M/s. B4U INTERNATIONAL HOLDINGS LTD., V. ADIT (I.T) - 3(2), MUMBAI

ITA 7190/MUM/2008

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62386 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: L
• Next Hearing Date: 10-04-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 19-12-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: A V SONDE
• Keywords: Permanent establishment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH L,MUMBAI BEFORE S/SHRI B.R. MITTAL (JM) & J. SUDHAKAR REDDY (AM) I.T.A. NO.7190/MUM/2008 (A.Y. 2005-06) B4U INTERNATIONAL HOLDINGS LTD., C/O. B4U TELEVISION NETWORKS (I) P. LTD., B-47, PARAMOUNT BLDG., 3 RD FLOOR, NEW LINK ROAD, ANDHERI (W), MUMBAI-400 053. PAN: AABCB4729M VS. ASSTT. DIRECTOR OF INCOME-TAX, (INTERNATIONAL TAXATION)-3(2), MUMBAI. APPELLANT RESPONDENT APPELLANT BY SHRI A.V. SONDE. RESPONDENT BY SHRI MAHESH KUMAR. DATE OF HEARING 04-05-2012 DATE OF PRONOUNCEMENT 28-05-2012 O R D E R PER BENCH : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF CIT(A)- XXXIII, MUMBAI, DATED 19-09-2008 IN RELATION TO ASS ESSMENT YEAR 2005-06. ITA NO.7190/MUM/2008 B4U INTERNATIONAL HOLDINGS LTD. 2 2. GROUND NOS.1 & 2 ARE ON THE ISSUE AS TO WHETHER THE ASSESSEE HAS A PERMANENT ESTABLISHMENT IN INDIA. CONSISTENT WITH T HE VIEW TAKEN FOR THE ASSESSMENT YEAR 2001-02 IN I.T.A. NO.880/MUM/2005, WE ADJUDICATE THE ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IN THE RESULT, THESE GROUNDS ARE ALLOWED. 3. GROUND NO. 3(A) IS ON THE DISALLOWANCE MADE U/S. 40(A)(I) ON PAYMENT MADE TO PANAMSAT LTD. TOWARDS TRANSPONDER HIRE CHAR GES. THE ISSUE IS SIMILAR TO GROUND NO. 3 FOR THE ASSESSMENT YEAR 2002-03. CONSI STENT WITH THE VIEW TAKEN THEREIN, WE ALLOW THIS GROUND OF THE ASSESSEE. 4. GROUND NO. 3(B) IS ON THE DISALLOWANCE U/S. 40(A )(I) ON PAYMENT MADE TO ADVANCED BROADCAST SERVICES LTD. AND GROUND NO. 3(E ) IS ON THE ISSUE OF DISALLOWANCE U/S. 40(A)(I) ON PAYMENT MADE TO BT B ROADCAST SERVICES. THESE ISSUES BEING SIMILAR TO GROUND NO. 4 OF THE ASSESSE ES APPEAL FOR THE ASSESSMENT YEAR 2002-03, WE DECIDE THE ISSUES IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. GROUND NOS. 3(B) & 3(E) ARE ALLOWED. 5. GROUND NO. 3(C) IS ON THE DISALLOWANCE U/S. 40(A )(I) MADE TO LMB HOLDINGS (MAURITIUS) LTD. FOR PURCHASE OF PROGRAMM ES. CONSISTENT WITH THE VIEW TAKEN BY US WHILE DISPOSING OF GROUND NO. 5 FO R THE ASSESSMENT YEAR 2002- 03, WE ALLOW THIS GROUND OF APPEAL. ITA NO.7190/MUM/2008 B4U INTERNATIONAL HOLDINGS LTD. 3 6. GROUND NO. 3(D) IS ON THE DISALLOWANCE OF PAYMEN T MADE TO LMB HOLDINGS LTD. (ISLE OF MAN) FOR PURCHASE OF FILMS. CONSISTENT WITH THE VIEW TAKEN BY US WHILE DISPOSING OF GROUND NO. 6 FOR THE ASSESSMENT YEAR 2002-03, WE ALLOW THIS GROUND OF APPEAL. 7. THE ASSESSEE HAS RAISED AN ADDITIONAL GROUND. AS THIS IS A LEGAL GROUND AND AS ALL THE FACTS ARE ON RECORD, WE ADMIT THE SAME. THE ISSUE IS DISALLOWANCE U/S, 40(A)(I) OF PAYMENT MADE TO ADVANCED SATELLITE INTE RNATIONAL LTD. FOR PLAY OUT CHARGES. SIMILAR ISSUE AROSE IN GROUND NO. 4 FOR TH E ASSESSMENT YEAR 2002-03. CONSISTENT WITH THE VIEW TAKEN THEREIN, WE ALLOW TH IS GROUND OF APPEAL. 8. THE ASSESSEE HAS ALSO RAISED ANOTHER ADDITIONAL GROUND THAT IT SHOULD BE ALLOWED CARRY FORWARD AND SET OFF OF LOSSES. THIS ISSUE IS DISMISSED AS INFRUCTUOUS AS WE HAVE ALLOWED THE OTHER GROUND OF APPEAL OF THE ASSESSEE. 9. GROUND NO. 3(F) IS ON THE ISSUE OF DISALLOWANCE ON PAYMENTS MADE TO ADVERTISING AND COLLECTING AGENTS. THE ASSESSEES C ASE IS THAT THESE WERE IN THE NATURE OF TRADE DISCOUNTS AND NOT IN THE NATURE OF COMMISSION. THE CIT(A) IN HIS ORDER HAS NOT DECIDED THIS ISSUE. THUS, WE SET ASID E THE MATTER TO THE FILE OF CIT(A). 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED IN PART. ITA NO.7190/MUM/2008 B4U INTERNATIONAL HOLDINGS LTD. 4 ORDER PRONOUNCED ON THE 28TH DAY OF MAY, 201 2. SD/- SD/- (B.R. MITTAL) (J. SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 28TH MAY , 2012. NG: COPY TO : 1. DEPARTMENT. 2.ASSESSEE. 3 CIT(A)-XXXIII, MUMBAI. 4 DIT (INTL. TAXN.),MUMBAI. 5.DR,L BENCH, MUMBAI. 6.MASTER FILE. (TRUE COPY) BY ORDER, ASST. REGISTRAR, ITAT, MUMBAI.