NICKELODEON ASIA HOLDINGS PTE LTD, MUMBAI V. DIT (IT) 4(2), MUMBAI

ITA 6065/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8955 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: L
• Next Hearing Date: 05-09-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 30-08-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PRAMOD NAIR
• Section: 234B; 2

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL L BENCH, MUMBAI . . , , !' !' !' !' , ,, , # # # # $ $ $ $ BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER . / ITA NO. 7378/MUM./2010 ( #& ' (' / ASSESSMENT YEAR : 200607 ) . / ITA NO. 6065/MUM./2011 ( #& ' (' / ASSESSMENT YEAR : 200708 ) NICKELODEON ASIA HOLDINGS PTE LTD. 151, LORONG CHUAN, #0308 NEW TECH PARK, SINGAPORE 556741 .. )* / APPELLANT & V/S DY. COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION4(2) MUMBAI .... +,)* / RESPONDENT ) . / PERMANENT ACCOUNT NUMBER AABCN3147K #& '. / 0 / ASSESSEE BY : MR. PRAMOD NAIR 1 / 0 / REVENUE BY : MR. MAHESH KUMAR & / / DATE OF HEARING 05.09.2012 ! 23( / / DATE OF ORDER 21.09.2012 ! ! ! ! / ORDER !' !' !' !' , ,, , # # # # 4 4 4 4 / PER AMIT SHUKLA, J.M. THE PRESENT APPEAL PREFERRED BY ASSESSEE, IS DIRECT ED AGAINST THE IMPUGNED DIRECTION DATED 23 RD JUNE 2011, PASSED BY THE LEARNED OFFICERIN NICKELODEON ASIA HOLDINGS PTE LTD. 2 CHARGE, SECRETARIAT, DRPII, I.T. DEPARTMENT, MUMBA I, COMMISSIONER (APPEALS)XV, MUMBAI, FOR ASSESSMENT YEAR 200708. 2. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT HE DID NOT WISH TO PRESS GROUNDS NO.1, 2, 3 , 4, 5, 6, 7 AND 8, IN ITA NO.7378/MUM./2010, FOR ASSESSMENT YEAR 200607. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS NOT RAISED ANY OBJE CTION TO THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE . CONSEQUENTLY, THESE GROUNDS ARE DISMISSED AS NOT PRESSED . 3. SIMILARLY, GROUNDS NO.1, 2, 3, 4, 5, 6 AND 7, IN IT A NO.6065/MUM./ 2011, FOR ASSESSMENT YEAR 200708, ARE NOT PRESSED BY THE LEARNED COUNSEL FOR THE ASSESSEE. CONSEQUENTLY, THESE GROUNDS ARE A LSO DISMISSED AS NOT PRESSED . 4. NOW, THE ONLY ISSUE, WHICH IS COMMON IN BOTH THE AP PEALS, HAS BEEN CHALLENGED BEFORE US RELATES TO LEVY OF INTEREST UN DER SECTION 234B. 5. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE U S THAT THIS ISSUE STANDS COVERED BY THE DECISION OF THE MUMBAI COORD INATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR S 200203 TO 200506, ITA NO.2757, 2758, 3130 AND 3131/MUM./2010, VIDE OR DER DATED 16 TH SEPTEMBER 2011, WHEREIN THE TRIBUNAL DECIDED IDENTI CAL ISSUE IN FAVOUR OF THE ASSESSEE AFTER OBSERVING AND HOLDING AS UNDER: 7. WE HAVE CONSIDERED THE ISSUE AS FAR AS THE LEVY OF INTEREST UNDER SECTION 234B IS CONCERNED. THIS ISSUE IS DIRECTLY C OVERED BY THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF DIT VS. NGC NETWORK ASIA LLC (2009) 222 CTR 85 (BOM.) (HC). AS RIGHTLY POINTED OUT BY THE CIT(A) , THE ISSUE IS AGAINST THE REVENU E. NO INTEREST CAN BE LEVIED UNDER SECTION 234B WHEN THE INCOMES ARE C OVERED BY THE PROVISIONS OF TDS AND THERE IS NO LIABILITY TO ADVA NCE TAX ONCE THE INCOMES ARE COVERED BY THE TDS. IN VIEW OF THIS, WE SEE NO REASON TO INTERFERE WITH THE ORDERS OF THE CIT(A) IN ASSESSME NT YEARS 2004-2005 AND 2005-2006 AND ACCORDINGLY THE REVENUE APPEALS A RE DISMISSED. 8. WITH REFERENCE TO THE ADDITIONAL GROUND(7) RAISE D BY THE ASSESSEE ON LEVY OF INTEREST U/S 234B IN AY 2002-03 AND 2003 -04, CONSIDERING THAT ASSESSEE WITHDREW ALL THE OTHER GROUNDS WITH R EFERENCE TO THE MERITS OF THE ISSUES IN ORDER TO SETTLE MATTERS IN INDIA, CONSIDERING THE NICKELODEON ASIA HOLDINGS PTE LTD. 3 SPECIAL REQUEST AND WITHOUT MAKING IT AS A PRECEDEN T, WE ADMIT THE ADDITIONAL GROUND AND DIRECT THE ASSESSING OFFICER NOT TO LEVY ANY INTEREST UNDER SECTION 234B, FOLLOWING THE PRINCIPL ES LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE ABOVE REFERRED CAS E OF DIT VS. NGC NETWORK ASIA LLC (2009) 222 CTR 85 (BOM.) (HC). TH EREFORE, GROUNDS TO THAT EXTENT RAISED BY THE ASSESSEE IN AY 2002-03 AND 2003-04 ARE CONSIDERED AS ALLOWED. 6. IT HAS BEEN SUBMITTED BY THE LEARNED COUNSEL FOR TH E ASSESSEE THAT THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN DCIT V/S N GC NETWORK ASIA LLC, 313 ITR 187 (BOM.) WHICH HAS BEEN FOLLOWED BY THE TRIBU NAL, HAS BEEN SET AT REST BY THE HON'BLE SUPREME COURT ALSO, AS THE SLP FILED BY THE DEPARTMENT AGAINST THE SAID JUDGMENT WAS DISMISSED. THUS, RESP ECTFULLY FOLLOWING THE EARLIER DECISION OF THE TRIBUNAL AND THE JUDGMENT O F JURISDICTIONAL HIGH COURT, GROUND NO.8 IN ASSESSMENT YEAR 200708 AND GROUND N O.9 IN ASSESSMENT YEAR 200607 ARE TREATED AS ALLOWED. 7. . 5 #& '. / 6 ! 7 / 1 89 : 7. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ! / 3( 6 ;&5 21 ST SEPTEMBER 2012 3 / < : ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST SEPTEMBER 2012 SD/- . .. . . . . . R.S. SYAL ACCOUNTANT MEMBER SD/- !' !' !' !' # # # # AMIT SHUKLA JUDICIAL MEMBER MUMBAI, ;& ;& ;& ;& DATED: 21 ST SEPTEMBER 2012 NICKELODEON ASIA HOLDINGS PTE LTD. 4 ! / +# = >=( / COPY OF THE ORDER FORWARDED TO : (1) #& '. / THE ASSESSEE; (2) 1 / THE REVENUE; (3) ? () / THE CIT(A); (4) ? / THE CIT, MUMBAI CITY CONCERNED; (5) =B< +# #& , , / THE DR, ITAT, MUMBAI; (6)