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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI N.K. BILLAIYA & SHRI AMARJIT SINGH
आदेश / O R D E R PER N.K. BILLAIYA, AM: These two appeals by the Revenue are preferred against the very same order of the Ld. CIT(A)-13, Mumbai dated 3.03.2014 pertaining to Assessment years 2010-11 & 2011-12. Since the First Appellate Authority has disposed of these appeals by a consolidated order and as the grievance of the Revenue is identical in both these years, these appeals were heard together and are disposed of by this consolidated order for the sake of convenience.
The common grievance of the Revenue relates to the deletion of the addition on account of non TDS on payment towards Internet charges (Band Width charges).
The grievance of the Revenue is that the impugned payments required TDS as per the provisions of Sec. 194J and as the assessee has not deducted tax at source, the assessee was liable for interest u/s. 201(1A) of the Act. The First Appellate Authority has deleted the impugned additions, therefore the Revenue is in appeal before us.
At the very outset, the Ld. Counsel for the assessee stated that the issues involved in these appeals and the grievance of the Revenue has been decided in plethora of cases against the Revenue and in favour of the assessee.
The Ld. Departmental Representative fairly conceded to this.
We have carefully perused the orders of the authorities below. In our considered opinion, the dispute with regard to the nature of payment made for purchase of software was settled at rest only by Finance Act 2012 through which Explanation-4 was added to Sec. 9(1)(vii). Although the said amendment was given retrospective effect, legal maxim, lex non cogit ad impossibillia, meaning thereby that the law cannot possibly compel a person to do something which is impossible to perform.
6.1. As mentioned elsewhere, the amendment was given a retrospective effect but by that time the assessee has already done the transactions without deducting tax at source. On these facts, the assessee cannot be held to have violated the provisions of Sec. 194J of the Act. Our view is fortified by the decisions of the Tribunal in the case of Channel Guide India Ltd. Vs ACIT 139 ITD 0049 and Rich Graviss Products (P) Ltd. 166 TTJ 329 and also by the decision in the case of New Bombay Park Hotel Pvt. Ltd Vs ITO in ITA No. 7641/M/2011. Respectfully following the decisions of the Co- ordinate Bench (supra), we do not find any reason to interfere with the findings of the Ld. CIT(A).
In the result, both the appeals filed by the Revenue are dismissed.
Order pronounced in the open court on 4th November, 2015.