TMI Blog2017 (2) TMI 1412X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, exhibition of cinematographic films? - HELD THAT:- The law has expressly excluded consideration paid for exhibition of cinematographic films from the ambit of section 9(1)(vi). Further, irrespective of the medium in which the cinematographic films have been exhibited, the same only constitutes “exhibition of cinematographic films”. Hence, the consideration paid by the assessee to the non-residents does not fall within the ambit of “royalty” u/s. 9(1)(vi) of the Act. We find that section 90(2) of the Income tax Act which states that either the provisions of the Income tax Act or the DTAA, whichever is more beneficial to an assessee, would be applicable to the assessee. Further, CBDT Circular No.728 dated 30.10.1995 clarifies that tax sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer u/s 201(1) and u/s 201(1A) is without jurisdiction and that the same is liable to be quashed. During the course of hearing, the ld AR stated that he is not pressing the Additional Ground. Accordingly, the Additional Ground raised by the assessee is dismissed as not pressed. 3. During the year under appeal, the assessee made payments to various parties for purchase of rights to exhibit cinematographic films in India, details of which are as follows: Name of the party / producer Name of the film Cost (in Rs) Sahamongkol Film, Bangkok, Thailand Bodyguard and Chai Lai 5,04,037 Cineclic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same is excluded in view of the exclusion clause in section 9(1)(vi. Expl. 2. cl (v) of the Act which excluded consideration for sale, distribution, exhibition of cinematographic films from the purview of Royalty. 3. The learned Assessing Officer and the learned Appellate Authority erred in holding that the payments made towards rights for exhibition and telecasting of cinematographic films in different platforms like television and satellite broadcasting did not constitute payments for sale, distribution, exhibition of cinematographic films. 4. The learned Assessing Officer and the learned Appellate Authority failed to note that a cinematographic films remains a cinematographic films irrespective of the medium of exhibition like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gains ) for- (v) the transfer of all or any rights (including the granting of a licence) in respect of any copyright, literary, artistic or scientific work including films or video tapes for use in connection with television or tapes for use in connection with radio broadcasting, but not including consideration for the sale, distribution or exhibition of cinematographic films . He submitted that the cinematographic film rights that the assessee purchased is for exhibiting them in India through various mediums viz., Television, Malls having cinema halls, Theatres, Hotels, Pay TV etc. He further submitted that irrespective of the medium the same constitutes exhibition and thus falls within the exclusion but not including consideration for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nematographic films from the purview of royalty . While in the first part of the clause there is reference to films or video tapes for use in connection with television and video tapes for use in connection with radio broadcasting, there is a specific mention of cinematographic films in the last part of the clause that excludes certain transactions from the purview of royalty . Therefore it is abundantly clear that the law has expressly excluded consideration paid for exhibition of cinematographic films from the ambit of section 9(1)(vi). Further, irrespective of the medium in which the cinematographic films have been exhibited, the same only constitutes exhibition of cinematographic films . Hence, the consideration paid by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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