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TMI Blog2015 (12) TMI 1846X X X X Extracts X X X X X X X X Extracts X X X X ..... am. The assessee business is to organize various cultural and musical events. The assessee acts as coordinator/ intermediary between the artistes and parties wish to have cultural/musical events. The role of the assessee is to bring both the parties at common understanding in so far it relates the monetary terms. However the assessee does not become a party to that understanding. As such, the assessee receives the payment from the party and remits the same to the artistes after the negotiation without deducting TDS. The assessee does not deduct the TDS from the payment to the artistes under the belief that he is acting in representative capacity on behalf of the party/ organizers, therefore he is not liable to deduct TDS as per the Income Tax provisions. During the year under consideration, assessee has debited an expense in the name of artistes remuneration for an amount of Rs.41,57,675/-. Out of this amount of payment a sum of Rs. 25,91,026/- was liable to TDS provisions under section 194-J of the Act as the payment was exceeding Rs. 20,000/-. But the assessee failed to deduct the TDS on the said amount. The AO raised the question to the assessee for non deduction of tax as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... organized such programme on large scale involving substantial amount of revenue with many artists which pre-supposes that various terms and conditions were in existence. In view of these facts I am not inclined to accept the A/R's submission that the provision of section 194J is not applicable. 9) It may also be mentioned that in the fag end of appeal proceedings the A/R placed reliance on the decision of Hon'ble Supreme Court in the case of Hindusthan Coca Cola Beverage Pvt. Ltd. vs- CIT (2007), 293 ITR 226 (SC). It may be mentioned that the A/R can raise additional grounds of appeal on question of law which must arise from the facts, which are lying on the record and the A/R has to explain the reasonable cause for not raising such grounds/ such evidences at appropriate time. The A/R nowhere in the original grounds of appeal or statement of facts have raised such grounds, therefore, the additional ground needs to be adjudicated where it is admissible or not. Since the A/R has not placed relevant material along with reasonable cause for raising such additional grounds and therefore in principle such ground is not admissible. However, without prejudice to the above I also find th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (deductee) was in fact rent and TDS should have been deducted u/s. 194I at higher rate than the tax deducted by the deductor @ 20% treating it as contractual payment. It is in this background and fact that the Hon'ble Supreme Court held that no further tax could be recovered from the deductor once it has been paid by the duductee along with interest u/s. 201(1A) of the IT Act. The Hon'ble Supreme Court, however approved the action of the AO in treating assessee as assessee in default". 14. The facts of the case of the assessee is entirely different than in the case of Coca Cola (P) Ltd., The assessee has not complied with the provision of TDS and even after getting sufficient opportunity failed to produce any evidence that the tax has already been paid by the deductee. On the basis of above judgement of Coca Cola even if it is presumed that the deductee has already paid the tax the assessee cannot get relief on the basis of such judgment because of gross violation of TDS provision with no direct proof that the deductee has already paid the tax in contrast to case of Coca Cola (P) Ltd., where there was honest violation of TDS provision. In view of above stated discussions I am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that assessee's part of the role is to negotiate the deal and acts as intermediary in settling the terms of agreement directly between two sides without making herself as any party therein. The performers (artistes) and the organizers are not known to each other as such. The assessee receives the payments from the organizers after TDS and make over the negotiated amount without TDS since the appellant is representing and acting for and on behalf of the organizers. All the artistes are very famous, widely acclaimed and have themselves furnished declaration with PAN that they will be directly responsible for their respective tax matters and one of them, Alka Yagnik even unequivocally stated that she had already paid income tax on such income. On the other hand, Ld. DR vehemently relied on the orders of authorities below. We find from the aforesaid discussion that AO disallowed the expenses claimed by assessee due to violation of provision to Sec. 194-J of the Act. The argument of the assessee that the recipient of income has paid the tax in their respective hands has also been regarded. However, we find that there is an amendment in proviso to Sec. 40(a)(ia) r.w.s. 1st proviso to Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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