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TMI Blog2013 (12) TMI 1154X X X X Extracts X X X X X X X X Extracts X X X X ..... expenses are also allowable if the goods/services have been received - There is no material on record to show that in the instant case the goods/services have been received by the assessee during the year under consideration and there is no positive finding of the ld. CIT(A) in this regard - Even at this stage the ld. counsel for the assessee has placed no material on record to show that the goods/services have been received by the assessee during the year – The issue was restored for fresh decision. - ITA No.2859/Mum/2011 - - - Dated:- 13-2-2013 - Dinesh Kumar Agarwal and Sanjay Arora, JJ. For the Appellant : Shri Mohit Jain For the Respondents : Shri Sunil M Lala Shri Keerthiga Padmanabhan ORDER:- Per: Dinesh Kumar Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision made for royalty payment. In response, it was explained as under:- The client have made a provision of Rs. 3,49,86,000/- towards royalty payments to be made to Phonographic Performance Limited (PPL) for the A.Y. 2003-04. On 12 August 2000, it was notified by a publication in the Gazettee of India that the FM channels which broadcast the PPL controlled sound recording would have to pay to PPL, licence fees of Rs. 1,500 per hour of recorded music. The licence fees were litigated by the client and the matter was referred to the Ordinary Civil Jurisdiction of the High Court. The Court under its interim order issued instructions to pay royalty at the rate of Rs. 500/- per hour and directed the client to furnish bank guarantee in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that the facts are not in dispute inasmuch as it is also not in dispute that as per the order of Copy Right Board dtd. 19-11-2002 the average fixed was Rs. 660/- per needle hours and the ld. CIT(A) after considering the same, which was not controverted by the Revenue even at this stage, applied the same rate and allowed part relief to the assessee vide findings recorded in para 3.3 of his order which are as under:- 3.3 1 have considered the facts of the case. The appellant was in the business of broadcasting recorded sound in the form of songs and other items. The appellant was procuring such recorded voices/soun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the finality of the issue. Both the appellant as well as the PPL applied to the Copy right Board for fixation of royalty payment by appellant to the PPL. The Copy right Board vide order dtd. 19-11-2002 fixed the different rates or royalty for different hours of the day i.e. Rs. 1,200/- per hour for prime time of the day, Rs.700/- per hour for standard time of the day and Rs.300/- for night time of the day. The average rate fixed was Rs.660/- per needle hours.The appellant, M/s. PPL and other parties filed appeal in the Supreme Court in respect of the issue of rate of royalty payable to M/s. PPL. The Supreme Court vide order dtd. 16.05.2008 set aside the order of Copy right Board and remitted the issue to the Copy Right Board for conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning balance of Rs.94,60,000/-, which was not required to be considered for the purpose of disallowance since the same was not provision made during the year. Thus the provision made during the year was only Rs.2,55,26,000/-. The appellant has given working that the amount of royally payable and allowable @ Rs.660 per needle hour works out to Rs.1,08,25,260/-. The A.O. is directed to verify this fact. In the facts and circumstances, the excess provision made by appellant was at Rs.1,47,00,733/- which was not allowable as an expenditure for the year under consideration. It is also worth to mention here that the appellant has also admitted this position and has offered this amount as income in the subsequent year. In the result, this ground i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, submits that in the interest of justice the issue may be set aside to the file of the A.O. 13. On the other hand, the ld. counsel for the assessee while relying on the order of the ld. CIT(A) submits that the assessee has filed complete details of expenses before the A.O. vide letter dtd. 7-7-2005 which has also been considered by the A.O., and the A.O. without pointing out any amount of disallowable nature to show that the said amount is not pertaining to the year under consideration has made general disallowance and the ld. CIT(A) after examining the same has rightly deleted the disallowance made by the A.O. He further submits that since the ld. CIT(A) has not considered any new evidence and allowed the relief on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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