NGC NETWORK ASIA L.L.C., V. JT. DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) - RANGE -4,

MA 30/MUM/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5003 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: L
• Assessment Year: 2007-2008
• Appeal Filed On: 01-02-2016
• Court: TRIBUNAL
• Assessee Lawyers: POURS KAKA MS VANDANA SAGAR
• Keywords: Business income; Transfer pricing; Double taxation relief; Opportunity of being heard; Permanent establishment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL L BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI AMIT SHUKLA (JM) M.A. NO. 30/MUM/2016 ARISING OUT OF I.T.A. NO. 7994 /MUM/ 2011 (ASSESSMENT YEAR 200 7 - 0 8 ) M.A. NO. 31/MUM/2016 ARISING OUT OF I.T.A. NO. 7631/MU M/2012 (ASSESSMENT YEAR 2008 - 09) NGC NETWORK ASIA LLC C/O. S.R. BATLIBOI AND CO. 14 TH FLOOR, THE RUBY SENAPATI BAPAT MARG TULSI PIPE ROAD DADAR WEST MUMBAI - 400 028. VS. JOINT DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) RANGE - 4 SCINDIA HOUSE BALL ARD ESTATE MUMBAI - 400 038. ( APPELLANT ) ( RESPONDENT ) PAN NO . AABCN3136G ASSESSEE BY SHRI POURS KAKA DEPARTMENT BY MS. VANDANA SAGAR DATE OF HEARING 24.6 . 201 6 DATE OF PRONOUNCEMENT 2 3 . 11 . 201 6 O R D E R PER B.R. BASKARAN (AM) : - BOT H THESE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED BY THE ASSESSEE WITH THE SUBMISSION THAT THE COMMON ORDER DATED 16 - 12 - 2015 PASSED BY THE TRIBUNAL IN THE ABOVE CITED APPEALS SUFFERS FROM FOLLOWING ERRORS APPARENT FROM RECORD. (A) INCORRECT RECORDING OF FACT S (B) INCORRECT DATE OF HEARING AND COUNSEL (C) ABSENCE OF OPPORTUNITY TO BE HEARD NGC NETWORK 2 (D) SUO MOTU DECISION BY THE HONBLE TRIBUNAL AGAINST THE ASSESSEE WITHOUT THE ISSUE BEING RAISED BY EITHER OF THE PARTY AT ANY STAGE. (E) FAILURE TO FOLLOW BINDING DECISIONS BY REASONING NOT ARGUED AT ANY STAGE BY ANY PARTY. (F) INCORRECT ASSUMPTIONS AND (G) IGNORING TRANSFER PRICING ORDERS OF THE TPO ON ADVERTISEMENT REVENUE AND DISTRIBUTION REVENUES. 2. WE HEARD THE PARTIES AND PERUSED THE RECORD. THE TRIBUNAL HAS DISPOSED OF THE APPEALS NUMBERED AS ITA NO.7994/MUM/2011 AND ITA NO.7631/MUM/2012 RELATING TO ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 RESPECTIVELY BY A COMMON ORDER DATED 16.12.2015. THE ISSUES THAT WERE CONSIDERED WERE (A) WHETHER THE ASSESSEE IS HAVING A PERMANENT ESTABLISHMENT (PE) IN INDIA IN TERMS OF INDIA - USA DTAA AND WHETHER THE REVENUE GENERATED THROUGH ADVERTISEMENTS IS TAXABLE IN INDIA. (B) WHETHER THE INCOME GENERATED THROUGH DISTRIBUTION OF CHANNELS FALLS WITHIN THE MEANING OF ROYALTY UNDER ARTICLE 12 OF INDIA - USA D TAA AND ALSO U/S 9(1)(VI) OF THE ACT AND HENCE THE SAME IS ALSO TAXABLE IN INDIA. THE TRIBUNAL DECIDED THE FIRST ISSUE AGAINST THE ASSESSEE AND THE SECOND ISSUE WAS SET ASIDE TO THE FILE OF AO FOR FRESH CONSIDERATION. 3. THE FIRST MISTAKE POINTED OUT BY THE ASSESSEE IS THAT CERTAIN FACTS RELATING TO THE CASE HAS BEEN INCORRECTLY RECORDED. IT IS SUBMITTED THAT THE TRIBUNAL HAS OBSERVED AS UNDER IN PARAGRAPH 4 OF ITS ORDER (PAGE 2): - 4. THE ASSESSEE IS THE OWNER OF TWO TELEVISION CHANNELS, VIZ., THE NATIONAL GEOGRAPHICAL CHANNEL AND FOX INTERNATIONAL CHANNEL IT WAS SUBMITTED THAT THE FOX INTERNATIONAL CHANNEL IS NOT OWNED BY THE ASSESSEE. NGC NETWORK 3 3.1 WE NOTICE THAT THE TRIBUNAL HAS COMMITTED AN ERROR IN MAKING ABOVE SAID OBSERVATION, SINCE THE ASSESSEE HEREIN IS OWNER OF NATIONAL GEOGRAPHICAL CHANNEL ONLY. IN ANY CASE, THIS MISTAKE DOES NOT HAVE ANY IMPACT ON THE FINAL DECISION TAKEN BY THE TRIBUNAL. HENCE, IN ORDER TO SET THE FACTS CORRECTLY, THE FIRST LINE IN PARAGRAPH 4 OF THE ORDER SHALL BE MODIFIED AS UNDER: - 4. THE ASSESSEE IS THE OWNER OF A TELEVISION CHANNEL, VIZ., NATIONAL GEOGRAPHICAL CHANNEL. 4. THE ASSESSEE HAS SUBMITTED THAT THE OBSERVATIONS MADE BY THE TRIBUNAL IN PARAGRAPH 4 AND PARAGRAPH 22 TO THE EFFECT THAT NGC INDIA IS CANVASS ING ADVERTISEMENTS FOR THE ASSESSEE THROUGH THE PURCHASE AND SALE OF ADVERTISEMENT AIRTIME IS NOT CORRECT APPRECIATION OF FACTS. IT WAS SUBMITTED THAT THE ASSESSEE HAS ONLY SOLD ADVERTISEMENT AIRTIME TO NGC INDIA. FURTHER THE NGC INDIA SELLS ADVERTISEME NT AIRTIME NOT ONLY FOR THE ASSESSEE BUT ALSO FOR FOX INTERNATIONAL CHANNEL. ACCORDINGLY IT WAS SUBMITTED AS UNDER: - THE APPELLANT SUBMITS THAT ONCE IT IS ACCEPTED THAT NGC INDIA IS DOING BUSINESS FOR OTHER CHANNELS AND HAS THE AUTHORITY TO ENTER INTO SI MILAR AGREEMENTS WITH OTHER CHANNEL, THE SAME WOULD BE CARRIED OUT IN THE ORDINARY COURSE OF BUSINESS AS AN INDEPENDENT AGENT BY NGC INDIA AND WOULD NOT CREATE A DEPENDENT AGENT FOR THE APPELLANT. ACCORDINGLY IT WAS SUBMITTED THAT THE TRIBUNAL HAS RECORD ED INCORRECT FACTS AND DID NOT DEAL WITH THE SUBMISSION ON CORRECT FACTS. 4.1 HOWEVER, THE ISSUE THAT CAME TO THE CONSIDERATION BEFORE THE TRIBUNAL WAS WHETHER THE CLAIM OF THE ASSESSEE THAT IT HAS ENTERED INTO THE AGREEMENT WITH NGC INDIA ON PRINCIP AL TO PRINCIPAL BASIS FOR SALE OF ADVERTISEMENT AIR TIME IS ACCEPTABLE OR NOT. THE CONTENTION MADE IN THE PRECEDING PARAGRAPH WOULD REQUIRE CONSIDERATION ONLY IF THE CONTENTION OF THE ASSESSEE THAT THE RELATIONSHIP BETWEEN IT AND NGC INDIA IS ON PRINCIP AL TO PRINCIPAL BASIS. IT IS PERTINENT TO NOTE THAT THE ASSESSEE WAS HAVING PRINCIPAL TO AGENT RELATIONSHIP UNDER NGC NETWORK 4 ADVERTISING SALES REPRESENTATION AGREEMENT DATED 01 - 07 - 2004 ENTERED WITH NGC INDIA EFFECTIVE FROM 01 - 09 - 2004. THE ABOVE SAID AGREEMENT WAS TERMINATED AND A NEW AGREEMENT WAS ENTERED ON 01 - 05 - 2006, WHEREIN THE ASSESSEE SOLD ADVERTISEMENT AND SPONSORSHIP AIR TIME TO NGC INDIA. THE TAX AUTHORITIES, AFTER EXAMINING THE AGREEMENTS AND RELATED FACTS, CAME TO THE CONCLUSION THE RELATIONSHIP BET WEEN THE ASSESSEE AND NGC INDIA CONTINUES TO BE THAT OF PRINCIPAL AND AGENT. THE ABOVE SAID DECISION WAS UPHELD BY THE TRIBUNAL BY MAKING A MODIFICATION, VIZ., THE TRIBUNAL HELD THAT THE PROVISIONS OF ARTICLE 5(4)(A) OF INDIA - US DTAA SHALL BE APPLICABL E. THUS WE NOTICE THAT THE TRIBUNAL HAS TAKEN A CONSCIOUS VIEW IN THE MATTER. IN VIEW OF THE ABOVE, THERE WAS NO NECESSITY TO DEAL WITH OTHER SUBMISSIONS MADE BY THE ASSESSEE. 4.2 IN VIEW OF THE ABOVE, WE DO NOT FIND ANY MERIT IN THE CONTENTIONS OF THE ASSESSEE THAT THERE WAS INCORRECT APPRECIATION OF FACTS.. 5. NEXT POINT SUBMITTED BY THE ASSESSEE IS THAT THE TRIBUNAL, WHILE DEALING WITH ISSUE AS TO WHETHER ADVERTISEMENT AIRTIME IS GOODS OR NOT, HAS FAILED TO DISTINGUISH FOLLOWING DECISIONS : - (A) TATA CONSULTANCY SERVICES VS. STATE OF ANDHRAPRADESH (271 ITR 401) (B) CST VS. MADHYA PRADESH ELECTRICITY BOARD (1969)(1 SCC 200) (C) AMBIENT SPACE SELLERS LTD VS. ASIA INDUSTRIAL TECHNOLOGY P LTD (1998 PTC 18)(BOM) (D) CIT VS. SUN TV LTD (19 6 ITR 274)(MAD) 5.1 WE NOTICE THAT THE ASSESSING OFFICER HAS DISCUSSED AT LENGTH ABOUT THIS ISSUE IN THE ASSESSMENT ORDER. WE NOTICE THAT THE TRIBUNAL HAS CONSIDERED THIS ISSUE IN PARAGRAPH 18 & 19 OF THE ORDER AND HAS TAKEN A CONSCIOUS VIEW THAT TH E ADVERTISEMENT AIRTIME IS NOT GOODS, BY DULY CONSIDERING THE CHARACTERISTICS OF AIRTIME. WE NOTICE THAT THE TRIBUNAL HAS TAKEN INTO CONSIDERATION THE ABOVE NGC NETWORK 5 SAID DECISIONS IN PARAGRAPH 18 OF THE ORDER. IN EFFECT, THE TRIBUNAL HAS COME TO THE CONCLUSI ON THAT THE AIRTIME IS NOT GOODS, SINCE IT IS ONLY ALLOCATION OF A PORTION OF TELECASTING TIME. 5.2 SINCE THE TRIBUNAL HAS TAKEN A VIEW IN THIS MATTER, THE SAME CANNOT BE CONSIDERED TO BE A MISTAKE APPARENT FROM RECORD. 6. THE ASSESSEE HAS SUBM ITTED THAT THE TRIBUNAL HAS CONSIDERED THE DECISION RENDERED BY HONBLE DELHI HIGH COURT IN THE CASE OF IDEA CELLULAR LTD (325 ITR 148) IN PARAGRAPH 20 OF ITS ORDER. THE ASSESSEE HAS SUBMITTED THAT THE ABOVE SAID DECISION WAS NEITHER CITED BY THE ASSESSEE OR RESPONDENT AND ACCORDINGLY IT WAS CONTENDED THAT THE ASSESSEE SHOULD HAVE BEEN PROVIDED WITH AN OPPORTUNITY OF BEING HEARD BEFORE RELYING UPON THE ABOVE SAID DECISION. IT WAS SUBMITTED THAT UNDER IDENTICAL SITUATION, THE HONBLE BOMBAY HIGH COURT HAS RECALLED THE ORDER PASSED BY THE TRIBUNAL IN THE CASE OF INVENTURE GROWTH AND SECURITIES LTD (REPORTED IN 324 ITR 319). 6.1 WE HAVE EARLIER NOTICED THAT THE ISSUE THAT WAS CONSIDERED BY THE TRIBUNAL WAS ABOUT THE NATURE OF RELATIONSHIP BETWEEN THE AS SESSEE AND NGC INDIA, I.E., WHETHER IT IS PRINCIPAL TO AGENT RELATIONSHIP OR PRINCIPAL TO PRINCIPAL RELATIONSHIP. THE REFERENCE TO THE DECISION RENDERED BY HONBLE DELHI HIGH COURT IN THE CASE OF IDEA CELLULAR LTD (SUPRA) WAS MADE ONLY TO EXTRACT THE PRIN CIPLES DISCUSSED BY THE HONBLE DELHI HIGH COURT WITH REGARD TO PRINCIPAL - AGENT RELATIONSHIP. HENCE WE ARE OF THE VIEW THAT THE SAME WOULD NOT PREJUDICE THE RIGHTS OF THE ASSESSEE. 7. THE ASSESSEE HAS FURTHER POINTED OUT THAT THE FOLLOWING OBSERVA TIONS MADE BY THE TRIBUNAL IN PARAGRAPH 22 OF THE ORDER, WERE BASED UPON WRONG ASSUMPTION OF FACTS: - NGC NETWORK 6 IN OUR VIEW, THE ASSESSEE HAS ONLY CHANGED THE METHOD OF GIVING COMPENSATION TO NGC INDIA OR METHOD OF GENERATING REVENUES FROM THE BROADCASTING OF ADVERT ISEMENT. UNDER THE OLD AGREEMENT THE COMPENSATION GIVEN TO NGC INDIA AS WELL AS THE REVENUE GENERATED BY THE ASSESSEE WAS AGREED TO BE SHARED IN A FIXED PROPORTIONS, WHEREAS UNDER THE NEW AGREEMENT, IT HAS BEEN DETERMINED AT THE CONSOLIDATED FIGURE. IT WAS FURTHER SUBMITTED THAT THE FACT THE TPO HAS ACCEPTED THE TRANSACTION HAS BEEN IGNORED BY THE TRIBUNAL. FURTHER THE TPO HAS ACCEPTED THAT NGC INDIA HAS OBTAINED HIGHER MARGIN IN LINE WITH HIGHER RISKS ASSUMED BY IT. SINCE NGC INDIA HAS BEEN RE MUNERATED AT ARMS LENGTH BASIS BY THE ASSESSEE, NO FURTHER PROFIT CAN BE ATTRIBUTED IN THE HANDS OF ASSESSEE. IT WAS SUBMITTED THAT THE ASSESSEE HAS PLACED RELIANCE ON VARIOUS CASE LAWS TO SUPPORT THE ABOVE SAID PROPOSITION, BUT THE TRIBUNAL DID NOT CONS IDER THE SAME. IT WAS FURTHER SUBMITTED THAT THE TRIBUNAL HAS MADE FOLLOWING OBSERVATIONS, EVEN THOUGH NEITHER OF PARTIES HAS ARGUED THIS MATTER: - WE WISH TO CLARIFY HERE THAT THE RATIO LAID DOWN ON THE ABOVE SAID CASE HAS APPLICATION WHILE EXAMINING THE EXISTENCE OF PE UNDER ARTICLE 5(5) OF THE ACT. ONCE THE FOREIGN COMPANY IS HELD TO HAVE PE IN INDIA, THEN THE TAXABILITY OF BUSINESS INCOME IS REQUIRED TO BE DETERMINED IN TERMS OF ARTICLE 7 OF THE INDIA - US TREATY. 7.1 IN PARAGRAPH 27 OF THE ORDER , THE TRIBUNAL HAS DISCUSSED ABOUT THE DECISION RENDERED BY HONBLE SUPREME COURT IN THE CASE OF MORGAN STANELY & CO. INC (292 ITR 416), SINCE IT WAS ARGUED THAT NO FURTHER PROFIT CAN BE ATTRIBUTED IN THE HANDS OF THE ASSESSEE SINCE THE PAYMENT MADE TO NGC INDIA WAS HELD TO BE AT ARMS LENGTH BY THE TPO. WE NOTICE THAT THE TRIBUNAL HAS ONLY EXTRACTED ITS UNDERSTANDING OF THE DECISION RENDERED BY HONBLE SUPREME COURT IN THE CASE OF MORGAN STANELY CO. INC (SUPRA) AND HENCE SAME CANNOT BE INTERFERED WITH U/S 254(2) OF THE ACT. 8. IT WAS SUBMITTED THAT THE TRIBUNAL, HAVING HELD THAT THE RELATIONSHIP BETWEEN THE ASSESSEE AND NGC INDIA IS THAT OF PRINCIPAL - AGENT, SHOULD HAVE NGC NETWORK 7 FOLLOWED THE DECISION RENDERED IN THE CASE OF B4U INTERNATIONAL HOLDINGS LTD (ITA N O.1274 OF 2013), WHEREIN IT WAS HELD THAT WHERE THE CONSIDERATION HAS BEEN PAID AT ARMS LENGTH, NO FURTHER PROFIT CAN BE ATTRIBUTED. IT WAS FURTHER HELD THAT THE CIRCULAR NO.23 OF 1969 ISSUED BY CBDT HAS BEEN HELD TO BE APPLICABLE TILL 2009, SINCE ITS WIT HDRAWAL WAS HELD TO BE PROSPECTIVE IN NATURE. IT WAS FURTHER SUBMITTED THAT THE TRIBUNAL HAS ERRONEOUSLY DISTINGUISHED THE DECISION RENDERED BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF B4U INTERNATIONAL HOLDINGS LTD (SUPRA). IT WAS FURTHER CONTENDED THAT THE INCORRECT APPRECIATION OF DECISION RENDERED BY THE HIGH COURT WOULD MAKE THE ORDER AN ERRONEOUS ONE. IN THIS REGARD, THE ASSESSEE PLACED RELIANCE ON THE DECISION RENDERED BY THE TRIBUNAL IN THE CASE OF PLAZA INVESTMENT P LTD VS. ITO (2008)(298 IT R (AT) 180 (MUM) AND ALSO OTHER DECISIONS REPORTED IN 305 ITR 227. 8.1 IT MAY BE NOTED THAT THE FACTS PREVAILING IN THE INSTANT CASE IS PECULIAR, UNLIKE THAT PREVAILED IN THE CASE OF B4U INTERNATIONAL HOLDINGS LTD (SUPRA). IN THE INSTANT CASE, THE ASS ESSEE HAS SOLD THE ADVERTISEMENT AIRTIME FOR A FIXED CONSIDERATION AND IT WAS CLAIMED THAT THE RELATIONSHIP BETWEEN THE ASSESSEE AND NGC INDIA WAS ON PRINCIPAL TO PRINCIPAL BASIS. IT WAS FURTHER CONTENDED THAT THE ADVERTISEMENT AIRTIME IS GOODS AND TH E ASSESSEE DOES NOT HAVE PERMANENT ESTABLISHMENT IN INDIA. THE TRIBUNAL AGREED WITH THE VIEW OF THE TAX AUTHORITIES THAT THE ADVERTISEMENT AIRTIME CANNOT BE CONSIDERED TO BE GOODS, ON A DETAILED REASONING. IN THE EARLIER PARAGRAPHS IT WAS CLARIFIED T HAT ADVERTISEMENT AIRTIME IS ONLY ALLOCATION OF A PORTION OF AIRTIME AVAILABLE WITH THE ASSESSEE. IT WAS FURTHER HELD THAT THE RELATIONSHIP BETWEEN THE ASSESSEE AND NGC INDIA CANNOT BE CONSIDERED TO BE ON PRINCIPAL TO PRINCIPAL BASIS. IT WAS FURTHER HELD THAT NGC INDIA CONSTITUTES A DEPENDENT AGENT IN TERMS OF ARTICLE 5(4)(A) OF THE INDIA - US DTAA. THE ASSESSEE HAD RECEIVED MONEY FROM NGC INDIA ON SALE OF ADVERTISEMENT AIRTIME. EVEN THOUGH THE PAYMENT MADE TO THE ASSESSEE BY NGC NGC NETWORK 8 INDIA WAS HELD TO BE A T ARMS LENGTH, YET THE TRIBUNAL HAS TAKEN THE VIEW THAT THE TAXABILITY OF RECEIPT OF MONEY BY THE ASSESSEE BY WAY OF LUMP SUM CONSIDERATION IS REQUIRED TO BE EXAMINED IN THE HANDS OF THE ASSESSEE, SINCE NGC INDIA WAS HELD TO BE A DEPENDENT AGENT AND CONSTI TUTES PE. 8.2 THUS, WE NOTICE THAT THE TRIBUNAL HAS TAKEN A CONSCIOUS DECISION BY CONSIDERING THE PECULIAR FACTS AVAILABLE IN THE INSTANT CASE. ACCORDINGLY WE ARE OF THE VIEW THAT THE SAME CANNOT BE INTERFERED WITH BY THE TRIBUNAL U/S 254(2) OF THE ACT. 9. WITH REGARD TO THE DECISION RENDERED BY THE TRIBUNAL IN RESPECT OF TAXABILITY OF DISTRIBUTION REVENUE, WE NOTICE THAT THE TRIBUNAL HAS RESTORED THE MATTER TO THE FILE OF THE AO WITH THE OBSERVATION THAT THE AO HAS NOT CRITICALLY EXAMINED TH E PROVISIONS OF INDIA - US DTAA AND ALSO THE PROVISIONS OF SEC. 9(1)(VI) OF THE ACT. IT IS THE CONTENTION OF THE ASSESSEE THAT THE AO HAS MADE DETAILED EXAMINATION OF THE ISSUE AND HENCE THE OBSERVATIONS SO MADE BY THE TRIBUNAL WERE FACTUALLY INCORRECT. IT HAS BEEN FURTHER SUBMITTED THAT THE TRIBUNAL HAS GIVEN IMPORTANCE TO THE WORD PROCESS, WHICH WAS NEVER ARGUED BY BOTH THE PARTIES. IT WAS ALSO SUBMITTED THAT THE TRIBUNAL DID NOT CONSIDER MANY OF THE ARGUMENTS ADVANCED BY THE ASSESSEE. THE ASSESSEE AL SO CONTENDED THAT THE TRIBUNAL SHOULD HAVE FOLLOWED THE DECISION RENDERED BY THE JURISDICTIONAL BOMBAY HIGH COURT IN THE CASE OF SET SATELLITE (SINGAPORE) PTE LTD (2008)(307 ITR 205, WHEREIN IT WAS HELD THAT THE DISTRIBUTION RIGHTS ARE IN THE NATURE OF COM MERCIAL RIGHTS AND ARE DISTINCT AND DIFFERENT FROM COPYRIGHT. 10. HOWEVER, WE ARE UNABLE TO AGREE WITH THE CONTENTIONS OF THE ASSESSEE. AS SUBMITTED BY LD D.R, THE POWER OF THE TRIBUNAL IS WIDER AND IT IS ENTITLED TO TAKE ITS OWN DECISION AS IT THIN KS FIT TO DISPOSE OF THE ISSUES CONSIDERED BY IT. THE TRIBUNAL, IN RESPECT OF THE ABOVE SAID ISSUE, TOOK THE VIEW THAT THE SAME NGC NETWORK 9 REQUIRES RECONSIDERATION AT THE END OF THE AO BY CONSIDERING THE AMENDMENT BROUGHT IN SEC. 9(1)(VI) OF THE ACT. HENCE THE TRIB UNAL FOUND IT NOT NECESSARY TO ADDRESS VARIOUS CONTENTIONS URGED IN THAT REGARD. ACCORDINGLY WE ARE OF THE VIEW THAT THE TRIBUNAL HAS TAKEN A VIEW IN THIS MATTER AND THE SAME CANNOT BE RECTIFIED U/S 254(2) OF THE ACT. 11. THE ASSESSEE HAS ALSO POINTE D OUT THAT THE APPEALS WERE HEARD ON 4 TH JUNE 2015 AND 5 TH JUNE 2015 INITIALLY. HOWEVER THE DATE OF HEARING WAS STATED AS 4 TH SEPTEMBER 2015, ON WHICH DATE THE COUNSEL WERE NOT AVAILABLE IN INDIA, BUT THE NAME OF JUNIOR COUNSEL WAS NOTED. IT WAS SUBMITTE D THAT IMPUGNED ORDER HAS BEEN PRONOUNCED AFTER SIX MONTHS AND DUE TO PASSAGE OF TIME, THE CASES SHOULD HAVE BEEN REHEARD. 12. WE ARE OF THE VIEW THAT THE DATES OF HEARING MENTIONED IN THE ORDER NEEDS CORRECTION. HOWEVER, IT IS AN UNDISPUTED FACT THAT A COUNSEL NAMED MS. SHEETAL SHAH APPEARED ON BEHALF OF THE ASSESSEE ON 4 TH SEPTEMBER, 2015 AND HENCE HER NAME WAS MARKED ON THAT DATE. WITH REGARD TO THE SUBMISSION MADE WITH REGARD TO THE TIME GAP BETWEEN THE DATE OF HEARING AND THE DATE OF ORDER, T HE SAME MAY BE OUTSIDE THE SCOPE OF SEC. 254(2) OF THE ACT. HOWEVER, WE NOTICE THAT THE TRIBUNAL HAS CONSIDERED ALL RELEVANT FACTS NECESSARY TO ADJUDICATE THE ISSUE FROM THE ANGLE FROM WHICH IT WAS CONSIDERED. 13. IT WAS ALSO POINTED OUT THAT THE OBSE RVATIONS MADE IN PAGE 25 OF THE ORDER WHILE DISCUSSING ABOUT THE ILLUSTRATION SUFFERS FROM CERTAIN MISTAKES IN SO FAR AS IT RELATES TO THE TAXABILITY IN THE HANDS OF THE FOREIGN COMPANY. WE FIND MERIT IN THE SAID SUBMISSIONS. 14. THE ASSESSEE HAS POI NTED OUT THAT THE TRIBUNAL HAS NOT ADJUDICATED GROUND NO.6 URGED BY THE ASSESSEE IN ITA NO.7631/MUM/2012 RELATING TO AY NGC NETWORK 10 2008 - 09. WE NOTICE THAT THE TRIBUNAL HAS OMITTED TO ADJUDICATE THE GROUND NO.6 URGED IN ITA NO.7631/MUM/2012 RELATING TO AY 2008 - 09. 1 5. IN VIEW OF THE FOREGOING DISCUSSIONS, WE ARE UNABLE TO ACCEPT VARIOUS PLEAS PUT FORTH BY THE ASSESSEE EXCEPT CERTAIN ITEMS, WHICH ARE STATED BELOW: - (A) IN THE COLUMN OF DATE OF HEARING IN THE CAUSE TITLE, THE DATES 04 . 06 . 2015, 05 . 06 . 2015 AND SHAL L BE ADDED PRIOR TO 04 - 09 - 2015. (B) THE FIRST LINE IN PARAGRAPH 4 OF THE ORDER SHALL BE MODIFIED AS UNDER: - 4. THE ASSESSEE IS THE OWNER OF A TELEVISION CHANNEL, VIZ., NATIONAL GEOGRAPHICAL CHANNEL. (C) IN PAGE 25 OF THE ORDER, THE FOLLOWING LINES SUFFERS F ROM CERTAIN MISTAKES: - ..IF THE TPO DETERMINES THE ALP OF THE TRANSACTIONS AT RS.1.50 LAKHS, THEN THERE IS SHIFTING OF INDIAN PROFITS TO THE FOREIGN SOIL TO THE EXTENT OF RS.0.50 LAC AND HENCE THE FOREIGN COMPANY IS LIABLE TO ASSESSED IN RESPECT OF THE ABOVE SAID AMOUNT OF RS.0.50 LAC. HENCE THE ABOVE SAID LINE SHALL BE REPLACED BY THE FOLLOWING LINES: - IF THE TPO DETERMINES THE ALP OF THE TRANSACTIONS AT RS.1.50 LAKHS, THEN THERE IS SHIFTING OF INDIAN PROFITS TO THE FOREIGN SOIL TO THE EXTENT OF R S.0.50 LAC AND HENCE THE SAME IS ASSESSABLE IN INDIA. (D) THE ORDER PASSED IN ITA NO.7631/MUM/2012 RELATING TO AY 2008 - 09 IS RECALLED FOR THE LIMITED PURPOSE OF DISPOSING GROUND NO.6 URGED BY THE ASSESSEE THEREIN. THE REGISTRY IS DIRECTED TO POST THE APPE AL NO.7631/MUM/2012 RELATING TO AY 2008 - 09 IN THE NORMAL COURSE BEFORE THE REGULAR BENCH. NGC NETWORK 11 16. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIONS ARE PARTLY ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 2 3 .1 1 .2016 SD/ - SD/ - (AMIT SHUKLA ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 23 / 1 1 / 20 1 6 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPO NDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS