M/S BENNETT COLEMAN COMPANY LTD., MUMBAI V. ITO (IT) WARD 1 (2)(2), MUMBAI

MA 222/MUM/2021

• Counselvise Citation: [NaN] 107 COUNSELVISE.COM (IT) 1973 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-03-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2018-2019
• Appeal Filed On: 30-09-2021
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

MA No 222/Mum/2021 In ITA No. 7077/Mum/2019 Assessment year: 2018-19 Page 1 of 4 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI 'I' BENCH, MUMBAI [Coram: Pramod Kumar (Vice President), and Vikas Awasthy (Judicial Member)] MA No 222/Mum/2021 In ITA No. 7077/Mum/2019 Assessment year: 2018-19 M/s. Bennett Coleman & Company Limited ...................... Appellant 2 nd Floor, Times of India Building Dr. Dadabohy Naoroji Road, Fort Mumbai 400001 [PAN: AAACB4373Q] Vs. Income Tax Officer (IT) Ward 1(2)(2) Mumbai ........................ Respondent Appearances by Ajit Jain along with Siddhesh Chaugule for the applicant Milind Chavan for the respondent Date of concluding the hearing : December 03 rd , 2021 Date of pronouncement the order : March 03 rd ,2022 ORDER Per Pramod Kumar, VP: 1. By way of this application, the assessee applicant points out the following mistake in our order dated 30 th July 2021. THE APPLICANT ABOVE NAMED MOST RESPECTFULLY SHEWETH 1. The above-mentioned appeals, bearing ITA No. 7077/MUM/2019 for Assessment Year ('AY’) 2018-19, was disposed off by an order dated 30 July 2021 passed by the Hon'ble Income Tax Appellate Tribunal. Mumbai - Bench I' ('Hon'ble Tribunal'). MA No 222/Mum/2021 In ITA No. 7077/Mum/2019 Assessment year: 2018-19 Page 2 of 4 2. On perusal of the above order, it is observed that the Hon' ble Tribunal has remitted the matter back to the Commissioner of Income-tax (Appeal) ['CIT(A)'] for adjudication de novo after giving a reasonable opportunity of hearing to the Assessing officer having jurisdiction over ascertainment of the tax withholding liability from foreign remittances. 3. The Applicant with utmost respect submits that there is a mistake that has crept in the said order dated 30 July 2021 and therefore, it is a humble submission of the Applicant that the order of the Hon'ble Tribunal be recalled and rectified. BRIEF FACTS 4. The Applicant is a company incorporated in India, which was founded in 1892. The Applicant is engaged in providing media publishing services in India and South-Asia, which includes publishing newspapers, magazines, and books; operating television channels, radio and digital businesses; publishing news content in Internet; specialized content publishing and other online services. 5. The Applicant has entered into an agreement with a United Kingdom based company i.e. Intelsat Global Sales and Marketing Limited (‘Intelsat’) for uplinking and downlinking of satellite signals for broadcasting television channels in India. Pursuant to the aforesaid agreement, the Applicant is regularly making payment to Intelsat towards transponder facility. 6. As per the arrangement between Intelsat and the Applicant, the taxes, if any, payable on the transponder fees, are to be borne by the Applicant. Accordingly, purely out of abundant caution, while making the remittance to Intelsat, taxes have been withheld by the Applicant on a grossed-up basis. 7. Subsequently, the Applicant had filed an appeal (for each payment made to Intelsat) under Section 248 of the Act for various years before the Hon'ble CIT(A), claiming that no taxes were required to be withheld by it on the remittances to Intelsat. 8. Thereafter, the CIT(A) heard the matter and basis various favorable judicial precedents on the issue, decided the matter in favour of the Applicant holding that the payment under consideration is not in the nature of royalty / fees for technical services under the India-UK Tax Treaty. Therefore, taxes are not required to be withheld in India. 9. Aggrieved by the aforesaid CIT(A)'s order, the Respondent filed an appeal before the Hon'ble Tribunal in ITA No. 7077/MUM/2019. A copy of the same is enclosed as Annexure 1. 10. The said matter was listed for hearing on 29 July 2021 before the Hon'ble Tribunal. During the course of hearing, the Learned Departmental Representative ('the Ld. DR') argued that as per the provisions of Section 250(2) of the Act, the Assessing officer should have been granted the right of being heard by the CIT(A). He mentioned that in the present case, the opportunity of hearing was not granted to the Assessing officer, and accordingly, he requested to set aside the order passed by the CIT(A). It is further submitted that, this ground was not raised in the grounds of appeal filed by the Respondent (copy enclosed as Annexure 1) and was raised by Ld. DR only during the course of hearing. MA No 222/Mum/2021 In ITA No. 7077/Mum/2019 Assessment year: 2018-19 Page 3 of 4 11. The Hon'ble Tribunal has, vide order dated 30 July 2021, disposed of the matter by remitting them back to the files of the CIT(A) for fresh adjudication. The Hon ble Tribunal observed that as per the provisions of Section 250(2) of the Act, the Assessing officer has the right to be heard at the hearing of the appeal before the CIT(A). It was noted that, in the present case, no such opportunity of hearing was given to the Assessing officer concerned. Thus, the Hon'ble Tribunal remitted the matter back to the file of CIT(A) for adjudication de novo after giving reasonable opportunity of hearing to the Assessing officer having jurisdiction over ascertainment of the tax withholding liability from foreign remittances. Mistake apparent from record: With utmost respect, it is submitted that the order dated 30 July 2021 suffer from the following mistake and therefore, it is humbly prayed that the order be recalled and rectified. 12. It is submitted that during the course of CIT(A) proceedings, while sending the notice of hearing to the Applicant, the CIT(A) has also copied the Assessing officer in the notice. A copy of the said notice is enclosed herewith as Annexure 2. 13. Accordingly, it is submitted that the CIT(A) has duly followed the procedure laid down in Section 250(2) of the Act and the opportunity of hearing was given to Assessing officer in the captioned matter. It is submitted that the said fact was inadvertently missed during the course of hearing before Hon'ble Tribunal since the ground was raised by the learned DR for the first time only during the course of hearing on 29 July 2021 and the Applicant did not get sufficient opportunity to check its records. 14. In view of the above, considering that the CIT(A) has already adhered to the procedure laid down under Section 250(2) of the Act by giving an opportunity of being heard to the Assessing Officer, it is respectfully submitted that there is no need for the matter to be remanded back to the CIT(A) asking him to follow the same procedure. 15. The Applicant therefore prays that the Hon'ble Tribunal may be pleased to:  recall the impugned order dated 30 July 2021 and rectify the mistake apparent from record by passing the order on merits of the case.  any other relief which the Hon'ble Tribunal deems fit and proper considering the facts of the Applicant. 2. Heard the parties; perused the records. 3. We had noted that the Assessing Officer having jurisdiction was completely by passed in the adjudication process. There is nothing to show that any of the appeal memo was served upon him, that any notice of hearing was served upon him or that he was informed about the impugned appeal proceedings in any other manner. It was in this backdrop that the matter was remitted to the file of the CIT(A) for fresh adjudication after giving Assessing Officer an opportunity of hearing. Learned Counsel now invites our attention to the notice dated 13/8/2019 issued by the CIT(A), a copy of which is marked to “Circle 1(1)(1), Mumbai”. Even this, however, does not MA No 222/Mum/2021 In ITA No. 7077/Mum/2019 Assessment year: 2018-19 Page 4 of 4 help the assessee as it does not even mention correct designation of the Assessing Officer concerned and it does not even show as to which authority it was addressed. We, therefore, see no mistake apparent on record in our impugned order. No interference is thus called for. 4. In view of the above discussions, as also bearing in mind entirety of the case, we reject the rectification application as devoid of legally sustainable merits. 5. In the result, miscellaneous application is dismissed. Pronouncement in the open court today on the 03 rd March, 2022. Sd/- Sd/- Vikas Awasthy Pramod Kumar (Judicial Member) (Vice President) Mumbai, dated the 03 rd March, 2022 Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) DR (6) Guard File By order True Copy Assistant Registrar/ Sr. PS Income Tax Appellate Tribunal Mumbai benches, Mumbai