GENX ENTERTAINMENT LIMITED, MUMBAI V. DCIT TDS -1(1), MUMBAI

CO 228/MUM/2013

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 0263 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 18 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 14-01-2015
• Appeal Filed By: Assessee
• Bench Allotted: G
• Next Hearing Date: 06-01-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 26-09-2013
• Court: TRIBUNAL
• Department Lawyers: AND CROSS OBJECTION
• Keywords: Period of limitation; Reasonable cause; Condonation of delay
• Section: 194C; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ITA NO.2627/MUM/2012 ASSESSMENT YEAR: - 2008-09 DCIT (TDS) 1(1), ROOM NO. 803, K.G. MITTAL HOSPITAL BLDG., CHARNI ROAD, MUMBAI 2. VS.` M/S GENX ENTERTAINMENT LTD. 01 ST FLOOR, BLDG. NO. 14, SOLITAIRE CORPORATE PARK GURU GOVINDJI MARG, CHAKALA, ANDHERI (E), MUMBAI 400 093 APPELLANT RESPONDENT ITA NO.4197/MUM/2012 ASSESSMENT YEAR: - 2009-10 ACIT (TDS) 1(1), ROOM NO. 803, K.G. MITTAL HOSPITAL BLDG., CHARNI ROAD, MUMBAI 2. VS.` M/S GENX ENTERTAINMENT LTD. 01 ST FLOOR, BLDG. NO. 14, SOLITAIRE CORPORATE PARK GURU GOVINDJI MARG, CHAKALA, ANDHERI (E), MUMBAI 400 093 APPELLANT RESPONDENT CO NO. 228/MUM/2013 ARISING OUT OF ITA NO.2627/MUM/2012 ASSESSMENT YEAR: - 2008-09 M/S GENX ENTERTAINMENT LTD. 01 ST FLOOR, BLDG. NO. 14, SOLITAIRE CORPORATE PARK GURU GOVINDJI MARG, CHAKALA, ANDHERI (E), MUMBAI 400 093 VS.` DCIT (TDS) 1(1), ROOM NO. 803, K.G. MITTAL HOSPITAL BLDG., CHARNI ROAD, MUMBAI 2. APPELLANT RESPONDENT CO NO. 229/MUM/2013 ARISING OUT OF ITA NO 4697/MUM/2012 ASSESSMENT YEAR: - 2009-10 M/S GENX ENTERTAINMENT LTD. 01 ST FLOOR, BLDG. NO. 14, SOLITAIRE CORPORATE PARK GURU GOVINDJI MARG, CHAKALA, ANDHERI (E), MUMBAI 400 093 VS.` DCIT (TDS) 1(1), ROOM NO. 803, K.G. MITTAL HOSPITAL BLDG., CHARNI ROAD, MUMBAI 2. APPELLANT RESPONDENT M/S GENX ENTERTAINMENT LTD 2 | P A G E ORDER PER VIJAY PAL RAO, JM THESE TWO APPEALS BY THE REVENUE AND CROSS OBJECTI ON BY THE ASSESSEE ARE DIRECTED AGAINST THE TWO SEPARATE ORDERS OF CIT(A) DATED 30.01.2012 AND 30.03.2012 ARISING FROM ORDER PASSED U/S 201 & 201(1A) FOR A. Y. 2008-09 AND 2009-10 RESPECTIVELY. COMMON GROUNDS ARE RAISED BY THE REV ENUE IN BOTH THE APPEALS. THE GROUNDS RAISED FOR A.Y. 2008-09 ARE AS UNDER:- 1. (I) THE LD. CIT(A) HAS ERRED ON FACTS AND IN LA W IN NOT CORRECTLY APPRECIATING THE NATURE OF THE SERVICES RENDERED BY THE CABLE OPERAT ORS /DTH OPERATORS FOR WHICH PLACEMENT CHARGES ARE PAID AND HOLDING THAT SUCH CH ARGES COME WITHIN THE PURVIEW OF SECTION 194C WHEREAS SUCH PLACEMENT CHARGES ARE IN NATURE OF TECHNICAL FEE WITHIN THE MEANING OF SECTION 194J OF THE INCOME-TA X ACT, 1961. (II) THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N NOT CORRECTLY APPRECIATING THAT FOR PLACING THE CHANNEL OF BROADCASTER IN PRIME BAN D, FOR WHICH PLACEMENT CHARGES ARE PAID, APPLICATION OF HUMAN MIND BY A TECHNICAL PERSON IS ESSENTIAL AND THE SAME CANNOT BE DONE MERELY BY MECHANICAL MEANS. THEREFOR E, THE PAYMENT ON ACCOUNT OF PLACEMENT CHARGES IS IN NATURE OF TECHNICAL FEE WIT HIN THE MEANING OF SECTION 194J AND SECTION 194C HAS NO APPLICATION TO THE FACTS OF THE CASE (III) WITHOUT PREJUDICE TO THE FIRST TWO GROUNDS OF APPEALS AS ABOVE, SINCE PROVIDING THE SERVICES OF PREFERRED CHANNEL PLACEMENT ON ACCO UNT OF WHICH PLACEMENT CHARGES ARE PAID REQUIRES USE OF INDUSTRIAL, COMMERCIAL OR SCIENTIFIC EQUIPMENT WITHIN THE MEANING OF SUB CLAUSE (IVA) TO EXPLANATION TO SUB C LAUSE (VI) OF SECTION 9(1) OF THE INCOME-TAX ACT, 1961, THE SAID PAYMENT IS PAYMENT O N ACCOUNT OF ROYALTY AND THEREFORE, SECTION 194J IS CLEARLY APPLICABLE. ACCO RDINGLY, CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THIS FACTUAL AND L EGAL POSITION AND IN GIVING RELIEF TO THE ASSESSEE. (IV) CIT(A) HAS FURTHER ERRED ON FACTS AND IN LAW I N NOT APPRECIATING THAT IN ANY CASE THE NATURE OF SERVICES RENDERED BY THE CABLE OPERAT OR / MULTI SERVICE OPERATORS REVENUE BY SHRI VIJAY K. BORA ASSESSEE BY SHRI FAROKH IRANI AND SHRI ASHISH AGRAWAL DATE OF HEARING 06.01.2015 DATE OF PRONOUNCEMENT 14.01.2015 M/S GENX ENTERTAINMENT LTD 3 | P A G E CONSISTS IN FACILITATING DELIVERY OF PRODUCTS OF BR OADCASTER TO THE VIEWER AND IN VIEW OF IMPLIED AGENCY, SUCH PAYMENT ON ACCOUNT OF CARRI AGE FEE IS IN NATURE OF COMMISSION OR BROKERAGE AS DEFINED IN EXPLANATION T O SECTION 194H OF THE INCOME- TAX ACT, 1961. (V) CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT SECTION 194C APPLIES TO THE PAYMENT OF PLACEMENT CHARGES WITHOUT APPRECIATING T HE 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. 201 (1) OF THE INCOME-TAX ACT, 1961. 2.). THE LD. CIT(A) HAS ERRED ON LAW AND IN FACTS I N NOT APPRECIATING THAT THE DUBBING CHARGES REQUIRE PROVIDING OF TECHNICAL SERV ICES AS DEFINED IN THE ACT AND THEREFORE , ARE WITHIN THE PURVIEW OF SECTION 194J OF THE I. T.ACT. 2. THE GROUND NO. 1 IS REGARDING APPLICABILITY OF S ECTION 194C OR SECTION 194J IN RESPECT OF THE PAYMENT MADE TO CABLE OPERATORS/DTH OPERATORS FOR CHANNEL PLACEMENT. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DISTRIBUTION OF TELEVISION CHANNELS. THE TV CHANNELS ARE DISTRIBUTED BY THE AS SESSEE THROUGH CABLE OPERATORS/MSOS. DUE TO BANDWIDTH CONSTRAINS, IT WAS UP TO THE CABLE OPERATOR TO DECIDE WHICH CHANNEL WILL REACH THE END VIEWER AT W HAT FREQUENCY (PLACEMENT). ACCORDINGLY, BROADCASTERS MAKE PAYMENTS TO THE CABL E OPERATOR TO CARRY THEIR CHANNELS AT A PARTICULAR FREQUENCY WHICH IS GENERAL LY REFERRED AS CARRIAGE FEES/PLACEMENT FEES. THE PAYMENT OF PLACEMENT FE E IS FOR PLACEMENT OF CHANNELS IN PRIME BAND TO ENHANCE THE VIEWERSHIP AND FURTHER LE AD TO BETTER ADVERTISEMENT REVENUE FOR THE TV CHANNELS. THE ASSESSEE HAS DEDUC TED TAX AT SOURCE AT THE RATE OF 2% U/S 194C OF THE ACT IN RESPECT OF THE SAID PAYM ENTS MADE TOWARDS PLACEMENT FEE TO THE CABLE OPERATORS/MSOS. THE ASSESSING OFFICER HELD THAT THE PAYMENT MADE TOWARDS PLACEMENT OF CHANNELS IS FOR PROVIDING TECH NICAL SERVICES TO THE ASSESSEE AND, THEREFORE, THE SAID PAYMENT OUGHT TO BE SUBJEC TED TO TDS U/S 194J AT THE RATE OF 10%. 3. ON APPEAL, THE CIT(A) HELD THAT THE PAYMENT FOR PLACEMENT OF CHANNEL FALLS U/S 194C FOR THE PURPOSE OF DEDUCTION OF TAX AND NOT U/ S 194J. M/S GENX ENTERTAINMENT LTD 4 | P A G E 4. BEFORE US, THE LD. DR HAS SUBMITTED THAT THE CHA NNEL PLACEMENT FEES ARE CHARGES PAID BY THE BROADCASTER TO THE CABLE OPERAT ORS/MSOS FOR PLACING THEIR CHANNELS ON A PARTICULAR FREQUENCY OR BANDWIDTH. TH US THESE CHARGES ARE PAID TO PUT THE CHANNEL IN PRIME FREQUENCY/BAND SO THAT VIEWERS HIP AS WELL AS QUALITY OF CHANNELS CAN BE INCREASED. PLACING A PARTICULAR CHA NNEL ON A PARTICULAR FREQUENCY IS INTEGRAL PART OF BROADCASTING PROCESS AND, THEREFOR E, THE FEE/CHARGES PAID BY ASSESSEE ARE IN THE NATURE OF ROYALTY OR FEE FOR TECHNICAL S ERVICES AS PER SECTION 9(1)(VI) OF THE INCOME TAX ACT. THE FEE IS PAID FOR PLACING THE CHA NNEL IN A PARTICULAR PRIME BAND OR BANDWIDTH INVOLVES THE PROCESS OF TRANSMISSION AND, THEREFORE, THE PROVISIONS OF SECTION 194J ARE APPLICABLE ON SUCH PAYMENT. HE HAS RELIED UPON THE ORDERS OF AUTHORITIES BELOW. 5. ON THE OTHER HAND, THE LD. COUNSEL HAS SUBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISIONS OF THIS TRI BUNAL IN THE CASE OF ACIT VS. UTV ENTERTAINMENT TELEVISION LTD. VIDE ORDER DATED 29. 10.2014 AND FURTHER IN THE CASE OF ACIT VS. M/S. NGC NETWORKS (I) PVT. LTD. DATED 09.07 .2014, WHEREIN THE TRIBUNAL HAS HELD THAT THE FEE FOR PLACEMENT OF CHANNEL DOES NOT FALL U/S 194J BUT THE SAME FALLS U/S 194C. HENCE THE CIT(A) HAS RIGHTLY HELD THAT THE TD S IN RESPECT OF THE PAYMENT HAS TO BE DEDUCTED U/S 194C. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. AT THE OUTSET, WE NOTE THAT AN IDENTICAL IS SUE HAS BEEN CONSIDERED BY THIS TRIBUNAL IN THE CASE OF ACIT VS. UTV ENTERTAINMENT TELEVISION LIMITED (SUPRA) IN PARA 6 TO 10 AS UNDER:- 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND REL EVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE PAYMENT IN QUE STION WAS MADE BY THE ASSESSEE TO THE CABLE OPERATORS/ MSOS FOR PLACING T HE TV CHANNELS IN THE PRIME BAND IN ORDER TO ENHANCE THE VIEWERSHIP AND BETTER ADVERTISEMENT REVENUE. IN THE CASE OF KURUKSHETRA DARPANS (P) LTD. VS. CIT (SUPRA) , THE HONBLE HIGH COURT OF PUNJAB & HARYANA WHILE DEALING WITH AN IDE NTICAL QUESTION HAS HELD IN PARA 13 TO 18 AS UNDER:- M/S GENX ENTERTAINMENT LTD 5 | P A G E 13. AFTER HEARING LEARNED COUNSEL FOR THE PARTIES, WE ARE OF THE VIEW THAT THE CONTENTIONS OF THE COUNSEL FOR THE APPELLANT AR E LIABLE TO BE REJECTED. SEC. 194C OF THE ACT CREATES AN OBLIGATION ON A PERSON R ESPONSIBLE FOR PAYING ANY SUM SPECIFLED THEREIN TO A PERSON FOR CARRYING OUT ANY WORK, TO DEDUCT THE TAX AT SOURCE.' PRESENTLY, WE ARE CONCERNED WITH THE WORK' AS REFERRED TO IN CL(B) OF EXPLN. III BELOW S.194C(2)OF THE ACT. 14. IN TERMS OF THE SAID EXPLANATION. IT IS PROVIDE D THAT EXPRESSION 'WORK' SHALL INCLUDE INTER ALIA BROADCASTING AND TELECASTI NG INCLUDING PRODUCTION OF PROGRAMMES FOR SUCH BROADCASTING AND TELECASTING. B Y 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 TEMS OF SECTION 194 OF THE ACT. THE ASSESSEE IS A CABLE NE TWORK OPERATOR THROUGH WHICH IT PROVIDES TELECASTING OF PROGRAMMES TO THE ULTIMATE CONSUMERS/SUBSCRIBERS. THE ASSESSEE IN TURN ENTERS INTO A CONTRACT WITH THE LI CENSOR OF VARIOUS TV CHANNELS. ON THE PAYMENT SO MADE, S. 194C OF THE ACT' IS ATTR ACTED. THIS IS FOR THE REASON THAT THE LICENSOR. IS A PERSON WHO IS PERFORMING TH E WORK WHICH IS COVERED WITHIN THE MEANING OF C1. (B) OF EXPLN. III TO S. 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 TELEVIS ION CHANNEL(S) SERVICES INCLUDING THE SERVICE AND HAS EXCLUSIVE RIGHTS TO MARKET AND DISTRIBUTE THE SERVICES IN INDIA TO VARIOUS CUSTOMERS AND USERS OF THE SERVICE'. FUR THER, THE AGREEMENT REFERS TO THE ASSESSEE SUBSCRIBER AS A PARTY, WHICH IS DESIRO US TO SUBSCRIBE FOR AND RECEIVE THE TELECAST SIGNALS OF THE SERVICE FROM THE COMPAN Y IN ORDER TO FURTHER DISTRIBUTE THE SAME TO THE CUSTOMERS). 16. FROM THE RECITAL OF THE AGREEMENT 'ITSELF, IT I S 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' H AS ALSO BEEN 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 LICEN SOR OR COMPANY CERTAINLY INCLUDES WITHIN ITS AMBIT BROADCASTING AND TELECAST ING FACILITY. THE ESSENCE OF THE CONTRACT IS TO OBTAIN BROADCASTING AND TELECAST ING OF TV CHANNELS AND THEREAFTER ITS DISTRIBUTION AMONGST ULTIMATE CUSTOM ERS THROUGH THE CABLE NETWORK OF THE ASSESSEE. 17. ANOTHER PLEA OF THE ASSESSEE/SUBSCRIBER WAS THA T THE LICENSOR OR THE PERSON TO WHOM THE ASSESSEE IS MAKING PAYMENT BY ITSELF DO ES NOT DO THE WORK OF BROADCASTING' AND TELECASTING AND IS THEREFORE OUTS IDE THE PURVIEW OF S. 194C OF THE ACT. THIS ARGUMENT DESERVES TO BE NEGATED AT TH E THRESHOLD. AS WE HAVE POINTED OUT EARLIER WHAT THE ASSESSEE SUBSCRIBER IS LOOKING FOR IS TO OBTAIN THE TELECAST SIGNALS FROM THE LICENSOR, WHICH IS ENOUG H. TO DEDUCE THAT THE IMPUGNED CONTRACT INVOLVES BROADCASTING AND TELECASTING OF T V SIGNALS . MOREOVER, THE LICENSOR OR THE COMPANYV, AS IS EVIDENT FROM THE SP ECIMEN AGREEMENT ON RECORD, IN THE BUSINESS OF DISTRIBUTION OF SATELLITE BASED TV CHANNELS AND HAS EXCLUSIVE M/S GENX ENTERTAINMENT LTD 6 | P A G E RIGHTS TO MARKET AND DISTRIBUTE SAID SERVICES IN IN DIA, THE SERVICE THAT IS REFERRED TO IN THEAGREEMENT IS THE BROADCASTING AND TELECASL ING OF TV SIGNALS. 18. FOR THE REASONS RECORDED ABOVE. WE HAVE NO HESI TATION IN CONCLUDING THAT THE TRIBUNAL WAS CORRECT IN HOLDING THAT THE ASSESSEE W AS REQUIRED TO DEDUCT TAX AT SOURCE IN TERMS OF S. 194C OF THE ACT ON PAYMENTS M ADE TO THE LICENSOR FOR OBTAINING 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 OBTAIN ING THE TELECAST LICENSES FROM THE LICENSOR FALLS UNDER THE PROVISIONS OF SEC TION 194C. WE FIND THAT THE WORK OF BROADCASTING/TELECASTING INCLUDING PRODUCTI ON OF PROGRAMME OR SUCH BROADCASTING OR TELECASTING FALLS UNDER THE DEFINIT ION OF WORK AS PROVIDED UNDER CLAUSE (IV) OF THE EXPLANATION TO SECTION 19 4C WHICH READS AS UNDER:- EXPLANATION - FOR THE PURPOSE OF THIS SECTION - ********************************* ********************************* (IV) WORK SHALL INCLUDE- (A) ADVERTISING; (B) BROADCASTING AND TELECASTING INCLUDING PRODUCTION O F PROGRAMMES FOR SUCH BROADCASTING OR TELECASTING (C) CARRIAGE OF GOODS OR PASSENGERS BY ANY MODE OF TRAN SPORT OTHER THAN BY RAILWAYS; (D) CATERING; (E) MANUFACTURING OR SUPPLYING A PRODUCT ACCORDING TO T HE REQUIREMENT OR SPECIFICATION OF A CUSTOMER BY USING MATERIAL PU RCHASED FROM SUCH CUSTOMER, BUT DOES NOT INCLUDE MANUFACTURING OR SUPPLYING A P RODUCT ACCORDING TO THE REQUIREMENT OF SPECIFICATION OF A CUSTOMER BY U SING MATERIAL PURCHASED FROM A PERSON, OTHER THAN SUCH CUSTOMER.] 8. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. PRASAR BHARATI (BROADCASTING CORPORATION OF INDIA) (SUPRA), HAS OBSERVED IN PARA 11 AS UNDER:- WE ARE UNABLE TO AGREE WITH THIS SUBMISSION. WE OB SERVE THAT EXPLANATION III, WHICH WAS INTRODUCED SIMULTANEOUSLY WITH SECTION 19 4J, IS VERY SPECIFIC IN ITS APPLICATION TO NOT ONLY BROADCASTING AND TELECASTIN G 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 TE RMS, RESORT MUST BE HAD TO THE SPECIFIC PROVISION WHICH MANIFESTS THE INTENTIO N OF THE LEGISLATURE. IT IS NOT, THEREFORE, POSSIBLE TO ACCEPT THE CONTENTION OF THE REVENUE THAT PROGRAMMES M/S GENX ENTERTAINMENT LTD 7 | P A G E PRODUCED FOR TELEVISION, INCLUDING 'COMMISSIONED PR OGRAMMES', WILL FALL OUTSIDE THE REALM OF SECTION 194C, EXPLANATION III OF THE A CT. WE FIND NO INFIRMITY IN THE VIEW TAKEN BY THE INCOME-TAX APPELLATE TRIBUNAL WHI CH WE HEREBY AFFIRM. 9. THE HONBLE DELHI HIGH COURT HAS MADE IT CLEAR T HAT WHEN TWO PROVISIONS ARE SIMULTANEOUSLY INTRODUCED IN THE ACT., ONE IS S PECIFIC AND ANOTHER IS MORE GENERAL IN TERMS THEN THE RESORT MUST BE TO THE SPE CIFIC PROVISION. THEREFORE, WHEN THE WORK OF BROADCASTING AND TELECASTING OF TH E 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 CANNOT 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:- 1261. PAYMENT OF ANY SUM SHALL BE LIABLE FOR DEDUC TION OF TAX ONLY UNDER ONE SECTION . IT HAS BEEN BROUGHT TO THE NOTICE OF THE BOARD THAT IN SOME CASES PERSONS RESPONSIBLE FOR DEDUCTING TAX AT SOURCE ARE DEDUCTI NG SUCH TAX BY APPLYING MORE THAN ONE PROVISION FOR THE SAME PAYMENT. IN PARTICU LAR, IT HAS BEEN POINTED OUT THAT THE SUMS PAID FOR CARRYING OUT WORK OF ADVERTI SING ARE BEING SUBJECTED TO DEDUCTION OF TAX AT SOURCE UNDER SECTION 194C AS PA YMENT FOR WORK CONTRACT AS ALSO UNDER SECTION 1941 AS PAYMENTS OF FEES FOR PRO FESSIONAL SERVICES. 2. IT IS HEREBY CLARIFIED THAT EACH SECTION, REGARD ING TDS UNDER CHAPTER XVII, DEALS WITH A PARTICULAR KIND OF PAYMENT TO THE EXCL USION OF ALL OTHER SECTIONS IS THIS CHAPTER. THUS, PAYMENT OF ANY SUM SHALL BE LIA BLE FOR DEDUCTION OF TAX ONLY UNDER ONE SECTION. THEREFORE, A PAYMENT IS LIABLE F OR TAX DEDUCTION ONLY UNDER ONE SECTION. 10. IN VIEW OF THE ABOVE DISCUSSION AS WELL AS THE DECISIONS OF HONBLE PUNJAB & HARYANA HIGH COURT AND HONBLE DELHI HIGH COURT, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF CIT(A) QUA THIS ISSUE. 7. WE FURTHER NOTE THAT AN IDENTICAL ISSUE WAS ALSO DECIDED BY THE TRIBUNAL IN THE CASE OF ACIT VS. NGC NETWORK PVT. LTD. IN ITA NO. 13 82/MUM/2014 VIDE ORDER DATED 9-7-2014, WHEREIN THE TRIBUNAL HAS TAKEN THE SIMILA R VIEW. ACCORDINGLY, FOLLOWING THE EARLIER ORDERS OF THIS TRIBUNAL ON THIS ISSUE, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDER OF CIT(A) QUA THIS ISSUE. M/S GENX ENTERTAINMENT LTD 8 | P A G E 8. GROUND NO. 2 IS REGARDING APPLICABILITY OF SECTIO N 194J OR SECTION 194C IN RESPECT OF DUBBING CHARGES. 9. WE HAVE HEARD THE LD. DR AS WELL AS LD. AR AND C ONSIDERED THE RELEVANT MATERIAL ON RECORD. AT THE OUTSET WE NOTE THAT AN I DENTICAL ISSUE WAS CONSIDERED AND DECIDED BY THIS TRIBUNAL IN THE CASE OF ACIT VS. MA NISH DUTT (12 TAXMANN.COM 50), WHEREIN IT WAS HELD THAT THE PAYMENT MADE FOR DUBBI NG WORK FALLS UNDER SECTION 194C AND NOT U/S 194I. THE TRIBUNAL AGAIN IN CASE OF UTV ENTERTAINMENT TELEVISION LIMITED (SUPRA) HAD DECIDED A SIMILAR ISSUE IN PAR A 12 AND 13 AS UNDER:- 12. WE HAVE HEARD THE LD. DR AS WELL AS LD. AUTHORIZ ED REPRESENTATIVE AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE CIT (A) WHILE DECIDING THIS ISSUE HAS RELIED UPON THE DECISION OF THIS TRIBUNAL IN TH E CASE OF ACIT VS. MANISH DUTT (12 TAXMANN.COM 50) , WHEREIN, THE TRIBUNAL HELD IN PARA 8 TO 12 AS UND ER:- 8. WE HAVE ALREADY SEEN THAT THE ASSESSEE IS ENGAGE D IN THE BUSINESS OF DOING DUBBING WORK. THE ASSESSEE WAS HAVING HIS OWN STUDIO COMPRISING OF VARIOUS DUBBING EQUIPMENTS AND PROFESSIONAL ARTI ST TO CARRYON THE WORK OF DUBBING. WHENEVER THE ASSESSEE'S OWN STUDIO COULD NOT BE USED THE ASSESSEE USED TO GIVE THE JOB OF CARRYING OUT D UBBING WORK TO OTHER DUBBING STUDIOS. IN RESPECT OF ONE SUCH WORK ENTRUS TED BY THE ASSESSEE TO ANOTHER STUDIO BY NAME NINETY DEGREES THE ASSESSEE HAD MADE A PAYMENT OF RS. 1,60,000. ACCORDING TO THE ASSESSEE, THE PA YMENT WAS MADE TO A SUB-CONTRACTOR FOR EXECUTION OF A CONTRACT AND, THE REFORE, IN TERMS OF SECTION 194C THE ASSESSEE DEDUCTED TAX AT SOURCE AT 2 PER CENT. THE ASSESSING OFFICER HOWEVER, WAS OF THE VIEW THAT THE PAYMENT IN QUESTION WAS RENT PAID BY THE ASSESSEE AND, THEREFORE, IN TE RMS OF SECTION 194-1 OF THE ACT THE ASSESSEE OUGHT TO HAVE DEDUCTED TAX AT SOURCE AT 20 PER CENT. SINCE THE ASSESSEE DID NOT DEDUCT TAX AT SOURCE AT THE PROPER RATE THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE ASSES SEE FOR DEDUCTION OF A SUM OF RS. 1,60,000 UNDER THE HEAD STUDIO HIRE CHAR GES BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. 9. BEFORE THE CIT(A), THE ASSESSEE SUBMITTED THAT T HE CONTRACT DETAILS WERE NOT CALLED FOR DURING THE ASSESSMENT AND THAT THE W ORK DONE BY 90 DEGREE WAS FOR WORK AS PROVIDED FOR UNDER SECTION 194C OF THE ACT. THE ASSESSEE M/S GENX ENTERTAINMENT LTD 9 | P A G E POINTED OUT THAT STUDIO IS BOOKED AND DUBBING WORK IS UNDERTAKEN USING STUDIO EQUIPMENT, STAFF ETC. THE WORD STUDIO HIRE I S A TERM GENERALLY USED BY INDUSTRY TO DENOTE THE VARIOUS SERVICES RENDERED BY THE DUBBING STUDIO. BUT THE REAL NATURE OF WORK IS A CONTRACT FOR CARRY ING OUT WORK. THE ASSESSEE RELIED ON EXPLANATION TO SECTION 194C(7) W HERE AT (IV) 'WORK' WOULD INCLUDE BROADCASTING AND TELECASTING INCLUDIN G PRODUCTION OF PROGRAMMES FOR SUCH BROADCASTING OR TELECASTING. TH E ASSESSEE FURNISHED DETAILS OF THE WORK CARRIED OUT BY IT FROM STUDIO 9 0 DEGREE WHICH SHOWED THAT IN RESPECT OF TV SERIAL KARMA THE ASSESSEE UNDERTOOK DUBBING WORK. T HE AGREEMENT BETWEEN THE ASSESSEE AND TURNER ENTERTAINMENT A TEL ECASTING COMPANY WAS ALSO FILED. 10. ON CONSIDERATION OF THE ABOVE SUBMISSIONS, THE CIT(A) HELD AS FOLLOWS: '2.3.2 FACTS AND MATERIALS ON RECORD ARE CONSIDERED . IT IS SEEN THAT ASSESSING OFFICER HAD ONLY ASKED APPELLANT TO EXPLA IN THE PAYMENT BUT HAD NOT SPECIFIED ANY EVIDENCE TO BE FURNISHED. THE SUB MISSIONS MADE DURING THE APPEAL INDICATE THAT THE STUDIO WAS HIRED FOR U TILIZING THE DUBBING FACILITIES WHICH INCLUDED SERVICE THROUGH THE STUDI O STAFF. CONDITION OF SECTION 194C(7) EXPLANATION (IV) ARE MET ALSO. AS S UCH THE PAYMENT MADE WAS COVERABLE UNDER SECTION 194C UNDER WHICH TAX WA S DEDUCED. ON FACTS, THEREFORE, THE DISALLOWANCE MADE UNDER SECTION 40(A )(IA) IS DELETED.' 11. AGGRIEVED BY THE ORDER OF THE CIT(A) THE REVENU E HAS RAISED GROUND NO.2 BEFORE THE TRIBUNAL. 12. WE HAVE HEARD THE RIVAL SUBMISSIONS. AS CAN BE S EEN FROM THE ORDER OF THE CIT(A), THE ASSESSEE HAD UTILIZED THE SERVICES OF DUBBING STUDIO NINETY DEGREES BY USING THEIR EQUIPMENTS AS WELL AS THE AR TISTS WHO WERE WORKING FOR STUDIO NINETY DEGREES. THE ASSESSEE HAD THUS CA RRIED OUT THE WORK OF DUBBING BY ENGAGING SERVICES AND THE SAME WAS OF TH E NATURE OF GETTING WORK DONE THROUGH A SUB-CONTRACTOR. THE FINDINGS OF THE CIT(A) IN THIS REGARD ARE NOT IN CHALLENGE BEFORE US. IN SUCH CIRC UMSTANCES WE ARE OF THE VIEW THAT THE PROVISIONS OF SECTION 194C WERE APPLI CABLE AND THE ASSESSEE HAS RIGHTLY DEDUCTED TAX AT SOURCE AT 2 PER CENT TR EATING THE PAYMENT AS A PAYMENT TO SUB-CONTRACTOR FOR CARRYING OUT A WORK. WE DO NOT FIND ANY GROUND TO INTERFERE WITH THE ORDER OF CIT(A). CONSE QUENTLY GROUND NO.2 RAISED BY THE REVENUE IS DISMISSED. 13 . NO CONTRARY DECISION HAS BEEN REFERRED OR PRODUCE D BEFORE US. THEREFORE, FOLLOWING THE DECISION OF THIS TRIBUNAL, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDER OF CIT(A) QUA THIS ISSUE. M/S GENX ENTERTAINMENT LTD 10 | P A G E 10. FOLLOWING THE EARLIER ORDERS OF THIS TRIBUNAL, THIS ISSUE IS DECIDED AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. 11. NOW WE TAKE UP THE CROSS OBJECTIONS FILED BY TH E ASSESSEE WHEREIN THE ASSESSEE HAS RAISED COMMON GROUNDS AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME- TAX (APPEALS) - 14, MUMBAI, ERRED IN NOT AD JUDICATING ON THE FOLLOWING CONTENTIONS RAISED BY THE APPELLANT: (I) THE LEARNED TDS OFFICER ERRED IN HOLDING THAT THE APPELLANT IS LIABLE TO PAY PRINCIPAL AMOUNT OF TAX UNDER SECTION 201(1) OF THE INCOME TAX ACT, 1961 WITHOUT VERIFYING THE PAYMENT OF TAX ON SUCH INCOME BY THE DEDUCTEE CABLE OPERATORS IN THEIR RESPECTIVE RETURNS/ ASSESSMENTS. (II) WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED TD S OFFICER ERRED IN LEVYING INTEREST UNDER SECTION 201(1A) OF THE INCOME TAX AC T, 1961 FROM THE DATE THE TAX WAS DEDUCTIBLE TILL THE DATE OF ORDER UNDER SECTION 201 (1) !201 (1A) OF THE ACT. 12. WE HAVE HEARD THE LD. AR AS WELL AS LD. DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. IN VIEW OF OUR FINDING IN THE R EVENUES APPEAL AND CONSEQUENTIAL DISMISSAL OF THE REVENUES APPEALS THE CROSS OBJECT IONS FILED BY THE ASSESSEE BECOME INFRUCTUOUS. 13. WE FIND THAT THERE IS A DELAY OF 152 DAYS IN TH E CROSS OBJECTION FOR THE A.Y. 2008-09 AND DELAY OF 75 DAYS IN FILING THE CROSS OB JECTION FOR THE A.Y. 2009-10. THE ASSESSEE HAS FILED APPLICATIONS FOR CONDONATION OF DELAY ALONG WITH AFFIDAVIT OF DIRECTOR OF THE ASSESSEE COMPANY. M/S GENX ENTERTAINMENT LTD 11 | P A G E 14. WE HAVE HEARD THE LD. AR AS WELL AS LD. DR AND CONSIDERED THE AVERMENTS MADE IN THE AFFIDAVITS FOR EXPLAINING THE DELAY IN FILING THE CROSS OBJECTIONS. WE ARE SATISFIED WITH THE REASONS EXPLAINED BY THE ASSESSE E THAT THE ASSESSEE HAD A REASONABLE CAUSE FOR NOT FILING THE CROSS OBJECTION S WITHIN THE PERIOD OF LIMITATION. ACCORDINGLY, THE DELAY IN FILING THE CROSS OBJECTIO NS ARE CONDONED. 15. IN THE RESULT, THE APPEALS OF THE REVENUE AS WE LL AS CROSS OBJECTIONS OF THE ASSESSEE ARE DIMISSED. ORDER PRONOUCNED IN THE OPEN COURT ON THIS 14 TH DAY OF JANUARY 2015. SD/- SD/- (B.R. BASKARAN) (VIJAY PAL RAO) (ACCOUNTANT MEMBER/ YS[KK LNL; YS[KK LNL; YS[KK LNL; YS[KK LNL; ) (JUDICIAL MEMBER/ U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; ) MUMBAI DATED 14 -01-2015 SKS SR. P.S, COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, G BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI