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2015 (2) TMI 986 - AT - Income TaxDeduction of TAS for purchase of programmes - Demands u/s 201/201(1A) - assessee was either deducting TAS at a lower rate or was not deducting any TAS at all on various payments being made by the assessee - carriage fee /placement fee paid by the assessee to various cable operators/MSO/DTH service providers- whether the service provided was work within the meaning of section 1940 and not technical service u/s 194J? - Held that:- CIT(A) has applied the provisions of the Act, before coming to a conclusion, that u/s 194C "work includes production of programmes". We find that similar issue was contested before the Hon’ble Delhi High Court in the case of CIT vs Prasar Bharti, reported in (2006 (11) TMI 159 - DELHI High Court ) and followed by ACIT(TDS) vs Sahara One Media & Entertainment Ltd. [2014 (4) TMI 113 - ITAT MUMBAI ] wherein it was held that payment to assigned producer for production of programme specifically falls within the ambit of clause (b) to Explanation III to section 194C of the Act, whereas, the provisions of section 194J of the Act are general in nature and therefore, provisions of section 194C would prevail over section 194J. - Decided against revenue. Deduction of TAS on Event Management Charges - On the payment made to the event manager, the assessee deducted TAS u/s 194C, but according to the AO, the assessee should have deducted TAS u/s 194J - Held that:- Department is heavily relying on the Notification issued by the Board No. 88/2008/F. No. 275/43/2008 dated 21.08.2008, according to which it prescribes that TDS on fee for event management is to be u/s 194J. But this Notification in our opinion shall be prospective and shall not cover the payments made prior to the issue of Notification, as it does not bear any retrospective character. We, therefore, sustain the order of the CIT(A) that the 'event management fees' paid by the appellant to its event managers cannot be held to be in the nature of ….for technical services' in the current year. Since the Appellant has already deducted TDS under section 194C of the Act, the AO is directed not to consider the Appellant to be an assessee in default under Section 201(1) of the Act as there is no short deduction by the Appellant. - Decided in favour of assessee. TDS on Equipment Hire Charges - Held that:- CIT(A) has applied the provisions of the Act and have delved on the same. We also find that the AO termed the payment made for hire charges as FTS, which the CIT(A) has categorically demolished. We find that similar issue was dealt with by the coordinate Bench at Mumbai in the case of ACIT (TDS) vs Sahara One Media & Entertainment Ltd., [2014 (4) TMI 113 - ITAT MUMBAI] wherein it was held that payment made by assessee under a contract, which is a part of production of programme, TDS is required to be deducted u/s 194C. No mistake in the order of the CIT(A), which we sustain on the issue, thereby rejecting the ground as raised by the department.- Decided in favour of assessee. TDS on reimbursement of commission expenses - CIT(A) deleted the tax charged on the assessee. - Held that:- In the instant case, the assessee had only made good the payments made by Zee Turner Ltd., which it had paid on behalf of the assessee. Hence there was no profit element involved in those payments, being "reimbursements" made by the assessee to Zee Turner Limited. In the proceedings before the revenue authorities, the assessee was able to demonstrate the different characters of payments made by it. The payments, where Zee Turner Limited paid its taxes, the assessee was under no obligation and/or became defaulter u/s 201(1). We find ourselves benefitted by the decision of Hon’ble Supreme Court in the case of Hindustan Coca Cola Beverages [2007 (8) TMI 12 - SUPREME COURT OF INDIA ], wherein it was held that where the deductee/recipient has already paid taxes on amount received from deductor, the department cannot recover the tax on the same amount, as that would result in double taxation. - Decided in favour of assessee. short deduction of TAS - Held that:- As the assessee submitted the details and proofs of payment of tax and interest no short deduction proved. CIT(A)correctly deleted the demand as raised by the AO. - Decided in favour of assessee. Payment of commission to non-executive/independent directors - AO came to the conclusion that these directors were actually employees of the company and were paid salary, which was shown as commission to avoid withholding tax - Held that:- AO went on wrong track and did not consider the provisions/expressions used in the relevant section, i.e. 194J. Since the CIT(A) has applied the right law, we are inclined to sustain the order of the CIT(A)held that these directors did not have any employer - employee relationship and nor did they receive any pecuniary benefits. Payment of commission to them, itself, could not be categorised as salary, consequentially reject the ground as raised by the department. - Decided in favour of assessee.
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