE-CHARACTERIZING THE PAYMENTS MADE TO RADIO JOCKEYS, AS BEING IN THE NATURE OF PAYMENTS MADE BY THE ASSESSEE TO ITS EMPLOYEES, AS AGAINST THE CLAIM OF THE ASSESSEE THAT THE SAME WERE PAYMENTS OF PROFESSIONAL FEES, HAD HOWEVER MOST STRANGELY TOOK AN INCONSISTENT STAND AND HELD THAT TO THE EXTENT SUCH PAYMENTS WERE MADE BY THE ASSESSEE TO THE RADIO JOCKEYS IN AN AMOUNT NOT EXCEEDING RS. 3 LAC, THE SAME WOULD CONTINUE TO RETAIN THE COLOR AND CHARACTER AS THAT PROFESSIONAL PAYMENTS, AND AS SUCH NO ADVERSE INFERENCE AS REGARDS SHORT DEDUCTION OF TAX BY RESORTING TO A WRONG STATUTORY PROVISION CONTEMPLATED UNDER CHAPTER XVII B, TO THE EXTENT SUCH PAYMENTS WERE CONCERNED, WERE LIABLE TO BE DRAWN. THE CIT(A) HOLDING A VIEW THAT THE ACTION OF THE A.O WAS INCOHERENT, AND NOT AS PER LAW, THEREFORE IN LIGHT OF HIS AFORESAID OBSERVATIONS WHICH INDEPENDENTLY ESTABLISHED THE ABSENCE OF ANY EMPLOYER-EMPLOYEE RELATIONS BETWEEN THE ASSESSEE AND THE RADIO JOCKEYS, WHICH WAS FURTHER FORTIFIED BY THE ARBITRARY APPROACH ADOPTED BY THE ASSESSEE, WHO HAD TAKEN AN INCONSISTENT STAND AS REGARDS PAYMENTS MADE TO RADIO JOCKEYS, BY CATEGORIZING THEM INTO TWO CATEGORIES, AS OBSERVED HEREINABOVE, THUS CONCLUDED THAT THE PAYMENTS MADE BY THE ASSESSEE TO THE RADIO JOCKEYS COULD SAFELY BE HELD 12 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. TO BE PAYMENTS MADE TO PROFESSIONALS, AND AS SUCH HAD RIGHTLY BEEN SUBJECTED TO DEDUCTION OF TAX AT SOURCE U/S 194J OF THE ACT. 4. THAT BEFORE US THE LD. DEPARTMENT REPRESENTATIVE (FOR SHORT D.R) RELIED ON THE ORDER OF THE A.O AND AVERRED THAT THE DISCOUNT AT A FIXED RATE OF 15% WHICH WAS CONSISTENTLY ALLOWED BY THE ASSESSEE WHILE RAISING OF INVOICES ON THE ADVERTISING AGENCIES FOR THE ADVERTISEMENTS PROCURED THROUGH THEM, WAS CLEARLY PASSING OF COMMISSION BY THE ASSESSEE TO THE SAID ADVERTISING AGENCIES, IN THE GARB OF DISCOUNTS ALLOWED TO THEM. IT WAS SUBMITTED BY THE LD. D.R THAT THE A.O GOING BY THE WIDE MEANING OF THE TERM COMMISSION OR BROKERAGE, AS STANDS DEFINED IN EXPLANATION (I) OF SECTION 194H, HAD THUS RIGHTLY CHARACTERIZED THE PASSING OF DISCOUNTS TO THE ADVERTISING AGENCIES, AS BEING IN THE NATURE OF COMMISSION, AND CONSEQUENT THERETO HELD THE ASSESSEE AS BEING IN DEFAULT U/S 201(1)/201(1A) OF THE ACT, FOR FAILING TO DEDUCT TAX AT SOURCE ON THE SAID AMOUNT. THE LD. D.R FURTHER SUPPORTED THE ORDER OF THE A.O AND AVERRED THAT THE PAYMENTS MADE BY THE ASSESSEE TO THE RADIO JOCKEYS, IN LIGHT OF THE EMPLOYER- EMPLOYEE RELATIONS AS SO EMERGED BETWEEN THE ASSESSEE AND THE RADIO JOCKEYS, HAD THUS RIGHTLY BEEN HELD BY THE A.O AS PAYMENTS MADE TO EMPLOYEES, AND ON ACCOUNT OF SHORT DEDUCTION OF TAX AT SOURCE BY THE ASSESSEE, WHO HAD WRONGLY DEDUCTED TAX AT SOURCE U/S 194J, AS AGAINST HIS STATUTORY OBLIGATION OF DEDUCTING THE SAME U/S 192 OF THE ACT, HAD THUS RIGHTLY HELD THE ASSESSEE AS BEING IN DEFAULT U/S 201(1)/201(1A) OF THE ACT. THUS IT WAS SUBMITTED BY THE LD. D.R THAT THE ORDER 13 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. OF THE CIT(A) BE SET ASIDE, AND THE ORDER OF THE A.O TREATING THE ASSESSEE AS BEING IN DEFAULT ON BOTH THE AFORESAID TWO COUNTS MAY THEREIN BE RESTORED. THAT ON THE OTHER HAND THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE (FOR SHORT A.R), RELIED ON THE ORDER OF THE CIT(A), AND TAKING US TO PAGE 8 PARA 3.5 OF THE ORDER OF THE CIT(A), WHEREIN THE LATTER WHILE ALLOWING THE APPEAL OF THE ASSESSEE HAD CONCLUDED THAT IT WAS A MATTER OF FACT BORNE FROM THE RECORDS THAT THERE WAS NO EVIDENCE FROM WHERE IT COULD BE HELD THAT THE ADVERTISING AGENCIES WERE EITHER DIRECTLY OR INDIRECTLY THE AGENTS OF THE ASSESSEE, AND THEY HAD RECEIVED ANY REMUNERATION FROM THE ASSESSEE TO SELL THEIR AIRTIME. IT WAS SUBMITTED BY THE LD. A.R THAT THE CIT(A) HAD FURTHER RIGHTLY APPRECIATED THAT THE DISCOUNT ALLOWED BY THE ASSESSEE TO THE ADVERTISING AGENCIES WAS IN THE NORMAL COURSE OF ITS BUSINESS, WHICH ALLOWING OF DISCOUNTS WAS NOT ONLY RESTRICTED TO THE ADVERTISING AGENCIES, BUT RATHER AS A PREVAILING INDUSTRY PRACTICE, WAS UNIFORMLY ALLOWED TO ANY PERSON WHO WOULD BUY AIRTIME FROM THE ASSESSEE, I.E DIRECT ADVERTISERS OR THE ADVERTISING AGENCIES. THUS IN THE BACKDROP OF THE AFORESAID FINDINGS OF THE CIT(A), WHICH WERE ON THE BASIS OF THE FACTS BORNE FROM RECORDS, IT WAS SUBMITTED BY THE LD. A.R THAT IN THE ABSENCE OF ANY EVIDENCE ON RECORD, SUCH RE-CHARACTERIZATION BY THE A.O OF THE DISCOUNTS ALLOWED BY THE ASSESSEE IN THE NORMAL COURSE OF ITS BUSINESS, AS COMMISSION TO THE ADVERTISING AGENTS, HAD THUS RIGHTLY BEEN SET ASIDE BY THE CIT(A). THAT ON THE ISSUE OF TREATING THE ASSESSEE AS BEING IN DEFAULT U/SS. 201(1)/201(1A) OF THE ACT, AS REGARDS THE PAYMENTS MADE TO RADIO JOCKEYS, THE 14 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. LD. A.R SUPPORTED THE ORDER OF THE CIT(A) AND DREW OUR ATTENTION TO THE OBSERVATIONS RECORDED BY THE CIT(A) AT PAGE 10 PARA 4.3 OF HIS ORDER. THE LD. A.R SUBMITTED THAT THE CIT(A) DULY APPRECIATING THAT THE A.O HAD NOT ONLY FAILED TO CORROBORATE ON THE BASIS OF ANY EVIDENCE THAT THE RADIO JOCKEYS WERE THE EMPLOYEES OF THE ASSESSEE, BUT RATHER HAD TAKEN AN INCONSISTENT VIEW AND BY CATEGORIZING THE RADIO JOCKEYS ON THE BASIS OF PAYMENTS MADE TO THEM, HAD THUS RESORTED TO AN INCOHERENT ACTION, WHICH AS SUCH, COULD NOT BE SUSTAINED IN THE EYES OF LAW. 5. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATERIAL ON RECORD AND HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ISSUE BEFORE US. WE FIND SUBSTANTIAL FORCE IN THE FINDINGS OF THE CIT(A) THAT THE DISCOUNT ALLOWED BY THE ASSESSEE WHILE RAISING THE INVOICES ON THE ADVERTISING AGENCIES AS REGARDS THE ADVERTISING WORK PROCURED BY THE ASSESSEE THROUGH THEM, WAS IN THE NORMAL COURSE OF ITS BUSINESS, WHICH PRACTICE OF GIVING DISCOUNTS WAS NOT ONLY RESTRICTED TO THE ADVERTISING AGENCIES, BUT RATHER AS A PREVAILING INDUSTRY PRACTICE, WAS UNIFORMLY ALLOWED TO ANY PERSON WHO WOULD BUY AIRTIME FROM THE ASSESSEE, I.E DIRECT ADVERTISERS OR THE ADVERTISING AGENCIES. WE FURTHER FIND OURSELVES TO BE IN AGREEMENT WITH THE FINDINGS OF THE CIT(A), THAT NOW WHEN IT WAS A MATTER OF FACT BORNE FROM THE RECORDS THAT THERE WAS NO EVIDENCE FROM WHERE IT COULD BE CONCLUDED THAT THE ADVERTISING AGENCIES WERE EITHER DIRECTLY OR INDIRECTLY THE AGENTS OF THE ASSESSEE, 15 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. AND THEY HAD RECEIVED ANY REMUNERATION FROM THE ASSESSEE TO SELL THEIR AIRTIME, THEREFORE IT WAS ABSOLUTELY IMPERMISSIBLE TO RE-CHARACTERIZE THE DISCOUNTS GIVEN BY THE ASSESSEE TO THE ADVERTISING AGENCIES, AS AMOUNTS PASSED OVER BY WAY OF COMMISSION FOR THE ADVERTISING WORK PROCURED BY THE ASSESSEE FROM THE SAID ADVERTISING AGENCIES. WE THOUGH ARE ONE WITH THE OBSERVATION OF THE A.O THAT THE TERM COMMISSION OR BROKERAGE AS STANDS CONTEMPLATED U/S 194H OF THE ACT, IS A TERM OF WIDE CONNOTATION AND HAD BEEN SO DEFINED BY THE LEGISLATURE IN ALL ITS WISDOM IN EXPLANATION (I) OF SECTION 194H, AS A RESULT WHEREOF, AN AMOUNT WHICH IS PAID/CREDITED BY AN ASSESSEE, WHICH SAFELY CAN BE BROUGHT WITHIN THE SCOPE OF GAMUT OF THE SAID DEFINITION, CANNOT BE ALLOWED TO ESCAPE IN THE GARB OF A DIFFERENT NOMENCLATURE. HOWEVER, IN THE BACKDROP OF THE AFORESAID SETTLED POSITION OF LAW, WE CANNOT ALSO REMAIN OBLIVIOUS OF THE SETTLED PRINCIPLE OF LAW, THAT THE ONUS TO ESTABLISH THAT WHAT IS APPARENT IS NOT TRUE, LIES ON THE PERSONS WHO SO ALLEGES. THUS NOW WHEN IN THE CASE OF THE PRESENT ASSESSEE, IT WAS ALLEGED BY THE A.O THAT THE ASSESSEE IN THE GARB OF DISCOUNTS ALLOWED TO THE ADVERTISING AGENCIES, WAS AS A MATTER OF FACT PASSING OVER COMMISSIONS TO THEM, THEN EXCEPT FOR HARPING ON THE SAID CLAIM, IT WAS FOR THE A.O TO PLACE ON RECORD SUBSTANTIAL CLINCHING EVIDENCES WHICH COULD IRREBUTABLY FORTIFY THE SAID FACTUAL POSITION. HOWEVER, THE A.O AFTER CLAIMING THAT THE ASSESSEE WAS PASSING OVER COMMISSIONS TO THE ADVERTISING AGENCIES IN THE GARB OF DISCOUNTS, HAD FAILED TO PLACE ON RECORD ANY SUCH MATERIAL ON THE BASIS OF WHICH THE CLAIM OF THE ASSESSEE THAT IT WAS ALLOWING DISCOUNTS IN 16 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. THE NORMAL COURSE OF ITS BUSINESS, COULD BE DISTURBED AND DISLODGED. THAT A DOUBT OR SUSPICION, HOWSOEVER STRONG AND LOGICAL IT MAY BE, CANNOT BE ALLOWED TO NULLIFY A CLAIM WHICH IS BASED ON EVIDENCE OR FACTS BORNE FROM RECORDS. WE FURTHER FIND THAT EVEN THE CONVICTIONS HELD BY THE A.O ON THE BASIS OF DOUBTS AND SUSPICIONS, ALSO HAD BEEN DISPELLED AND PUT TO REST BY THE CIT(A) ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND STRONG REASONING BACKING THE SAME. THUS IN THE ABSENCE OF ANY MATERIAL ON RECORD, MUCH THE LESS EVIDENCE, FROM WHERE IT COULD BE SAFELY CONCLUDED THAT THE ADVERTISING AGENCIES WERE AGENTS OF THE ASSESSEE, OR THEY HAD RECEIVED ANY REMUNERATION FROM THE ASSESSEE TO SELL THEIR AIRTIME, THE DISCOUNTS ALLOWED BY THE ASSESSEE TO THE ADVERTISING AGENCIES, CANNOT BE HELD TO BE A SMOKE SCREEN IN THE GARB OF WHICH COMMISSION WAS BEING PASSED OVER TO THE ADVERTISING AGENCIES. WE ARE THUS OF THE CONSIDERED VIEW THAT THE CIT(A) ON THE BASIS OF CONCRETE FINDINGS BASED ON THE MATERIAL ON RECORD AND BY TAKING SUPPORT OF HOST OF JUDICIAL PRONOUNCEMENTS, HAD THUS RIGHTLY CONCLUDED THAT THE ASSESSEE HAD NOT PAID ANY COMMISSION TO THE ADVERTISING AGENCIES, AND IN THE BACKDROP OF THE SAID OBSERVATIONS, THUS CANNOT BE HELD TO BE IN DEFAULT U/SS. 201(1)/201(1A) FOR NOT HAVING DEDUCTED TAX AT SOURCE U/S 194H OF THE ACT ON THE SAID AMOUNTS. THUS FINDING NO INFIRMITY IN THE ORDER OF THE CIT(A), WE UPHOLD THE SAME. THUS THE GROUND OF APPEAL NO. 1(I) SO RAISED BY THE REVENUE IS DISMISSED. 17 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. 6. WE HAVE FURTHER GIVEN A THOUGHTFUL CONSIDERATION TO THE ISSUE PERTAINING TO THE PAYMENTS BY THE ASSESSEE TO THE RADIO JOCKEYS FOR HOSTING SHOWS ON RADIO, IN LIGHT OF THE AGREEMENTS EXECUTED BETWEEN THE SAID PARTIES. WE FIND FORCE IN THE FINDINGS OF THE CIT(A) THAT NOW WHEN THERE IS IS NO FACT BORNE FROM THE RECORDS FROM WHERE IT COULD BE SAFELY AND INESCAPABLY GATHERED THAT THE RADIO JOCKEYS WERE THE EMPLOYEES OF THE ASSESSEE, BUT RATHER THE FACTS AVAILABLE ON THE RECORD PROVE TO THE CONTRARY, THEREFORE ON THE SAID COUNT ITSELF THE CLAIM OF THE ASSESSEE THAT THE PAYMENTS MADE TO THE RADIO JOCKEYS WERE IN THE NATURE OF PAYMENTS BEING MADE TO FREE LANCE PROFESSIONALS, ON WHICH TAX HAD RIGHTLY BEEN DEDUCTED AT SOURCE U/S 194J OF THE ACT, THUS CANNOT BE DISLODGED. WE FURTHER FIND OURSELVES AS BEING IN AGREEMENT WITH THE FINDINGS OF THE CIT(A), THAT THE INCONSISTENT STAND TAKEN BY THE A.O, WHEREIN THE LATTER AS REGARDS PAYMENTS MADE TO RADIO JOCKEYS, BY CATEGORIZING THEM INTO TWO CATEGORIES, AS OBSERVED HEREINABOVE, CAN SAFELY BE HELD TO BE AN INCOHERENT ACTION ON THE PART OF THE A.O, WHICH IN ITSELF WOULD PUT TO REST HIS OBSERVATIONS THAT AN EMPLOYER-EMPLOYEE RELATION DID EXIST BETWEEN THE ASSESSEE AND THE RADIO JOCKEYS. WE ARE THUS OF THE CONSIDERED VIEW THAT THE CIT(A) ON THE BASIS OF CONCRETE FINDINGS BASED ON THE MATERIAL ON RECORD HAD RIGHTLY OBSERVED THAT THE PAYMENTS MADE BY THE ASSESSEE TO THE RADIO JOCKEYS, WHICH WERE CLAIMED BY THE ASSESSEE AS BEING IN THE NATURE OF PAYMENTS TO FREE LANCE PROFESSIONALS, AND AS SUCH WERE RIGHTLY SUBJECTED TO DEDUCTION OF TAX AT SOURCE U/S 194J OF THE ACT, IN THE ABSENCE OF ANY EVIDENCE AVAILABLE ON RECORD, 18 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. COULD NOT BE WHIMSICALLY HELD AS BEING IN THE NATURE OF PAYMENTS TO EMPLOYEES. THUS IN THE BACKDROP OF THE AFORESAID OBSERVATIONS, WE ARE OF THE CONSIDERED VIEW THAT THE CIT(A) HAS SAFELY AND RATHER INESCAPABLY HELD THAT THE PAYMENTS MADE BY THE ASSESSEE TO THE RADIO JOCKEYS, AS PER THE FACTS DISCERNIBLE FROM THE RECORDS, WERE IN THE NATURE OF PAYMENTS TO PROFESSIONALS, WHICH HAD RIGHTLY BEEN SUBJECTED TO DEDUCTION OF TAX AT SOURCE U/S 194J OF THE ACT. WE ARE THUS PERSUADED TO ACCEPT THE OBSERVATIONS OF THE CIT(A), THAT IN LIGHT OF THE FACTS OF THE CASE AS THEY SO REMAIN, THE ASSESSE CANNOT BE HELD TO BE IN DEFAULT U/SS. 201(1)/201(1A) FOR SHORT DEDUCTION OF TAX AT SOURCE U/S 194J OF THE ACT ON THE SAID AMOUNTS. THUS FINDING NO INFIRMITY IN THE ORDER OF THE CIT(A), WE UPHOLD THE SAME. THUS THE GROUND OF APPEAL NO. 1(II) SO RAISED BY THE REVENUE IS DISMISSED. 7. THAT THE GROUND OF APPEAL NO. 2 IS GENERAL IN NATURE AND NOTHING HAS BEEN AVERRED BEFORE US AS REGARDS THE SAME, THE SAME IS THEREFORE DISMISSED AS NOT PRESSED. 8. THAT THE GROUND OF APPEAL NO. 3 IS DISPOSED OF IN TERMS OF OUR OBSERVATIONS RECORDED HEREINABOVE, WHILE DISPOSING OF THE GROUND OF APPEAL NO. 1(I) AND 1(II). THE SAME IS THUS DISMISSED. 9. THE APPEAL OF THE REVENUE IS THUS DISMISSED IN LIGHT OF OUR AFORESAID OBSERVATIONS. 19 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. C.O NO. 138/MUM/2016 : 10. THAT THE ASSESSEE HAS FILED A CROSS OBJECTION, THEREIN RAISING THE FOLLOWING GROUNDS: THE FOLLOWING GROUNDS ARE WITHOUT PREJUDICE TO THE CONTENTION OF THE RESPONDENT THAT : THE ADVERTISING COMPANIES ARE NOT AGENTS OF THE RESPONDENT AND NO TAX IS REQUIRED TO BE DEDUCTED AT SOURCE ON DISCOUNTS PROVIDED TO ADVERTISING COMPANY. THE RESPONDENT HAS RIGHTLY DEDUCTED TAX UNDER SECTION 194J OF THE ACT AS THE PAYMENTS MADE TO RADIO JOCKEYS ARE IN THE NATURE OF PROFESSIONAL FEES AND NOT SALARY. FURTHER TO THE AFORESAID GROUNDS AND WITHOUT PREJUDICE TO THE AFORESAID CONTENTION, THE GROUNDS STATED HEREUNDER ARE INDEPENDENT OF, AND WITHOUT PREJUDICE TO ONE ANOTHER: 1. THE TDS OFFICER HAD ERRED IN NOT APPRECIATING THAT SINCE NO PAYMENTS HAVE BEEN MADE BY THE RESPONDENT TO THE ADVERTISING COMPANIES, THE LIABILITY TO DEDUCT TAX DOES NOT ARISE. 2. THE TDS OFFICER HAD ERRED IN HOLDING THAT THE RESPONDENT IS LIABLE TO PAY TAX UNDER SECTION 201(1) OF THE ACT DISREGARDING THE DETAILS PROVIDED BY THE COMPANY WITH RESPECT TO THE PAYEES AND WITHOUT 20 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. VERIFYING THE PAYMENT OF TAX ON SUCH SUM BY THE PAYEES IN THEIR RESPECTIVE RETURNS / ASSESSMENTS. 3. THE TDS OFFICER HAD ERRED IN LEVYING INTEREST UNDER SECTION 201(1A) OF THE ACT TILL THE DATE OF ORDER UNDER SECTION 201(1) / 201(1A) OF THE ACT INSTEAD OF FROM THE DATE THE TAX WAS DEDUCTIBLE TILL THE DATE OF PAYMENT OF TAX BY THE PAYEES. 4. THE TDS OFFICER HAD ERRED IN LEVYING INTEREST UNDER 201(1A) OF THE ACT FROM THE FIRST MONTH OF THE FINANCIAL YEAR RATHER THAN FROM THE RESPECTIVE DATES OF PROVISION OF DISCOUNT / PAYMENTS / CREDIT TO THE PAYEE ACCOUNT, AS THE CASE MAY BE. THE RESPONDENT CRAVES LEAVE TO ADD, AMEND, DELETE, RECTIFY, SUBSTITUTE AND MODIFY ANY OF THE AFORESAID GROUNDS OF APPEAL OR ADD A NEW GROUND OF APPEAL AT ANY TIME BEFORE OR AT THE TIME OF HEARING THE APPEAL. 11. THAT AS THE APPEAL OF THE REVENUE FOR THE YEAR UNDER CONSIDERATION, MARKED AS ITA NO. 548/MUM/2015, FROM WHICH THE PRESENT C.O SO EMERGES, HAD BEEN DISMISSED BY US, THEREFORE THE AFORESAID CROSS OBJECTIONS WHICH ARE FOUND TO BE INEXTRICABLY INTERWOVEN AND INTERLINKED WITH THE RESPECTIVE GROUNDS OF APPEAL AS WERE SO RAISED BY THE REVENUE BEFORE US, PURSUANT TO THE DISMISSAL OF THE APPEAL DOES NOT SURVIVE, THEREFORE THE CROSS OBJECTIONS SO RAISED BY THE ASSESSEE ARE RENDERED AS INFRUCTUOUS. THE LD. A.R HAD CONCEDED TO OUR AFORESAID OBSERVATION. THUS THE CROSS OBJECTIONS SO FILED BY THE ASSESSEE ARE DISMISSED AS HAVING BEEN RENDERED AS INFRUCTUOUS. 21 ITA NO. 548/MUM/2015 (A.Y. 2011-12) M/S. MUSIC BROADCAST PVT. LTD. ORDER PRONOUNCED IN THE OPEN COURT ON 07/12/2016. SD- SD/- (D. KARUNAKARA RAO) (RAVISH SOOD ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 07.12.2016 SR.PS BISWAJIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. [ / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI