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TMI Blog2024 (10) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... d hereinabove. We accordingly allow the instant writ petitions and quash the order under section 148A(d). - Yashwant Varma And Ravinder Dudeja JJ. For the Petitioner : Ajay Vohra , Senior Advocate, with Shashwat Bajpai and Mahir Khanna , Advocates For the Respondent : Puneet Rai , Senior Standing Counsel, with Rishabh Nangia , Advocate JUDGMENT These writ petitions impugn the reassessment action initiated for the assessment years (AYs.) 2018-19 (W. P. (C) No. 12110 of 2022), 2016-17 (W. P. (C) No. 16672 of 2022) and 2017-18 (W. P. (C) No. 16699 of 2022). For the sake of brevity, we propose to notice the facts as set out in W. P. (C) No. 12110 of 2022. 2. The reassessment proceedings were initiated in terms of an original notice under section 148A(b) of the Income-tax Act, 1961 (Act.) dated March 31, 2022 and which culminated in the passing of an order under section 148A(d) and the issuance of a consequential notice under section 148 dated May 26, 2022. 3. As is evident from a reading of the initial notice referable to section 148A(b), the respondent had asserted that the revenue received by the petitioner from an Indian payer had not been subjected to deduction of tax at source e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... negatived by the respondent who took the following view : 2. During the year under consideration, the assessee, i. e., Trans World International LLC had received a sum of Rs. 6,186,635 from an Indian payer (Lex Sportel) and tax at source was not deducted by the Indian payer on such payments even though the consideration received by the non-resident assessee was income that was charge able to tax in India. Thus, the aforementioned income received by the assessee had not been offered to tax, and no justification had been provided for the same. 3. The income of Rs. 6,186,635, being income sourced in India and chargeable to tax therein, had not been offered for taxation. Therefore, the aforesaid information suggested that income chargeable to tax in the case of the assessee for the given assessment year 2018-19 has escaped assessment. 4. In view of the above, the assessee was asked to show cause vide notice under section 148A(b) of the Act dated March 31, 2022 as to why a notice under section 148 of the Act should not be issued to it. Such notice was duly served upon the assessee through e-mail. The date for compliance was fixed on or before April 18, 2022 which was further extended up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded and answered in favour of the assessee. 7. In so far as the bifurcation of revenue is concerned, the Tribunal has returned the following findings : '15. We have perused the various agreements placed in the paper book with various sporting and governing bodies of sports and in all the agreements, there are specific clause under the head Consideration that the parties hereby acknowledged and agree that the value of commercial right fee is attributable to 95 per cent. to live trans missions and five per cent. to non-live transmissions. This specific clause is permeating in all the agreements between the parties that, 95 per cent. of the licence fee/commercial right fee is via live trans mission and only five per cent. is for non-live transmission. Thus, if the parties to the agreement have clearly stated and agreed that there are two streams of fees, one from live transmission and other from non-live and even payments have been made separately under these distinctive heads, then to hold that both constitutes one and the same thing will not be correct specifically when the core issue involved in this appeal is, whether the fees from live transmission constitute copyright so as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 accept the contention of the respondent that the two rights are not mutually exclusive by holding that the two rights though akin are nevertheless separate and distinct. 17. In view of the aforesaid position of law which brought out a distinction between a copyright and broadcast right, suffice would it be to state that the broadcast or the live coverage does not have a copyright . The aforesaid would meet the submission of Mr. Sawhney that the word Copyright would encompass all categories of work including musical, dramatic, etc., and also his submission that the Copyright Act acknowledges the broadcast right as a right similar to copyright . In view of the conclusion of this court in ESPN Star Sports Mauritius S. N. C. ET Compagnie v. Union of India 1 case, such a submission need to be rejected. In this regard we also quote for benefit the judgment of this court in the case of Akuate Internet Services ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uses the words 'including films or video tapes 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 visual recording on any medium or video tape and can be seen on the television. Surely such a work does not include a live telecast. This submission also needs to be rejected. In so far as the submission of Mr. Sawhney 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. In view of our discussion above, we are of the view that no question of law arises in the present appeals. We dismiss the appeals filed by the appellant-Revenue.' 12. In the light of the unequivocal conclusions as e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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