Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2016 (11) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (11) TMI 1679 - AT - Income TaxRectification of mistake - TP Adjustment - Tribunal observed assessee is the owner of two television channels, viz., The National Geographical Channel and FOX International Channel” - As submitted that the FOX International Channel is not owned by the assessee - HELD THAT:- It is pertinent to note that the assessee was having “Principal to Agent” relationship under “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 between 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 applicable. 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.We do not find any merit in the contentions of the assessee that there was incorrect appreciation of facts. Whether “advertisement airtime” is “Goods” or not? - 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 the advertisement airtime is not “goods”, by duly considering the characteristics of “airtime”. We notice that the Tribunal has taken into consideration the above said decisions in paragraph 18 of the order. In effect, the Tribunal has come to the conclusion that the “airtime” is not goods, since it is only allocation of a portion of telecasting time.Since the Tribunal has taken a view in this matter, the same cannot be considered to be a mistake apparent from record. 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 the provisions of India-US DTAA and also the provisions of sec. 9(1)(vi) of the Act. 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 thinks fit to dispose of the issues considered by it. The Tribunal, in respect of the above said issue, took the view that the same requires reconsideration at the end of the AO by considering the amendment brought in sec. 9(1)(vi) of the Act. Hence the Tribunal 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. It is an undisputed fact that a counsel named Ms. Sheetal Shah appeared on behalf of the assessee on 4th 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, the 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.
|