TMI Blog2017 (5) TMI 1519X X X X Extracts X X X X X X X X Extracts X X X X ..... film for which it has distribution rights. - Decided against revenue - ITA No. 2926/Ahd/2013 - - - Dated:- 5-5-2017 - Shri S. S. Godara, Judicial Member And Shri Amarjit Singh, Accountant Member Revenue by: Dr. Jayant Jhaveri, Sr. D.R. ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- This Revenue s appeal for A.Y. 2010-11, arises from order of the CIT(A)-XIV, Ahmedabad dated 04-09-2013 in appeal no. CIT(A)- XIV/DCIT/Cir.-8/160/12-13, in proceedings under section 143(3) of the Income Tax Act, 1961; in short the Act . 2. The assessee has raised following grounds of appeal:- 1. The Ld. Commissioner of Income-Tax (Appeals)-XIV, Ahmedabad has erred in law and on facts in deleting the addition of ₹ 1,1 9,63,57 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontract between the contractor and a specified person. The assessing officer has elaborated at para 3.5 to 3.6 of his order that activity of supplying print of the film to the exhibitor is work within the meaning of section 194C of the act. He has also referred to the amendment made to section 194 of the act by the Finance Act, 2009 pertaining to the explanation relating to the definition of work. The assessing officer has not accepted the submission of the assessee and held that the assessee failed to deduct tax at source on payment made during the year to the distributors amounting to ₹ 11963570/- as per the provision to section 194C of the act, therefore, the provisions of section 40(a)(ia) were attracted. Consequently, the assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the A.Y. 02-03, 03-04 and 04-05. Depart. Appeal against this order before the Hon'ble Gujarat High Court was admitted and still pending. (iii) Hon'ble ITAT, Ahmedabad had already in the case of appellant-'' considered the applicability of provisions of section 194C of the Act, amendment in the form of explanation III after the judgement of Hon'ble Supreme court in the case of Associated cement Ltd. and the scope of Broadcasting and telecasting . (iv) Hon'ble ITAT, Ahmedabad 'C' Bench in the case of city gold Entertainment P. Ltd. following the Hon'ble Gujarat High Court judgement in the case of All Gujarat Federation of tax Commutates others v. CBDT where after consideration of Hon'ble S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot concluded because Hon'ble High Court has admitted the issue as substantial question of law. (ii) Hon'ble ITAT decided issue in favour of assessee by not considering the definition of 'work' as amended by the Finance Act 2009 w.e.f. 01/10/09 in explanation to section 194c of the Act. it is the clause (e) of clause(iv) of explanation to section 194C of the Act where 'work' is defined as it includes manufacturing and supplying of products according to the requirement or products according to the requirement or specification of a customer by using material purchased from such customer. The A.O. compared the transactions between assessee and distributor as supply of a product as per requirement / specification to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cable to income tax proceedings but principle of consistency has to be considered and in this regard, there is no change of facts for the business activity of the appellant over the years and department accepted all these transaction from A.Y. 05-06 to A.Y. 09-10. Even during A.Y. 05-06 the appellant's case was finalised under scrutiny but no such disallowances were made. Hon'ble ITAT Ahmedabad order in the case of appellant (operative part had already been discussed in earlier para) is binding till Hon'ble Gujarat High Court reverse it or set aside. The ratio of Hon'ble ITAT Mumbai 'K' bench in the case of M/s Shrinagar Cinemas (P) Ltd. also discussed in earlier para of this order and as evident is squarely applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age of TDS but now no such arrangements are there. It is therefore respectfully following the ratio of Hon ble ITAT Ahmedabad in appellant's case, Hon'ble ITAT Mumbai in Shrinagar Cinema duly upheld by Hon'ble Bombay high court and reasoning as discussed in respect of non applicability of amended provision as relied on by A.O, the disallowances so made u/s 40(a)(ia) of the Act for revenue shared (not debited and claimed as expenditure by appellant) is out of the preview of TDS provisions as contemplated u/s 194C of the Act. The addition so made is therefore unjustified and not sustainable. The A.O. is directed to allow such accounting of revenue sharing and delete the addition of ₹ 1,19,63,570/- so made. The appellant g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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