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TMI Blog2019 (12) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the circumstances of the case and as per law, the Ld. CIT(A) has erred in directing to delete the disallowance u/s. 40(a)(ia) rws 194J in respect of 'Carriage Fees/Channel Placement fees' and failing to appreciate that the payments made for use/right to use of 'process' are 'royalty' as per Explanation 6 to section 9(1)(vi) hence such payments are covered u/s, 194J of the Income Tax Act, 1961 ?. 2. Whether on the facts and circumstances of the case and as per law, the Ld. CIT(A) has erred in directing to delete the disallowance u/s. 40(a)(ia) rws 194 J of 'Carriage Fees/Channel Placement fees', whereas the jurisdictional 1TAT, Mumbai 'L' Bench, in its order dated 28.03.2014 in the case of ADIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entative for Assessee (AR), at the outset, submitted that the issue is covered by the orders of this Tribunal for AY 2011-12 vide ITA No. 3386/Mum/2016 order dated 28/02/2018, AY 2012-13 vide ITA No. 3387/Mum/2016 order dated 28/02/2018 which has been followed in AY 2013-14 vide ITA No.5862/Mum/2017 order dated 23/10/2019. The copies of the orders have been placed on record. It has also been submitted that learned first appellate authority has followed the aforesaid decisions. The Ld. CIT-DR could not controvert the same but supported the stand taken by Ld. AO in the assessment order. 3. Facts on record would reveal that the assessee being resident corporate assessee stated to be engaged in the business of broadcasting television channels ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concurred with assessee's submissions that short deduction of tax at source would not attract the rigors of Section 40(a)(ia) in view of ratio of various decisions of Hon'ble High courts. Aggrieved, the revenue is in further appeal before us. 5. Upon careful consideration, we find that identical issue arose in assessee's case for AY 2011-12, 2012-13 & 2013-14 (cited supra). The Tribunal in its latest decision for AY 2013-14 order dated 23/10/2019 held as under: - 7. We have heard the authorised representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as the judicial pronouncements relied upon by them. Our indulgence in the present appeal has been sought by the reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduct tax at source under Sec.194J of the Act. Apart there from, the Tribunal had also approved the alternative view taken by the CIT(A), that in case of shortfall due to any difference of opinion as to the taxability of any item or the nature of payment falling under the various TDS provisions, no disallowance could be made by invoking the provisions of Sec.40(a)(ia) of the Act. In fact, the Tribunal while concluding as hereinabove had observed as under: "6. We have heard the rival contentions of the parties and carefully gone through the material on record including the decisions relied upon by the parties. The only grievance of the revenue is that the Ld. CIT(A) has wrongly deleted the disallowance made by the AO u/s 40(a)(ia) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to deduct the tax at source u/s 194J. Further the Ld. CIT(A) has held that it is not the case of "no TDS‟ but the case of "less TDS‟ therefore, the disallowance made by the AO is bad in law. The Ld. CIT(A) has relied on the decision of the Hon‟ble Calcutta High Court rendered in CIT vs S. K. Tekriwal 48 SOT 515 and the decisions of coordinate Bench of the Tribunal in the cases of CIT vs M/s Star Den Media Services pvt .Ltd( ITA No 1413/MUM/2014) and Chandabhoy & Jassobhoy vs DCIT 49 SOT 448 (Mumbai ITAT). As pointed out by the Ld. counsel for the assessee this issue is covered by the judgment of the Hon‟ble Bombay High Court delivered in CIT vs. M/s UTV Entertainment Television Ltd. in Income Tax Appeal (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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