ITO(TDS) Wd - 57(2),kolkata., Kolkata V. Broadcast World Wide Ltd., Kolkata

ITA 99/KOL/2013

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3169 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 16-01-2013
• Court: TRIBUNAL
• Department Lawyers: R P NAGJCIT
• Keywords: Opportunity of being heard; Retrospective amendment
• Section: 194C; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B, KO LKATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI M.B ALAGANESH, AM] ITA NOS.99 & 100/KOL/2013 ASSESSMENT YEARS : 2008-09 & 2009-10 I.T.O., (TDS),WARD-57(2) .-VERSUS- BROADCAST WORLD WIDE LTD. KOLKATA KOLKATA TAN NO.CALBO-4343-D (PAN:AABCB1401G) (APPELLANT ) (RESPONDENT) FOR THE APPELLANT : SHRI R.P.NAG,JCIT, SR.DR FOR THE RESPONDENT : NONE DATE OF HEARING : 27.01.2016. DATE OF PRONOUNCEMENT : 03.02.2016. ORDER PER BENCH THESE ARE APPEALS FILED BY THE REVENUE AGAINST TWO ORDERS BOTH DATED 10.10.2012 OF CIT(A)-I, KOLKATA RELATING TO A.Y.200 8-09 AND 2009-10. 2. GROUNDS OF APPEAL RAISED BY THE REVENUE IN BOTH THE APPEALS ARE IDENTICAL AND READ AS FOLLOWS :- 1 . WHETHER IN THE [ACTS AND CIRCUMSTANCES OF THE CASE THE CIT(A) WAS CORRECT IN HOLDING THAT UPLINKING, VSAT AND TRANSPONDER FEES P AID BY THE ASSESSEE COMPANY TO M/S INDIA SIGN PVT. LTD. FELL UNDER THE PURVIEW OF SEC. 194C AND NOT SEC. 194J OF THE ACT? 2. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) ERRED IN HOLDING THAT THE CARRIAGE FEES PAID BY THE ASSESSEE TO VARI OUS MULTI SERVICE OPERATORS (MSOS)ARE CONTRACTUAL IN NATURE WITHIN THE PURVIEW OF SEC. 19 4C ? 3. WHETHER THE LD. CIT(A) ERRED IN NOT APPRECIATING THE FACT THAT WITH THE RECENT AMENDMENTS IN SEC. 9(1) (VI) READ WITH ITS EXPLANAT IONS THE PAYMENTS MADE BY THE ASSEESSEE COMPANY ON ACCOUNT OF UPLINKING, VSAT AND TRANSPONDER FEE AND CARRIAGE FEE ARE' ROYALTY' IN NATURE AND COVERED U/S 194J OF THE ACT? 4. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE THE CIT(A) WAS CORRECT IN GIVING RELIEF TO ASSESSEE RELYING UPON THE JUDGMENT OF THE HON'BLE SUPREME COURT IN CASE OF HINDUSTAN COCA COLA BEVERAGES PVT. LTD.(293 ITR 226 ) (2007) WHEN THE ASSESSEE HAD NOT DISCHARGED ITS ONUS OF SATISFYING THE AO THAT T HE PAYMENTS MADE BY THE DEDUCTOR ITA NOS.99&100/KOL/2013 BROADCAST WORLD WIDE LTD. A.YR.2008-09&2009-10 2 ASSESSEE HAVE BEEN DULY REF1ECTED IN THE IT RETURNS OF THE RESPECTIVE DEDUCTEES., AND THAT THE DUE TAXES HAVE BEEN PAID BY THE DEDUCTEES? 3. THE ASSESSEE IS ENGAGED IN RUNNING NEWS AND ENTE RTAINMENT CHANNELS IN THE NAME AND STYLE OF TARA TV. DURING THE PREVIOUS YE AR RELEVANT TO A.Y.2008-09 AND 2009-10 THE ASSESSEE PAID UP-LINKING, VSAT AND TRAN SPONDER FEES TO M/S. INDIA SIGN PVT. LTD.. BASED ON THE UP-LINKING SERVICES AGREEME NT BETWEEN THE ASSESSEE AND THE SAID COMPANY. SIMILARLY THE ASSESSEE ALSO PAID CARR IAGE FEES TO VARIOUS MULTI SERVICE IN RESPECT OF UP-LINKING, VSAT AND TRANSPONDER FEES. T HE ASSESSEE HAD NOT DEDUCTED TAX AT SOURCE. IN RESPECT OF CARRIAGE FEES THE ASSESSEE DE DUCTED TAX AT SOURCE AT 2% CONSIDERING THE PAYMENT IN QUESTION AS PAYMENT TO A CONTRACTOR U/S 194C OF THE INCOME TAX ACT, 1961 (ACT). THE CASE OF THE REVENUE IS THAT THE PAYMENT IN QUESTION WAS A PAYMENT MADE FOR TECHNICAL SERVICES RENDERED AND THE APPLICABLE PROVISION FOR DEDUCTION OF TAX AT SOURCE U/S 194J OF THE ACT WHIC H MANDATES DEDUCTION OF TAX AT SOURCE AT 10% OF THE PAYMENT. THE AO COMPUTED THE N ON DEDUCTION AND SHORT DEDUCTION OF TAX BY THE ASSESSEE IN TWO ASSESSMENT YEARS AS FOLLOWS :- AY 2008-09: NATURE OF PAYMENT AMT. OF PAYMENT (RS.) TAX DEDUCTIBLE @ 10.30% (RS.) TAX DEDUCTED (RS.) SHORT DEDUCTION (RS.) UPLINKING, VSAT & TRANSPONDER FEE 2,31,96,690 23,89,259 NIL 23,89,259 CARRIAGE FEE 3,81,77,901 39,32,324 8,39,659 30,92,6 65 TOTAL 6,13,74,591 63,21,583 8,39,659 54,81,924 AY 2009-10: NATURE OF PAYMENT AMT. OF PAYMENT (RS.) TAX DEDUCTIBLE @ 10.30% (RS.) TAX DEDUCTED (RS.) SHORT DEDUCTION (RS.) UPLINKING, VSAT & TRANSPONDER FEE 2,84,51,168 29,30,470 NIL 29,30,470 CARRIAGE FEE 4,02,38,546/- 41,44,570 8,93,747 32,50 ,823 TOTAL 6,86,89,714 70,75,040 8,93,747 61,81,293 ITA NOS.99&100/KOL/2013 BROADCAST WORLD WIDE LTD. A.YR.2008-09&2009-10 3 3.1. THE AO COMPUTED THE TAX AND INTEREST DUE U/S 2 01(1) AND 201(1A) OF THE ACT AS FOLLOWS :- AY 2008-09: THE ASSESSEE WAS TREATED AS AN ASSESSEE IN DEFAULT U/S 201(1)/201(1A) IN RESPECT OF SHORT DEDUCTION OF RS.54,81,924/- PLUS INTEREST @36% @ 1% P.M. FOR 36 MONTHS). SHORT DEDUCTION AS PER NOTICE : RS.54,81,924/- INTEREST ON SHORT DEDUCTION @36% : RS.19,73,493/- INTEREST FOR LATE DEPOSIT OF TDS : RS. 14,986/- TAX PAYABLE : RS.74,70,403/- AY 2009-10: THE ASSESSEE WAS TREATED AS AN ASSESSEE IN DEFAULT U/S 201(1)/201(1A) IN RESPECT OF SHORT DEDUCTION OF RS.61,81,293/- PLUS INTEREST @24% @ 1% P.M. FOR 24 MONTHS). SHORT DEDUCTION AS PER NOTICE : RS.61,81,293/- INTEREST ON SHORT DEDUCTION @24% : RS.14,83,510/- INTEREST FOR LATE DEPOSIT OF TDS : RS. 17,455/- TAX PAYABLE : RS.76,82,258/- 3.2. AGGRIEVED BY THE AFORESAID ORDER OF THE AO T HE ASSESSEE PREFERRED APPEAL BEFORE CIT(A). THE CONTENTION OF THE ASSESSEE BEFORE CIT(A ) WAS THAT IN RESPECT OF UP- LINKING VSAT & TRANSPONDER FEES THE ASSESSEE HAD DE DUCTED TAX AT SOURCE AT 2% AND TREATED IT AS PAYMENT MADE FOR CONTRACTORS FALL WIT HIN THE SECTION 194C OF THE ACT. IT WAS SUBMITTED THAT THE PAYMENT IN QUESTION WAS NOT A PAYMENT IN THE NATURE OF FEES FOR TECHNICAL SERVICES (FTS) FALLING U/S 194J OF TH E ACT. THE ASSESSEE CLAIMED BEFORE CIT(A) THAT SINCE TAX HAS BEEN DEDUCED IN ACCORDANC E WITH LAW, THE ORDER U/S 201(1) AND 201(1A) OF THE ACT IS BAD IN LAW AND SHOULD BE CANCELLED. IN SUPPORT OF THE CONTENTION OF THE ASSESSEE THAT THE PAYMENT OF UP-L INKING, VSAT AND TRANSPONDER CHARGES AND CARRIAGE FEES WAS NOT IN THE NATURE OF FTS, THE ASSESSEE RELIED ON THE DEFINITION OF THE WORD FEES FOR TECHNICAL SERVICES AS GIVEN IN EXPLANATION 1 TO SECTION 9(1)(VII) OF THE ACT. AS PER THE SAID DEFI NITION FTS MEANS CONSIDERATION RECEIVED FOR RENDERING ANY MANAGERIAL, TECHNICAL O R CONSULTANCY SERVICES IS ALONE TO BE CONSIDERED AS FTS. THE ASSESSEE SUBMITTED THAT T HE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS BHARATI CELLULAR LIMITED [2008] 175 TAXMAN 573 HAS HELD THAT THE EXPRESSION FEES FOR TECHNICAL SERVICES IN SECTION 9(1)(VII) INCLUDES ONLY SERVICES PROVIDED BY HUMAN ELEMENT AND NOT SERVICES PROVIDED BY MACHINE OR ROBOT. THE ASSESSEE THEREFORE CONTENDED THAT SINCE THE UP-LINK ING, VSAT AND TRANSPONDER FEES AS ITA NOS.99&100/KOL/2013 BROADCAST WORLD WIDE LTD. A.YR.2008-09&2009-10 4 WELL AS CARRIAGE FEES WERE PROVIDED BY MACHINES AND NOT BY INTERVENTION OF HUMAN ELEMENT AND THEREFORE THE PAYMENT IN QUESTION CANNO T BE CONSIDERED AS FTS. THE ASSESSEE ALSO RELIED ON THE DECISION OF THE HONBLE DELHI ITAT IN THE CASE OF EXPEDITORS INTERNATIONAL (INDIA) PVT.LTD., VS. ACI T 118 TTJ 652 (DELHI) AND THE DECISION OF THE HONBLE MUMBAI BENCH IN THE CASE OF PACIFIC INTERNET (INDIA) (P)LTD VS ITO [2009] 27 SOT 524 (MUM) WHEREIN IT WAS HELD VS AT UPLINKING CHARGES WERE NOT IN THE NATURE OF FEES FOR TECHNICAL SERVICES AN D THE SAME BEING NOT LIABLE FOR DEDUCTION OF TAX AT SOURCE, THE DISALLOWANCE MADE B Y THE AO BY INVOKING THE PROVISIONS OF S. 40(A)(I) WAS NOT SUSTAINABLE. 3.3. THE NEXT SUBMISSION OF THE ASSESSEE BEFORE THE CIT(A) WAS THAT M/S INDIA SIGN PVT. LTD TO WHOM THE ASSESSEE MADE PAYMENT IN QUEST ION IS ASSESSED TO TAX AND HAVE INCLUDED THE AMOUNT RECEIVED BY THE ASSESSE IN THEI R RETURN OF INCOME. THE ASSESSEE SUBMITTED THAT SINCE THE SUM IN QUESTION HAS ALREAD Y BEEN BROUGHT TO TAX THE ASSESSEE CANNOT BE TREATED AS ASSESSEE IN DEFAULT IN RESPECT OF TAX DUE AND PAYABLE ON THE PAYMENTS IN QUESTION U/S 201(1) OF THE ACT. IN SUPP ORT OF THE ASSESSEES CONTENTION AS ABOVE RELIANCE WAS PLACED ON THE DECISION OF THE HO NBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE PVT. LTD. VS CIT [2 007] 293 ITR 226 (SC) AND THE CIRCULAR OF CBDT IN INSTRUCTION NO.275/201/95-IT(B ) DATED 29.01.1997 WHEREIN IT WAS LAID DOWN THAT PAYMENT FOR NON DEDUCTION OR SHO RT DEDUCTION OF TAX SHOULD NOT BE ENFORCED AGAINST THE PAYER IF HE SATISFIES THE INCO ME TAX AUTHORITIES THAT SUCH TAXES HAVE BEEN PAID BY THE PAYEE. 3.4. CIT(A) ON CONSIDERATION OF THE SUBMISSIONS MAD E BY THE ASSESSEE ALLOWED THE APPEAL OF THE ASSESSEE OBSERVING AS FOLLOWS :- DECISION : AFTER CAREFUL CONSIDERATION OF THE ASSE SSMENT ORDER U/S 201(1)/201(1A) OF THE INCOME TAX ACT, 1961 AND THE WRITTEN SUBMISSION S ALONG WITH PAPER BOOK, IT IS NOTICED THAT ASSESSEE WAS ENGAGED IN BUSINESS OF ME DIA BROADCASTING AND TELECASTING (TARA CHANNEL). THE ASSESSEE COMPANY ENTERED INTO WITH UP-LINKING S ERVICE AGREEMENT WITH M/S. INDIA SIGN PVT. LTD, (ISPL) AND PAID ON ACCOUNT OF UP-LINKIKNG, VSAT AND TRANSPONDER FEES AND CARRIAGE FEES AS PER AGREEMENT DATED 12.11.2007. ASSESSEE- COMPANY DEDUCTED TDS U/S 194C ON THE CHARGES PAID T O THIS COMPANY AS PER THE TERMS OF THE AGREEMENTS WITH THEM. ASSESSING OFFICER APPL IED SECTION 194J AND HELD THAT THE ITA NOS.99&100/KOL/2013 BROADCAST WORLD WIDE LTD. A.YR.2008-09&2009-10 5 SERVICES WERE TECHNICAL IN NATURE. THE ISPL WAS HOL DING LICENSE FROM MINISTRY OF INFORMATION & BROADCASTING, GOVT. OF INDIA FOR PROV IDING THESE SERVICES. THE SERVICES OF UP-LINKING OF CHANNELS AND CARRIAGE THROUGH SATELLI TE WERE RELATED TO BROADCASTING AND TELECASTING WHICH IS COVERED SPECIFICALLY BY DEFINI TION OF WORK IN SECTION 194C(IV)(B) IN THE EXPLANATION PART OF THE SECTION ITSELF. THES E SERVICES REQUI5RED USE OF SOPHISTICATED EQUIPMENT FOR TRANSMISSION OF ASSESSEES PROGRAMES AND THIS EQUIPMENT WAS MADE AVAILABLE TO THE ASSESSEE COMPANY FOR WHICH ASSESSE E HAD MADE PAYMENTS AFTER DEDUCTION TDS U/S 194C OF THE I.T.ACT. KEEPING IN V IEW THESE FACTS AND CIRCUMSTANCES, SECTION 194J IS NOT APPLICABLE TO THE FACTS OF THE CASE. MOREOVER, ASSESSEE HAD PROVIDED THE DETAILS OF INCOME-TAX ASSESSMENT ORDERS U/S 143 (3) FOR A.Y.2008-09 PASSED BY CENTRAL CIRCLE DELHI, OF ISPL LTD. AND THEIR PANS O F ALL THESE COMPANIES WITH WHOM THE TRANSACTIONS WERE MADE AND RELIED UPON JUDGEMEN T OF SUPREME COURT 293 ITR 226 (SC) IN THE CASE OF HINDUSTAN COCA COLA LTD. & CBDT CIRCULAR DT.29.01.1997. KEEPING IN VIEW THE ABOVE FACTS AND CIRCUMSTANCES, THE GROU ND OF THE APPELLANT ARE ALLOWED. 4. AGGRIEVED BY THE ORDER OF CIT(A) THE REVENUE HA S PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 5. DESPITE ATTEMPTS TO SERVICE OF NOTICE ON THE ASS ESSEE THROUGH LEARNED DR AS WELL AS BY DISPLAY IN THE NOTICE BOARD OF ITAT, THE PRESENCE OF THE ASSESSEE AT THE TIME OF HEARING COULD NOT BE SECURED. WE, THEREFORE , PROCEED TO DECIDE THE APPEAL AFTER HEARING THE SUBMISSIONS OF THE LEARNED DR. 6. WE HAVE HEARD THE SUBMISSION OF THE LEARNED DR W HO SUBMITTED THAT THE CIT(A) HAS CONSIDERED THE PAYMENTS AS BROADCASTING AND TELECASTING RELATED WHICH IS COVERED BY THE DEFINITION OF WORK' IN THE SECTION 194C(IV)(B) OF THE I.T.ACT,1961 AND ALLOWED RELIEF TO THE ASSESSEE. IT WAS SUBMITTE D THAT THE CIT(A)-I, FAILED TO APPRECIATE THAT AFTER THE AMENDMENTS MADE BY THE FI NANCE ACT 2012 IN SECTION 9(1) OF THE I.T.ACT 1961, CONSIDERATION FOR SERVICES PROVID ED BY THE MACHINES IS ROYALTY AND WILL BE SUBJECT TO THE PROVISIONS OF SECTION 194 J OF THE I.T.ACT, 1961. IN THE SAID AMENDMENT, EXPENDITURE INCURRED ON ROAMING CHARGES, UPLINKING CHARGES, INTERCONNECTION, PORTCHARGES, TRANSPONDER FEES VSAT CHARGES ETC. ARE ALL COVERED UNDER THE AMBIT OF SECTION 194J OF THE I.T.ACT 1961 . IT WAS FURTHER SUBMITTED THAT SIMILAR ISSUE IN CASE OF ANOTHER ASSESSEE, M/ S BRA ND VALUE COMMUNICATIONS LTD. (TAN CALB10224E) FOR THE F.Y.S 2009- 10 & 2010 -11 HAD COME UP FOR CONSIDERATION. M/ S BRAND VALUE COMMUNICATIONS LTD. , HAVING FOUR TELEVISION ITA NOS.99&100/KOL/2013 BROADCAST WORLD WIDE LTD. A.YR.2008-09&2009-10 6 CHANNELS VIZ., RUPASHI BANGLA, NEWS TIME BANGLA, NE WS TIMES ASSAM & DHOOM MUSIC, ALSO MADE TDS @ 2% U/ S 194 C OF THE I.T.ACT 1961 ON 'DISTRIBUTION CARRIAGE CHARGES' (PAID TO TELEPORT OWNED BY T AT A COMMUNIC ATIONS LTD.) & 'TRANSMISSION EXPENSES' (PAID TO VARIOUS MULTI SERVICE OPERATORS) . THE TDS LIABILITY WAS RECOMPUTED BY THE ASSESSING OFFICER APPLYING 10% U/ S 194 J CO NSIDERING THESE PAYMENTS AS TECHNICAL IN NATURE. THE CIT(A)-I ,KOLKATA, IN HIS ORDER DATED 28.02.2013 HAS CONSIDERED THAT THESE PAYMENTS COVERED WITHIN THE P URVIEW OF SECTION 9(1)(VII) OF THE I.T.ACT 1961 AND HAS HELD THAT SECTION 194 J OF THE ACT IS APPLICABLE IN THIS CASE. IT WAS SUBMITTED EXPENDITURE IN THE CASE OF M/ S BROA DCAST WORLD WIDE LTD., AND THE NATURE OF EXPENDITURE IN THE CASE OF THE PRESENT AS SESSEE REMAINS THE SAME. 5.1. WE HAVE CONSIDERED THE GROUNDS OF APPEAL RAISE D BY THE REVENUE AS WELL AS THE SUBMISSIONS MADE BY THE LEARNED DR BEFORE US. IT IS ALSO NOTICED THAT IN THE ORDER OF THE AO IT HAS BEEN MENTIONED THAT IN RESPECT OF UP- LINKING, VSAT AND TRANSPONDER FEES NO TAX HAS BEEN DEDUCTED AT SOURCE WHEREAS THE ORDE R OF CIT(A) AND THE SUBMISSIONS MADE BY THE ASSESSEE BEFORE CIT(A) PROCEEDED ON THE BASIS THAT TAX AT 2% HAD BEEN DEDUCTED ON THE PAYMENTS MADE TREATING THE PAYMENT AS FALLING U/S 194C OF THE ACT. AS FAR AS THE QUESTION WHETHER IT CAN BE SAID THAT THE PAYMENTS IN QUESTION WOULD BE IN THE NATURE OF PAYMENT FALLING WITHIN THE AMBIT OF S ECTION 194J OF THE ACT, IT IS SEEN THAT SECTION 194J OF THE ACT COVERS PAYMENT OF FEES FOR PROFESSIONAL FOR TECHNICAL SERVICES AS WELL AS ROYALTY. THE ORDER OF AO IS SILENT AS TO WHETHER THE PAYMENT IN QUESTION IS BEING CONSIDERED AS ROYALTY OR FEES FOR TECHNICAL S ERVICES RENDERED. THE SUBMISSIONS OF THE ASSESSEE BEFORE CIT(A) PROCEEDED ON THE FOOTING THAT THE AO HAS TREATED THE PAYMENT IN QUESTION AS FTS. IN THE SUBMISSIONS MAD E BY THE LEARNED DR BEFORE US AS WELL AS GROUNDS OF APPEAL RAISED BY THE REVENUE, TH E PAYMENT IN QUESTION IS CLAIMED TO BE IN THE NATURE OF ROYALTY. IN OUR OPINION THE PAR AMETERS FOR JUDGING THE PAYMENT AS TO WHETHER THEY FALL IN THE CATEGORY OF FTS OR ROYALTY ARE DIFFERENT. NEITHER THE ORDER OF AO NOR THE ORDER OF CIT(A) SPELLS OUT AS TO UNDER W HICH CLAUSE OF SECTION 9(1)(VII) OF THE ACT OR SECTION 9(1)(VI) OF THE ACT ARE APPLICAB LE TO TREAT THE PAYMENT IN QUESTION EITHER BY ROYALTY OR FTS. WE ALSO FIND THAT THE DEF INITION OF ROYALTY HAS UNDERGONE A CHANGE AND THE EXPLANATION 6 TO SECTION 9(1)(VI) OF THE ACT HAS BEEN INSERTED WHEREBY ITA NOS.99&100/KOL/2013 BROADCAST WORLD WIDE LTD. A.YR.2008-09&2009-10 7 THE TRANSMISSION BY SATELLITE IS ALSO CONSIDERED AS PROCESS. THE SAID EXPLANATION INTRODUCED BY FINANCE ACT 2012 IS WITH RETROSPECTIV E EFFECT FROM 01.06.1976. THE IMPUGNED ORDER OF THE CIT(A) WAS PASSED ON 10.10.20 12 BUT THIS RETROSPECTIVE AMENDMENT HAVE NOT BEEN CONSIDERED IN THE ORDER OF CIT(A). IN THE GIVEN FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT IT WOULD BE JUST AND APPROPRIATE TO SET ASIDE THE IMPUGNED ORDERS OF CIT(A) ON THIS ISSUE AND REMAND THE QUESTION AS TO WHETHER THE PROVISION OF SECTION 194J OF THE ACT WOULD APPLY TO THE PAYMENTS IN QUESTION, TO THE AO FOR FRESH CONSIDERATION.AO WILL TAKE INTO CONSID ERATION THE FACT THAT EVEN IN RESPECT OF UP-LINKING, VSAT AND TRANSPONDER FEES TA X IS STATED TO HAVE BEEN DEDUCTED AT SOURCE BY THE ASSESSEE. THIS ASPECT HAS TO BE VERIF IED BY THE AO. AO WILL AFFORD OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE D ECIDING THE ISSUE AFRESH. AO WILL THEREAFTER DECIDE THE QUESTION AS TO WHETHER THE AS SESSEE CAN BE TREATED AS ASSESSEE IN DEFAULT U/S 201(1) OF THE ACT AND CONSEQUENTLY ORDE R U/S 201(1A) OF THE ACT TOWARDS INTEREST. 5.2. WITHOUT PREJUDICE TO THE DECISION RENDERED AS ABOVE, WE ARE OF THE VIEW THAT IF THE ASSESSEE ESTABLISHES THAT THE PAYEE HAS DECLARE D THE AMOUNTS RECEIVED FROM THE ASSESSEE IN THEIR RETURN OF INCOME AND OFFERED THEM TO TAX, THAN TO THAT EXTENT THE ASSESSEE SHOULD NOT BE TREATED AS ASSESSEE IN DEFAU LT U/S 201(1) OF THE ACT. IN OTHER WORDS THE ASSESSEE SHOULD BE ENTITLED TO THE BENEFI T OF RULING OF THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE P VT. LTD VS CIT (SUPRA) AS WELL AS CBDT CIRCULAR DATED 29.01.1997 (SUPRA). THEREFORE T O THIS EXTENT WE CONFIRM THE ORDER OF CIT(A) IN SO FAR AS THE PROVISIONS OF SEC. 201(1) OF THE ACT ARE CONCERNED. 6. IN THE RESULT THE APPEALS BY THE REVENUE ARE PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 03.02.2 016. SD/- SD/- [M.BALAGANESH] [N.V.VASUDEVAN] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 03.02.2016. R.G.(.P.S.) ITA NOS.99&100/KOL/2013 BROADCAST WORLD WIDE LTD. A.YR.2008-09&2009-10 8 COPY OF THE ORDER FORWARDED TO: 1. M/S. BROADCAST WORLD WIDE LTD., GN 34/2, 2 ND FLOOR, ASHRAM, SALT LAKE, SECTOR-V, ELECTRONIC COMPLEX, KOLKATA-700091. 2 THE I.T.O.,(TDS) WARD-57(2), KOLKATA. 3. THE CIT-(TDS), KOLKATA, 4. THE CIT(A)-I, KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES