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TMI Blog2018 (6) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... be have been contemplated by the Respondent when he made the payment which was subject to tax deduction at source u/s 194C - Hence TDS is to be deducted u/s 194C and not u/s 194J - Decided in favor of assessee. - ITA No.1311/Mum/2016 - - - Dated:- 8-6-2018 - SHRI SHAMIM YAHYA, AM AND SHRI RAVISH SOOD, JM For The Revenue : Shri V. Justin, D.R For The Assessee : Shri Manish Kanth, A.R ORDER PER RAVISH SOOD, JUDICIAL MEMBER: The present appeal filed by the revenue is directed against the order passed by the A.O under Sec.143(3) r.w.s. 144C(13) of the Income Tax Act, 1961 (for short Act )[wrongly mentioned in the memorandum of appeals as Sec. 144C(5) of the Act], dated 27.01.2016. The revenue assailing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances of the case and in law, whether the Hon ble DRP was justified in directing to delete the disallowance u/s. 40(a)(ia) r.w.s. 194J of Channel Placement Fees placing reliance on the decision of Hon ble ITAT, K Bench, Mumbai in the assessee's own case for the AY 2009-10 in ITA No.1413/M/2014 dated 05.08.2015, where the Hon ble Kerala High Court, after discussing in detail the judgment in the case of CIT Vs. S.K. Tekriwal [2014] 46 taxmann.com 444 (Calcutta) interalia relied upon by the Hon ble ITAT, in the case of NGC NETWORKS (I) PVT.LTD. held as under In so far as the judgment of the Calcutta High Court in S.K. Tekriwal (supra) which was relied on by the Tribunal is concerned, with great respect, for the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had paid Channel Placement Fees of ₹ 158,55,69,763/-. On perusal of the details, it was observed by the A.O that the assessee had deducted tax at source on the aforesaid payments of channel placement fees at the rate of 2% under Sec. 194C of the Act. The A.O holding a conviction that the assessee was liable to deduct tax at source on the channel placement fees at the rate of 10% under Sec.194J of the Act, thus called upon the assessee to show cause that as it had failed to deduct tax at source as per the correct statutory provision contemplated under Chapter XVIIB of the Act, resulting into short deduction of tax at source, why the same may not be disallowed under Sec.40(a)(ia) of the Act. The explanation of the assessee that as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o disallowance under Sec. 40(a)(ia) of the channel placement fees was called for in the hands of the assessee. It was further observed that the DRP in the assessee s own case for A.Y 2009-10, vide its directions dated 31.12.2013 had accepted a similar objection which was raised by the assessee company. The said issue had thereafter travelled to the ITAT, Mumbai K Bench, which had vide its order dated 05.08.2015 in ITA No. 1413/Mum/2014 for A.Y 2009-10 upheld the relief given by the DRP. On the basis of its aforesaid deliberations, the DRP respectfully followed the order of the Tribunal in the assessee s own case for A.Y 2009-10 and directed the A.O to delete the proposed disallowance under Sec.40(a)(ia) of channel placement fees of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with retrospective effect. The ld. A.R further submitted that the issue even otherwise was squarely covered by the orders of the coordinate benches of the Tribunal in the assessee s own case, viz. (i) ACIT- 11(1), Mumbai Vs. M/s Star Den Media Services Pvt. Ltd (ITA No. 1413 and 1414/Mum/2014; dated 05.08.2015) for A.Y 2009-10; and (ii). ACTT-16(1) Vs. M/s Star Den Media Services Pvt. Ltd. (ITA No. 1553/Mum/2015; dated 12.01.2016) for A.Y 2010-11. Per contra, the ld. Departmental Representative (for short D.R ) though relied on the order passed by the CIT(A), but fairly conceded that the issue as on date was squarely covered by the order of the Tribunal in the assessee s own case. 6. We have heard the authorized representatives for bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce at the relevant time but introduced later by retrospective amendment. This is in accord with the view taken by this Court in CIT v/s. Cello Plast (2012) 209 Taxmann 617- wherein this Court has applied the legal maximlex noncogitad, impossibilia ( law does not compel a man to do what he cannot possibly perform). ( e ) In the present f ac ts, the amendment by introduction of Explanation-6 to Section 9(1)(vi) of the Act took place in the year 2012 with retrospective effect from 1976. This could not be have been contemplated by the Respondent when he made the payment which was subject to tax deduction at source under Section 194C of the Act during the subject Assessment Year, would require deduction under Section 194J of the Act due ..... X X X X Extracts X X X X X X X X Extracts X X X X
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