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TMI Blog2024 (8) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... ently flow from the first day of April of the relevant AY to the date on which the refund is ultimately granted by virtue of Section 244A (1) (a) of the Act. The contention of the respondents, therefore, that interest would flow only from the date of the order of the Tribunal is thoroughly misconceived. In the present case the AO was called upon to give effect to a direction framed by the Tribunal. Viewed in that light, the stand as taken by the AO is clearly rendered unsustainable insofar as it restricts the claim of the petitioner to the disclosures made in the Return of Income. It would be wholly illegal and inequitable for the respondents to give short credit to the tax duly deducted and deposited based on the claim that may be made in a Return of Income. It is pertinent to note that insofar as the question of rights to live feed being treated as royalty is concerned and other allied issues pertaining to the merits of the dispute stand settled right up to this Court by virtue of the judgment rendered by us [ 2024 (1) TMI 1008 - DELHI HIGH COURT] in ITA 812/2023. We accordingly allow the instant writ petition and quash the impugned order dated 08 April 2024. A writ shall consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d would not be taxable as royalty at all. It was also asserted that the respondents had failed to grant the entire TDS credit as reflected in Form 26AS. 6. The Tribunal in terms of its judgment rendered on 21 February 2023 ultimately came to answer the issue on merits in favour of the writ petitioner and proceeded further to frame directions for the AO to verify and grant the TDS credit as claimed by the writ petitioner. We deem it apposite to extract the following passages from the order of the Tribunal:- 7. Heard the learned representatives of the parties and perused the material available on record. We find that under identical facts the co-ordinate Bench of this Tribunal in the case of Fox Network Group Singapore Pte. Ltd. [121 taxmann.com 330 (Delhi-Trib.)], has decided the issue under consideration by observing as under:- 20. This precise issue had come up for consideration before the Hon'ble Jurisdictional High Court in the case of Delhi Race Club (supra) that, whether any payment for broadcast or live coverage will constitute copyright, and therefore, is taxable under the ambit of royalty in terms of Explanation 2 to Section (l)(vz). The fact of that case was that asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in dispute that 'copyright' exists in literary and artistic work, It also exists in other works like dramatic musical etc. If the intention of the legislature was to include other work like dramatic, musical etc. the legislature would have said so or would, not have qualified the word 'copyright' with the words literary' and 'artistic' as the word 'copyright' encompasses in itself all the categories of work. Having done it is a case of Expressio Unis'. (The mention of one thing is the exclusion of the other). It was also noted that the word 'copyright' does not synchronize with the word 'literary', 'artistic' as they are the works in which 'copyright' exists. The provision if read as suggested by the revenue to that extent would be meaningless. Thus, the provision would be more meaningful if the word in is read by implication in-between the words- 'copyright and 'literary'. [Para 8] - There is limitation on the Court in adding and rejecting a word in the provision and the statute. Presumption is there that the legislature inserted every part of the statute for a purpose with an intention that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of the event simultaneously. It is not the case of the revenue that the live broadcast recorded for rebroadcast purposes. Having held that the broadcast/live telecast is not a work within the definition of 2 (y) of the Copyright Act and also that broadcast/live telecast doesn't fall within the ambit of section 13 of the copyright Act, it would suffice to state that a live telecast/broadcast would have no 'copyright'. This issue is well settled in view of the position of law as laid down by this Court in case of ESPN Star Sport v. Global Broadcast News Ltd. 2008 (38) PTC 7, wherein this Court after analysing the provisions of the Copyright Act was of the view that legislature itself by terming broadcast rights as those akin to 'copyright clearly brought out the distinction between two rights in Copyright Act, 1957. According to the Court, it was a clear manifestation of legislative intent to treat copyright and broadcasting reproduction rights as distinct and separate rights. It also held that the amendment of the Act in 1994 not only extended such rights to all broadcasting organizations but also clearly crystallized the nature of such rights. The Court did not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distant place, the same would be a 'scientific work'. Even otherwise, even by stretching this meaning, it is difficult to include a live broadcast within scientific work'. Clause (v) expressly uses the words 'including films or videotapes for use in connection with television or tapes for use in connection with radio broadcasting'. These words become relevant to understand the scope of this part of the provision suffice to state, when reference is made to films or video tapes, then the intent of the provision is related to work of sound recording or any medium or video tape and can be seen on television surely such a work does not include a live telecast. This submission is also need to be rejected. Insofar as the submission of revenue that analysis, commentary and use of technology to live feed make the broadcast a subject matter of distant copyright is concerned, again neither such a case was set up before the authorities, nor in this appeal. In fact it is not known nor pleaded that the live telecast, in this case, was accompanied by commentary, analysis etc. It is an issue of fact, which cannot be gone into or raised at this stage. [Para 19] 22. The aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned. 8. The respondents have filed a counter affidavit in these proceedings in which although the amounts reflected in Form 26AS are not disputed, it is essentially averred that since the petitioner did not claim the amount of INR 2,03,40,32,090/- in its income tax return, TDS credit is liable to be denied. They further take the position that the TDS credit has been duly verified from the Return of Income that was submitted and credit can only be granted to the extent as claimed therein. They also take the stand that for purposes of refund, the petitioner was obliged to follow the procedure as laid out in Section 239 of the Act and since no claim had been raised within the period prescribed therein, the impugned order does not merit interference. 9. Having heard Mr. Kaka, learned senior counsel appearing for the writ petitioner and Mr. Rai, learned counsel who appears for the respondents, we find ourselves unable to sustain the position as taken by the respondents bearing in mind the apparent and unquestionable mandate of Section 240 of the Act. 10. As would be manifest from a reading of that provision, in cases where a refund becomes due and payable consequent to an order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT. As would be evident from a reading of paragraph 10 of the report, an identical objection appears to have been raised on behalf of the Revenue with it being contended that since the assessee had taken a particular position with respect to an item of expenditure in the return, not only was the Tribunal disentitled in law to entertain a fresh claim, the same in any case could not have been taken into consideration for the purposes of according relief to the assessee. 17. The aforesaid contention came to be negated by the Supreme Court in the following terms: 10. The learned Additional Solicitor General appearing for the Department had faintly argued that since the appellant in its return had taken a conscious explicit plea with regard to the part of the claim being ascribable to capital expenditure and partly to revenue expenditure, it was not open for the appellant to plead for the first time before the Income-tax Appellate Tribunal that the entire claim must be treated as revenue expenditure. Further, it was not open to the Income-tax Appellate Tribunal to entertain such fresh claim for the first time. This submission needs to be stated to be rejected. In the first place, the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncipal question which stood posited, we observe that the challenge to the Circular of the CBDT does not really merit further consideration. All that need be observed is that once the Tribunal had called upon the AO to examine the issue afresh, the said direction could not have been disregarded by reference to a Circular issue by the CBDT. 20. We accordingly allow the writ petitions and quash the final assessment orders dated 30 November 2021 insofar as they negate consideration of the additional grounds which had been urged by the writ petitioners. The AO shall consequently consider the same and pass fresh orders in accordance with law. We, in light of the above, also quash the consequential demand and penalty notices also dated 30 November 2021. Accordingly, and for all the aforesaid reasons, we find ourselves unable to sustain the view as taken by the respondents. 15. We accordingly allow the instant writ petition and quash the impugned order dated 08 April 2024. A writ shall consequently issue commanding the respondents to acknowledge the credit of TDS as reflected in Form 26AS of the petitioner amounting to INR 2,27,83,28,430/- and to recompute the total refund at INR 2,03,40,3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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