Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “L”, BENCH MUMBAI
Before: SHRI R.C.SHARMA, AM & SHRI SANDEEP GOSAIN, JM &
आदेश / O R D E R PER R.C.SHARMA (A.M): This is an appeal filed by the Revenue against the order of CIT(A)- 10, Mumbai dated 30/08/2013 for the A.Y.2005-06 in the matter of order passed u/s.143(3) r.w.s. 144C of the IT Act. 2. In this appeal, revenue is aggrieved by the action of CIT(A) holding that reopening the assessment u/s.147 was not valid. On merits revenue is aggrieved for allowing the opportunity of expenditure to the extent of 75.70% instead of 67.58% as apportioned by AO. 3. Rival contentions have been heard and record perused. 4. Facts in brief are that the assessee filed its original return of income on 31-10-2005 declaring total income at Rs. Nil. The said income was 2 IT(IT)A No.7638/Mum/2013 M/s.Taj TV Ltd., assessed by the AO after issuance of notice u/s. 143(2) and 142(1) of the IT. Act, 1961 determining the total business income at Rs. 8,79,55,593/- vide order dt. 27-12-2007. Subsequent to the aforesaid assessment, the assessee's case was re-opened by the AO through issuance of notice u/s. 148 of the I.T. Act dt. 29-3-2010. The AO has observed that while drawing the final statement of the Indian Operation in comparison to the Global Revenue that the expenses apportioned were @ 75.705% whereas the expenses should have been apportioned at the rate of 67.58% as detailed by the AO in para 3 to 4 of the assessment order. Accordingly, on the reasons discussed by the AO in para 3 & 4 of the assessment order, the AO restricted the expenses of allowance to the assessee @ 67.58% only considering the ratio of Indian Operation income vis-à-vis Global Revenue of the assessee company which resulted to the disallowance of Rs. 98,52,745/- as detailed in para 6 of the assessment order.
By the impugned order, CIT(A) held that the assessment was not validly reopened and also he allowed apportionment of expenses to the extent of 75.705% as claimed by assessee.
I have considered the AO's order as well the appellant's submission. Having considered both, I find that all the details which were subjected to the re-opening of the assessment was filed by the 'appellant company alongwith its original return of income filed. Thus, all such details were available on record, which were taken note by AO for re-opening of the assessment which was completed u/s. 143(3) of the I.T. Act as on 27-12- 2007. Even the AO took note of the detailed submissions of the appellant itself which was available before the AO at the time of original assessment when it was completed. Even I find that the appellant's financial statement which were filed alongwith original return of income were accepted by the 3 IT(IT)A No.7638/Mum/2013 M/s.Taj TV Ltd., AO in the original assessment order dt. 27-12- 2007. Further to that the appellant's submission also establishes to the fact that the transfer pricing authority had accepted the appellant's international transactions between Taj and Taj India at arm's length price. After considering the FAR analysis of both the assesses. The appellant has disclosed its income in the current AY based on its past practice as it was disclosed in earlier year. Thus, I find that the appellant has disclosed its income in a consistent manner which was accepted by the department in all preceding AYs in the appellant's case. Taking note of all these facts as enumerated above, I am of the considered view that the re-opening of the assessment was not justified and correct on the part of the AO and hence the re-opening of the assessment itself is held to be unjustified and incorrect. Accordingly this ground of appeal is allowed and in the result the re-assessment proceedings carried out by the AO is held to be invalid. Hence the re- assessment order cannot be sustained in the eyes of law. Thus, the appellant's this ground of appeal is allowed.
8. Ground No.2:- Through this ground of appeal, the appellant's AR has agitated .against the disallowance made by the AO of excess expenses of RS.98,52,745/-. In the course of appellate proceedings, the appellant's AR has vehemently argued against the aforesaid action- of the AO and stated that the AO could not take note of the details available already on record. The appellant's AR argued that the comparison carried out by the AO for expenses was incorrect as the appellant has already reduced operating income, sale of decoders, receipt from Syndicate of Broadcast rights from the Global revenue, which were not in relation to the Indian operation of the appellant company. To this fact, the appellant's AR has filed detailed written submission in support of its contention. The same is extracted herein below:- 1.0 “ Taj had prepared the financial statements for its Indian operations by compiling the necessary information from the global books of account of Taj. The copy of the allocation sheet is already provided. Taj had provided all the facts and explained to the DDIT that it is following consistent allocation method for all these years and the same has been audited by the auditors as well as accepted by the tax authorities (including Honorable CIT(A) for earlier years as well as for the captioned assessment year. 2.0 The gross revenues as per the global operations for the year ended 31 March 2005 based on the global audited financial statements (audited by KPMG Mauritius) is tabulated as under: Revenue US$ Remarks relevant to Indian Operations Advertisement Sports 9,902,181 Global revenue Sales apportioned between 3 territories 4 IT(IT)A No.7638/Mum/2013 M/s.Taj TV Ltd., based on the actual revenues derived from each of the territories. Cable distribution 3,140,572 Global revenue apportioned between 3 territories based on the actual revenues derived from each of the territories Claim receivable 2,250,000 Fully apportioned against broadcaster To Indian operations Production income 1,575,000 Fully apportioned to operations Indian Syndication of 1,088,253 Reduced from broadcast rights The programming costs Sale of decoders 25,020 Reduced from the cost of decoders Other operating 1,054,428 Reduced from the income operating costs Total Revenue 19,035,454 3.0 The break up of the revenues as per the allocation sheet, which is used for compiling the financial statements of the Indian operations is as under: Particulars Global Revenue Revenue from Indian (US$) Operations (US$) Advertisement Spot 10,027,182 7,688,723 Sales Distribution Revenue 3,140,572 1,350,635 Production Income 1,575,000 1,575,000 Supreme Court 2,250,000 2,250,000 Award Global Revenue as 16,992,754 12,864,358 per Allocation Sheet considered for Indian operations % of Revenues 100% 75.70% 5 IT(IT)A No.7638/Mum/2013 M/s.Taj TV Ltd., The total world wide common revenue featuring India as a part of the territories for the financial year ended 31 March 2005 is US$ 16,992,754 out of which, the revenue from Indian operations is US$ 12,864,358. As such, the revenue from Indian operations is about 75.70% to the total revenue and accordingly the expenses, which are apportioned on the basis of revenue, are 75.70% of the total expenses. 4.0. Taj 'Submits the break up of Global Revenue as shown in financial statements of Indian operations as under:- Particulars Amount US$ Global Revenue as per Audited 19,035,454 Global Financial Statements Less: Operating Income which 1,054,428 has been reduced from operating costs (the balance operating costs have been apportioned in the ratio of direct revenue i.e. 75.70%) Less: Syndication Sales which 1,088,253 has been reduced from Programming costs (the balance programming costs have been apportioned in the ratio of direct revenue i.e.75.70%)
Less: Sale of Decoders which has (25,020) been reduced from cost of decoders (Entirely attributable to operations other than India) Add: Difference in 125,001 Advertisement Spot Sales i.e. Reversal of revenue arising from Pakistan Territory (100% outside India and Snot been considered for allocation)
6 IT(IT)A No.7638/Mum/2013 M/s.Taj TV Ltd., Global Revenue as per 16,992,754 Allocation Sheet used for compiling Indian operations for Syndication sales and Operating Income not considered for determining allocation ratio Taj has acquired telecasting rights for certain territories / countries based on the event / programmes, in terms of tender and other circumstances. However, Taj does not telecast in all the territories / countries covered by the agreement. On account of this and due to other business reasons, Taj disposes part of such telecasting rights for certain territories and exploits the balance rights for telecasting. As such, the cost of telecasting rights for Taj is the cost net of such recoveries for territories including India and accordingly the consideration received / receivable is termed as 'Syndication Charges' which have been reduced from the gross programming costs before apportioning of the net programming cost on the basis of revenue ratio. Similarly, the other operating incomes which are mainly in the nature of studio facility/equipment hire charges is reduced from the productions costs. Accordingly, only the remaining programming costs and productions costs were apportioned to the India operations and hence, it means that 75.70% of such syndication income & operating income is impliedly taxed in India, The aforesaid is evident from the allocation sheet as enclosed. 6.0 Explanation as regards Sale of Decoders not considered for determining allocation ratio During the year, decoders were sold in the region other than India and hence allocated to particular territory on actual basis. Similarly, there are no decoder costs debited to India operations since none of the decoders were sold to Indian distributors during the captioned year. Accordingly, the aforesaid aspects does not have bearing on the Indian operations. 7.0 Explanatlon as regards Advertisement Spot Sales not considered for determining allocation ratio. During the audit of global financial statements, it was identified that there was difference of US$ 125,000 in the advertising revenue from Pakistan territory which had been reversed. Since 7 IT(IT)A No.7638/Mum/2013 M/s.Taj TV Ltd., the same was pertaining to 100% outside India, it has not been considered for determining allocation ratio. 8.0 Calculation of the income 1 loss attributable to Indian Operations Revenues allocation Revenues considered by your Appellant Particulars Global Operations Indian Operations (US$) (US$) Revenues considered 16,992,754 12,864,358 for allocation Total costs (As per 20,152,688 13,961,158 the allocation sheet) Income / Loss) (3,159,934) (1,096,800) case the syndication revenues & other operating income is considered for the' revenue purposes, there will be corresponding increase in the costs which shall result into higher losses attributable to Indian operations, which can be observed from the table below: Revenues Considered by the Learned AO Particulars Global Operations Indian Operations (US$) (US$) Revenues considered 19,035,454 12,864,358 for allocation Total costs (As per 22,195,388 14,999,643 the Global Financials) India allocation is considered based on the revenues i.e., 67.58% Income / Loss) (3,159,934) (2,135,285)
On merits, CIT(A) held as under:- I have considered the AO's order as well as the appellant's submission. Having considered both, I am in agreement with the appellant's AR request that the comparison carried out by the AO to restrict the expenses to the extent of 67.58% instead of 75.70% as claimed by appellant company was based on wrong notion. Hence, the same was incorrectly carried out as the AO could not take note of the fact that the appellant company has already reduced operating income, receipt for sale of decoders and receipt from syndication of Broadcast rights from the Global revenue, because such receipt were not in relation to India's operation of appellant company. Even I find that the appellant's financial statement 8 IT(IT)A No.7638/Mum/2013 M/s.Taj TV Ltd., was accepted by the AO in all earlier assessment year's. In view of the same, the comparison carried out by the AO, which has restricted the expenses to the appellant company was completely unjustified and incorrect in view of the aforesaid detailed submission of the appellant. Hence, in my considered view, the action of the AO was unjustified even as per the accounting Principle also. In the result, the addition so made by the AO is held to be incorrect and unjustified even as per accepted norms of the accounting Principle. Accordingly the addition so made by AO is deleted. Thus, the appellant's this ground of appeal is allowed.
9. Against the above order of CIT(A), Revenue is in further appeal before us.
10. Learned DR relied on the order of the AO and contended that AO has correctly reopened the assessment and also correct in apportioning the expenses @75.705% instead of 67.58%. 11. On the other hand, learned AR contended that while giving effect to the ITAT order, the AO himself has accepted that no income was attributable to assessee in India and there is also no PE. Our attention was invited to page 93 of the paper book containing the order passed by AO dated 17/02/2017 giving effect to the ITAT order dated 05/07/2016 in ITA No.4706/Mum/2009 read with ITAT order dated 23/12/2016 for ITA No.9079/Mum/2010 for A.Y. 2006-07. We had carefully gone through the order passed by the AO dated 17/02/2017 being order giving effect to the ITAT order for A.Y. 2006-07 wherein AO has accepted that since no income is attributable to the assessee in India, losses would not been available for set off and therefore, total income was computed as Nil. As the AO himself has 9 IT(IT)A No.7638/Mum/2013 M/s.Taj TV Ltd., accepted that no income is attributable to assessee in India, the appeal filed by Revenue has no legs to stand. 12. We further found that finding recorded by CIT(A) for setting off the reopening as well as for deleting the addition made by the AO was not controverted by learned DR by bringing any positive material on record. Accordingly, we do not find any reason to interfere in the order of CIT(A). 13. In the result appeal of the Revenue is dismissed.