TaxTMI 
TaxTMI 
2018 (7) TMI 1165
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.... are subject to tax withholding under Section 195 of the Act. 2. On the facts, and in the circumstances of the case, and in law, the learned CIT(A) ought to have held that the transponder fees payable by the Appellant to MEASAT are not taxable in India and consequently, not subject to tax withholding under Section 195 of the Act. 3. The assessee has also raised the common additional grounds which read as under: 3. On the facts and in the circumstances of the case, and in law, the transponder fees payable by the Appellant to Measat Satellite Systems Snd. Bhd. ought not to be taxable in India and consequently, not subject to withholding of tax under Section 195 of the Act, in light of the following decision of the Hon'ble Mumbai Tribunal on identical facts and issues: * Taj TV Ltd. [(2016) 161 ITD 339 and (2017) 162 ITD 674] * United Home Entertainment Pvt. Ltd. (ITA No.2841 to 2856/Mum/2012 and ITANo.5171 to518l/Mum/2013). 4. Without prejudice to the above and in the alternative, this issue be referred to a larger / special bench to resolve the views rendered by the Hon'ble Income Tax Appellate Tribunal Mumbai Bench in the case....
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....ponder Lease Agreement" dated 8thNovember. 2012 entered into between the ass and Measat. In consideration for the transponder capacity leased to the assessee, it has to pay rentals to Measat on a monthly basis as per para 4 and annexure II of the agreement. As per para 4.5 of this agreement, the taxes, if any, payable on the transponder lease rentals, are to be borne by the assessee. The assessee has made various transponder fee payable to Measat. 8. Considering the assessee's appeal, the ld. Commissioner of Income Tax (Appeals) noted that the assessee has also leased transponder capacity from Intelsat, a USA based company. That it has approached the assessing officer for a certificate under section 195(2) of the Act allowing it not to deduct any taxes from the remittances made to Intelsat. That the Assessing Officer passed an order under section 195(2) of the Income Tax Act holding the assessee liable to deduct tax on this amount treating the same as royalty and hence subject to TDS. That the Assessing Officer has also directed grossing up of the amount as well as payment of surcharge on the remitted amount. That while in case of Intelsat, the order under section 195(2) has bee....
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....plicable in the facts of the ass's case. In fact, the said decision, based on the situs of the process itself supports the Revenue's case of the same being a process as contemplated under Explanation 2 to s. 9(1)(vi). 18, In view of the above discussion we (Jo not find any reason to interfere with the orders of authorities below." 5.2 In the above, case, the appellant had made remittances to Intelsat, a US company for the very same reason i e, for leasing of transponder capacity The Hon'be I TAT having factored all the issues which are now raised by the appellant before this office and having considered the judgments of higher judicial authorities, had come to a conclusion that subsequent to the amendment introducing the definition of word 'process', the payment made by the appellant to Intelsat is liable to be categorised as royalty under Artice 12 of the India US DTAA as well as section 9(1)(vi) of the Income Tax Act. This decision has been affirmed by ITAT in other similar appeals fried by the appellant like ITA No. 2910 & 2911/Mum/2012. 5.3 In the present case, the remittances have been made to Measat, Malaysia, it is seen that even in the....
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....nder: 7.2 We note that in coming to the aforesaid decision, this Tribunal has referred the decision of Hon'ble Madras High Court in the case of Verizon Communications Singapore Private Limited 361 ITR 575. In the said decision of the Tribunal the decision of the Hon'ble Delhi High Court in the case of a Asia Satellite Communications was also considered. Thus we note that there is a decision of ITAT in assessee's own case in which ratio from the Hon'ble Madras High Court has been followed. Now the learned Counsel of the assessee is urging us that the decision of the Hon'ble Delhi High Court in the case of DIT v. New Skies Satellite BV (68 Taxmann.com 8) which is in favour of the assessee should be followed. 7.3 We note that there is no decision of the Hon'ble jurisdictional High Court on this subject. The Tribunal in assessee's own case has rendered the decision against the assessee by placing reliance upon the decision of Hon'ble Madras High Court in the case of Verizon Communication (supra). Here we note that the aforesaid decision of Hon'ble Madras High Court in Verizon Communication (supra) was also considered by Hon'ble Delhi High Court in New Skies Satellite ....
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....as given written submissions. It has been submitted that Measat is a tax resident of Malaysia as per Article 4 of Indian Malaysia Tax treaty and it does not have a permanent establishment in India. In the submission it has further been urged that the earlier orders in the assessee's own case are no longer binding in view of substantial favorable judgment of Hon'ble High Courts. It has further been submitted that the ITAT, Mumbai in several cases has chosen not to apply the ratio of its judgement in assessee's case but has applied subsequent favorable decision of Hon'ble Delhi High Court in the case of New Skies Satellite BV (supra). That ITAT failed to consider the other decision of ITAT referred. That the recent decision of ITAT, Mumbai dated 07.08.2017 in assessee's own case is per-in-curium. That merely because the issue was decided in assessee's case in one order, does not debar the tribunal to debar its circumstances so justified. It has further been submitted that the decision of Gartner Ireland Ltd. (supra) relied upon by the Tribunal is distinguishable. Further, the ld. Counsel of the assessee has quoted some decision on rule of consistency and departable there for. 14. ....