Ita/76/2013 Commissioner Of Income Tax, Kol - Iv v. Right Florist Pvt. Ltd

OD–5 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITA/76/2013COMMISSIONER OF INCOME TAX, KOL - IVVS.RIGHT FLORIST PVT. LTD. BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 1[st] March, 2023 Appearance :Mr. Soumen Bhattacharjee, Adv.…for appellant The Court : - This appeal has been filed by the revenue under Section 260A ofthe Income Tax Act, 1961 (the Act) is directed against the order dated 12.04.2013passed by the Learned Income Tax Appellate Tribunal “B” Bench, Kolkata in I.T.A. No.1336/Kol/2011 relating to the Assessment Year 2005-2006. The revenue has raised the following substantial questions of law forconsideration :- i)Whether on the facts and in the circumstances of the case the Ld.Tribunal has erred in law in deleting the addition made by the assessingofficer under Section 40(a)(ia) of Income Tax Act, 1961, an amount ofRs.30,44,166/- relating to the payment made by the assessee on accountof online advertisement, to M/s Google Ltd. and M/s. Overture Serviceswithout deducting TDS, by holding that the assessee was under noobligation to deduct TDS under Section 195 of the I.T. Act, 1961?Tribunal has erred in law in deleting the addition made by the assessingofficer under Section 40(a)(ia) of Income Tax Act, 1961, an amount ofRs.30,44,166/- relating to the payment made by the assessee on accountof online advertisement, to M/s Google Ltd. and M/s. Overture Serviceswithout deducting TDS, by holding that the assessee was under noobligation to deduct TDS under Section 195 of the I.T. Act, 1961?ii)Whether on the facts and in the circumstances of the case the Ld.Tribunal has erred in law in deleting the addition of Rs.30,44,166/- madeTribunal has erred in law in deleting the addition of Rs.30,44,166/- made by the assessing officer on account of non deduction of TDS on payment ofonline advertisement, to M/s Google Ltd. and M/s Overture Services, byholding that according to the provisions of Double Taxation Avoidance Act(DTAA), no portion of payments made to the non residence companies istaxable in India since it has no Permanent Establishment (PE) ? iii) Whether on the facts and in the circumstances of the case the Ld.Tribunal has erred in law in deleting the addition of Rs.30,44,166/- madeby the assessing officer, by disregarding that it is immaterial as to whethernon-resident to whom payments are made have any permanentestablishment in India or not ? We have heard Mr. Soumen Bhattacharjee, learned standing Counsel for theappellant. As could be seen from the order passed by the Commissioner of Income Tax,Appeals XII, Calcutta dated 15.7.2011 the tax effect involved in this appeal isRs.16,37,016/- which is less than the threshold limit of Rs. 1 crore . Therefore, therevenue cannot pursue this appeal. Accordingly, the appeal stands disposed of on the ground of low tax effect. (T.S. SIVAGNANAM, J.) Pkd/GH. (HIRANMAY BHATTACHARYYA, J.)