9911796707
TMI Blog2015 (2) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... nd acts as a canvassing agent for space selling on TV channels. On 25.02.2009, the department undertook survey operations u/s 133A of the Income Tax Act, 1961 on the assessee. In the course of survey operations, the revenue authorities sought verification of records to ascertain the deduction of TAS as per law. In the course of verification, the revenue officers came to the view that the 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. The AO called for a detailed explanation from the assessee in this regard, which did not find favour with the AO, who raised demands in various years in the order under provisions section(s) 201/201(1A) of the Act. 4. Since some of the issues raised are common in all the years, we are taking up ITA No. 3931/Mum/2011 for the assessment year 2006-07 as the lead year. 5. The following grounds have been raised by the department: "1) On the facts and circumstance of the case and in law, the CIT(A) erred in deleting the short deduction u/s 201(1) and interest u/s 201(1A) in respect of carriage fee /placement fee paid by the assessee to various cable operators/MSO/DTH se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 21.08.2008 was clarificatory in nature and the event management fee was always in the nature of professional services u/s 194J. 8. On the facts and circumstance of the case and in law, the CIT(A) erred by holding the equipment hire charges u/s 194C and failed to appreciate that the evidences available on records clearly show that the equipment hire charges were paid for services which were technical service within the meaning of section 194J. 9. On the facts and circumstance of the case and in law, the CIT(A) erred in deleting the short deduction and interest u/s 201(1A) in respect of equipment hire charges without appreciating the facts brought on records by the assessing officer. 10. On the facts and circumstance of the case and in law, the CIT(A) failed to appreciate that the purported reimbursement of expenses was in fact commission paid by the assessee to Zee Turner Ltd. and therefore the assessee was required to deduct TDS as per the provision u/s 194J of the I.T. Act on such payments to Zee Turner Ltd. 11. On the facts and circumstance of the case and in law, the CIT(A) failed to appreciate that the assessee disguised the payment of commission to Zee Turner Ltd. in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A), after examining the entire issue, held, "I have considered the facts of the case, the submissions and the arguments of the Ld. ARs as well as the order passed by the AO. The Appellant has made payment of placement charges to cable operators. It is evidenced from the placement Agreement that the cable operators agree with the Appellant to place the channels on certain preferred frequencies for a consideration which is termed as 'carriage or placement fee'. It s seen that the cable operators are as such required to place the channels on some frequency. Hence in my view, by agreeing to place the channel on any preferred band, the cable operator does not render any technical service to the distributor I TV channel. In terms of the provisions of section 194C of the Act, it is provided that expression work' shall include, inter alia, broadcasting and telecasting including production of programmes for such broadcasting and telecasting. Therefore, it is evident that where the payment is for a work involving broadcasting and telecasting, the same shall be subject to deduction of tax at source in terms of section 194C of the Act. 3.12 Thus, payment made to cable operators ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are same. The placement of channel is part of the process of broadcasting/telecasting the channel and hence, payment of placement fee is for doing 'work' involving broadcasting of channels. Therefore, the same is liable for TDS under Section 194C in view of the specific definition of 'work' contained therein. 3.15 The Appellant has cited other decisions also in support of its contention as to why the payments cannot be treated as fees for technical services under Section 194J. The placement fee is a consideration for providing choice of the desired placement of the channels and it is not in the nature of 'fees for technical services'. Hence, I am of the view that provisions of Section 194J cannot apply to the payment of placement charges/ carriage fees. In view of the facts of the instant case, the payments of placement fee made to cable operators! MSOs are not in the nature of 'fees for technical services' because any services of managerial, technical or consultancy nature were not rendered by the cable operators! MSOs as defined in Section 194J read with Explanation 2 to Section 9(1)(vii) of the Act. This is so because in the process of placeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said payment made to Production House for purchase of programme. 16. On the contrary, the AO was of the opinion that the payments made by assessee to the Production House, for purchase of programmes, are in the nature of 'fees for technical services' and hence, TDS had to be deducted u/s 194J of the Act. He observed that the production house uses the services of professional artist i.e. actors, scrip-writers, dubbing artists, technicians etc. Since the Production House avails services of such people, therefore, the payments made to Production House would fall u/s 194J of the Act. 17. The AO therefore, invoked the provisions of section 201(1) of the Income tax Act, 1961. 18. Against this order of the AO, the assessee approached the CIT(A), who, after considering the detailed submission, held, "I have considered the submissions and the arguments of the Ld. AR. The appellant has made payment for production of programmes to various production houses. The Appellant hires the producers for producing TV programmes for it, on a commissioned work basis and pays consideration to the producers for producing the programmes. In terms of the provisions of section 194C of the Act, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices'. In any case, as also held in the aforesaid judgment, provisions of section 194C are more specific as compared to those of section 194J (since provisions of section 194C deal with the very payment in question - i.e. production of programmes, and not with a general category of payment like fees for technical services' as in section 194J), and hence, Section 194J, cannot apply to payments for production of programmes. Section 194C clearly states that payment for production of programmes constitutes payments for 'work' under section 194C. Accordingly, applying the said judgment of the Hon'ble Delhi High Court and also relying on the CBDT's circular, it is clear that the provisions of section 194C would prevail over section 194J of the Act in this case. 4.8 Since the Appellant has already deducted TDS under section 194C of the Act on production payments, 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 of tax by the Appellant. The demand of tax of Rs. 6,68,97,644/- under Section 201(1) and consequential levy of interest at Rs. 4,44,86,904/- under section 201(1A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re simply in the nature of works contract'. The AG has held the event management fees to be in the nature of 'fees for technical services' only because of the OBDT notification No. 88/2008 issued vide FNO. 275/43/2008-IT(B), dated 21-08-2008. Since it has been issued later, on 21I'/2008, it cannot be applied to the current year. Earlier to this notification, none of the circulars of the Board covered the 'event management fees' specifically and hence such contracts for event management could not have been classified under any category other than the 'works contract'. The later notification dated 21-08-2008, in my opinion, cannot be applied retrospectively. Even the said notification itself states that 'this notification shall come into force with effect from the date of its publication in the Official Gazette'. 5.6 In view of above discussion therefore, it is evident 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. I hold accordingly. Since the Appellant has already deducted TDS under section 194C of the Act, the AC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself. The facts in the case of the appellant are not so. It is seen that the equipments have been taken on hire on wet lease basis, which includes equipments along-with operating staff. Further, other services are also provided by the vendor. Therefore, in my opinion the 'equipment hire charges' are squarely covered under the provisions of section 194C of the Act. As rightly pointed out by the appellant, CBDT circular No. 681 dated 08.03.1994 clarifies that 'the provisions of section 194C shall apply to all types of contracts for carrying out any work including transport contract, service contracts, advertisement contracts, broadcasting contracts, telecasting contracts, labour contracts, materials contracts and works contract.' In this regard, it may be noted that Circular No. 715 dated 08/08/1995 also supports the contention of the appellant in this regard that section 194C shall apply to all types of 'work contracts'. There is no separate or specific provision or clarification by CBDT in regard to equipment hire charges. 6.9 It is thus beyond doubt that equipment hire charges are covered under the provisions of section 1940 and I hold accordingly. Since, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1). 42. The assessee took the issue before the CIT(A) and reiterated its submissions before him and submitted that 194H contemplated "income by way of commission" and not any payment. In the case of the assessee, the payment was made as a reimbursement of commission, wherein no income was generated to the payee. The CIT(A), held, "I have considered the above submissions of the appellant as well as the facts of the case. I agree with the appellant that no tax is required to be deducted in respect of reimbursement of commission which has been paid by Zee Turner Ltd to its dealers and distributors. The provisions of section 194H are quite clear and the words used therein are 'any income by way of commission'. Therefore, since the reimbursements are not in the nature of any income in the hands of Zee Turner Ltd, no tax was required to be deducted in respect of the said reimbursement of Rs. 3.72 crores. Furthermore, it is also seen that while paying the commission to its dealers and distributors, Zee Turner Ltd. has deducted tax at source on the said commission paid which was in turn reimbursed by the appellant. Accordingly no tax was required to be deducted again on the comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the order of the CIT(A), which we sustain and as a consequence reject the grounds taken by the department on the impugned issue. 50. Ground no. 10 & 11 are therefore rejected. 51. Grounds no. 12 & 13 pertain to short deduction of TAS. 52. According to the AO, the assessee had committed a breach by short deduction of TAS as per Tax Audit Report, whereas the CIT(A) noted that the details had been provided by way of the challans of payment of tax deducted at source, hence the provisions of section 201(1)/201(A) cannot be attracted. Before the CIT(A), the assessee submitted that the AO did not consider the details completely, therefore he concluded that the assessee was in default. In any case, the assessee submitted the details and proofs of payment of tax and interest. 53. On consideration of the details and proofs of payment, the CIT(A) deleted the demand as raised by the AO. 54. Against this order, the department is in appeal before the ITAT. 55. Before us, the DR relied on the order of the AO on the issue, whereas, the AR relied on the order of the CIT(A). 56. On hearing and going through the orders of the revenue authorities, we do not find any infirmity in the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to appreciate that the assessee did not produce any agreement with event manager to justify that the payment was in the nature of work contract and also failed to appreciate that the onus was on the assessee to establish the nature of services were not in the nature of professional services. f) On the facts and circumstance of the case and in law, the CIT(A) erred in holding that that the event management service was in the nature of work contract u/s. 194C and the same was not professional service u/s 194J especially when the assessee did not bring any evidence to justify the service was not in the nature of professional services within the meaning of section 194J. g) On the facts and circumstance of the case and in law, the CIT(A) failed to appreciate that the notification no. F No. 275/43/2008-IT(B) dated 21.08.2008 was clarificatory in nature and the event management fee was always in the nature of professional services u/s 194J. h) On the facts and circumstance of the case and in law, the CIT(A) erred by holding the equipment hire charges u/s. 194C and failed to appreciate that the evidences available on records clearly show that the equipment hire charges were paid for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds no. 12 & 13 in ITA No. 3931/Mum/2013, wherein we have rejected the grounds as raised by the department. Since the grounds are similar and identical, we reject the grounds in this appeal as well. 64. Grounds no. 1(j) & 1(1k) pertain to payment of commission to non-executive/independent directors. The facts are that in the year under consideration, the assessee paid commission of Rs. 55.17 lacs to its Non Executive Directors/Independent Directors, which was duly approved by the Board of Directors. The 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. 65. On the other hand, in appeal before the CIT(A) on this issue, it was 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. 66. Against this order, the department is in appeal before the ITAT. 67. Before us the AR submitted that these directors were never involved in the day to day activities of the assessee company, nor were they employed and drawing salary. These d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw, the CIT(A) failed to appreciate that the facts brought on records by the Assessing officer that the acquisition of programme software involves transfer of rights of that programme to the assessee and such payments made by the assessee are clearly covered under the definition of Royalty within the meaning of royalty in Explanation 2 to clause (vii) to Section 9. e) On the facts and circumstance of the case and in law, the CIT(A) failed to appreciate that the assessee did not produce any agreement with event manager to justify that the payment was in the nature of work contract and also failed to appreciate that the onus was on the assessee to establish the nature of services were not in the nature of professional services. f) On the facts and circumstance of the case and in law, the CIT(A) erred in holding that that the event management service was in the nature of work contract u/s. 194C and the same was not professional service u/s 194J especially when the assessee did not bring any evidence to justify the service was not in the nature of professional services within the meaning of section 194J. g) On the facts and circumstance of the case and in law, the CIT(A) failed to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the hearing of the case or thereafter. 3. The order of the CIT(A) being erroneous be set aside and the A.O's order be restored". 73. We find that grounds 1(a) to (n) are similar and identical to grounds no. 1 to 14 in ITA No. 3931/Mum/2013, wherein we have rejected the grounds as raised by the department. Similar view is taken in this appeal as well. 74. We, therefore, reject the grounds as raised by the department. 75. In the result, appeal as filed by the department is dismissed. ITA no. 3934/Mum/2013 : Asst. year 2009-10 : 76. The following grounds have been raised by the department: "a) On the facts and circumstance of the case and in law, the CIT(A) erred in deleting the short deduction u/s 201(1) and interest u/s 201(1A) in respect of carriage fee /placement fee paid by the assessee to various cable operators/MSO/DTH service providers holding the service provided was work within the meaning of section 1940 and not technical service u/s 194J. b) On the facts and circumstance of the case and in law, the CIT(A) failed to appreciate that the cable operators /MSO/DTH service providers had not provided mere standard service of transmitting the signals of assessee&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quipment hire charges were paid for services which were technical service within the meaning of section 194J. i) On the facts and circumstance of the case and in law, the CIT(A) erred in deleting the short deduction and interest u/s 201(1A) in respect of equipment hire charges without appreciating the facts brought on records by the assessing officer. j) On the facts and circumstance of the case and in law, the CIT(A) failed to appreciate that the commission paid to directors was salary considering day to day involvement of theses directors to carry out the functions of various committee of which they were members and the commission was rightly treated as salary. k) On the facts and circumstance of the case and in law, the CIT(A) failed to appreciate that relationship between the directors and the assessee was of employer and employee as evident from the nature of work done by these directors as brought out in the order by the Assessing Officer. l) On the facts and circumstances of the case and in law, the Ld CIT(A) erred in deleting the demand of Rs. 25,50,21,804/- without properly appreciating the factual & legal matrix of the case as clearly brought out by the AO in order u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer of rights of that programme to the assessee and such payments made by the assessee are clearly covered under the definition of Royalty within the meaning of royalty in Explanation 2 to clause (vii) to Section 9. e) On the facts and circumstance of the case and in law, the CIT(A) erred in holding the equipment hire charges u/s 194C and failed to appreciate that the evidences available on records clearly show that the equipment hire charges were paid for services which were technical service within the meaning of section 194J. f) On the facts and circumstance of the case and in law, the CIT(A) erred in deleting the short deduction and interest u/s 201(1A) in respect of equipment hire charges without appreciating the fact brought on records by the assessing officer. g) On the facts and circumstance of the case and in law, the CIT(A) failed to appreciate that the commission paid to directors was salary considering day to day involvement of theses directors to carry out the functions of various committee of which they were members and the commission was rightly treated as salary. h) On the facts and circumstance of the case and in law, the CIT(A) failed to appreciate that relat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
