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2013 (5) TMI 154 - AT - Income TaxTDS U/s 194J or 194C - professional services - modelling activity is professional service or not - Matter of dispute is the assessee made TDS at 1.133 per cent as per section 194C, whereas the Assessing Officer applied at 11.33 per cent as per section 194J of the Act - Held that:- It is a settled position vide the decisions in Dy. CIT v. Movies Stunt Artists Association (2005 (11) TMI 366 - ITAT MUMBAI )that the list of film artist cannot be extended to include other category of stunt actors, although they are engaged in the production of cinematographic film - It is also the decision of the Tribunal in EMC v. ITO( 2010 (1) TMI 832 - ITAT, Mumbai) that the photographer-cameraman, who of course figure in the list of film artist, cannot be covered by the list under provisions of Explanation (a) to section 194J of the Act and Notifications issued by the Board - when such cameraman is not engaged in skills, i.e., acting skill in films, modelling skills for display of merchandise, singing skills, etc., and such person can make earning out of such skills - It is not that the total earning of that person in lieu of services rendered which must attract the provisions of section 194J of the Act. The expressions "services rendered" used in the said Explanation assume significance and therefore, the taxable receipts under section 194J of the Act are services-specific and not person specific. In the instant case, the payments are payable for the services of modelling and it is unconnected with the production of cinematographic film. While "modelling" is aimed at display of merchandise, the "acting" is defined as "to act in play or film" (www.freedictionary.com), i.e., to portray a role authored by a story-writer with different purposes and objects and certainly not to displace merchandise to boost the sales of a manufacturer or a trader of the product or services. Therefore, the impugned payments made by the assessee to Matrix India on behalf of Ms. Katrina Kaif did not attract the provisions of section 194J of the Act - Accordingly, the grounds raised are allowed - We have granted relief to the assessee on the main issue - Adjudication of other ground constitutes an academic exercise. Therefore the said grounds are dismissed as academic - The appeal is allowed in favour of Assessee.
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