DEPUTY COMMISSIONER OF INCOME TAX (TDS)-2(1), MUMBAI V. REDIFF. COM. INDIA LIMITED , MUMBAI

ITA 5497/MUM/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4280 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 31-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G PANSARILD
• Keywords: Retrospective amendment; TDS
• Section: 201(1)

Judgement Text

ITA NO.5497/MUM/2017 M/S. REDIFF.COM.INDIA LTD. ASSESSMENT YEAR :2012-13 1 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.5497/MUM/2017 ( / ASSESSMENT YEAR: 2012-13) DY. COMMISSIONER OF INCOME TAX (TDS)-2(1) ROOM NO.615, 6 TH FLOOR SMT. K.G. MITTAL AYURVEDIC HOSPITAL BLDG., CHARNI ROAD(W) MUMBAI-400 002. / VS. M / S. REDIFF. COM. INDIA LTD. 1 ST FLOOR MAHALAXMI ENGG. ESTATE L.J. ROAD NO.1 MAHIM (W) MUMBAI. ./ ./PAN/TAN AAACR-2762-F/ MUM-07624-B ( ! /APPELLANT ) : ( '#! / RESPONDENT ) APPELLANT BY : D.G. PANSARI-LD.DR RESPONDEN T BY : PANKAJ JAIN- LD. AR / DATE OF HEARING : 11/03/2019 / DATE OF PRONOUNCEMENT : 13/03/2019 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY REVENUE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2012-13 CONTEST THE ORDER OF LD. COMMIS SIONER OF INCOME- TAX (APPEALS)-60, MUMBAI, [IN SHORT REFERRED TO AS CIT(A)], APPEAL NO.CIT(A)-60/IT-31/ITO(TDS)RG.3(4)/2014-15 DATED 20/06/2017 QUA ITA NO.5497/MUM/2017 M/S. REDIFF.COM.INDIA LTD. ASSESSMENT YEAR :2012-13 2 DELETION OF CERTAIN ADDITION U/S 201(1) / 201(1A). THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF PROVIDING ONLINE NEWS, INFORMATION, COMMUNICATION, ENTERTAINMENT AND SHOPPING SERVICES. 2. THE GENESIS OF THE SAME LIES IN ORDER U/S. 201(1 ) / 201(1A) DATED 28/02/2014 FOR AY 2012-13 PASSED BY LD. ASSISTANT C OMMISSIONER OF INCOME TAX (TDS)-3(2) WHEREIN IT TRANSPIRED THAT TH E ASSESSEE FAILED TO DEDUCT TAX AT SOURCE [TDS] ON PAYMENT OF RS.13.81 C RORES REPRESENTING PAYMENT FOR DATA LINE CHARGES AS PER THE PROVISIONS OF SECTION 194J. ALTHOUGH THE ASSESSEE DEFENDED ITS STAND VIDE REPLY DATED 11/02/2014, INTER-ALIA BY CONTENDING THAT THE PROVISIONS OF SECTION 194J W ERE NOT APPLICABLE TO SUCH PAYMENTS AND SECONDLY, THE PAYEE HAD OFFERED THE AFORESAID RECEIPTS IN THEIR RESPECTIVE RETURN OF IN COME, HOWEVER, NOT CONVINCED, LD. AO, TREATING THE ASSESSEE AS ASSESSEE-IN-DEFAULT, RAISED A TDS DEMAND OF RS.138.17 LACS U/S 201(1) AND CORRESPONDI NG INTEREST DEMAND U/S 201(1A) FOR RS.41.75 LACS. 3. THE FIRST APPELLATE AUTHORITY DELETED THE SAME B Y RELYING UPON THE DECISION OF THIS TRIBUNAL RENDERED IN ASSESSEES OW N CASE FOR AYS 2010- 11 & 2011-12. ALTHOUGH LD. DEPARTMENTAL REPRESENTAT IVE SUPPORTED THE VIEW OF LD. AO, HOWEVER, FAILED TO DEMONSTRATE ANY DISTINGUISHING FEATURE IN THE IMPUGNED AY. NO CONTRARY JUDGMENT HA S BEEN PLACED ON RECORD. 4. UPON PERUSAL OF TRIBUNALS ORDER ITA NOS. 3116-1 7/MUM/2014 DATED 04/11/2015, WE FIND THAT THE MATTER HAS BEEN CONCLUDED IN ASSESSEES FAVOR BY MAKING FOLLOWING OBSERVATIONS: - 6. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUT HORITIES BELOW. IN OUR CONSIDERED OPINION, THE DISPUTE WITH REGARD TO THE NATURE OF PAYMENT MADE FOR PURCHASE OF SOFTWARE WAS SETTLED AT REST ONLY B Y FINANCE ACT 2012 THROUGH ITA NO.5497/MUM/2017 M/S. REDIFF.COM.INDIA LTD. ASSESSMENT YEAR :2012-13 3 WHICH EXPLANATION-4 WAS ADDED TO SEC. 9(1)(VII). AL THOUGH THE SAID AMENDMENT WAS GIVEN RETROSPECTIVE EFFECT, LEGAL MAX IM, LEX NON COGIT AD IMPOSSIBILLIA, MEANING THEREBY THAT THE LAW CANNOT POSSIBLY COMPEL A PERSON TO DO SOMETHING WHICH IS IMPOSSIBLE TO PERFORM. 6.1. AS MENTIONED ELSEWHERE, THE AMENDMENT WAS GIVE N A RETROSPECTIVE EFFECT BUT BY THAT TIME THE ASSESSEE HAS ALREADY DO NE THE TRANSACTIONS WITHOUT DEDUCTING TAX AT SOURCE. ON THESE FACTS, TH E ASSESSEE CANNOT BE HELD TO HAVE VIOLATED THE PROVISIONS OF SEC. 194J OF THE ACT. OUR VIEW IS FORTIFIED BY THE DECISIONS OF THE TRIBUNAL IN THE CASE OF CHANNE L GUIDE INDIA LTD. VS ACIT 139 ITD 0049 AND RICH GRAVISS PRODUCTS (P) LTD. 166 TTJ 329 AND ALSO BY THE DECISION IN THE CASE OF NEW BOMBAY PARK HOTEL P VT. LTD VS ITO IN ITA NO. 7641/M/2011. RESPECTFULLY FOLLOWING THE DECISIO NS OF THE COORDINATE BENCH (SUPRA), WE DO NOT FIND ANY REASON TO INTERFE RE WITH THE FINDINGS OF THE LD. CIT(A). THE FIRST APPELLATE AUTHORITY HAS PROVIDED RELIEF T O THE ASSESSEE BY PLACING RELIANCE ON THIS DECISION OF THE TRIBUNAL. THEREFORE, NO INFIRMITY COULD BE FIND IN THE SAME. 5. THE APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH MARCH, 2019. SD/- SD/- (MAHAVIR SINGH) ( MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 13/03/2019 SR.PS, JAISY VARGHESE !'! / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '#! / THE RESPONDENT ITA NO.5497/MUM/2017 M/S. REDIFF.COM.INDIA LTD. ASSESSMENT YEAR :2012-13 4 3. * ( ) / THE CIT(A) 4. * / CIT CONCERNED 5. +, '%- , - , / DR, ITAT, MUMBAI 6. ,./0 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.