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TMI Blog2015 (10) TMI 2433X X X X Extracts X X X X X X X X Extracts X X X X ..... 180/Mum/2014 - - - Dated:- 9-10-2015 - Rajendra, AM And Saktijit Dey, JM For the Petitioner : Shri Nishan Thakkar For the Respondent : Shri N P Singh-DR ORDER Per: Bench: Challenging the orders dt. 26. 3. 2013 of the CIT(A)-39 Mumbai, the AO has filed the appeal for the above mentioned three AY. s. The assessee has filed cross objection for the AY 2004- 05. The effective grounds of appeal are almost similar for all the years. Therefore, for the sake of convenience we are passing a consolidated order. A. Y. ROI filed on Returned Income Assessment dt. Assessed Income 2004-05 1. 11. 2005 16, 35, 92, 360/- 5. 5. 2010 38, 42, 98, 940/- 2006-07 29. 11. 2006 35, 82, 44, 496/- 4. 12. 2009 76, 92, 15, 068/- 2007-08 31. 10. 2007 7, 15, 06, 909/- 27. 12. 2010 75, 17, 97, 261/- ITA No. 4771/Mum/2013(A. Y. 2004-05): Brief facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It relied upon the case of Star India P. Ltd. (103 ITD 73) , Viacom 18 Media Pvt. Ltd. (ITA 5057/Mum/07) and Sabena Detergents P. Ltd. (303 ITR 320). After considering the submission of the assessee and the assessment order, the FAA referred to the order of the Tribunal dated 20/3/2013 (ITA/4686/Mum/2010 of AY 2005-06). He held that the Tribunal had considered all the factual aspects and had decided the issue in favour of the assessee. Relying upon the order of the tribunal for AY. 05-06 and the decision of Hon'ble Bombay High Court in case of Star India (supra), the FAA allowed the appeal filed by the assessee. 5. Before us, Departmental Representative(DR) stated that matter could be decided on merits. Authorised Representative(AR) relied upon the order of the Tribunal dated 20. 3. 2013 (supra). We have heard the rival submissions and perused the material before us. We find that while deciding the appeal for AY 2005-06 the Tribunal has discussed the issue as under: 3. Remaining issue is against confirming disallowance of advertisement and sales promotion expenses of ₹ 32, 49, 91 , 062/-, being 81. 25% of total expenses claimed under Section 37(1) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness and in commercial expediency which discretion and decision is with the assessee. It was further noted that against the order of the Tribunal in the case of Star India Ltd. , the revenue has filed an appeal before the Hon'ble High Court, however, Hon'ble Bombay High Court has dismissed the appeal of the revenue but not detail finding has been given. Thereafter the CIT(A) noted that there are certain distinguishing feature in the case of Star India Pvt. Ltd. (supra) and in case of the assessee, therefore, without following the decision in the case of Star India Pvt. Ltd. , learned CIT(A) confirmed the action of the AO. Distinguishing features have also been noted by the CIT(A) in his order at pages 6 to 8. 5. Being aggrieved with the observations made by the learned CIT(A), the assessee has filed the present appeal here before the Tribunal. 6. Learned counsel of the assessee, who appeared before the Tribunal, stated that the issue is squarely covered by the decision of the Hon'ble Bombay High Court in the case of Star India Private Limited, decided in ITA NO. 165/2009, dated 24-3-2009. It was stated that it is not necessary all the time that the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refully, After considering the submission and perusing the material on record, we find that the assessee deserves to succeed on the issue involved. We find that learned CIT(A) was not justified in observing that Hon'ble High Court has not passed a detailed order, therefore, the same was not followed, in our view, whether the order of the Hon'ble High Court is, in detail or in short, that has to be followed. We further noted that learned CIT(A) has tried to distinguish the facts in the case of Star India Private Limited and in the case of assessee. Distinguishing feature has been explained by the assessee while filing a chart. 9. 1 The first objection of the CIT(A) is that the Star India was entitled to commission of 15% on advertisement revenues secured by it whereas in appellant's case it is stated by Assessing Officer to be at 12. 5%. Whether the commission is 15% or 12. 5%, in our view, there should not be any objection. Even we noted that in subsequent years, Star India has also been earning 10% commission on advertising revenues which fact is recorded in ITAT orders in case of Star India for AY 2000-01, reported in {(2009) 117 ITD 319 (Mum) and for AY 2002-03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her order that line of business is separate and distinct to each other. 9. 4 The next objection noted by the learned CIT(A) that the Star India had exclusive rights for the territory assigned in respect of the three revenue streams whereas the assessee has only non-exclusive rights in the territory assigned. In reply it has been stated that this is factually incorrect. Star India also' had only non-exclusive rights which fact is itself recorded by the ITAT order of Star India, reported in 103 ITD 73, which has been placed at pages 52, 54, 55, 63 91 of the paper book. 9. 5 The next objection noted by the learned CIT(A) in the case of Star lndia that 100% of the expenditure was disallowed whereas in assessee s case the AO had allowed partial expenditure. Whether the expenditure disallowed by the AO is 100% or part, does not matter line of business is the same. Further it makes the assessee's case stronger for the reason that the AO is satisfied that same expenditure has been incurred by the assessee. However, it is seen that in case of Star India, the CIT(A) the CIT(A) allowed 20% of the expenditure and on second appeal, the Tribunal has allowed the full e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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