VIACOM 18 MEDIA P.LTD, MUMBAI V. ITO (OSD) (TDS) 3(1), MUMBAI

CO 156/MUM/2013

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1513 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 28 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 14-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 05-03-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 16-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Question of law
• Section: 194C; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AN D SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO 3515/MUM/2012 ASSESSMENT YEAR: - 2009-10) ACIT (TDS) 3(1), MUMBAI 9 TH FLOOR, SMT. K.G. MITTAL AYURVEDIC HOSPITAL BUILDING, CHARNI ROAD(W) MUMBAI 400 002. VS.` M/S VIACOM 18 MEDIA PVT. LTD. 36-B, DR. R.K. SHIRODKAR MARG, PAREL (EAST), MUMBAI 400012. PAN/GIR NO. AAACM9164E APPELLANT RESPONDENT CO NO. 131/MUM/2013 ARISING OUT OF ITA NO. 3515/MUM/2012 ASSESSMENT YEAR: - 2009-10) M/S VIACOM 18 MEDIA PVT. LTD. 36-B, DR. R.K. SHIRODKAR MARG, PAREL (EAST), MUMBAI 400012. VS.` ACIT (TDS) 3(1), MUMBAI 9 TH FLOOR, SMT. K.G. MITTAL AYURVEDIC HOSPITAL BUILDING, CHARNI ROAD(W) MUMBAI 400 002.. PAN/GIR NO. AMNPS 6283 Q APPELLANT RESPONDENT ITA NO 4208/MUM/2012 ASSESSMENT YEAR: - 2010-11) ITO(OSD) (TDS) 3(1), MUMBAI, 10 TH FLOOR, SMT. K.G. MITTAL AYURVEDIC HOSPITAL BUILDING, CHARNI ROAD(W) MUMBAI 400 002. VS.` M/S VIACOM 18 MEDIA PVT. LTD. 36-B, DR. R.K. SHIRODKAR MARG, PAREL (EAST), MUMBAI 400012. PAN/GIR NO. AAACM9164E APPELLANT RESPONDENT M/S VIACOM 18 MEDIA PVT. LTD. 2 | P A G E CO NO 156/MUM/2013 ARISING OUT OF ITA NO. 4208/MUM/2012 ASSESSMENT YEAR: - 2010-11) M/S VIACOM 18 MEDIA PVT. LTD. 36-B, DR. R.K. SHIRODKAR MARG, PAREL (EAST), MUMBAI 400012. VS.` ITO(OSD) (TDS) 3(1), MUMBAI, 10 TH FLOOR, SMT. K.G. MITTAL AYURVEDIC HOSPITAL BUILDING, CHARNI ROAD(W) MUMBAI 400 002. PAN/GIR NO. AAACM9164E APPELLANT RESPONDENT ITA NO 4209/MUM/2012 ASSESSMENT YEAR: - 2011-12) ITO(OSD) (TDS) 3(1), MUMBAI, 10 TH FLOOR, SMT. K.G. MITTAL AYURVEDIC HOSPITAL BUILDING, CHARNI ROAD(W) MUMBAI 400 002. VS.` M/S VIACOM 18 MEDIA PVT. LTD. 36-B, DR. R.K. SHIRODKAR MARG, PAREL (EAST), MUMBAI 400012. PAN/GIR NO. AAACM9164E APPELLANT RESPONDENT CO NO. 157/MUM/2013 ARISING OUT OF ITA NO 4209/MUM/2012 ASSESSMENT YEAR: - 2011-12) M/S VIACOM 18 MEDIA PVT. LTD. 36-B, DR. R.K. SHIRODKAR MARG, PAREL (EAST), MUMBAI 400012. VS.` ITO(OSD) (TDS) 3(1), MUMBAI, 10 TH FLOOR, SMT. K.G. MITTAL AYURVEDIC HOSPITAL BUILDING, CHARNI ROAD(W) MUMBAI 400 002. PAN/GIR NO. AAACM9164E APPELLANT RESPONDENT M/S VIACOM 18 MEDIA PVT. LTD. 3 | P A G E ORDER PER BENCH THESE THREE APPEALS BY THE REVENUE AND EVEN NUMBER OF CROSS OBJECTIONS BY THE ASSESSEE ARE DIRECTED AGAINST THE THREE SEPARATE ORDERS OF CIT(A) DATED 9.02.2012, 30.03.2012 & 30.03.2012 RE SPECTIVELY ARISING FROM THE ORDERS OF THE AO PASSED U/S 201(1)/201(1A) OF T HE INCOME TAX ACT FOR THE A.Y. 2009-10 TO 2011-12 RESPECTIVELY. THE COMMON GR OUNDS HAVE BEEN RAISED BY THE REVENUE IN THESE APPEALS. FOR THE SAKE OF CO NVENIENCE AND BREVITY, WE TAKE THE FACTS FROM THE APPEAL FOR ASSESSMENT YEAR 2009-10. THE REVENUE IN ITS APPEAL HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL:- I. THE LD. CIT (A) HAS ERRED ON FACTS AND IN LAW I N NOT CORRECTLY APPRECIATING THE NATURE OF THE SERVICES RENDERED BY THE CABLE OP ERATORS / D.T.H. OPERATORS FOR WHICH PLACEMENT CHARGES ARE PAID AND HOLDING TH AT SUCH CHARGES COME WITHIN THE PURVIEW OF SECTION 194C WHEREAS SUCH PLA CEMENT CHARGES ARE IN NATURE OF TECHNICAL FEE WITHIN THE MEANING OF SECTI ON 194J OF THE INCOME-TAX ACT, 1961. II. THE LD. CIT (A) HAS ERRED ON FACTS AND IN LAW I N NOT APPRECIATING THAT FOR PLACING THE CHANNEL OF BROADCASTER IN PRIME BAND, F OR WHICH PLACEMENT CHARGES ARE PAID, APPLICATION OF HUMAN MIND BY A TE CHNICAL PERSON IS ESSENTIAL ASSESSEE BY SHRI G.M.DOSS REVENUE BY SHRI FAROOQ IRANI. DATE OF HEARING 10.08.2015 DATE OF PRONOUNCEMENT 14.10.2015 M/S VIACOM 18 MEDIA PVT. LTD. 4 | P A G E AND THE SAME CANNOT BE DONE MERELY BY MECHANICAL ME ANS. THEREFORE, THE PAYMENT ON ACCOUNT OF PLACEMENT CHARGES IS IN NATUR E OF TECHNICAL FEE WITHIN THE MEANING OF SECTION 194J AND SECTION 194C HAS NO APPLICATION TO THE FACTS OF THE CASE ACCORDINGLY, CIT (A) HAS ERRED IN LAW A ND ON FACTS IN HOLDING TO THE CONTRARY. III. WITHOUT PREJUDICE TO THE FIRST TWO GROUNDS OF APPEALS AS ABOVE, SINCE PROVIDING THE SERVICES OF PREFERRED CHANNEL PLACEME NT ON ACCOUNT OF WHICH PLACEMENT CHARGES ARE PAID REQUIRES USE OF INDUSTRI AL, COMMERCIAL OF SCIENTIFIC EQUIPMENT WITHIN THE MEANING OF SUB CLAUSE (IVA) TO EXPLANATION TO SUB CLAUSE (VI) OF SECTION 9(1) OF THE INCOME TAX ACT, 1961, T HE SAID PAYMENT IS PAYMENT ON ACCOUNT OF ROYALTY AND THEREFORE, SECTION 194J I S CLEARLY APPLICABLE. ACCORDINGLY, CIT (A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THIS FACTUAL AND LEGAL POSITING AND IN GIVING RELIEF TO THE ASSESSEE. IV. THE CIT (A) HAS FURTHER ERRED ON FACTS AND IN L AW IN NOT APPRECIATING THE IN ANY CASE NATURE OF SERVICES RENDERED BY THE CABLE O PERATOR / MULTI SERVICE OPERATORS CONSISTS IN FACILITATING DELIVERY OF PROD UCTS OF BROADCASTER TO THE VIEWER AND IN VIEW OF IMPLIED AGENCY, SUCH PAYMENT ON ACCOUNT OF CARRIAGE FEE IS IN NATURE OF COMMISSION OR BROKERAGE AS DEFI NED IN EXPLANATION TO SECTION 194H OF THE INCOME TAX ACT, 1961. V. THE CIT (A) HAS ERRED IN LAW AND ON FACTS IN HOL DING THAT SECTION 194C APPLIES TO THE PAYMENT OF PLACEMENT CHARGES WITHOUT APPRECIATING THE CORRECT NATURE OF THESE CHARGES, AS IS CLEARLY BROUGHT OUT IN THE STATEMENT OF FACT ANNEXED TO THE GROUND OF APPEAL AND THE ORDER U/S.2 01 (1) OF THE INCOME TAX ACT, 1961. VI. THE CIT (A) HAS ERRED IN LAW AND 0N FACTS IN HO LDING THAT SECTION 194C APPLIES TO THE PAYMENT OF UNLINKING CHARGES WITHOUT APPRECIATING THE CORRECT NATURE OF THESE CHARGES, AS IS CLEARLY BROUGHT OUT IN THE STATEMENT OF FACTS ANNEXED TO THE GROUND OF APPEAL AND THE ORDER U/S.2 01(1) OF THE INCOME TAX ACT,1961. VII. THE CIT (A) HAS ERRED IN LAW AND ON FACTS IN H OLDING THAT SECTION 194C APPLIES TO THE PAYMENTS MADE ON ACCOUNT OF CUTS-TOU RING OF PRODUCTION WORK M/S VIACOM 18 MEDIA PVT. LTD. 5 | P A G E WITHOUT APPRECIATING THE CORRECT NATURE OF THESE CH ARGES, AS IS CLEARLY BROUGHT OUT IN THE STATEMENT OF FACT ANNEXED TO THE GROUND OF APPEAL AND THE ORDER U/S.201 (1) OF THE INCOME TAX ACT 1961. 2. GROUND NO. 1 TO 5 RELATES TO THE ISSUE WHETHER T HE PAYMENT OF PLACEMENT CHARGES TO CABLE OPERATOR/D.T.H. WAS LIABLE FOR D EDUCTION OF TAX AT SOURCE U/S 194C OR U/S 194J. 3. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS A CO MPANY INCORPORATED IN INDIA AND IS PRIMARILY ENGAGED IN BROADCASTING AND TELECASTIN G OF TELEVISION SERIALS /FILMS/OTHER PROGRAMS FROM INDIA VIZ. COLORS, MTV, NICK AND VH1. IT IS ALSO ENGAGED IN MARKETING OF ADVERTISING AIRTIME ON THES E CHANNELS, DISTRIBUTION OF THE CHANNELS, MARKETING AND DISTRIBUTION OF FILMS THROU GH ITS FILM DIVISION AND PRODUCTION OF PROGRAM CONTENT/TELEVISION SOFTWARE. FOR SUCH BROADCASTING AND TELECASTING OF PROGRAMS , THE ASSESSEE NEEDED TO PL ACE ITS PROGRAMMES ON THE BANDWIDTH OR FREQUENCY SO THAT THESE COULD REACH TH E END VIEWERS . THE CABLE OPERATOR/D.T.H. ARE THE LAST IN THE RUNG OF BROAD CASTING AND TELECASTING AND THUS ARE IN A INHERENT POSITION TO DECIDE THAT WHICH PR OGRAMME IS TO BE PLACED OR RELEASED AT WHAT FREQUENCY OR BANDWIDTH. THE PLACEM ENT CHARGES WERE PAID BY THE ASSESSEE TO CABLE OPERATORS FOR PLACING A PARTICU LAR CHANNEL ON A PREFERRED BANDWIDTH IN ORDER TO TELECAST PROGRAMMES DURING P EAK HOURS SO THAT IT ATTRACTED THE VIEWERSHIP AND ALSO FETCHED BETTER REVENUE FOR THE TV CHANNELS. THE ASSESSEE DEDUCTED TAX AT SOURCE AT THE RATE OF 2% U/S 194C F ROM SUCH PAYMENTS. M/S VIACOM 18 MEDIA PVT. LTD. 6 | P A G E 4.THE AO HELD THAT THE SAID PAYMENT WERE IN THE NAT URE OF TECHNICAL SERVICES AND , THEREFORE, THE ASSESSEE WAS TO DEDUCT TAX AT SOURC E AT THE RATE OF 10% U/S 194J AND NOT U/S 194C AND CONSEQUENTLY TREATED THE ASSESSEE IN DEFAULT U/S 201(1)/201(1A). AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER TO CIT (A). 5. THE CIT(A) BY DISAGREEING WITH THE VIEW TAKEN BY THE AO DECIDED THE ISSUE OF DEDUCTION OF TAX AT SOURCE ON PLACEMENT CHARGES IN FAVOUR OF THE ASSSESSEE BY FOLLOWING THE JUDGMENT OF HONOURABLE DELHI HIGH COU RT IN THE CASE OF PRASAR BHARATI (BROADCASTING CORPORATION OF INDIA) [2006] 158 TAXMANN 470 BY HOLDING THAT THE PLACEMENT CHARGES/ CARRIAGE FEES I S COVERED UNDER THE DEFINITION OF WORK CONTRACT U/S 194C. 6. THE LD. DR RELIED ON THE ORDER OF AO AND SUBMITT ED THAT THE SERVICES PROVIDED BY THE CABLE OPERATORS ARE HIGHLY TECHNICA L, INVOLVES TECHNICAL EQUIPMENT FOR TRANSMITTING THE CHANNEL NETWORK TO E ND USER AND, THEREFORE, THE PAYMENT IS IN THE NATURE OF FEES FOR TECHNICAL SERVICES AND THUS ATTRACTED DEDUCTION OF TAX AT SOURCE U/S 194J. 7. ON THE OTHER HAND, THE LD. AR RELYING UPON THE FOLLOWING DECISIONS SUBMITTED THAT THE ISSUE OF TDS ON PLACEMENT CHARGE S WAS SQUARELY COVERED IN ITS FAVOUR BY THE FOLLOWING DECISIONS OF TRIBUNALS AND HIGH COURTS :- M/S VIACOM 18 MEDIA PVT. LTD. 7 | P A G E (A) ACIT (TDS) V. UTV ENTERTAINMENT TELEVISION LIMIT ED (ITA NOS. 2699, 4204, 4205, 2700/MUM/2012 DATED 29 OCTOBER 2014 (MUMB AI TRIBUNAL) (B) DCIT (TDS) 1(1), V. M/S GENX ENTERTAINMENT LTD (ITA NOS. 2627, 4197/2012, CO 228,229/2013 DATED 14 JANUARY 2015 (MUM BAI TRIBUNAL) (C) DCIT (TDS) 1(1), V M/S GENX ENTERTAINMENT LTD. (ITA NOS. 4986, 4987/2013 DATED 22 JULY 2015) (MUMBAI TRIBUNAL) (D) DCIT (TDS)-3(1), V ZEE ENTERTAINMENT ENTERPRISE S LTD (ITA NOS.: 3931 TO 3935/MUM/2013 (E) ACIT VS. NGC NETWORK (I) PVT LTD. (ITA NO. 138 2/MUM/2014 DATED 9 JULY 2014) (F) KURUKSHETRA DARPANS V. CIT [2008] 169 TAXMAN 344 (P&H HIGH COURT) (G) CIT VS. PRASAR BHARATI [2007] 292 ITR 580 (DEL .) (H) CIT VS. PRASAR BHARATI [2007] 292 ITR 580 (SC) (I) ACIT VS. SAHARA ONE MEDIA & ENTERTAINMENT LTD. ( ITA NOS. 4548, 4549, & 4550/MUM/2012. 8. HE FURTHER RELIED AND REFERRED TO CIRCULAR NO. 7 20 DATED 30 TH AUGUST, 1995 AND PRAYED FOR DISMISSAL OF APPEAL O F REVENUE ON THIS GROUND. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, DECISI ONS REFERRED TO ABOVE AND CAREFULLY PERUSED THE MATERIALS ON RECORD . WE FIND THAT THE ISSUE REGARDING DEDUCTION OF TAX AT SOURCE FOR THE PAYMEN T MADE TO CABLE OPERATORS AS PLACEMENT CHARGES IS FULLY COVERED IN FAVOUR O F THE ASSESSEE BY THE VARIOUS DECISIONS AND ALSO BY THE CIRCULAR NO. 720 OF 30.08 .1995. THE HON BLE DELHI M/S VIACOM 18 MEDIA PVT. LTD. 8 | P A G E HIGH COURT IN THE CASE OF CIT VS. PRASAR BHARATI [2007] 292 ITR 580 (DEL.) O N A SIMILAR ISSUE HAS HELD AS UNDER:- WE ARE UNABLE TO AGREE WITH THIS SUBMISSION. WE O BSERVE THAT EXPLANATION III, WHICH WAS INTRODUCED SIMULTANEOUSLY WITH SECTION 19 4J, IS VERY SPECIFIC IN ITS APPLICATION TO NOT ONLY BROADCASTING AND TELECASTI NG 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 T0061ED AND THE OTHER IN MORE GENERAL TERMS RESORT MUST BE HAD TO THE SPECIFIC PROVISIONS WHICH MANIFESTS THE INTEN TION OF THE LEGISLATURE. IT IS NOT, THEREFORE, POSSIBLE TO ACCEPT THE CONTENTION O F THE REVENUE THAT PROGRAMMES PRODUCED FOR TELEVISION, INCLUDING COMM ISSIONED PROGRAMMES, WILL FALL OUTSIDE THE REALM OF SECTION 194C, EXPLA NATION III OF THE ACT. IN THIS VIEW OF THE MATTER WE HOLD THAT THESE APPEA LS DO NOT INVOLVE ANY SUBSTANTIAL QUESTION OF LAW. THE APPEALS ARE ACCOR DINGLY DISMISSED WITH NO ORDER AS TO COSTS . 10. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE C ASE AND THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. PRASAR BHARATI (SUPRA), WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF CIT(A) QUA THIS ISSUE AND THE SAME IS HEREBY AFFIRMED. ACCORDINGLY, THE GROUNDS NO. 1 TO 5 ARE DISMISSED. 11. GROUND NO. 6 RELATES TO THE ISSUE WHETHER THE UPLINKING CHARGES WERE LIABLE FOR DEDUCTION OF TAX AT SOURCE U/S 194C OR 1 94J. 12. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS IN THE BUSINESS OF TELECASTING/BROADCASTING TV CHANNELS AND FOR WHICH THE SIGNALS/CHANNELS NEED TO BE UPLINKED FROM THE EARTH STATION TO THE S ATELLITE. THE ASSESSEE M/S VIACOM 18 MEDIA PVT. LTD. 9 | P A G E ENTERED INTO AN AGREEMENT WITH TV- 18 INDIA LTD FOR UPLINKING ITS CHANNELS/SIGNALS FROM TV18S UPLINK CENTRE AND THUS MADE PAYMENT OF UPLINKING CHARGES TO THE SAID COMPANY AND DEDUCTED TDS U/S 194C. 13. THE AO HELD THAT THE UPLINKING INVOLVED OPERAT ION OF COMPLEX EQUIPMENTS AT THE UPLINK CENTRE AND FURTHER THAT TH E ASSESSEE WAS PAYING UPLINKING CHARGES NOT FOR BROADCASTING BUT TOWARDS ROYALTY AND THUS PROVISIONS OF SECTION 194J WERE ATTRACTED AND NOT 1 94C. 14. THE CIT(A) REJECTED THE ACTION OF THE AO BY OBS ERVING THAT UPLINKING WAS AN INTEGRAL PART OF BROADCASTING/TELECASTING AN D IS COVERED UNDER THE EXPLANATION TO SECTION 194C OF THE INCOME TAX ACT B Y FOLLOWING THE JUDGEMENT OF HONOURABLE DELHI HIGH COURT IN THE CASE OF PRASAR B HARATI (BROADCASTING CORPORATION OF INDIA) (SUPRA) AND CBDT CIRCULAR NO 720 DATED 30.08.1995 (SUPRA) BY OBSERVING AS UNDER:- . THAT SINCE THE ASSESSEE HAS ALREADY DEDUCTED TDS UNDER SECTION 194C OF THE ACT ON THE UPLINK FEE, THE AO IS DIRECTED NOT TO CONSID ER THE ASSESSEE AS ASSESSEE IN DEFAULT UNDER SECTION 201(1) OF THE ACT AS THERE IS NO SHORT DEDUCTION OF TAX BY THE ASSESSEE. THE DEMAND OF TAX OF RS. 51,56,464/- U/S 201(1) AND CONSEQUENTIAL LEVY OF INTEREST AT RS. 15,64,479/- UNDER SECTION 201(1A ) IS HEREBY DELETED. 15. THE LD. DR HEAVILY RELIED ON THE ORDER PASSED B Y THE AO AS WELL AS THE DECISION OF MUMBAI BENCH OF TRIBUNAL IN THE CASE OF ASST. CIT VS. SANSKAR INFO. T.V.P. LTD [2008] 24 SOT 87 (MUM.) 16. ON THE OTHER HAND, THE LD. AR, IN SUPPORT OF HI S CLAIM , RELIED UPON THE FOLLOWING DECISIONS AS WELL AS CIRCULAR NO. 720 DAT ED 30.08.1995. M/S VIACOM 18 MEDIA PVT. LTD. 10 | P A G E (A) ACIT (TDS) V. UTV ENTERTAINMENT TELEVISION LIMIT ED (ITA NOS. 2699, 4204, 4205, 2700/MUM/2012 DATED 29 OCTOBER 2014 (MUMB AI TRIBUNAL) (B) DCIT (TDS) 1(1), V. M/S GENX ENTERTAINMENT LTD (ITA NOS. 2627, 4197/2012, CO 228,229/2013 DATED 14 JANUARY 2015 (MUM BAI TRIBUNAL) (C) DCIT (TDS) 1(1), V M/S GENX ENTERTAINMENT LTD. (ITA NOS. 4986, 4987/2013 DATED 22 JULY 2015) (MUMBAI TRIBUNAL) (D) DCIT (TDS)-3(1), V ZEE ENTERTAINMENT ENTERPRISE S LTD (ITA NOS.: 3931 TO 3935/MUM/2013 (E) ACIT VS. NGC NETWORK (I) PVT LTD. (ITA NO. 138 2/MUM/2014 DATED 9 JULY 2014) (F) KURUKSHETRA DARPANS V. CIT [2008] 169 TAXMAN 344 (P&H HIGH COURT) (G) CIT VS. PRASAR BHARATI [2007] 292 ITR 580 (DEL .) (H) CIT VS. PRASAR BHARATI [2007] 292 ITR 580 (SC) (I) ACIT VS. SAHARA ONE MEDIA & ENTERTAINMENT LTD. ( ITA NOS. 4548, 4549, & 4550/MUM/2012. 17. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AL SO PERUSED THE RELEVANT MATERIAL ON RECORD. THE DECISION OF MUMBAI BENCH IN THE CASE ASST. CIT VS. SANSKAR INFO. T.V.P. LTD (SUPRA), RELIED UPON BY TH E LD. DR ARE NOT APPLICABLE IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AS THE PAYMENT MADE IN THAT CASE WAS MADE TO A NON-RESIDENT WHEREAS IN THE PRES ENT CASE THE PAYMENT HAS BEEN MADE TO INDIAN RESIDENT. IN THE LIGHT OF THE PROPOSITION LAID DOWN BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. PR ASAR BHARATI (SUPRA), THE SPECIFIC PROVISIONS OF SECTION 194J ARE APPLICABLE IN CASE OF UPLINKING FEES M/S VIACOM 18 MEDIA PVT. LTD. 11 | P A G E BEING INTEGRAL PART OF THE BROADCASTING AND TELECAS TING. FOLLOWING THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. PRASAR BHARATI, AND OTHER DECISIONS RELIED UPON BY THE LD. AR, WE DO NO T FIND ANY REASON TO INTERFERE WITH THE ORDER OF CIT (A) ON THIS ISSUE A ND THE SAME IS HEREBY AFFIRMED. THUS THE GROUND NO 6 IS DECIDED AGAINST T HE REVENUE AND IN FAVOUR OF THE ASSESSEE. 18. GROUND NO. 7 RELATES TO WHETHER THE PAYMENT FOR PRODUCTION OF PROGRAMMES FOR BRADCASTING AND TELECASTING WAS LIA BLE TO TAX U/S 194C OR 194J. 19. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE USED TO GET HIS PROGRAMMES SUCH AS TV SERIALS, FILMS AND OTHER PROG RAMMES PRODUCED FROM OUTSIDE PRODUCERS/STUDIOS FOR WHICH IT USED TO MAKE PAYMENTS. THE SIMILAR PRODUCTION WAS ALSO UNDERTAKEN BY THE ASSESSEE IN-H OUSE. THE ASSESSEE DEDUCTED TDS U/S 194C FROM THE PAYMENTS MADE TO SUC H PRODUCERS OF PROGRAMMES. 20. THE AO REJECTED THE CONTENTION OF ASSESSEE THAT SECTION 194C WAS APPLICABLE TO SUCH PAYMENTS AND OPINED THAT SUCH PA YMENT ARE IN THE NATURE OF ROYALTY AND TECHNICAL FEE AND, THEREFORE, THE P ROVISIONS OF SECTION 194J WERE APPLICABLE. M/S VIACOM 18 MEDIA PVT. LTD. 12 | P A G E 21. THE CIT(A) DECIDED THE ISSUE IN FAVOUR OF THE A SSESSEE BY FOLLOWING THE DECISION IN THE CASE OF PRASAR BHARATI (BROADCASTING CORPORATION OF INDIA) (SUPRA) AND CBDT CIRCULAR DATED 30.08.1995 (SUPRA) BY HOLD ING THAT THE AO WAS NOT JUSTIFIED IN TREATING THE PAYMENTS FOR PROGRAMMES P RODUCTION AS ROYALTY. IN ANY CASE AS ALSO HELD IN THE AFORESAID JUDGMENT PROVISI ONS OF SECTION 194C ARE MORE SPECIFIC AS COMPARED TO THOSE OF SECTION 194J( SINC E PROVISION OF 194C DEALS WITH VERY PAYMENT IN QUESTION- PRODUCTION OF PROGRAMMES AND NOT WITH GENERAL CATEGORY OF PAYMENT LIKE FEE FOR TECHNICAL SERVICES OR ROYALTY AS IN SECTION 194J AND HENCE SECTION 194J CANNOT APPLY TO THE PAYMENT FOR PRODUCTION OF PROGRAMMES. SECTION 194C CLEARLY STATES THAT PAYMENT FOR PRODUC TION OF PROGRAMMES CONSTITUTES PAYMENT FOR WORK U/S 194C. ACCORDINGLY, APPLYING TH E SAID JUDGMENT OF THE HOOURABLE DELHI HIGH COURT AND ALSO RELYING ON CBDT CIRCULAR, HE HELD THAT PROVISIONS OF SECTION 194C WOULD PREVAIL OVER SECTI ON 194J OF THE ACT IN THIS CASE. 22. THE LD. DR RELIED UPON THE ORDER OF AO. 23. THE LD. AR ARGUED THAT PAYMENT FOR PRODUCTION O F PROGRAMME FOR BROADCASTING/TELECASTING IS COVERED BY A SERIES OF JUDGMENTS. (A) CIT VS. PRASAR BHARATI [2007] 292 ITR 580 (DEL .) (B) CIT VS. PRASAR BHARATI [2007] 292 ITR 580 (SC) M/S VIACOM 18 MEDIA PVT. LTD. 13 | P A G E (C) ACIT VS. SAHARA ONE MEDIA & ENTERTAINMENT LTD. ( ITA NOS. 4548, 4549, & 4550/MUM/2012. (D) NITIN M. PANCHAMIYA VS. ADD. CIT [2012] 73 DTR 202 (E) DCIT (TDS)-3(1), V ZEE ENTERTAINMENT ENTERPRISE S LTD (F) ACIT (TDS) V. UTV ENTERTAINMENT TELEVISION LIMIT ED (ITA NOS. 2699, 4204, 4205, 2700/MUM/2012 DATED 29 OCTOBER 2014 (MUMB AI TRIBUNAL) (G) DCIT (TDS) 1(1), V. M/S GENX ENTERTAINMENT LTD (ITA NOS. 2627, 4197/2012, CO 228,229/2013 DATED 14 JANUARY 2015 (MUM BAI TRIBUNAL) (H) DCIT (TDS) 1(1), V M/S GENX ENTERTAINMENT LTD. (ITA NOS. 4986, 4987/2013 DATED 22 JULY 2015) (MUMBAI TRIBUNAL) (I) CIRCCULAR NO. 720 DATED 30 AUGUST 1995. 24. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AL SO PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THIS ISSUE REGARD ING PAYMENT FOR PRODUCTION OF PROGRAMMES FOR BROADCASTING AND TELECASTING HAS BEEN CONSIDERED AND DECIDED BY THE HONOURABLE DELHI HIGH COURT IN THE CASE OF C IT VS. PRASAR BHARATI (SUPRA) AS DISCUSSED ABOVE. RESPECTFULLY FOLLOWING THE SAME , THIS ISSUE IS ACCORDINGLY DECIDED IN FAVOUR OF THE ASSESSEE. 25. IN VIEW OF THE ABOVE FINDING, WE FIND THAT THER E IS NO MERIT IN THE APPEAL OF THE REVENUE AND THE SAME IS HEREBY DISMISSED. 26. SINCE THE ISSUES RAISED IN ALL THE APPEALS OF R EVENUE ARE COMMON, OUR DECISION IN THE APPEAL FOR ASSESSMENT Y EAR 2009-10 M/S VIACOM 18 MEDIA PVT. LTD. 14 | P A G E SHALL APPLY MUTATIS MUTANDIS IN THE OTHER TWO APPEALS BEING ITA NOS. 4208& 4209/MUM/2012. 27. SINCE WE HAVE DISMISSED THE APPEAL OF REVENUE, THE CROSS OBJECTIONS FILED BY THE ASSESSEE HAVE BECOME INFRUC TUOUS AND THE SAME ARE HEREBY DISMISSED. 28. IN THE RESULT APPEALS OF THE REVENUE AS WELL CR OSS OBJECTIONS BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON THIS 14 TH DAY OF OCTOBER 2015. SD/- SD/- (D. KARUNAKARA RAO) (SANJAY GARG) ( ACCOUNTANT MEMBER ) ( JUDICIAL MEMBER ) MUMBAI DATED 14-10-2015 SKS SR. P.S, M/S VIACOM 18 MEDIA PVT. LTD. 15 | P A G E COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI