Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2005 (11) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2005 (11) TMI 366 - ITAT MUMBAIDeduction of tax at source - Assessee in default - Payments made to the stunt artists - "professional services" Or Not - non-profit making Welfare organisation/association - Stunt Artist is an actor? - whether the assessee as the name itself indicates a voluntary organization formed to protect the interest of its members - HELD THAT:- First of all, section 194J is applicable to any person, but other than an individual or to a HUF. Secondly, such person should be responsible for making the payments to a recipient by way of fees either for professional services or for technical services. The services rendered by stunt artist is undoubtedly a professional service. There is no agreement between the artists and the assessee. The agreement if any is between the producer/film makers and the services by the artists are rendered to them directly but the payment is made through the assessee to safeguard the interest of the recipient i.e., its members/stunt artists. Written submission of the assessee which is reproduced vide page 2 of the para 5 of the order of CIT(A) mentions that the association had been in existence since 1959 and it was formed primarily because of producers/film makers never used to make full payments to the stunt artists or never used to make the payments in-time. With the formation of the association, not only the payments made on time and the rate at which the payment is fixed by the association (in consultation with the producers guild). Hence, only the payment to the stunt artist is routed through the association. These facts have not been denied either. Therefore, the first criteria that the assessee should be a person responsible to make the payment is not satisfied. As rightly contended by the Counsel for the assessee, the omission to include the ‘stunt artist’ anywhere in the Rules referred in para 4 cannot be treated as accidental or immaterial. The case of the revenue is that stunt actor is also an actor, because he is also acting. Stunt Artist is not included in the notification made for the purpose of section 44AA/this section 194J. Nothing prevented the competent authority, while enumerating the persons engaged in the production of cinematograph film to include a stunt artist as well in this category, this is all the more so. It does not say an actor includes a stunt artist/dupe. Therefore, the contention that stunt artist is an actor within the meaning of the rules is far fetched and cannot be accepted. Particularly, considering the fact that while enumerating a director, a music director, art director, dance director and their assistants as well included. Had the Legislature any inclination to include ‘Stunt Artist’ it would have been specifically mentioned the same. Thus, we are of the view that there is no reason to disturb the order of the first appellate authority. Hence, the appeal by the revenue fails and dismissed. In the result, the appeal of the revenue is dismissed.
|