ACIT 16(1), MUMBAI vs STAR DEN MEDIA SERVICES P.LTD, MUMBAI

PER PAWAN SINGH, JUDICIAL MEMBER; 1. This appeal by revenue is directed against the order of ld. Commissioner of Income Tax (Appeals)-4 [the ld. CIT(A)], Mumbai dated 29.09.2016 for Assessment Year 2012-13. At the outset of hearing, the ld. Authorized Representative (AR) of the assessee submits that the grounds of appeal

raised by revenue are covered in 1. Mum 2016 & C.O.

94. Mum 2018 M/s Star Den Media Services P. Ltd. favour of assessee by the decision of Tribunal in assessee’s own case for Assessment Year 2011-12 and further by the decision of Tribunal in ITA No. 1311/Mum/2016 dated 08.06.2018. The ld. AR of the assessee also filed the copy of order of Tribunal in ITA No. 1311/Mum/2016 dated 08.06.2018.

On the other hand, the ld. Departmental Representative (DR) for the revenue after going through the contents of decision of Tribunal for Assessment Year 2010-11 conceded that the grounds of appeal raised by assessee is covered. The ld. DR for the revenue further submits that he relied upon the order of Assessing Officer.

We have considered the submission of both the parties and have gone through the orders of lower authorities and the order of passed by Tribunal for Assessment Year 2011-12. We have noted that on similar ground of appeal related to the disallowance under section 40(a)(ia) r.w.s. 194J in respect of Channel Fees/Carriage Fees passed the following order:

“6. We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record. We find that our indulgence in the present appeal has been sought by the revenue for adjudicating as to whether the lower authorities were right in law in concluding that as the assessee was not liable for deduction of tax at source in respect of the channel placement fees under Sec.194J of the Act, and had rightly subjected the same for deduction under Sec.194C, therefore, Mum 2016 & C.O. 94 Mum 2018 M/s Star Den Media Services P. Ltd. no disallowance under Sec. 40(a)(ia) of the Act was called for in its hands. We have deliberated at length on the issue under consideration and are of the considered view that the issue involved in the present appeal is squarely covered by the judgment of the Hon’ble High Court of Bombay in the case of the Commissioner of Income Tax-11, Vs. M/s NGC Networks (India) Pvt. Ltd. (ITA No. 397/Mum/2015; dated 29.01.2018). The Hon’ble High Court in its aforesaid order, not finding any infirmity with the view taken by the Tribunal that as the channel placement fees was to be subjected to deduction of tax at source under Sec.194C and not Sec. 194J of the Act, thus no disallowance of the same was called for under Sec. 40(a)(ia) of the Act in the hands of the assessee, had upheld the order of the Tribunal, observing as under:

“(d) We find that view taken by the impugned order dated 9th July, 2014 of the Tribunal that a party cannot be called upon to perform an impossible Act i.e. to comply with a provision not in force at the relevant time but introduced later by retrospective amendment. This is in accord with the view taken by this Court in CIT v/s. Cello Plast (2012) 209 Taxmann 617- wherein this Court has applied the legal maxim lex non cogit ad, impossibilia (law does not compel a man to do what he cannot possibly perform).

(e) In the present facts, the amendment by introduction of Explanation-6 to Section 9(1)(vi) of the Act took place in the year 2012 with retrospective effect from 1976. This could not be have been contemplated by the Respondent when he made the payment which was subject to tax deduction at source under Section 194C of the Act during the subject Assessment Year, would require deduction under Section 194J of the Act due to some future amendment with retrospective effect.

(f) Further, we also notice that under Section 40(a)(i) of the Act, under which the expenditure has been disallowed by the Revenue, meaning of royalty as defined therein, is that as provided in Explanation 2 to Section 9(1)(vi) of the Act and not Explanation 6 to Section 9(1)(vi) of the Act. Thus, the disallowance of expenditure under Section 40(a)(i) of the Act can only be if the payment is ‘Royalty’ in terms of Explanation 2 to Section 9 (1)(vi) of the Act. Undisputedly, the payment made for channel placement as a fee, is not royalty in terms of Explanation 2 to Section 9(1)(vi) of the Act. Therefore, no disallowance of expenditure under Section 40(a)(i) of the Act, can be made in the present facts.

(g) In the above view, as it is a self evident position from the reading Section 40(a)(i) of the Act, no substantial question of law. Thus, question (a) not entertained.” 3 Mum 2016 & C.O. 94 Mum 2018 M/s Star Den Media Services P. Ltd.

We also find that the issue that channel placement fees was liable for deduction of tax at source under Sec. 194C of the Act, had also been looked into and approved by the coordinate benches of the Tribunal in the assessee’s own case, viz. ACIT-11(1), Mumbai Vs. M/s Star Den Media Services Pvt. Ltd. (ITA No. 1413/Mum/2014; dated 05.08.2015) for A.Y 2009-10 and ACIT-16(1), Mumbai Vs. M/s Star Den Media Services Pvt. Ltd.(ITA No. 1553/Mum/2015; dated 12.01.2016) for A.Y 2010-11.

7. We thus, respectfully following the order of the Hon’ble High Court of Bombay and finding no reason to take a view different from that arrived at by coordinate benches of the Tribunal in the assessee’s own case for A.Ys 2009-10 and 2010-11, follow the same. We thus finding no infirmity in the order of the CIT(A), uphold the same.

The appeal filed by the revenue is dismissed.”

Considering the decision of Tribunal on similar ground of appeal and respectfully following the same, we do not find any merit in the grounds of appeal raised by revenue.

In the result, appeal of the revenue is dismissed.

C.O. 94/.Mum/2018

We have noted that the assessee has raised ground of appeal in its C.O. to support the order of ld. CIT(A). Considering the fact that we have dismissed the appeal of revenue. Therefore, discussions on the grounds of appeal raised in C.O. by revenue have become academic.

In the result, C.O. filed by assessee is also dismissed.

Order pronounced in the open court on 17/07/2019.

Sd/- Sd/- G. MANJUNATHA PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Date: 17.07.2019 Mum 2016 & C.O. 94 Mum 2018 M/s Star Den Media Services P. Ltd. SK Copy of the Order forwarded to : 1. Assessee 2. Respondent 3. The concerned CIT(A) 4. The concerned CIT 5. DR “E” Bench, ITAT, Mumbai 6. Guard File

ACIT 16(1), MUMBAI vs. STAR DEN MEDIA SERVICES P.LTD, MUMBAI