High Court Of Calcutta
Pilcom Vs. CIT
Assessment Year : 1995-96
Section : 194E,115BBA
Kalyan Jyoti Sengupta And Kalidas Mukherjee, Jj.
It Appeal Nos. 196 And 200 Of 2000
November 11, 2010
Kalyan Jyoti Sengupta, J. – Both these appeals preferred by the aforesaid respective appellants are directed against the judgment and order dated 4-1-2000 of the Income-tax Appellate Tribunal, Kolkata (hereinafter referred to as âlearned Tribunalâ). [ PILCOM v. ITO  77 ITD 218 (Cal.)]. The PILCOMâs appeal was admitted on the following substantial questions of law :â
“(i )Whether in view of the fact and as also found by the Tribunal that the entire bid money was paid pursuant to the resolution of ICC for grant of the privilege to host the World Cup, the Tribunal erred in holding that any part of such bid money accrued or arose to the Foreign Cricket Associations in respect of which the appellant should have deducted tax at source under section 194E read with section 115BBA?
(ii)Whether on the facts and in the circumstances of the case the Tribunal was justified in law in holding that the appellant was required to deduct tax at source notwithstanding the Double Taxation Avoidance Agreements with Australia, England, New Zealand, Sri Lanka, Kenya and Holland?
(iii)Whether on the facts and in the circumstances of the case the Tribunal was justified in law in holding that the clarifications issued by the Central Board of Direct Taxes on May 17, 1996 did not have any sanctity or did not deal with the question of tax deduction from payments made to Foreign Cricket Associations or were withdrawn?
(iv)Whether and in any event if two views were possible in the matter whether the appellant could be proceeded against under section 201 of the Income-tax Act, 1961 having bona fide taken a particular view of the matter which was also the view taken by the Central Board of Direct Taxes at one stage?
(v)Whether on a correct interpretation of the relevant provisions of the Income-tax Act, 1961 the Tribunal was justified in law in holding that the provisions relating to tax deduction at source would have extra territorial operation and that Indian income-tax would have to be deducted at source if the income was liable for tax in India even though the payment may be made outside India to a non-resident person?
(vi)Whether the finding of the Tribunal that major amount of the money was placed by ITC Ltd., in the London Bank Account of PILCOM is based on any material and/or has been arrived at by ignoring the relevant materials and/or by taking into consideration irrelevant materials and/or is otherwise arbitrary, erroneous and perverse?”
The revenueâs appeal as above was admitted on the following substantial questions of law as follows :â
“1.Whether, on the facts and in the circumstances of the case, the Tribunal is correct in holding that the provisions of section 194E, read with section 115BBA, were subject to the provisions of section 9(1)(i) of the Income-tax Act, 1961?
2.Whether, on the facts and in the circumstances of the case, the Tribunal is correct in holding that the provisions of sections 194E and 115BBA of the Income-tax Act, 1961, were applicable in respect of guarantee money paid to only nine countries participating in the cricket matches hosted by PILCOM in the Wills World Cup, 1996?”
2. The International Cricket Council (in short âICCâ) is a London based non-profit making organization. This body controls and conduct the game of cricket in the different countries of the world. ICC has got 9 full members and 20 associate members. In its special meeting of ICC held on 2-2-1993 at London, India, Pakistan and Sri Lanka were selected for hosting 1996 World Cup Cricket Tournament. These three host countries were required to pay varying amounts to the Cricket Control Boards/Associations of different countries as well as to ICC in connection with conducting the preliminary phases of the tournament and also for the purpose of promoting of the game in their respective countries. For the purpose of conducting final phase of the tournament in India, Pakistan, Sri Lanka, a Committee was formed by the three host members under the name of PILCOM. Two bank accounts were opened by PILCOM in London to be operated jointly by the representatives of Indian and Pakistan Cricket Boards, in which the receipts from sponsorship, T.V. rights etc., were deposited and from which expenses were met. For the purpose of hosting World Cup matches in India, the Board of Cricket Control of India (BCCI) appointed its own committee for discharge of its responsibilities and functions. This Committee was to be known as INDCOM. From the said Bank accounts in London, certain amounts were transferred to the three co-host countries for disbursement of fees payable to the Umpires and Referees and also defraying administrative expenses and prize money. During the course of enquiry, it came to the knowledge of the ITO (TDS), Ward-21 (4), Calcutta the PILCOM had made payments to ICC as well as to the Cricket Control Boards/Associations of different Member Countries of ICC from its two London Bank Accounts. The ITO issued a notice to the Office of PILCOM located at Dr. B.C. Roy Club House, Eden Gardens, Calcutta-700 021 asking it to show cause as to why actions under section 201(1)/194E of the Income-tax Act, 1961 would not be taken against PILCOM for its failure to deduct taxes from payments made by it and as referred to above in accordance with the provisions of section 194E. The PILCOM replied to the said notice to show cause pleading that provisions of section 194E would not be attracted to the payments for various reasons pleading amongst others. The ITO did not accept the explanation of PILCOM and held that PILCOM was responsible for deducting tax at source from the payments made by it in accordance with the provisions of section 194E. It was further held that PILCOM was also liable to pay interest on the ground as calculated by him under section 201(1A) of the said Act from the date of tax being deductible up to the date of actual payment. The ITO computed the total short deduction under section 194E to be Rs. 2,18,29,300. Hence, PILCOM appealed against the said order passed by the ITO and the CIT (Appeals) disposed of the appeal by order dated 17-11-1997. The PILCOM naturally preferred appeal to the Tribunal and the learned Tribunal by its order dated 25-6-1990 set aside the order passed by the Commissioner of Income-tax (Appeals) and remanded the matter back for fresh decision on the issues involved therein after affording opportunity of being heard to PILCOM. Accordingly, the appeal was re-heard by the Commissioner of Income-tax (Appeals) and passed a final order on 28-12-1998. Both the PILCOM and the Department filed two separate appeals being ITA No. 11/Cal./1999 and ITA No. 402/Cal./1999. By the impugned judgment and order the aforesaid two appeals were disposed of.
3. Learned Tribunal after re-hearing and considering the contention of both the parties came to conclusion that the payment made to ICC by PILCOM as per resolution dated 2-2-1993 amounting to Â£ 3,75,000 :â
(a)Payment made to ICC as per resolution is exigible to tax hence 10 per cent thereof should have been deducted.
(b)A portion of guarantee money corresponding to the ratio of principal of matches played, to Australia, New Zealand, Sri Lanka and Kenya out of Â£ 8,85,000, notwithstanding existence of Double Taxation Avoidance Agreement.
(c)A portion of the guarantee money corresponding to the ratio of the principal of matches played in India by countries namely Pakistan, West Indies, Zimbabwe, Holland out of Â£ 7 lakh.
However, the other payments made by way of transfer from London to Pakistan and Sri Lanka amounting to Â£ 1,22,000, payment made for ICC Trophy for qualifying matches between ICC associate members held outside India amounting to Â£ 2 lakh; guarantee money paid to South Africa and United Arab Emirates amounting to Â£ 3,60,000 were deleted from the taxability modifying the order of the ITO. It is appropriate to record that Commissioner of Income- tax (Appeals) held that the payment of Â£ 1.20 lakh representing transfer from London to Pakistan and Sri Lanka for disbursement of prize money for matches played thereat should not be brought within the purview of section 115BBA. But the other payments namely the portion of amount of Â£ 42,30,000, equivalent to 45.94 per cent thereof i.e,Â Â£ 19,43,263 would become assessable in India in terms of section 115BBA. As such the PILCOM appellant was liable to deduct any tax at source at the rate of 10 per cent from the said amount of Â£ 19,43,262 in accordance with section 194E.
4. Learned Senior Advocate Mr. Bajoria appearing for the appellant PILCOM submits that both the Commissioner of Income-tax (Appeals) and the learned Tribunal went wrong not accepting his clientâs contention that the PILCOM is not liable to deduct any tax under the law. To elaborate this plea he contends as follows.
5. The bid amount was payable irrespective of the games being played or not. The amount to the various Foreign Cricket Associations were made by ICC through PILCOM for promotion of the game of Cricket in their countries out of the bid money much before the games were even played. Such amounts are receivable by the Foreign Cricket Associations irrespective of whether any game was played or not and were not refundable and had no relation to the matches. Merely because the three host Cricket Associations obtained funds by way of sponsorship from ITC, T.V. rights etc., such source of fund of the host association cannot be source of income of the Foreign Cricket Associations. The source of income of the Foreign Cricket Association was the grant of the privilege at London to the host countries to hold the tournament.
6. In consideration of allowing to host the World Cup Tournament the bid amount was paid in London and not from the source from which such bid amount was paid by the three Cricket Associations of India, Pakistan and Sri Lanka. Even the amount received in India from ITC limited was not utilized for such payment to Foreign Cricket Associations. 90 per cent of such sum was appropriated by the Cricket Boards of India and Pakistan and only 10 per cent of such amount namely Â£ 7,20,000 was sent to London account for meeting the expenses. Payments were made to Foreign Cricket Associations from funds received in London from Coca Cola Company and from T.V. rights etc. The bid amount was payable irrespective of whether any game was at all played or not. The source of income of the Foreign Cricket Associations was the grant of the privilege for the bid money and had no relation to the matches.
According to him, therefore, no amount at all can be subjected to deduction of tax under section 115BBA of the Act.
7. Without prejudice to the aforesaid contention Mr. Bajoria, learned Senior Counsel submits that even if it is taken that the amounts were to be paid for playing the game, it cannot be disputed that all the participating countries did not play in India and those that did also played outside. Hence, the departmental appeals is to be dismissed, and Tribunalâs order holding that no tax was required to be deducted in respect of the payments made to different Cricket Associations to the extent they played outside India or which did not participate in the tournaments or which did not play any game in India or to ICC or for ICC Trophy matches held outside India or for disbursement of prize money in Pakistan, Sri Lanka has to be upheld.
8. While referring to Double Taxation Avoidance Agreement (âDTAAâ in short) he contends that sports personality of the countries with whom India has entered into such agreement cannot be subjected to such tax hence deduction of the tax on their account is not permissible. Hence, except the countries namely Pakistan, West Indies and Zimbabwe the exemption are provided in the DTAA is applicable. He refers to Article 22 of DTAA dated 25-7-1991 with Australia. He further submits that if the source of income is not in India no deduction could be made as such income was not chargeable to tax in India.
9. He urges that learned Tribunal committed an error in holding that Article 17 is applicable in respect of payment made to the different Cricket Associations. The said Article is confined to the personal activities of the different individuals and income in respect of such activities and has no application to the associations. The payment to the Cricket Associations was not for or on account of players or for playing the games.
10. He further submits that all the payments were made in London the provisions of the Act relating to deduction of tax at source could not be applied as the Act cannot have any extra territorial application. There was no relation of such payments of bid money with any game being played in India or elsewhere. The amounts were not paid as consideration for playing any game in India. Since the amount was not in any way relate to any game played in India or elsewhere and was paid by the ICC for promotion of the game and the source of such payment is the bid amount and not any source in India, it cannot form part of the total income and according to him the provisions of section 115BBA do not and cannot apply. His contention is that the said section would be applicable only where any amount is paid for any game to be played in India and is liable to be included in the total income considering the provisions of the relevant DTAA. Mere relationship of any nature whatsoever with any game in India cannot attract the provisions of section 115BBA. It must form part of total income under the charging provisions of the Act. Then only provision of section 115BBA can apply to income referred to therein. It is now well-settled if the DTAA provides that certain income is not be assessed under the Act in India then such income cannot form part of the total income and hence section 115BBA would not have no (sic) relevance or application with reference thereto.
11. Learned counsel for the respondent while countering the submission of Mr. Bajoria and highlighting the contention in support of the revenueâs appeal made elaborate submissions which we think are not wholly relevant and relevant portion of which is recorded as follows.
12. The primary function of section 115BBA is to lay down taxability of the guarantee money paid to non-resident sports associations in relation to any game or sport played in India. The circumstance that section 115BBA has provided for a concessional rate of tax at the rate of 10 per cent for the convenience of the payee cannot detract from the fact that the section determines the taxability of the income by way of guarantee money receivable by the non-resident sports associations pertaining to games played in India.
13. His next contention is that even on the footing that section 115BBA is for determination of tax at the rate of 10 per cent, it would nonetheless override the generality of section 9(1). In case of the income comprehended in section 9 the general rate of tax would be the rate of tax laid down by the Finance Act for the relevant assessment year. In case of non-resident sports associations the rate is determined in the Income-tax Act, 1961, itself, he emphatically suggests that section 115BBA is a specific and special provision and overrides the general provision of section 9 and the annual Finance Act. According to him, the provision of section 194E of the Act is pre-emptory in nature to the effect that tax has to be deducted from any source of income referred to in section 115BBA of the Act. There are certain other provisions regarding deductibility of tax from the payments made to non-residents. In those cases the payer can approach the Assessing Officer to determine the appropriate tax deductible. Under section 194C, if no such application is filed before the Income-tax Officer, it would be statutory obligation of the person responsible for paying such sum to deduct tax thereon before making payment. There is no such contingency with regard to the payments to the non-resident sportsmen and sports associations under section 115BBA. There is no discretion or option left for anybody to get away from the provisions of the rate of tax of 10 per cent under section 194E. The language of the said section is clear and unambiguous.
14. He further contends as regards applicability of the DTAA that the said provision of the said agreement would not be applicable as they postulate tax in both countries and there is no provision regarding taxability of such amount in the six countries with which India has the said agreement. He has referred to article 4 of DTAA in the order of Income-tax Officer.
15. He further contends that the Commissioner of Income-tax (Appeals) after reading the six agreements did not find any provision regarding taxability of income from games and sports. Therefore, question of provision of DTAA exonerating the non-resident foreign associations from taxation in India did not arise. A perusal of Article 22 of the agreement with Australia reveals that as per sub-article (2) thereof, any income derived by resident of one of the Contracting States from sources in the other Contracting State may also be taxed in that other State. Income or a resident of one of the Contracting States which is not expressly mentioned in the Articles of Agreement shall be taxable and in that State as per sub-article (1). A combined reading of sub-articles (1) and (2) of Article 22 leaves no doubt that, there being no provision in the DTAA with the six countries regarding taxability of guarantee money from the games and sports, apart from Article 17, the provisions of the Income-tax Act contained in sections 194E and 115BBA would stand undisturbed by the provision of the said agreement.
16. Learned counsel for the respondent has also cited following decisions on various aspects :â
(i) J.K. Trust v. CITÂ  32 ITR 535Â (SC),
(ii) A.J. Patel v CITÂ  97 ITR 683Â (Bom.), and
(iii) CIT v. Hyderabad Race Club Charitable Trust  262 ITR 194 1 (AP).
Those decisions were cited on the concept that right to conduct cricket matches and interest and right conferred on non-resident associations to receive guarantee money would constitute property coming within the ambit of section 9(1)(i) of the Act.
Performing Right Society Ltd. v. CIT  93 ITR 44Â (Cal.), he cited on the proposition that right to receive guarantee money by the non-resident associations constitutes a source of income.
CIT v. Lady Kanchanbai  77 ITR 123Â (SC) has been referred on the proposition that a right to receive royalty from all India Radio in London constitutes the source of income in India.
17. We have considered the respective contentions of the learned counsel and we have gone through the records namely the judgment and order of the Commissioner of Income-tax (Appeals) and the learned Tribunal. In order to decide both the appeals we feel that two questions are involved and the decision on those two questions will address all the grounds on which both the appeals were admitted. The said points are as follows :
(i)Whether the PILCOM can be legally described to be a person within the meaning of section 194E of the Income-tax Act, 1961?
(ii)Whether payments made by PILCOM to various sports associations or institutions or personalities are attracted for deduction of tax under section 115BBA on the facts and circumstances of this case?
18. From the record the following admitted facts emerge :
(i)ICC being the non-resident sports association has allowed on acceptance of bid, cricket bodies of three countries namely India, Pakistan and Sri Lanka to host 1996 World Cup Cricket matches in three countries at a guarantee amount of Â£ 50,00,000 at a meeting held in London.
(ii)All the payments were made either to ICC or to other personality or institution from London.
Admittedly, again PILCOM therefore, opened account both in Calcutta and also in London.
19. It appears to us section 115BBA has provided for payment of income-tax by the non-resident sportsmen or sports associations on various circumstances.
We, therefore, set out the said section 115BBA :
“115BBA. (1) Where the total income of an assessee,â
(a)being a sportsman (including an athlete), who is not a citizen of India and is a non-resident, includes any income received or receivable by way ofâ
(i )participation in India in any game (other than a game the winnings wherefrom are taxable under section 115BBA) or sport; or
(iii)contribution of articles relating to any game or sport in India in newspapers, magazines or journals; or
(b)being a non-resident sports association or institution, includes any amount guaranteed to be paid or payable to such association or institution in relation to any game (other than a game the winnings wherefrom are taxable under section 115BBA) or sport played in India, the income-tax payable by the assessee shall be the aggregate ofâ
(i )the amount of income-tax calculated on income referred to in clause (a) or clause ( b) at the rate of ten per cent; and
(ii)the amount of income-tax with which the assessee would have been chargeable had the total income of the assessee been reduced by the amount of income referred to in clause (a) or clause (b) :
Provided that no deduction in respect of any expenditure or allowance shall be allowed under any provision of this Act in computing the income referred to in clause (a) or clause (b).
(2) It shall not be necessary for the assessee to furnish under sub-section (1) of section 139 a return of his income ifâ
(a)his total income in respect of which he is assessable under this Act during the previous year consisted only of income referred to in clause (a) or clause ( b) of sub-section (1); and
(b)the tax deductible at source under the provisions of Chapter XVII-B has been deducted from such income.”
On careful reading of the said section it will appear if the non-resident assessee is a sportsman including an athlete has to pay income-tax received or receivable by him, in that of participating in India in any game (other than a game the winnings wherefrom are taxable under section 115BBA) or sport or from advertisement or from contribution of articles relating to any game or sport in India in Newspapers, Magazines or Journals. It further appears from the said section that the said assessee also includes non-residents sports association or institution and if any amount is paid including any amount guaranteed to be paid or payable to such association or institution in relation to any game (other than a game the winnings wherefrom are taxable under section 115BBA) or sport played in India. The rate of income-tax is a flat one unlike citizen of this country.
20. Thus it is clear that from the said section the sports personality can be subjected to tax only on receipt of the amount in respect of the transaction mentioned therein namely participation in India in any game or sport, income received or receivable by way of advertisement and income received or receivable by way of contribution of articles relating to any game or sport in India newspapers, Magazines and Journals.
21. In this case, the income from advertisement or contribution is not examined, the income by way of participation in India in any game or sport is relevant factor.
22. However, in case of non-resident sports association participation in game is not the criteria, relevant factor is payment of guarantee amount in relation to any game or sport played in India.
23. The definition of the assessee is to be found from section 2(7) which reads as follows :â
“2(7) “assessee” means a person by whom (any tax) or any other sum of money is payable under this Act, and includesâ
(a)every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or assessment of fringe benefits or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person;
(b)every person who is deemed to be an assessee under any provision of this Act;
(c )every person who is deemed to be an assessee in default under any provision of this Act.”
The definition of person is mentioned in section 2(31) :â
(v)an association of persons or a body of individuals, whether incorporated or not,”
Hence going by the definitions of the person and the assessee in the said Act, the PILCOM no doubt is an assessee as association of persons and further body of individuals. Similarly the ICC and other Cricket Institutions or Associations whether residents or non-residents are also assessees.
24. On reading of the said section 115BBA it transpires to us non-resident assessee in case of individual has to pay the tax the moment participation in India in any game or sport is established and for the purpose of the deduction at source from payment the moment income is received or receivable by way of a participation in India in any game. In case of the non-resident sports association or institution (not being individual sports personality) once the payment is made or the same becomes payable in relation to any game or sports played in India. Therefore pre-condition is that first payment, second the game or sports must be played in India in relation to such payment. If such things occur there is accrual of income.
25. It is argued that this section has to be read subject to section 5 sub-section (2) read with section 9. The sub-section (2) of section 5 deals with the scope of total income of any previous year of a person who is a non-resident. We are unable to accept this contention as sub-section (2) of section 5 has clearly mentioned the same is subject to the other provision of this Act. We think that section 9 of the said Act provides when income is deemed to accrue or arise in India but this section has got no bearing nor any relevancy with the section 115BBA. According to us section 115BBA is completely independent from other section and it has got nothing to do with the accrual or assessing of income in India as mentioned in section9.
26. Once it is established that the aforesaid income of a non-resident assessee has accrued on conditions as mentioned in section 115BBA are fulfilled then the statutory obligation of the payer under section 194E comes into play. In order to appreciate this provision we set out section 194E :
“194E. Where any income referred to in section 115BBA is payable to a non-resident sportsman (including an athlete) who is not a citizen of India or a non-resident sports association or institution, the person responsible for making the payment shall, at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct income-tax thereon at the rate of ten per cent.”
27. On perusal of the said section it would appear that once income referred to in section 115BBA is held to be payable to foreigner non-resident sportsman or non-resident sports association or institution the person responsible for making payment is obliged at the time of making payment or at the time of credit of such income to the account of the payee to deduct income-tax thereon at the rate of 10 per cent. It is significant that said section nowhere says whether the income is chargeable to tax or not. It therefore, be concluded that once the income accrues deduction is a matter of course. Naturally failure to deduct will have a consequence under section 201 of the said Act. According to us, the language employed in section 194E has no co-relation to the taxability. Once it is established the income is payable then deduction is a matter of course.
28. From the facts recorded by all the authorities it appears that PILCOM has made payment to the foreign sports association. Once the payment is made and received by way of a participation in any matches played in India the said non-resident assessee has to meet deduction of tax under section 115BBA. Similarly, if any amount including the guaranteed amount is paid to any non-resident sports association in relation to any match played in India the said income has to be subjected to deduction of tax at source. As we have already held that section 115BBA is absolutely independent from other section, the same is to be applied irrespective of place of making payment once the aforesaid two criterias are satisfied. We are unable to accept the contention of Mr. Bajoria that the source of income of the foreign Cricket Associations was the grant of the privilege for the bid money and has no relation to the matches, for grant of privilege for the bid money is the origin but it is not essential component or part for accrual of income by reason of the fact hypothetically if after bid is accepted, and payment is not made question of deduction of tax at source does not and cannot arise, consequently acceptance of bid becomes redundant. Relevant factor is the payment and then matches having taken place in India where participation of the sports personality is in question. In case of payment to the non-resident sports association the payment must have been made in relation to matches held in India and participation is out of question.
29. Consequently, if the matches are not held in India and payment has been received by any sports association or personalities such payment cannot be exigible to tax nor obligation of deduction by the PILCOM does arise.
30. Both the Commissioner of Income-tax (Appeals) and Tribunal have rightly held so. It is rightly argued that the DTAA in the transaction has no connection at all for the reason firstly both the tax authorities factually found that neither of the Articles of the agreement concerned does help to claim exemption from payment of tax under section 115BBA nor relieves PILCOM from the obligation of deducting tax from the payment made under section 194E. According to the contention of the Department that irrespective of place of game being held once the payment is made through the source of India the entire amount is taxable has no force at all.
31. Although it is not argued but we feel that obligation to deduction under section 194E is not affected by the DTAA since such a deduction is not the final payment of tax nor can be said to be an assessment of tax. The deduction has to be made and after it is done the assessee concerned gets the credit of the same and once it is found later on that income from which the deduction is made is not exigible to tax then on application being made refund with interest is always allowed. Fundamental distinction between the deduction at source by the payer is one thing and obligation to pay tax is another thing.
Advantage of the DTAA can be pleaded and taken by the real assessee on whose account the deduction is made and not by the payer.
We are of the view irrespective of the existence of DTAA the obligation under section 195E has to be discharged once the income accrues under section 115BBA.
32. The contention of Mr. Bajoria that extra-territorial application of the Act in relation to payment made in London is no longer a valid contention in view of the Supreme Court decision in the case of CIT v. Eli Lilly & Co. (India) (P.) Ltd.  312 ITR 225.
33. The next contention of Mr. Bajoria is that the clarification made by Central Board of Direct Taxes in May 1996 should have been accepted and valid, cannot be accepted by this Court for the simple reason the clarification made by the Board cannot be de hors the provision of the statute. Moreover, it is now well-settled by the Supreme Court and also this Court the clarificatory circular in relation to provision of law either made on individual approach or in general is not binding nor the same can be taken as a guide for interpretation. In this connection the decision of Division Bench of this Court in CIT v. Arvind Investments Ltd. 1991] 192 ITR 365 at page 369 may be referred to.
As rightly pointed out by the learned counsel that the said departmental circular had subsequently been withdrawn. In view of the discussion as above we think that judgment and order passed by the learned Tribunal does not call for any interference. Accordingly, both the appeals are dismissed.
There will be no order as to costs.
[Citation : 335 ITR 147]