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TMI Blog2019 (1) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... h consideration of the appeal. - WRIT PETITION NO. 3508 OF 2018 - - - Dated:- 3-1-2019 - AKIL KURESHI M.S. SANKLECHA, JJ. Mr. Percy Pardiwalla, Sr. Counsel a/w Mr. Hiten Chande i/by PDS Legal for the Petitioner Mr. Akhilesh kumar Sharma for Respondent Nos. 1 to 3 P.C.: 1. At the request of the learned counsel for the parties, the petition is being disposed of finally at this stage. 2. This petition under Article 226 of the Constitution of India challenges the order dated 13.4.2018 passed by the Income Tax Appellate Tribunal ( Tribunal for short). By the impugned order dated 13.4.2018, the petitioner's application under Section 254(2) of the Income Tax Act, 1961 ( the Act for short) for rectification of ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in terms of the DRP's directions, the assessing officer passed a final order dated 31.12.2015 of assessment. 6. Being aggrieved the petitioner filed an appeal to the Tribunal. It was the petitioner's case that the amounts paid by them as distribution fees to its Associated Enterprises cannot be characterized as royalty. This as the petitioner has no right over the content of the broadcast. In its appeal, the petitioner relied upon the decision of this Court in the case of CIT Vs. SET India Pvt Ltd (ITA NO. 1347 of 2013) wherein it is held that the distribution fee paid is not in the nature of royalty which is taxable under the Act. However, the Tribunal in its order dated 26.7.2017 after having recorded thewp 350818. doc pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a party would not lead to an rectification, as it would amount to review. In support, reliance is placed on the decision of this Court in Commissioner of Income Tax Vs. Ramesh Electrical Company Ltd, (203 ITR 497). 9. The submission on the part of the revenue that no prejudice is caused as the entire issue has been restored to the assessing officer, who would also consider the character of the distribution fee is not correct. It is not the case of the revenue nor the order of the Tribunal that before the characterization of the fee can be decided, certain facts are to be ascertained. Thus, all facts to decide on the question of law was available with the Tribunal. In the above circumstances, the Tribunal ought to have dealt with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecedents. (Please see CCE, Calcutta Vs. Alnoori Tobacco Products 2004 (170) ELT 135 (S.C.) and Escorts Ltd Vs. CCE, Delhi-II- 2004(173) ELT 113 (S.C.)) 10. In view of the above position in facts and law, the Tribunal ought to have decided the issue of the character of distribution fees is royalty or not, as all facts were available before it and submissions also made, rather than remanding the issue to TPO. Besides non-consideration of the above basic submission made at the hearing as recorded, is clearly a mistake apparent from the record. The Tribunal ought to have allowed the rectification application dated 5.10.2017 and recalled the order dated 26.7.2017 for fresh consideration of the appeal. 11. Therefore, we allow the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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