ZEE ENTERTAINMENT ENTERPRISES LIMITED, MUMBAI V. JCIT(TDS)(OSD)-2(3), MUMBAI

CO 105/MUM/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5659 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 06-03-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR NARENDER KUMAR
• Keywords: Search and seizure; Question of law; TDS; Set aside
• Section: 40(a)(ia); 194C; 201(1); 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI RAMIT KO CHAR , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 2104 /MUM/201 8 ( / ASSESSMENT YEAR: 20 1 1 - 12 ) JCIT(TDS)(OSD) - 2(3) ROOM NO. 718, 7 TH FLOOR, SMT. K.G. MITTAL AYARVEDIC HOSPITAL BUILDING, CHARNI ROAD (W), MUMBAI - 400002. / VS. M/S. ZEE ENTERTAINMENT ENTERPRISES LTD. 18 TH FLOOR, MARATHON FUTUREX, N.M. JOSHI MARG, LOWER PAREL, MUMBAI - 400013 . C. O. NO. 105/M/2019 (ARISING OUT OF I .T.A. NO. 2104 /MUM/2018 ) ( / ASSESSMENT YEAR: 2011 - 12 ) M/S. ZEE ENTERTAINMENT ENTERPRISES LTD. 18 TH FLOOR, MARATHON FUTUREX, N.M. JOSHI MARG, LOWER PAREL, MUMBAI - 400013 . / VS. JCIT(TDS)(OSD) - 2(3) ROOM NO. 718, 7 TH FLOOR, SMT. K.G. MITTAL AYU RVEDIC HOSPITAL BUILDING, CHARNI ROAD (W), MUMBAI - 400002. ./ ./ PAN/GIR NO. : AAACZ0243R ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 25 / 0 7 / 201 9 / DATE OF PRONOUNCEMENT : 31 /0 7 / 201 9 / O R D E R PER AMARJIT SINGH, J M: THE REVENUE AS WELL AS ASSESSEE HAVE FILED THE ABOV E MENTIONED APPEAL AS WELL AS CROSS - OBJECTION AGAINST THE ORDER DATED 24 . 0 1 .201 8 PASSED REVENUE BY : DR. NARENDER KUMAR (DR) ASSESSEE BY: SHRI JAY BHANSALI ITA NO. 2104 /M/201 8 CO NO.105/M/2019 A.Y.20 11 - 12 2 BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 60 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 1 1 - 1 2 . 2 . THE REVENUE HAS RAISED THE FOLLOWING G ROUNDS: - ' 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN DELETING THE SHORT DEDUCTION U/S. 201(1) AND INTEREST U/S. 201(1 A) 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 194C AND NOT TECHNICAL SERVICE U/S. 194J. 2. ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW, THE CIT(A) FAILED TO APPRECIATE THAT THE CABLE OPERATORS / MSO / DTH SE RVICES PROVIDERS HAD NOT PROVIDED MERE STANDARD SERVICE OF TRANSMITTING THE SIGNALS OF ASSESSEE'S CHANNELS BUT THROUGH HUMAN INTERVENTION AND APPLICATION OF MIND PROVIDED SPECIFIED TECHNICAL SERVICE OF PLACING ASSESSEE'S CHANNEL ON DESIRED PRIME BAND AND S UCH SERVICE ARE TECHNICAL U/S. 194J. 3. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND, WHICH MAY BE NECESSARY AT THE TIME OF THE HEARING OF THE EASE OR THEREAFTER. 4. THE APPELLANT PRAYS THAT THE ORDER OF LD. CIT(A) ON THE ABO VE GROUND BE SET ASIDE AND THE ORDER OF THE ASSESSING OFFICER BE RESTORED. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ORDER U/S 201(1) & 201(1A) OF THE I.T. ACT, 1961 WAS PASSED FO R THE A.Y. 2007 - 08 TO 2010 - 1 1. B ASED UPON THE FINDING IN THE ABOVE MENTIO N ED ORD ER, A S HOW - CAUSE NOTICE U/S 201(1) & 201(1A) OF THE ACT WAS SENT TO THE ASSESSEE ON 02.02.2013 CALLING FOR VARIOUS DETAILS INCLUDING CARRIAGE FEE PAID AND TDS DONE THEREOF. THE ASSESSEE SUBMITTED THE REPLY DATED 18.02.2013 AND 12.03.2013. THE ASSESSE E PAID THE CARRIAGE FEE OF RS.116,98,09,279/ - ON WHICH IT DEDUCTED TDS U/S 194C OF THE ACT. THE AO WAS OF THE VIEW THAT THE TDS WAS REQUIRED TO BE DEDUCTED U/S 194J OF THE ACT, HENCE, ASSESSED THE SHORT DEDUCTION OF TDS IN SUM OF RS. 9,35,84,742/ - U/S 201(1 ) OF THE ACT AND INTEREST U/S 201(1A) OF THE ACT TO THE TUNE OF RS.2,57,37,235/ - . F EELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A ) AND THE CIT(A) ITA NO. 2104 /M/201 8 CO NO.105/M/2019 A.Y.20 11 - 12 3 HAS DELETED THE ADDITION ON THE BASIS OF FINDING OF THE LD. CIT(A) FOR THE A.Y. 2006 - 07 TO 20 10 - 11 WHICH WAS SUBSEQUENTLY UPH E LD BY HONBLE ITAT IN THE ASSESSEES OWN CASE WHEREIN THE REVENUE A PPEAL WAS DISMISSED , THEREFORE, THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. 4 . BOTH THE ISSUES ARE INTER - CONNECTED, THEREFORE, ARE BEING TAKEN UP - TO GETHER FOR ADJUDICATION. UNDER THESE ISSUES THE REVENUE HAS CHALLENGED THE ORDER OF THE CIT(A) IN WHICH THE CARRIAGE FEES PAID BY ASSESSEE HAS BEEN HELD TO BE SUBJECT TO TDS U/S 194C OF THE ACT. THE LD. REPRESENTATIVE OF THE REVENUE HAS ARGUED THAT THE CIT (A ) HAS WRONGLY DECIDED THE ISSUE WHEREAS THE CARRIAGE FEES IS LIABLE TO BE TREATED AS FEE FOR PROFESSIONAL SERVICES OR TECHNICAL SERVICE S OR ROYALTY FOR THE PURPOSE OF TDS U/S 194J OF THE ACT WHEREAS THE CIT(A) HAS TREATED THE SAME LIABLE TO BE TDS U/S 194C OF THE ACT WRONGLY, HENCE, FINDING OF THE CIT(A) IS NOT JUSTIFIABLE AND IS LIABLE TO BE SET ASIDE . HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE ASSESSEE HAS STRONGLY RELIED UPON THE ORDER PASSED BY THE CIT(A) IN QUESTION. BEFORE GOING FUR THER, WE DEEM IT NECESSARY TO ADVERT THE FINDING OF THE CIT(A) ON RECORD.: - I HAVE GONE THROUGH THE AO'S ORDER, THE GROUN DS OF APPEAL AND ME APPELLANT S CONTENTION ME TDS AO HAS HELD THAT THE ASSESSEE IS A DEEMED DEFAULTER U/S 201(1) OF T HE ACT FOR SHORT D EDUCTION OF TD S ON CARRIAGE FEES AND CONSEQUENTIAL INTEREST 01(1A) OF THE ACT ON PAYMENT OF CARRIAGE FEES. THE APPELLANT HAD SUBMITTED THAT WHILE DECIDING THE VERY SAME ISSUE IN ASST. YEARS 2006 - 7 TO 2010 - 11 MY PREDECESSOR HAS HELD THAT CARRIAGE FEES IS LI ABLE TO IDS U/S 194 C OF THE ACT IN VIEW OF THE SPECIFIC DEFINITION OF 'WORK CONTAINED THEREIN. FURTHER, THE HON'BLE ITAT IN THE APPELLANTS OWN CASE, FOR AY 06 - 07 TO AY 10 - 11 HAS DISMISSED THE APPEAL FILED BY DEPT AND HAS HELD THAT TDS ON CARRIAGE FEE IS R IGHTLY DEDUCTED BY THE ASSESSEE U/S 194C OF THE ACT. FURTHER, IN A RECENT DECISION, THE JURISDICTIONAL BOMBAY HIGH COURT DECISION IN CASE OF UTV ENTERTAINMEN T TELEVISION LIMITED [88 TAXMAM .COM 214 (BOM )] HAS HELD THAT PAYMENT OF PLACEMENT FEES/CARRIAGE FEE S TO CABLE OPERATORS MAY BE LIABLE TO TAX AT SOURCE U/S 194 C AND ASSESSEE HAS PROPERLY COMPLIED WITH THOSE PROVISIONS. THE ITA NO. 2104 /M/201 8 CO NO.105/M/2019 A.Y.20 11 - 12 4 PAYMENT OF CARRIAGE FEES CANNOT BE CONSIDERED AS 'FEES FOR PROFESS IONAL OR TECHNICAL SERVICES OF ROYALTY ETC AND HENCE PROVISIONS OF SECTION 194 J CANNOT HE APPLIED. CONSIDERING THE FACTS AND THE LEGAL DECISIONS ON THE ISSUE, THE APPELLANT'S APPEAL ALLOWED ON THIS GROUND. GROUND OF APPEAL NO. 4 & 5 BEING IN - FRUCTUOUS IN NATURE AND DOES NOT REQUIRE ADJUDICATION. IN THE RESULT, THE APPEAL OF THE APPELLANT IS ALLOWED. 5 . ON CONSIDERATION OF THE ABOVE MENTIONED FINDING, WE NOTICED THAT THE CIT(A) HAS DECIDED THE ISSUE ON THE BASIS OF THE DECISION OF THE HONBLE ITAT IN THE ASSESSEES OWN CASE FOR THE A.Y. 2006 - 07 TO 2010 - 11 . IT HAS ALSO COM E TO OUR NOTICE THAT SUBSEQUENTLY THE DEPARTMENT HAS FILED AN APPEAL BEFORE THE HONBLE BOMBAY HIGH COURT IN WHICH THE ORDER OF THE HONBLE ITAT HAS BEEN UPHELD VIDE JUDGMENT DATED 28.02.2018 . IT IS SPECIFICALLY HELD THAT THE CHANNEL PLACEMENT FEES/ CARRIAG E FEES PAID TO CABLE OPERATOR S AND MSO/DTH OPERATORS ARE PAYMENT FOR WORK CONTRACT COVERED U/S 194C OF THE ACT WHICH IS NOT FEE FOR TECHNICAL SERVICE U/S 194J OF THE ACT. THE HONBLE ITAT HAS ALSO PASSED THE ORDER IN ITA. NO.5958/M/2017 FOR THE A.Y. 2012 - 1 3 DATED 06.06.2019 TITLED AS ACIT 16(1) VS. UTV ENTERTAINMENT TELEVISION LIMITED ( IN WHICH ONE OF US, ACCOUNTANT MEMBER WAS PART OF THE DIVISION BENCH WHO PRONOUNCED THE ORDER ON 06.06.2019) IN WHICH THE CHANNEL PLACEMENT FEES/ CARRIAGE FEES HAS BEEN TREA TED AS PAYMENT FOR WORK CONTRACT COVERED U/S 194C OF THE ACT. THE RELEVANT FINDING HAS BEEN GIVEN IN PARA NO. 9 WHICH IS HEREBY REPRODUCED AS UNDER: - 9. WE HAVE CONSIDERED RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD INCLUDING CITED CASE LAWS. W E HAVE OBSERVED THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF ADVERTISEMENT AND SUBSCRIPTION. THE ASSESSEE OWNS AND OPERATE FOUR CHANNELS NAMELY UTV MOVIES, UTV WORLD MOVIES, UTV STARS AND UTV ACTION TELUGU. THE ASSESSEE HAS PAID CHANNEL PLACEMENT FEES/C ARRIAGE FEES OF RS. 88,08,20,017/ - DURING THE PREVIOUS YEAR RELEVANT TO IMPUGNED ASSESSMENT YEAR , ON WHICH THE ASSESSEE HAS DEDUCTED INCOME - TAX AT SOURCE U/S. 194C OF THE ACT ON ITA NO. 2104 /M/201 8 CO NO.105/M/2019 A.Y.20 11 - 12 5 SUCH PAYMENT AT THE RATE OF 2% , WHILE THE AO WAS OF THE VIEW THAT THE INCOM E - TAX OUGHT TO HAVE BEEN DEDUCTED AT SOURCE @ 10% UNDER THE PROVISIONS OF SECTION 194J OF THE 1961 ACT. THE AO MADE ADDITIONS TO THE INCOME OF THE ASSESSEE TO THE TUNE OF RS. 88,08,20,017/ - ON AFORESAID SHORT DEDUCTION OF INCOME - TAX DEDUCTED AT SOURCE BY INVOKING PROVISIONS OF SECTION 40(A)(IA) OF THE 1961 ACT READ WITH SECTION 194J OF THE 1961 ACT. THE TRIBUNAL HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE FOR AY 2008 - 09 TO 2011 - 12 BY HOLDING THAT CARRIAGE FEES/CHANNEL PLACEMENT FEES ARE COVERED UNDER THE DEFINITION OF WORK AS SPECIFIED U/S. 194C AND THE ASSESSEE RIGHTLY DEDUCTED INCOME - TAX AT SOURCE U/S. 194C OF THE ACT. WE ALSO NOTE THAT THOSE DECISIONS WERE RENDERED IN CONTEXT OF PROVISIONS OF SECTION 201(1) AND 201(1A) OF THE 1961 ACT . THE TRIBU NAL IN ITA NO. 2699/MUM/2012 FOR AY 2008 - 09 IN ASSESSEES OWN CASE ( COMMON ORDER PASSED BY TRIBUNAL FOR AY 2008 - 09 TO 2011 - 12) , VIDE APPELLATE ORDERS DATED 29.10.2014 HELD AS UNDER: - '6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND RELEVANT MATERIAL O N RECORD, THERE IS NO DISPUTE THAT THE PAYMENT IN QUESTION WAS MADE BY THE ASSESSEE TO THE CABLE OPERATORS/ MSOS FOR PLACING THE TV CHANNELS IN THE PRIME BAND IN ORDER TO ENHANCE THE VIEWERSHIP AND BETTER ADVERTISEMENT REVENUE. IN THE CASE OF KURUKSHETRA D URPANS (P) LTD. VS. CIT (SUPRA}, THE HON'BLE HIGH COURT OF PUNJAB & HARYANA WHILE DEALING WITH ON IDENTICAL QUESTION WITH HAS HELD IN PARA 13 TO 18 US UNDER. - 13. AFTER HEARING LEARNED COUNSEL FOR THE PARTIES, WE ARE OF THE VIEW THAT THE CONTENTIONS OF THE COUNSEL FOR THE APPELLANT ARE LIABLE TO BE REJECTED. SEC. 194C OF THE ACT CREATES AN OBLIGATION ON A PERSON RESPONSIBLE FOR PAYING ANY SUM SPECIFIED THEREIN TO A PERSON FOR CARRYING OUT ANY WORK, TO DEDUCT THE TAX AT SOURCE. PRESENTLY, WE ARE CONCERNED WI TH THE 'WORK' AS REFERRED TO IN CLAUSE (B) OF EXPLN. III BELOW SECTION 194C(2) OF THE ACT. 14. IN TERMS OF THE SAID EXPLANATION, IT IS PROVIDED THAT EXPRESSION WORK' SHALL INCLUDE, INTER ALIA, BROADCASTING AND TELECASTING INCLUDING PRODUCTION OF PROGRAMMES FOR SUCH BROADCASTING AND TELECASTING. BY WAY OF SUCH EXPLANATION, 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 194 OF THE ACT. THE A SSESSEE IS A CABLE NETWORK OPERATOR THROUGH WHICH IT PROVIDES TELECASTING OF PROGRAMMES TO THE ULTIMATE CONSUMERS/SUBSCRIBERS. THE ASSESSEE IN TURN ENTERS INTO A CONTRACT WITH THE LICENSOR OF VARIOUS TV CHANNELS. ON THE PAYMENT SO MADE, SECTION 194C OF THE ACT IS ATTRACTED. THIS IS FOR THE REASON THAT THE LICENSOR, IS A PERSON WHO IS PERFORMING THE WORK WHICH IS COVERED WITHIN THE MEANING OF CLAUSE (B) OF EXPLN. III TO SECTION 194C(2) OF THE ACT. 15. IT IS ALSO RELEVANT TO MENTION HERE THAT IN THE AGREEMENT BETWEEN THE ASSESSEE AND THE LICENSOR, THE LICENSOR IS REFERRED TO AS 'COMPANY ENGAGED IN THE BUSINESS OF DISTRIBUTION OF SATELLITE BASED ITA NO. 2104 /M/201 8 CO NO.105/M/2019 A.Y.20 11 - 12 6 TELEVISION CHANNEL(S) SERVICES INCLUDING THE SERVICE AND HAS EXCLUSIVE RIGHTS TO MARKET AND DISTRIBUTE THE SERVICES I N INDIA TO VARIOUS CUSTOMERS AND USERS OF THE SERVICE'. FURTHER, THE AGREEMENT REFERS TO THE ASSESSEE SUBSCRIBER AS A PARTY, WHICH IS DESIROUS TO SUBSCRIBE FOR AND RECEIVE THE TELECAST SIGNALS OF THE SERVICE FROM THE COMPANY IN ORDER TO FURTHER DISTRIBUTE THE SAME TO THE CUSTOMER(S). 16. FROM THE RECITAL OF THE AGREEMENT ITSELF, IT IS CLEAR THAT THE SERVICE THAT THE ASSESSEE SUBSCRIBER IS AVAILING IS THE RECEIPT OF 'TELECASTING SIGNALS' FROM THE LICENSOR OR THE COMPANY. THE EXPRESSION 'SERVICE' HAS ALSO BEE N REFERRED TO MEAN THE TV CHANNEL WHICH IS DEALT WITH BY THE LICENSOR OR THE COMPANY. THEREFORE, WHAT THE ASSESSEE HAS TRANSACTED FOR WITH THE LICENSOR OR COMPANY CERTAINLY INCLUDES WITHIN ITS AMBIT BROADCASTING AND TELECASTING FACILITY. THE ESSENCE OF THE CONTRACT IS TO OBTAIN BROADCASTING AND TELECASTING OF TV CHANNELS AND THEREAFTER ITS DISTRIBUTION AMONGST ULTIMATE CUSTOMERS THROUGH THE CABLE NETWORK OF THE ASSESSEE. 17. ANOTHER PLEA OF THE ASSESSEE/SUBSCRIBER WAS THAT THE LICENSOR OR THE PERSON TO WHOM THE ASSESSEE IS MAKING PAYMENT BY ITSELF DOES NOT DO THE WORK OF BROADCASTING AND TELECASTING AND IS THEREFORE OUTSIDE THE PURVIEW OF SECTION 194C OF THE ACT. THIS ARGUMENT DESERVES TO BE NEGATED AT THE THRESHOLD. AS WE HAVE POINTED OUT EARLIER WHAT THE A SSESSEE SUBSCRIBER IS LOOKING FOR IS TO OBTAIN THE TELECAST SIGNALS FROM THE LICENSOR, WHICH IS ENOUGH TO DEDUCE THAT THE IMPUGNED CONTRACT INVOLVES BROADCASTING AND TELECASTING OF TV SIGNALS. MOREOVER, THE LICENSOR OR THE COMPANY, AS IS EVIDENT FROM THE S PECIMEN AGREEMENT ON RECORD, IN THE BUSINESS OF DISTRIBUTION OF SATELLITE BASED TV CHANNELS AND HAS EXCLUSIVE RIGHTS TO MARKET AND DISTRIBUTE SAID SERVICES IN INDIA, THE SERVICE THAT IS REFERRED TO IN THE AGREEMENT IS THE BROADCASTING AND TELECASTING OF TV SIGNALS. 18. FOR THE REASONS RECORDED ABOVE, WE HAVE NO HESITATION IN CONCLUDING THAT THE TRIBUNAL WAS CORRECT IN HOLDING THAT THE ASSESSEE WAS REQUIRED TO DEDUCT TAX AT SOURCE IN TERMS OF SECTION 194C OF THE ACT ON PAYMENTS MADE TO THE LICENSOR FOR OBTAI NING TV SIGNALS, CABLE TV NETWORK OWNED BY THE ASSESSEE.' 7. THUS AFTER EXAMINATION OF THE EXPLANATION III TO THE THEN SECTION 194C, THE HON'BLE HIGH COURT HELD THAT THE PAYMENT FOR OBTAINING THE TELECAST LICENSES FROM THE LICENSOR FALLS UNDER THE PROVISIO NS OF SECTION 194C. WE FIND THAT THE WORK OF BROADCASTING/TELECASTING INCLUDING PRODUCTION OF PROGRAMME OR SUCH BROADCASTING OR TELECASTING FALLS UNDER THE DEFINITION OF ITA NO. 2104 /M/201 8 CO NO.105/M/2019 A.Y.20 11 - 12 7 'WORK' AS PROVIDED UNDER CLAUSE (IV) OF THE EXPLANATION TO SECTION 194C WHICH READS AS UNDER: - 'EXPLANATION - FOR THE PURPOSE OF THIS SECTION **************** **************** (IV) 'WORK' SHALL INCLUDE {A} ADVERTISING; {B} BROADCASTING AND TELECASTING INCLUDING PRODUCTION OF PROGRAMMES FOR SUCH BROADCASTING OR TELECASTING {C } CARRIAGE OF GOODS OR PASSENGERS BY ANY MODE OF TRANSPORT OTHER THAN BY RAILWAYS: {D} CATERING; {E/ MANUFACTURING OR SUPPLYING A PRODUCT ACCORDING TO THE REQUIREMENT OR SPECIFICATION OF A CUSTOMER BY USING MATERIAL PURCHASED FROM SUCH CUSTOME R, 'BUT DOES NOT INCLUDED MANUFACTURING OR SUPPLYING A PRODUCT ACCORDING TO THE REQUIREMENT OF SPECIFICATION OF A CUSTOMER BY USING MATERIAL PURCHASE FROM A PERSON OTHER THEM SUCH CUSTOMER' 8. THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. PRASAR B HARATI (BROADCASTING CORPORATION OF INDIA)(SUPRA), HAS OBSERVED IN PARA 11 AS UNDER: 'WE ARE UNABLE TO AGREE WITH THIS SUBMISSION. WE OBSERVE THAT EXPLANATION III, WHICH WAS INTRODUCED SIMULTANEOUSLY WITH SECTION 194J, IS VERY SPECIFIC IN ITS APPLICATION T O NOT ONLY BROADCASTING AND TELECASTING BUT ALSO INCLUDE 'PRODUCTION OF PROGRAMMES FOR SUCH BROADCASTING AND TELECASTING. IF, ON THE SAME DATE, TWO PROVISIONS ARE INTRODUCED IN THE ACT, ONE SPECIFIC TO THE ACTIVITY SOUGHT TO BE TAXED AND THE OTHER IN MORE GENERAL TERMS, RESORT MUST BE HAD TO THE SPECIFIC PROVISION WHICH MANIFESTS THE INTENTION OF THE LEGISLATURE. IT IS NOT, THEREFORE, POSSIBLE TO ACCEPT THE CONTENTION OF THE REVENUE THAT PROGRAMMES PRODUCED FOR TELEVISION, INCLUDING 'COMMISSIONED PROGRAMMES WILL FALL OUTSIDE THE REALM OF SECTION 194C EXPLANATION III OF THE ACT WE FIND NO INFIRMITY IN THE VIEW TAKEN BY THE ITAT WHICH WE HEREBY AFFIRM.' 9. THE HON'BLE DELHI HIGH COURT HAS MADE IT CLEAR THAT WHEN TWO PROVISIONS ARE SIMULTANEOUSLY INTRODUCED IN THE ACT, ONE IS SPECIFIC AND ANOTHER IS MORE GENERAL IN TERMS THEN THE RESORT MUST ITA NO. 2104 /M/201 8 CO NO.105/M/2019 A.Y.20 11 - 12 8 BE TO THE SPECIFIC PROVISION. THEREFORE, WHEN THE, WORK OF BROADCASTING AND' TELECASTING OF THE PROGRAMMES SPECIFICALLY FALLS UNDER THE AMBIT OF PROVISIONS OF SECTION 194C, THEN IN VIEW OF THE DECISION OF HONBLE DELHI HIGH COURT (SUPRA), THE PROVISIONS OF SECTION 194J CON NOT BE APPLIED ON SUCH PAYMENTS. THE CBDT CIRCULAR NO. 720 DATED 30.08.1995.ALSO SUPPORTS THIS VIEW AS IT WAS CLARIFIED IN THE SAID CIRCULAR AS UNDER - '12 61.PAYMENT OF ANY SUM SHALL BE LIABLE FOR DEDUCTION OF TAX ONLY UNDER ONE SECTION. IT HAS BEEN BROUGHT TO THE NOTICE OF THE BOARD THAT IN SOME CASE PERSONS RESPONSIBLE FOR DEDUCTION TAX AT SOURCE ARE DEDUCTING TAX BY APPLYING MORE THAN ONE PROVISION FOR TH E SAME PAYMENTS. IN PARTICULAR, IT HAS BEEN POINTED OUT THAT THE SUM PAID FOR CARRYING OUT WORK OF ADVERTISING ARE SUBJECTED TO DEDUCTION OF TAX AT SOURCE UNDER SECTION 194C AS PAYMENT FOR WORK CONTRACT AS ALSO UNDER SECTION 194J AS PAYMENTS OF FEES FOR P ROFESSIONAL SERVICES. 2. IT IS HEREBY CLARIFIED THAT EACH SECTION, REGARDING TDS UNDER CHAPTER XVII, DEALS WITH A PARTICULAR KIND OF PAYMENT TO THE EXCLUSION OF ALL OTHER SECTIONS IS THIS CHAPTER. THUS, PAYMENT OF ANY SUM SHALL BE LIABLE FOR DEDUCTION OF T AX ONLY UNDER ONE SECTION. THEREFORE, A PAYMENT IS LIABLE FOR TAX DEDUCTION ONLY UNDER ONE SECTION. IN VIEW OF THE ABOVE DISCUSSION AS WELL AS THE DECISIONS OF HON'BLE PUNJAB & HARYANA HIGH COURT AND HONBLE DELHI HIGH COURT, WE DO NOT FIND ANY ERROR OR IL LEGALITY IN THE IMPUGNED ORDER OF CIT(A) QUA THIS ISSUE.' 9.2 THE LD. CIT(A) FOR THE IMPUGNED ASSESSMENT YEAR FOLLOWED THE AFORESAID DECISION OF TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2010 - 11 AND 2011 - 12 AND GRANTED RELIEF TO THE ASSESSEE. WE ARE PRESENTLY CONCERNED WITH AY 2012 - 13 AND IN THIS YEAR ADDITIONS HAVE BEEN MADE BY INVOKING PROVISIONS OF SECTION 40(A)(IA) OF THE 1961 ACT ON ACCOUNT OF SHORT DEDUCTION OF INCOME - TAX AT SOURCE WHEREIN ASSESSEE DEDUCTED INCOME - TAX AT SOURCE @2% BY INVOKING PROVISIONS OF SECTION 194C OF THE 1961 ACT WHILE AO IS OF THE VIEW THAT INCOME - TAX OUGHT TO HAVE BEEN DEDUCTED AT SOURCE U/S 194J OF THE 1961 ACT @10% . WE HAVE ALSO OBSERVED THAT THIS ISSUE HAS ALSO BEEN DECIDED BY HONBLE BOMBAY HIGH COURT IN ASSESSES OWN CASE I N ITA NO. 525,732,741 AND 1035 OF 2015 FOR AY 2008 - 09 TO 2011 - 12 VIDE COMMON ORDER DATED 11.10.2017 IN CIT V. UTV ENTERTAINMENT TELEVISION LTD., REPORTED IN (2017) 399 ITR 443 (BOM) ; (2017) 88 TAXMANN.COM 214 (BOM) WHEREIN HONBLE BOMBAY HIGH COURT HELD T HAT PAYMENTS MADE TOWARDS CARRIAGE FEES/CHANNEL PLACEMENT FEES BY THE ASSESSEE ARE SUBJECT TO DEDUCTION OF INCOME - TAX AT SOURCE U/S 194C OF THE 1961 ACT, BY HOLDING AS UNDER: - 9. WE HAVE GIVEN CAREFUL CONSIDERATION TO THE SUBMISSIONS. FIRSTLY, IT WILL BE NECESSARY TO ADVERT TO THE FACTS OF THE CASE. FOR THAT PURPOSE, IT WILL BE NECESSARY TO MAKE A REFERENCE TO THE ORDER PASSED BY THE INCOME TAX OFFICER. PARAGRAPH 3 OF THE ORDER READS THUS : ITA NO. 2104 /M/201 8 CO NO.105/M/2019 A.Y.20 11 - 12 9 3. DURING THE SURVEY, ON PERUSAL OF THE BOO KS OF ACCOUNTS OF THE ASSESSEE COMPANY, IT WAS FOUND THAT FOR FINANCIAL YEARS 2010-11, THE YEAR UNDER CONSIDERATION THE ASSESSEE COMPANY HAS DEBITED AN AMOUNT OF RS. 33,24,56,189/ ON ACCOUNT OF CARRIAGE FEES , RS.8,20,650/ ON ACCOUNT OF EDITING EXPENSES AND RS.12,95,400/- ON ACCOUNT OF DUBBING CHARGES. THE ASSESSEE WAS ASKED TO GIVE THE DETAILS OF THE CARRIAGE FEES, EDITING EXPENSES AND DUBBING CHARGES PAID BY THE COMPANY AND THE SERVICES RENDERED TO THEM ALONG WITH COP IES OF AGREEMENTS MADE IN THIS REGARD. THE ASSESSEE HAS DEDUCTED TDS AS PER THE PROVISIONS OF SECTION 194C OF THE I.T.ACT ON SUCH PAYMENT. ON FURTHER PERUSAL OF THE AGREEMENTS SUBMITTED BY THE ASSESSEE IT IS SEEN THAT THESE PA YMENTS ARE GIVEN TO MSO/CABLE OPERATORS TO RETRANSMIT AND/OR CARRY THE SERVICE OF THE CHANNELS ON 'S' BAND IN THEIR RESPECTIVE TERRITORIES. THE SERVICES PROVIDED BY THESE MSOS / CABLE OPERATORS DOES NOT COME WI THIN THE PURVIEW OF SECTION 194C OF THE I. T. ACT, AS PLACING THE SERVICE OF THE CHANNEL ON 'S' BAND IS A TECHNICAL SERVICE FOR WHICH THE TDS IS REQUIRED TO BE DEDUCTED AS PER THE PROVISIONS OF SECTION 194J OF THE I.T.ACT INSTEAD DEDUCTED BY THE ASSESSEE COMPANY AS PER THE PROVISIONS OF SECTION 194C OF THE I.T.ACT, 1961. 10. THUS, WE ARE CONCERNED WITH THREE CATEGORIES OF CHARGES I.E. CARRIAGE FEES, EDITING EXPENSES AND DUBBING CHARGES. IT IS TO BE NOTED THAT TH E RESPONDENT- ASSESSEE HAD DEDUCTED TDS AS PER THE PROVISION OF SECTION 194C OF THE SAID ACT. THE SHOW-CAUSE-NOTICES WERE ISSUED TO THE ASSESSEE FOR THE FINANCIAL YEARS 2007-08, 2008-09, 2009-10 AND 2010-11. 11. THE ASSESSING OFFICER HELD THAT THE PLACEME NT CHARGES WILL BE GOVERNED BY SECTION 194J. SIMILARLY IN CASE OF DUBBING CHARGES, THE SAME FINDING WAS RECORDED. EVEN THE SAME VIEW WAS TAKEN IN RESPECT TO EDITING EXPENSES. AS STATED EARLIER, THE COMMISSIONER (APPEALS) (THE FIRST APPELLATE AUTHORIT Y) INTERFERED IN THE APPEAL PREFERRED BY THE ASSESSEE. 12. THE FIRST APPELLATE AUTHORITY HAS MADE IN-DEPTH CONSIDERATION OF THE FACTUAL ASPECTS. REFERENCE TO THE FACTUAL ASPECTS WILL BE NECESSARY TO UNDERSTAND TECHNICALITIES ASSOCIATED WITH CARRIAGE FE ES, EDITING EXPENSES AND DUBBING CHARGES. FIRSTLY, IT WILL BE NECESSARY TO CONSIDER THE NATURE OF CARRIAGE FEES OR PLACEMENT FEES IN THE CONTEXT OF THE NATURE OF BUSINESS CARRIED ON BY THE RESPONDENT. 13. THE COMMISSIONER (APPEALS) HAS RECORDED A FINDING OF FACT AFTER HAVING PERUSED THE COPIES OF THE AGREEMENTS ENTERED INTO BETWEEN THE RESPONDENT- ASSESSEE AND THE CABLE OPERATORS/ MULTI SYSTEM OPERATORS (MSOS), THAT THE CABLE OPERATORS PAY A FEE TO THE RESPONDENT FOR ACQ UIRING RIGHTS TO DISTRIBUTE THE CHANNELS. IT IS POINTED OUT THAT THE CABLE OPERATORS FACE BANDWIDTH CONSTRAINTS AND DUE TO THE SAME, THE CABLE OPERATORS ARE IN A STATE TO DECIDE WHICH CHANNEL WILL REACH THE ITA NO. 2104 /M/201 8 CO NO.105/M/2019 A.Y.20 11 - 12 10 END VIEWER AT WHAT FREQUENCY (PLACEMENT). ACC ORDINGLY, BROADCASTERS MAKE PAYMENTS TO THE CABLE OPERATORS TO CARRY THEIR CHANNELS AT A PARTICULAR FREQUENCY. FEE PAID IN THAT BEHALF IS KNOWN AS CARRIAGE FEE OR PLACEMENT FEE. THE PAYMENT OF PLACEMENT FEE LEADS TO PLACEMENT OF CHANNELS IN PRIME B ANDS, WHICH IN TURN, ENHANCES THE VIEWERSHIP OF THE CHANNEL AND IT ALSO LEADS TO BETTER ADVERTISEMENT REVENUES TO THE TV CHANNEL. 14. THE COMMISSIONER (APPEALS) HAS GIVEN A FINDING OF FACT ON THE PERUSAL OF SAMPLE COPIES OF THE AGREEMENTS. THE AGREEMENT S ARE ENTERED INTO WITH THE RESPONDENT BY THE CABLE OPERATORS FOR PLACEMENT OF CHANNELS ON AGREED FREQUENCIES ON WHICH THE RESPONDENT WISHES TO PLACE A PARTICULAR CHANNEL. THE PLACEMENT FEE IS THE CONSIDERATION FOR PROVIDING CHOICE OF TH E DESIRED PLACEMENT OF THE CHANNELS. THAT IS HOW, CHANNEL PLACEMENT CHARGES ARE PAID TO THE CABLE OPERATORS UNDER THE AGREEMENT. UNDER THE AGREEMENT, THE CABLE OPERATORS AGREE FOR PLACING A PARTICULAR CHANNEL ON AGREED FREQUENCY BAND. AS STATED EARLI ER, THE RESPONDENT HAS DEDUCTED TAX AT THE RATE OF 2% AT SOURCE BY INVOKING SECTION 194C OF THE INCOME TAX ACT WHILE MAKING PAYMENT TOWARDS PLACEMENT FEES TO THE CABLE OPERATORS/ MSOS. IF SECTION 194J IS TO BE APPLIED, THE DEDUCTION WOULD BE OF 10%. TH E COMMISSIONER (APPEALS) HAS ALSO GONE THROUGH THE METHOD FOLLOWED BY THE CABLE OPERATORS/ MSOS. THE COMMISSIONER (APPEALS) HAS ALSO GONE INTO THE SUBMISSION OF THE REVENUE THAT, IN FACT, SECTION 194J WOULD APPLY. IN SUBSTANCE, THE ARGUMENT IS THAT PLAC EMENT CHARGES ARE BASICALLY FOR RENDERING TECHNICAL SERVICE. THE COMMISSIONER (APPEALS) HAS RECORDED A FINDING OF FACT ON THE BASIS OF MATERIAL ON RECORD THAT THE PLACEMENT CHARGES ARE CONSIDERATION FOR PLACING THE C HANNELS ON AGREED FREQUENCY BANDS. IT WAS FOUND THAT, AS A MATTER OF FACT, BY AGREEING TO PLACE THE CHANNEL ON ANY PREFERRED BAND, THE CABLE OPERATOR DOES NOT RENDER ANY TECHNICAL SERVICE TO THE DISTRIBUTOR/ TV CHANNEL. REFERENCE IS M ADE TO THE STANDARD FEE PAID FOR BASIC BROADCASTING OF A CHANNEL AT ANY FREQUENCY. THE COMMISSIONER (APPEALS) HAS CONSIDERED CLAUSE (IV) OF THE EXPLANATION TO SECTION 194C WHICH INCORPORATES INCLUSIVE DEFINITION OF WORK. CLAUSE (IV) INCLUDES BROADCASTING AND TELECASTING INCLUDING PRODUCTION OF PROGRAMMES FOR SUCH BROADCASTING AND TELECASTING. THE COMMISSIONER (APPEALS) RIGHTLY FOUND THAT IF THE CONTRACT IS EXECUTED FOR BROADCASTING AND TELECASTING THE CHANNELS OF THE RESPONDENT, THE SAME WOULD BE COVERED BY SECTION 194C AS IT FALLS IN CLAUSE (IV) OF THE DEFINITION OF WORK. THEREFORE, WHEN PLACEMENT CHARGES ARE PAID BY THE RESPONDENT TO THE CABLE OPERATORS/ MSOS FOR PLACING THE SIGNALS ON A PREFERRED BAND, IT IS A PAR T OF WORK OF BROADCASTING AND TELECASTING COVERED BY SUB-CLAUSE (B) OF CLAUSE (IV) OF THE EXPLANATION TO SECTION 194C. AS A MATTER OF FACT, IT WAS FOUND BY THE COMMISSIONER (APPEALS) THAT WHETHER THE PAYMENT IS TOWARDS A STANDARD FEE OR PLACEMENT FEE, TH E ACTIVITIES INVOLVED ON THE PART OF THE CABLE OPERATORS/ MSOS ARE THE SAME. WHEN PLACEMENT FEE IS RECEIVED, A CHANNEL IS PLACED ON A PRIME BAND. IT WAS FOUND THAT BY AN AGREEMENT TO PLACE THE CHANNEL ON A PRIME BAND BY ACCEPTING PLACEME NT FEE, THE CABLE OPERATOR/ MSO DOES NOT RENDER ANY TECHNICAL SERVICE. AS FAR AS APPELLATE TRIBUNAL IS ITA NO. 2104 /M/201 8 CO NO.105/M/2019 A.Y.20 11 - 12 11 CONCERNED, AGAIN THE DEFINITION OF WORK IN CLAUSE (IV) OF THE EXPLANATION TO SECTION 194C WAS LOOKED INTO. WE MUST NOTE HERE THAT A GRIEVANCE WAS MADE BY THE LEARNED COUNSEL APPEARING FOR THE APPELLANT THAT THERE ARE NO DETAILED FINDINGS RECORDED BY THE APPELLATE TRIBUNAL. HOWEVER, THE COMMISSIONER (APPEALS) HAS RECORDED DETAILED FINDINGS ON THE BASIS OF MATERIAL ON RECORD AND BY REFERRING TO THE FINDINGS, THE APPELLATE TRIBUNAL HAS EXPRESSED GENERAL AGREEMENT WITH THE FINDINGS RECORDED BY THE FIRST APPELLATE AUTHORITY. WHILE AFFIRMING THE JUDGMENT OF THE FIRST APPELLATE AUTHORITY, IT IS OPEN FOR THE APPELLATE TRIBUNAL TO EXPRESS SUCH GENERAL AGREEMENT. 15. NOW, TURNING TO THE SECOND GRIEVANCE REGARDING SUBTITLING CHARGES, AGAIN THE COMMISSIONER (APPEALS) HAS GONE INTO THE DETAILS OF THE FACTUAL ASPECTS. SUBTITLES ARE TEXTUAL VERSIONS OF THE DIALOGS IN THE FILMS AND TELEVISION PROGRAMMES WHICH ARE NORMALLY DISPLAYED AT THE BOTTOM OF THE SCREEN. SOMETIMES, IT IS A TEXTUAL VERSION OF THE DIALOGS IN THE SAME LANGUAGE. IT CAN ALSO BE A TEXTUAL VERSION OF THE DIALOGS IN A PARTICULAR LANGUAGE OTHER THAN THE LAN GUAGE OF THE FILM OR THE TV PROGRAMME. AGAIN THE STAND OF THE REVENUE WAS THAT THIS WILL BE COVERED BY SECTION 194J AND NOT BY SECTION 194C. WE MUST NOTE HERE THAT IN THIS APPEAL, THE REVENUE HAS NOT MADE ANY GRIEVANCE REGARDING APPLICABILITY OF SECTIO N 194C TO DUBBING CHARGES. THE FINDING OF FACT RECORDED BY THE COMMISSIONER (APPEALS), WHICH IS CONFIRMED BY THE APPELLATE TRIBUNAL, IS THAT WORK OF SUBTITLING WILL BE COVERED BY THE DEFINITION OF WORK IN CLAUSE (IV) OF EXPLANAT ION TO SECTION 194C. RELIANCE IS PLACED BY THE COMMISSIONER (APPEALS) ON THE CBDT NOTIFICATION DATED 12 TH JANUARY 1977. THE SAID NOTIFICATION INCLUDES EDITING IN THE PROFESSION OF FILM ARTISTS FOR THE PURPOSE OF SECTION 44AA OF THE INCOME TAX ACT. HO WEVER, THE SERVICE OF SUBTITLING IS NOT INCLUDED IN THE CATEGORY OF FILM ARTISTS. AS NOTED EARLIER, SUB-CLAUSE (B) OF CLAUSE (IV) OF THE EXPLANATION TO SECTION 194C COVERS THE WORK OF BROADCASTING AND TELECASTING INCLUDING PRODUCTION OF PROGRAMMES FOR S UCH BROADCASTING OR TELECASTING. THE WORK OF SUBTITLING WILL BE NATURALLY A PART OF PRODUCTION OF PROGRAMMES. APART FROM CONFIRMING THE FINDING OF FACT RECORDED BY THE COMMISSIONER (APPEALS) ON BOTH THE ASPECTS ON PLACEMENT FEE AND SUBTITLING CHARGES, THE APPELLATE TRIBUNAL HAS NOTED THAT BOTH SECTIONS 194C AND 194J HAVING INTRODUCED INTO THE INCOME TAX ACT ON THE SAME DAY, IT IS OBSERVED THAT THE ACTIVITIES COVERED BY SECTION 194C ARE MORE SPECIFIC AND THE ACTIVITIES COVERED BY SECT ION 194J ARE MORE GENERAL IN TERMS. THEREFORE, FOR THE ACTIVITIES COVERED BY SECTION 194C, SECTION 194J CANNOT BE APPLIED BEING MORE GENERAL OUT OF THE TWO. 16. IN THE ALTERNATIVE, A SUBMISSION WAS CANVASSED BY THE LEARNED COUNSEL FOR THE APPELLANT THA T THE CARRIAGE FEES OR THE PLACEMENT CHARGES ARE IN THE NATURE OF COMMISSION OR BROKERAGE AS DEFINED IN EXPLANATION TO SECTION 194H OF THE INCOME TAX ACT. FURTHER, IN THE ALTERNATIVE, IT WAS SUBMITTED THAT CARRIAGE FEES/ PLACEMENT CHARGES WERE IN THE N ATURE OF ROYALTY COVERED BY SECTION 194J OF THE INCOME TAX ACT. ITA NO. 2104 /M/201 8 CO NO.105/M/2019 A.Y.20 11 - 12 12 17. WE HAVE ALREADY DISCUSSED IN DETAIL THE FINDINGS OF FACT RECORDED BY THE COMMISSIONER (APPEALS) AS REGARDS PLACEMENT FEES/ CARRIAGE FEES. WE HAVE AGREED WITH THE FINDINGS OF FACT BASED O N MATERIAL ON RECORD THAT WHEN THE PAYMENT IS MADE TOWARDS STANDARD FEE OR PLACEMENT FEE, THE ACTIVITY INVOLVED IS THE SAME IN BOTH CASES. AS STATED EARLIER, WHEN SERVICES ARE RENDERED AS PER THE CONTRACT BY ACCEPTING PLACEMENT FEE OR CARRIAGE FEE, T HE SAME ARE SIMILAR TO THE SERVICES RENDERED AGAINST THE PAYMENT OF STANDARD FEE PAID FOR BROADCASTING OF CHANNELS ON ANY FREQUENCY. IN THE PRESENT CASE, THE PLACEMENT FEES ARE PAID UNDER THE CONTRACT BETWEEN THE RESPONDENT AND THE CABLE OPERATORS/ MSOS. THEREFORE, BY NO STRETCH OF IMAGINATION, CONSIDERING THE NATURE OF TRANSACTION, THE ARGUMENT OF THE APPELLANT THAT CARRIAGE FEES OR PLACEMENT FEES ARE IN THE NATURE OF COMMISSION OR ROYALTY CAN BE ACCEPTED. 18. THUS, AS FAR AS BOTH THE GROUNDS OF CHALLE NGE ARE CONCERNED, THERE ARE FINDINGS OF FACT RECORDED BY BOTH THE AUTHORITIES. WE CONCUR WITH THE VIEW TAKEN BY THE APPELLATE TRIBUNAL. IN OUR VIEW, NO QUESTION OF LAW ARISES IN THESE APPEALS. THERE IS NO MERIT IN THE APPEALS AND THE SAME ARE DISM ISSED WITH NO ORDER AS TO COSTS. 9.3 THUS, IN ASSESSEES OWN CASE HONBLE BOMBAY HIGH COURT FOR AY 2008 - 09 TO 2011 - 12 HAS HELD CARRIAGE FEE/CHANNEL PLACEMENT FEES TO BE COVERED WITHIN SCOPE OF WORK DEFINED UNDER SUB - CLAUSE (B) TO CLAUSE (IV) OF THE EX PLANATION TO SECTION 194C OF THE 1961 ACT. WE HAVE ALSO OBSERVED THAT HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. TIMES GLOBAL BROADCASTING CO. LTD., (2019) 105 TAXMANN.COM 313 (BOM) HAS HELD CARRIAGE FEES/ CHANNEL PLACEMENT FEES PAID TO CABLE OPERATO RS /MSO/DTH OPERATORS BEING PAYMENT FOR WORK CONTRACT COVERED U/S 194C OF THE 1961 ACT BY RELYING ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE CIT V. UTV ENTERTAINMENT TELEVISION LTD. (SUPRA) WHEREIN HONBLE BOMBAY HIGH COURT HELD THAT NO SUB STANTIAL QUESTION OF LAW AROSE IN THE SAID APPEAL OF TIMES GLOBAL(SUPRA), BY HOLDING AS UNDER: - 1. THIS APPEAL UNDER SECTION 260-A OF THE INCOME TAX ACT, 1961 (THE ACT) CHALLENGES THE COMMON ORDER DATED 27TH MARCH, 2015 PASSED BY THE INCOME TAX APPELLA TE TRIBUNAL (THE TRIBUNAL). THE IMPUGNED ORDER IS A COMMON ORDER FOR ASSESSMENT YEARS 2008-09 AND 2009-10. THIS APPEAL RELATES TO AY 2009-10. 2. THE APPELLANT HAS URGED ONLY THE FOLLOWING QUESTION OF LAW FOR OUR CONSIDERATION :- (I) WHETHER ON THE FAC TS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE PLACEMENT FEES / CARRIAGE FEES PAID TO CABLE OPERATORS / MSO / DTH OPERATORS ARE PAYMENTS FOR WORK CONTRACT COVERED U/S 194C AND NOT FEES FOR TECHNICAL SERVICE U /S 194J, WITHOUT APPRECIATING THAT THE SERVICE RECEIVED BY THE ASSESSEE ARE TECHNICAL IN NATURE? 3. MR. SURESH KUMAR, LEARNED COUNSEL APPEARING FOR THE REVENUE VERY FAIRLY STATES THAT THE IMPUGNED ORDER OF THE TRIBUNAL RELIED UPON THE ORDER OF ITS CO-ORDIN ATE BENCH IN THE CASE ITA NO. 2104 /M/201 8 CO NO.105/M/2019 A.Y.20 11 - 12 13 OF ASST. COMMISSIONER OF INCOME TAX (TDS) VS. UTV ENTERTAINMENT TELEVISION LTD., DATED 29 TH OCTOBER, 2014, RELATING TO ASSESSMENT YEAR 2008-09 TO 2011-12, WHILE DISMISSING THE REVENUE'S APPEAL. MR. SURESH KUMAR FURTHER STATES THAT BE ING AGGRIEVED WITH THE ORDER DATED 29TH OCTOBER, 2014 PASSED BY THE TRIBUNAL IN THE CASE OF UTV ENTERTAINMENT TELEVISION LTD. (SUPRA), THE REVENUE FILED APPEALS BEING INCOME TAX APPEAL NOS. 525, 732, 741 AND 1035 OF 2015 TO THIS COURT. ALL THE ABOVE APPEA LS FILED BY THE REVENUE WERE DISMISSED BY ORDERS DATED 10TH / 11TH OCTOBER, 2017. 4. THE REVENUE DOES NOT POINT OUT ANY DISTINGUISHING FEATURE IN FACT OR IN LAW IN THIS CASE FROM THAT IN THE UTV ENTERTAINMENT TELEVISION LTD. (SUPRA), WHICH WOULD WARRANT A DIFFERENT VIEW. 5. THEREFORE, FOR THE REASONS STATED IN OUR ORDER DATED IN CIT V. UTV ENTERTAINMENT TELEVISION LTD. (SUPRA) (INCOME TAX APPEAL NO. 525 OF 2015 AND CONNECTED MATTERS) RENDERED ON 10TH / 11TH DECEMBER, 2017, THE QUESTION AS PROPOSED DOES NOT GIVE RISE TO ANY SUBSTANTIAL QUESTION OF LAW. THUS, NOT ENTERTAINED. 6. THE APPEAL IS DISMISSED. NO ORDER AS TO COSTS. 9.4 THE REVENUE FILED AN SLP BEFORE HONBLE SUPREME COURT CHALLENGING AFORESAID DECISION OF HONBLE BOMBAY HIGH CO URT IN THE CASE OF TIMES GLOBAL(SUPRA) WHICH WAS DISMISSED BY HONBLE SUPREME COURT BY HOLDING THAT ON THE FACTS OF THE CASE, NO QUESTION OF LAW ARISES IN THE SAID SLP( REPORTED IN (2019) 105 TAXMANN.COM 314(SC). THE LEARNED CIT - DR HAS PLACED RELIANCE ON T HE EXPLANATION 2 AND 6 TO SECTION 9(1)(VI) OF THE 1961 ACT BEFORE US TO CONTEND THAT THE CARRIAGE FEES/CHANNEL PLACEMENT FEES ARE TOWARDS A PROCESS AS DEFINED IN EXPLANATION 6 AND HENCE IS ROYALTY ON WHICH INCOME - TAX OUGHT TO HAVE BEEN DEDUCTED AT SOURCE U/S 194J OF THE 1961 ACT @10%. THE LEARNED CIT - DR HAS PLACED HEAVY RELIANCE ON THE DECISION OF MUMBAI - TRIBUNAL IN THE CASE OF VIACOM 18 MEDIA PRIVATE LIMITED V. ADIT(INT. TAX) IN ITA NO. 1584/MUM/2010 FOR AY 2009 - 10 VIDE ORDERS DATED 28.03.2014(COMMON ORD ER FOR AY 2009 - 10 TO 2011 - 12 PASSED BY TRIBUNAL) WHEREIN TRIBUNAL HELD THAT TRANSPONDER FEE PAYABLE BY THE TAX - PAYER TO BE ROYALTY WITHIN DEFINITION OF SECTION 9(1)(VI) OF THE 1961 ACT READ WITH EXPLANATION 2 AND 6 OF THE 1961 ACT. WE HAVE OBSERVED THAT TR IBUNAL IN THE CASE OF VIACOM 18 MEDIA PRIVATE LIMITED FOR AY 2013 - 14 TO 2015 - 16 VIDE ORDERS DATED 09.07.2018 HELD THAT NO INCOME - TAX WAS REQUIRED TO BE DEDUCTED AT SOURCE ON TRANSPONDER FEES PAID BY VIACOM TO INTELSAT CORPORATION AS THE SAID SUM WAS FOUND NOT TO BE EXIGIBLE TO INCOME - TAX IN INDIA IN THE HANDS OF INTELSAT BY HONBLE DELHI HIGH COURT IN THE CASE OF DIT(INTERNATIONAL TAXATION) V. INTELSAT CORPORATION IN ITA NO. 977/2011 DATED 19.08.2011. WE ARE PRESENTLY NOT CONCERNED WITH TRANSPONDER FEES BUT ARE PRESENTLY CONCERNED WITH CARRIAGE FEES/ CHANNEL PLACEMENT FEES PAID BY THE ASSESSEE TO CABLE OPERATORS FOR PUTTING CHANNEL ON CERTAIN FREQUENCY TO ENHANCE VIEWERSHIP OF THE SAID CHANNEL. THESE PAYMENTS WERE HELD BY HONBLE BOMBAY HIGH COURT TO BE STAN DARD FEES PAID FOR BROADCASTING CHANNEL ON CERTAIN FREQUENCY. WE HAVE ALSO OBSERVED THAT HONBLE JURISDICTIONAL HIGH COURT HAS CONSISTENTLY HELD THAT PAYMENTS OF CARRIAGE FEES/ CHANNEL PLACEMENT FEES ARE COVERED UNDER THE DEFINITION OF WORK UNDER SUB - CLA USE (B) TO CLAUSE(IV) TO EXPLANATION TO SECTION 194C OF THE 1961 ACT AND INCOME - TAX IS DEDUCTIBLE AT SOURCE U/S 194C OF THE 1961 ACT. REFERENCE IS DRAWN TO DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. ZEE ENTERTAINMENT ENTERPRISES LIMITED RE PORTED IN (2018) 92 TAXMAN.COM 30(BOMBAY) , WHEREIN HONBLE BOMBAY HIGH COURT HELD AS UNDER: ITA NO. 2104 /M/201 8 CO NO.105/M/2019 A.Y.20 11 - 12 14 1. THESE APPEALS UNDER SECTION 260 - A OF THE INCOME TAX ACT, 1961 (THE ACT) CHALLENGE THE COMMON ORDER DATED 20 TH FEBRUARY, 2015 PASSED BY THE INCOME TAX APPELLAT E TRIBUNAL (THE TRIBUNAL). THE IMPUGNED ORDER RELATES TO ASSESSMENT YEARS 2006 - 07, 2007 - 08, 2008 - 09, 2009 - 10 AND 2010 - 11. THESE FOUR APPEALS RELATE TO ASSESSMENT YEARS 2007 - 08, 2008 - 09, 2009 - 10 AND 2010 - 11. 2. THE REVENUE HAS URGED THE FOLLOWING SUBSTANTIA L QUESTIONS OF LAW FOUR OUR CONSIDERATION : - WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL IS JUSTIFIED IN HOLDING THAT THE PLACEMENT FEES / CARRIAGE FEES PAID TO CABLE OPERATORS / MSO / DTH OPERATORS ARE PAYMENTS FOR WO RK CONTRACT COVERED UNDER SECTION 194C AND NOT FEES FOR TECHNICAL SERVICES UNDER SECTION 194J, WITHOUT APPRECIATING THAT THE SERVICES RECEIVED BY ASSESSEE ARE TECHNICAL AND MANAGERIAL IN NATURE? (II) **** 3. REGARDING QUESTION NO.(I) : ( A ) MR. SURES H KUMAR, LEARNED COUNSEL FOR THE APPELLANT - REVENUE VERY FAIRLY STATES THAT THE IMPUGNED ORDER OF THE TRIBUNAL WHILE DISMISSING THE REVENUE'S APPEAL PLACED RELIANCE UPON THE DECISION OF ITS CO - ORDINATE BENCH IN ACIT V. UTV ENTERTAINMENT TELEVISION LTD . [I T APPEAL NO.2699 (MUM.) OF 2012, DATED 29 - 10 - 2014] TO HOLD IN FAVOUR OF THE RESPONDENT ASSESSEE. THE REVENUE BEING AGGRIEVED BY THE ORDER OF THE TRIBUNAL IN UTV ENTERTAINMENT TELEVISION LTD . ( SUPRA ) HAD PREFERRED AN APPEAL TO THIS COURT BEING CIT V. UTV EN TERTAINMENT TELEVISION LTD . [2017] 88 TAXMANN.COM 214/399 ITR 443 (BOM.) AND BY ITS ORDER THE APPEAL OF THE REVENUE WAS DISMISSED. ( B ) IN THE ABOVE VIEW, THE QUESTION (I) AS PROPOSED DOES NOT GIVE RISE TO ANY SUBSTANTIAL QUESTION OF LAW. THUS, NOT ENTERTAINED . 9.5 SIMILARLY, IN THE CASE OF CIT V. UTV NEWS LIMITED IN ITA NO. 1384, 1437, 1446 AND 1448 OF 2016, VIDE JUDGMENT DATED 18.01.2019 DISMISSED THE TAX - APPEALS FI LED BY REVENUE BY HOLDING THAT NO SUBSTANTIAL QUESTION OF LAW ARISES IN THOSE APPEAL BY FOLLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. UTV ENTERTAINMENT TELEVISION LIMITED(SUPRA) WHEREIN IT WAS HELD THAT PAYMENTS TOWARDS CARRIAGE FEES/CHANNEL PLACEMENT FEES ARE SUBJECT TO INCOME - TAX DEDUCTION AT SOURCE U/S 194C OF THE 1961 ACT. SIMILAR VIEW WAS TAKEN BY HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. GENX ENTERTAINMENT LIMITED IN ITA NO. 155 AND 156 OF 2016 VIDE JUDGMENT DATED 26. 03.2018 ( JUDGMENT LATER MODIFIED VIDE ORDER DATED 13.04.2018). THE HONBLE BOMBAY HIGH COURT HAS ALSO UPHELD DELETION OF ADDITIONS TO THE INCOME OF THE TAX - PAYER MADE BY REVENUE U/S 40(A)(IA) OF THE 1961 ACT ON ACCOUNT OF CARRIAGE FEES/CHANNEL PLACEMENT F EES BY HOLDING THAT CORRECT PROVISION FOR DEDUCTIBILITY OF INCOME - TAX AT SOURCE IS U/S 194C AND NOT PROVISIONS OF SECTION 194J IN PCIT V. GENEX ENTERTAINMENT LIMITED IN ITA NO. 1110 OF 2015 VIDE JUDGMENT DATED 26.03.2018. WE ARE BOUND BY THE DECISIONS OF H ONBLE BOMBAY HIGH COURT BEING JURISDICTIONAL HIGH COURT. THESE DECISIONS AS ARE RENDERED BY HONBLE BOMBAY HIGH COURT ARE RECENT DECISION AS LATE AS 18.01.2019 IN THE CASE OF UTV NEWS LIMITED(SUPRA). THE SLP IN THE CASE OF TIMES GLOBAL BROADCASTING COMPA NY LIMITED(SUPRA) WAS DISMISSED ON 25.02.2019. THE REVENUE HAS CLAIMED BEFORE US TO BE AGGRIEVED AS TO NON CONSIDERATION OF DEFINITION OF PROCESS VIDE EXPLANATION 6 TO SECTION 9(1)(VI) WHICH WAS INSERTED BY FINANCE ACT, 2012 WEF 01.06.1976 IN ALL THESE D ECISIONS RENDERED BY SUPERIOR COURTS. OUR HONBLE JURISDICTIONAL HIGH COURT IN ASSESSEES OWN CASE IN CIT V. UTV ENTERTAINMENT TELEVISION LIMITED(SUPRA) HAS HELD IN PARA 17 BASED ON APPRECIATION OF MATERIAL ON RECORD THAT WHEN THE SERVICES ARE RENDERED AS PER THE CONTRACT BY ITA NO. 2104 /M/201 8 CO NO.105/M/2019 A.Y.20 11 - 12 15 ACCEPTING CHANNEL PLACEMENT FEE OR CARRIAGE FEE, THE SAME ARE SIMILAR TO THE SERVICES RENDERED AGAINST THE PAYMENT OF STANDARD FEE PAID FOR BROADCASTING OF CHANNELS ON ANY FREQUENCY. THE HONBLE BOMBAY HIGH COURT OBSERVED THAT CHANNEL P LACEMENT FEES ARE PAID UNDER THE CONTRACT BETWEEN ASSESSEE AND THE CABLE OPERATORS /MSOS AND THE SAID PAYMENTS BY WAY OF CARRIAGE FEES OR CHANNEL PLACEMENT FEES CANNOT BE CONSIDERED TO BE IN THE NATURE OF COMMISSION OR ROYALTY. NOW, FOR REVENUE TO CONTEND BEFORE US THAT NONE OF THE SUPERIOR COURTS IN SERIES OF JUDGMENTS PASSED AS MUCH AS RECENTLY IN FEBRUARY 2019 HAVE NOT CONSIDERED EXPLANATION 6 TO SECTION 9(1)(VI) IS TOO FAR FETCHED AND NOT ACCEPTABLE. EVEN IF IT IS SO, THEN THE RIGHT COURSE FOR REVENUE IS TO FILE REVIEW/CURATIVE PETITION(S) BEFORE SUPERIOR COURTS . WE ARE AFRAID THAT THERE IS NO PRESUMPTION THAT IN SERIES OF JUDGMENTS PASSED BY SUPERIOR COURTS AS LATE AS IN FEBRUARY 2019, THE SUPERIOR COURTS WERE NOT AWARE OF THE AMENDMENT MADE BY FINANC E ACT, 2012 W.E.F. 01.06.1976 WHEREIN EXPLANATION 6 WAS INSERTED TO SECTION 9(1)(VI) OF THE 1961 ACT . THUS, WE ARE NOT INCLINED TO ACCEPT THIS ARGUMENT OF LEARNED CIT - DR THAT IN NONE OF THE JUDGMENTS OF SUPERIOR COURTS RENDERED AS RECENT IN FEBRUARY 2019, THE SUPERIOR COURTS WERE IGNORANT OF EXPLANATION 6 TO SECTION 9(1)(VI) OF THE 1961 ACT. THUS, RESPECTFULLY FOLLOWING THE DECISIONS OF HONBLE BOMBAY HIGH COURT IN ASSESSEES OWN CASE FOR AY 2008 - 09 TO 2011 - 12, WE DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSE E AND DISMISS THE APPEAL OF THE REVENUE. WE ORDER ACCORDINGLY. 6. THE HONBLE BOMBAY HIGH COURT IN THE ASSE S SEES OWN CASE FOR THE A.Y. 2006 - 07 TO 2010 - 11 IN IT. APPEAL NO 1107, 1117 & 1174 OF 2015 AND 140 OF 2016 TITLED AS CIT TDS - 2, MUMBAI VS. ZEE ENTER TAINMENT ENTERPRISES LTD. (2018) (92 TAXMANN.COM 30) (BOM) HAS GIVEN THE FOLLOWING FINDING: - 2. THE REVENUE HAS URGED THE FOLLOWING SUBSTANTIAL QUESTIONS OF LAW FOUR OUR CONSIDERATION : - ( I ) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W, THE TRIBUNAL IS JUSTIFIED IN HOLDING THAT THE PLACEMENT FEES / CARRIAGE FEES PAID TO CABLE OPERATORS / MSO / DTH OPERATORS ARE PAYMENTS FOR WORK CONTRACT COVERED UNDER SECTION 194C AND NOT FEES FOR TECHNICAL SERVICES UNDER SECTION 194J, WITHOUT APPRECIA TING THAT THE SERVICES RECEIVED BY ASSESSEE ARE TECHNICAL AND MANAGERIAL IN NATURE? *** *** 3. REGARDING QUESTION NO.(I) : ( A ) MR. SURESH KUMAR, LEARNED COUNSEL FOR THE APPELLANT - REVENUE VERY FAIRLY STATES THAT THE IMPUGNED ORDER OF THE TRIBUN AL WHILE DISMISSING THE REVENUE'S APPEAL PLACED RELIANCE UPON THE DECISION OF ITS CO - ORDINATE BENCH IN ACIT V. UTV ENTERTAINMENT TELEVISION LTD . [IT APPEAL NO.2699 (MUM.) OF 2012, DATED 29 - 10 - 2014] TO HOLD IN FAVOUR OF THE RESPONDENT ASSESSEE. THE REVENUE BEING AGGRIEVED BY THE ORDER OF THE TRIBUNAL IN UTV ENTERTAINMENT TELEVISION LTD . ( SUPRA ) HAD PREFERRED AN APPEAL TO THIS COURT BEING CIT V. UTV ENTERTAINMENT TELEVISION LTD . [2017] 88TAXMANN.COM 214/399 ITR 443 (BOM.) AND BY ITS ORDER THE APPEAL OF THE REVENUE WAS DISMISSED. ITA NO. 2104 /M/201 8 CO NO.105/M/2019 A.Y.20 11 - 12 16 ( B ) IN THE ABOVE VIEW, THE QUESTION (I) AS PROPOSED DOES NOT GIVE RISE TO ANY SUBSTANTIAL QUESTION OF LAW. THUS, NOT ENTERTAINED. 7. IN VIEW O F THE ABOVE MENTIONED DISCUSSION MADE ABOVE AND BY RELYING UPON THE DECISION OF HONBLE BOMBAY HIGH COURT (SUPRA) , WE ARE OF THE VIEW THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY JUDICIOUSLY AND CORRECTLY WHICH IS NOT LIABLE TO BE INTERFERE D WITH AT THIS APPELLATE STAGE. ACCORDINGLY, BOTH THE ISSUES ARE DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. WE ORDER ACCORDINGLY. IN THE RESULT, APPEAL FILED BY THE REVENUE IS HEREBY ORDER ED TO BE DISMISSED . CROSS - OBECTION NO.105/M/2019 8 . THE FACT S OF THE PRESENT CASE ARE QUITE SAME AS DISCUSSED ABOVE WHILE DECIDING IN ITA. NO.2 104/M/2018, THEREFORE, THERE IS NO NEED TO REPEAT THE SAME . S INCE WE HAVE DISMISSED THE APPEAL OF THE REVENUE ABOVE WHILE DECIDING THE ITA. N O .2104/M/2018, THE CROSS - OBJECTION S FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS , HENCE, DISMISSED. 9 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE AND CROSS - OBJECTION FILED BY THE ASSESSEE ARE HEREBY ORDERED TO BE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 31 /07 /2019 . SD/ - SD/ - ( RAMIT KOCHAR ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 31 /07 /2019 V IJAY / SR. PS ITA NO. 2104 /M/201 8 CO NO.105/M/2019 A.Y.20 11 - 12 17 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI