ITO (TDS) RG 3(3), MUMBAI V. STAR INDIA P LTD, MUMBAI

ITA 699/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 101081 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 16-09-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 02-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PORUS KAKA SHRI DIVESH CHAWLA
• Section: 194C; 201(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI N.K . BILLAIYA, ACCOUNTANT MEMBER AND RAM L AL NEGI, JUDICIAL MEMBER / I .T.A. NO S . 699 & 700/MUM/2012 ( / ASSESSMENT YEAR :2008 - 09 & 2009 - 10 THE ACIT (TDS) - 3(2), SMT. K.G. MITTAL AYURVEDIC HOSPITAL BLDG., CHARNI ROAD, MUMBAI - 400 002 / VS. M/S. STAR INDIA PVT. LTD., STAR HOUSE, DR. E. MOSES ROAD, MAHALAXMI, MUMBAI - 400 011 C.O. NOS. 21 & 22/MUM/2012 (ARISING OUT OF I .T.A. NO S . 699 & 700/MUM/2012 ( / ASSESSMENT YEAR S : 2008 - 09 & 2009 - 10 M/S. STAR INDIA PVT. LTD., STAR HOUSE, DR. E. MOSES ROAD, MAHALAXMI, MUMBAI - 400 011 / VS. THE ACIT (TDS) - 3(2), SMT. K.G. MITTAL AYURVEDIC HOSPITAL BLDG., CHARNI ROAD, MUMBAI - 400 002 ./ ./ PAN/GIR NO. : AAACN 1355Q ( / APPELLANT ) .. ( / RESPONDENT ) / DEPARTMENT BY: SHRI AJAY MODI / ASSESSEE BY: SHRI PORUS KAKA SHRI DIVESH CHAWLA / DATE OF HEARING : 1 6 .0 9 .2015 / DATE OF PRONOUNCEMENT : 1 6 .0 9 .2015 / O R D E R PER N.K. BILLAIYA, AM: ITA. NO S . 699 & 700/M/12 & C.O. NOS 21 & 22/M/2013 2 THESE ARE APPEALS BY THE REVENUE AND THE CROSS OBJECTIONS BY THE ASSESSEE AGAINST THE VERY SAME ORDER OF THE LD. CIT(A) , MUMBAI DATED 30.11.2011 PERTAINING TO ASSESSMENT YEARS 2008 - 09 AND 2009 - 10. BOTH THESE APPEALS AND CROSS OBJECTIONS WERE HEARD TOGETHER AS THEY INVOLVED COMMON GRIEVANCE AND THEREFORE DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. IN BOTH THESE YEARS, THE GRIEVANCE OF THE REVENUE IS THAT THE LD. CIT(A) ERRED IN HOLDING THAT CHARGES PAID BY THE ASSESSEE COME WITHIN THE PURVIEW OF SEC. 194C OF THE ACT. ACCORDING TO THE REVENUE, THE CORRECT SECTION APPLICABLE ON THE IMPUGNED CHARGES IS SEC. 194J OF THE ACT AND THEREFORE, THE ORDER MADE U/S. 201(1) AND 201(1A) OF THE ACT IS GOOD IN LAW. 3. HAVING HEARD THE RIVAL CONTENTIONS, WE HAVE CAREFULLY PERU SED THE ORDERS OF THE AUTHORITIES BELOW. THE ENTIRE DISPUTE REVOLVES AROUND THE PAYMENT OF CARRIAGE FEES/PAYMENT CHARGES BY THE ASSESSEE ON WHICH TAX HAS BEEN DEDUCTED AT SOURCE AS PER THE PROVISIONS OF SEC. 194C OF THE ACT WHEREAS THE ASSESSING OFFICER W AS OF THE FIRM BELIEF THAT PROVISIONS OF SEC. 194J SQUARELY APPLY ON THE IMPUGNED PAYMENTS MADE BY THE ASSESSEE AND ON HIS BELIEF, THE OFFICER LEVIED INTEREST U/S. 201(1A) OF THE ACT WHICH WAS CHALLENGED BY THE ASSESSEE BEFORE THE LD. CIT(A). 4. BEFORE TH E FIRST APPELLATE AUTHORITY, RELYING UPON VARIOUS JUDICIAL DECISIONS IN FAVOUR OF THE ASSESSEE , I T WAS STRONGLY CONTENDED THAT THE PAYMENTS MADE BY THE ASSESSEE SQUARELY FALL WITHIN THE PROVISIONS OF SEC. 194C OF THE ACT AND THEREFORE, THE AO HAS ERRED IN ITA. NO S . 699 & 700/M/12 & C.O. NOS 21 & 22/M/2013 3 TREATING THE ASSESSEE AS AN ASSESSEE IN DEFAULT UNDER THE PROVISIONS OF SEC. 201(1) OF THE ACT. 4.1. AFTER UNDERSTANDING THE FACTS OF THE CASE IN THE LIGHT OF THE RELEVANT PROVISIONS OF THE ACT, THE LD. CIT(A) WAS CONVINCED THAT THE ASSESSEE HAS ALREADY DEDUCTED TAX AT SOURCE U/S. 194C OF THE ACT AND DIRECTED THE TDS OFFICER NOT TO CONSIDER THE ASSESSEE AS ASSESSEE IN DEFAULT U/S. 201(1) OF THE ACT. 5. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US. 6. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE FINDINGS OF THE AO. 7. PER CONTRA, THE LD. COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON SEVERAL DECISIONS OF THE TRIBUNAL COPIES OF WHICH WERE PLACED ON RECORD IN THE FORM OF A PAPER BOOK. THE LD. COUNSEL DREW OUR ATTENTION TO THE DECISION OF THE TRIB UNAL IN ASSESSEES OWN CASE IN ITA NOS. 1413 & 1414/M/2014. THE LD. COUNSEL POINTED OUT THAT IN THAT CASE THE DISPUTE BEFORE THE TRIBUNAL WAS WHETHER THE REVENUE AUTHORITIES WERE JUSTIFIED IN MAKING THE DISALLOWANCE MADE ON ACCOUNT OF CHANNEL PLACEMENT FE ES U/S. 40 A(IA) OF THE ACT AS TDS WAS NOT DEDUCTED U/S. 194J OF THE ACT. WE FIND THAT THE TRIBUNAL IN THAT CASE RELYING UPON THE DECISION OF THE CO - ORDINATE BENCH IN THE CASE OF ACIT VS NGC NETWORK (I) (P) LTD 15 0 ITD 772 HELD THAT PROVISIONS OF SEC. 19 4J ARE NOT AT ALL APPLICABLE ON THE IMPUGNED PAYMENTS. ITA. NO S . 699 & 700/M/12 & C.O. NOS 21 & 22/M/2013 4 7.1. A SIMILAR VIEW WAS TAKEN BY THE TRIBUNAL IN THE CASE OF UTV ENTERTAINMENT TELEVISION LTD. IN ITA NO. 2699, 4204, 4205 & 2700/M/2012 WHEREIN ALSO THE TRIBUNAL FOLLOWED THE DECISION IN THE CASE OF NGC NETWORK (SUPRA) . IN THE CASE OF UTV ENTERTAINMENT TELEVISION (SUPRA), THE TRIBUNAL AT PARA - 7 HAS HELD THAT THE IMPUGNED PAYMENTS IS COVERED BY THE EXPLANATION (IV)(B) UNDER THE PROVISIONS OF SEC. 194C OF THE ACT. THE OBJECTIONS RAISED BY THE LD. DR IN RESPECT OF IMPUGNED PAYMENTS BEING PAYMENT FOR ROYALTY VIS - - VIS PAYMENT FOR TECHNICAL SERVICE IS ALSO TAKEN CARE OF BY THE TRIBUNAL IN THE CASE OF UTV ENTERTAINMENT (SUPRA) AT PARA - 2 OF ITS ORDER. 7.2. AFTER CONSIDERING THE DECISIONS OF THE TRIBU NAL DISCUSSED HEREINABOVE, WE ARE CONVINCED WITH THE FINDINGS OF THE LD. CIT(A), THEREFORE, NO INTERFERENCE IS CALLED FOR. 7.3. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE BECOME OTIOSE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 1 6 TH SEPTEMBER , 2015 SD/ - SD/ - ( RAM L AL NEGI ) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 1 6 TH SEPTEMBER , 2015 . . ./ RJ , SR. PS ITA. NO S . 699 & 700/M/12 & C.O. NOS 21 & 22/M/2013 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI