EURO RSCG ADVERTISING P.LTD, MUMBAI V. ITO (TDS) (OSD) 1(2), MUMBAI

CO 45/MUM/2016

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 2704 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 11-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 04-04-2016
• Court: TRIBUNAL
• Department Lawyers: KEERTHIGA SHARMA
• Assessee Lawyers: B S BIST
• Keywords: Tax effect
• Section: 194C; 201(1)

Judgement Text

, , E, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.6210/MUM/2014 ASSESSMENT YEAR: 2010-11 IT O (TDS) (OSD) - 1(2), R.NO.812, K.G. MITTAL HOSPITAL BLD. G CHARNI RD. MUMBAI 400002 / VS. M/S. EURO RSCG ADVERTISING P. LTD. VALENCIA, 4 TH FLOOR, RAJKAMAL MARG, OFF. DR. S.S. RAO RD. PAREL (E) MUMBAI-400012 ( APPELLANT ) (RESPONDENT ) P.A. NO. AAACE1385R CO NO.45/MUM/2016 ASSESSMENT YEAR: 2010-11 M/S. EURO RSCG ADVERTISING P. LTD.(NOW KNOWN AS HAVAS WORLDWIDE INDIA P. LTD.) VALENCIA, 4 TH FLOOR, RAJKAMAL MARG, OFF. DR. S.S. RAO RD. PAREL (E) MUMBAI-400012 / VS. ITO (TDS) (OSD) - 1(2), R.NO.812, K.G. MITTAL HOSPITAL BLD. G CHARNI RD. MUMBAI 400002 (APPELLANT ) (RESPONDENT ) P.A. NO. AALCS3949Q REVENUE BY SHRI B. S . BIST ( D R) RESPONDENT BY SHRI PARAS SAVLA & MS. KEERTHIGA SHARMA (AR) / DATE OF HEARING: 14/12/2016 / DATE OF ORDER: 11/01/2017 / O R D E R EURO RSCG ADVERTISING P.L. 2 PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THE AFORESAID APPEAL FILED BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE IS AGAINST THE ORDE R OF LD. CIT(A) DATED 18.07.2014 PASSED AGAINST THE ORDER OF THE AO U/S 201(1) & 201(II) OF THE ACT, DATED 26.03.2012 F OR A.Y. 2010-11 (F.Y. 2009-10). 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE BY MR. PARAS SAVLA & MS. KEERTHIGA SHARMA, AUTHORISED REPRESENTATIVES (ARS) ON BEHALF OF THE ASSESSEE AND BY SHRI B.S. BIST, DEPARTMENTAL REPRESENTATIVE (DR) ON BEHA LF OF THE REVENUE. 3. FIRST WE SHALL TAKE UP REVENUES APPEAL FILED ON T HE FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION ON AC COUNT OF SHORT DEDUCTION OF TDS AND INTEREST ON PAYMENTS IN THE NATURE OF 'PRODUCTION CHARGES' AND ' AMC CHARGE S U/S 194J OF THE ACT, TREATING THE SAME AS TOS PAYME NT U/S 194C, WITHOUT PROPERLY APPRECIATING THE FACTUAL AND TECHNICAL ISSUES OF THE CASE, AS CLEARLY BROUGHT OU T BY THE AO IN HIS ORDER U/S.201(1)1201(1A) OF THE INCOME TA X ACT, 1961. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT T HAT PRODUCTION OF TV COMMERCIALS REQUIRE HIGHLY TECHNIC AL JOB OF PROFESSIONALS SUCH AS DIRECTOR AND CAMERAMEN, AN D PAYMENTS FOR THIS PURPOSE SHOULD FALL WITHIN THE AM BIT OF SECTION 194J OF THE IT ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW ,THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING T HE FACT THAT THE MAINTENANCE OF LAPTOP, COMPUTER, SERV ERS AND SPECIALIZED SOFTWARE REQUIRE THE SERVICES OF HI GHLY PROFESSIONAL AND TECHNICAL PERSONS AND CANNOT BE DO NE BY NON-QUALIFIED PERSONS , THEREFORE THE PAYMENTS F ALL WITHIN THE AMBIT OF SECTION 194J OF THE ACT. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN EURO RSCG ADVERTISING P.L. 3 LAW, THE LD. CIT(A) HAS ERRED IN NOT PROPERLY CONSI DERING THE CBDT'S CLARIFICATORY CIRCULAR NO. 715 DATED 08.08.1995, WHICH CLEARLY STATES THAT THE PAYMENTS MADE BY ADVERTISING AGENCY TO EVEN IN A SITUATION WHERE SUCH SERVICES ARE SUB CONTRACTED, ARE LIABLE FOR TDS U/S 194J OF THE I T ACT, AND WHERE TECHNICAL SE RVICES ARE RENDERED, PROVISION OF SECTION 194J IS APPLICAB LE EVEN TO NORMAL MAINTENANCE CONTRACTS. 5. THE APPELLANT CRAVES TO LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY AT THE TIME OF HEARING OF THE CASE OR THEREAFTER. 6.THE ORDER OF CIT(A), BEING ERRONEOUS BE SET ASIDE AND LD A.O.'S ORDER BE RESTORED. 4. SIMILARLY, CROSS OBJECTION HAS BEEN FILED ON THE F OLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED COMMISSIONER OR INCOME TAX (APPEAL) CIT(A)') ERRED IN CONFIRMING THE ACTION OF ASSESSIN G OFFICER ('AO') BY TREATING PAYMENTS MADE TOWARDS DUBBING, EDITING AND ROYALTY AS FEES FOR TECHNICAL SERVICES AND THUS ELIGIBLE TO TDS UNDER SECTION 194J INSTEAD OF UNDER SECTION 194C, THEREBY TREATING ASSESSEE AS ASSESSEE IN DEFAULT UNDER SECTION 201(1) AND LEVYIN G INTEREST UNDER SECTION 201(L A). 2.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) HAS ERRED IN CONFIRMING THE ACTI ON OF AO BY TREATING THE PAYMENT MADE TOWARDS CAR PARKING CHARGES OF RS.9,87,277/- AS RENT UNDER SECTION 1941 INSTEAD OF AS A CONTRACTUAL PAYMENT ATTRACTING THE PROVISIONS OF SECTION 194C OF THE ACT, THEREBY TREA TING ASSESSEE AS ASSESSEE IN DEFAULT UNDER SECTION 201(1 ) AND LEVYING INTEREST UNDER SECTION 201(1A). 3.WITHOUT PREJUDICE TO GROUND NO 2, ON THE FACTS AN D CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) AND LD AO LEGALLY ERRED IN ALLEGING TDS RATE 20% ON CAR PARKING CHARGES INSTEAD OF THE APPLICABLE RATE UNDER SECTIO N 1941 OF THE ACT. 5 . GROUND NOS.1 TO 4 RAISED BY THE REVENUE AND GROUND NO.1 RAISED IN THE CROSS OBJECTION BY THE ASSESSEE. THESE EURO RSCG ADVERTISING P.L. 4 GROUNDS ARE RELATED WITH THE REVENUES GRIEVANCE IN THE ACTION OF LD. CIT(A) IN DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF SHORT DEDUCTION OF TDS AND INTEREST UPON PAYMENTS OF PRODUCTION CHARGES AND AMC CHARGES. WHE REAS, THE ASSESSEE IS AGGRIEVED WITH THE PART DISALLOWANC E SUSTAINED BY LD. CIT(A) BY HOLDING THAT PAYMENTS MADE TOWARDS DUBBING, EDITING AND ROYALTY AS FEE FOR TECHNICAL S ERVICES LIABLE FOR DEDUCTION U/S 194J AS AGAINST TDS DEDUCTED U/S 194C BY THE ASSESSEE. 5.1. THE BRIEF BACKGROUND IS THAT THE ASSESSEE IS ENGAG ED IN THE BUSINESS OF COMMUNICATION SERVICES; INCLUDING A DVERTISING, MARKETING RESEARCH, SALES PROMOTION, DIRECT MARKETI NG AND CORPORATE COMMUNICATION. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD INCURRED EXPENSES O N COMPUTATION CHARGES, ANNUAL MAINTENANCE CHARGES AND PARKING CHARGES ON WHICH TDS WAS DEDUCTED U/S 194C. THE AO INITIATED PROCEEDINGS U/S 201 AND HELD THAT TDS SHOULD HAVE BEEN DEDUCTED U/S 194J ON PAYMENTS MADE FOR PRODUCTION CHARGES AND AMC CHARGES AND U/S 194I ON PAYMENTS MADE FOR PARKING CHARGES. 5.2. IN APPEAL BEFORE THE LD. CIT(A) PART RELIEF WAS AL LOWED TO THE ASSESSEE. LD. CIT(A) HELD THAT TDS ON PAYMENT OF PRODUCTION CHARGES AND ANNUAL MAINTENANCE CHARGES W AS TO BE DEDUCTED U/S 194C OF THE ACT. HOWEVER, PAYMENTS RELATING TO DUBBING CHARGES WARRANTED DEDUCTION OF TAX U/S 1 94J OF THE ACT. FURTHER, IT WAS ALSO HELD THAT TAX WAS TO BE DEDUCTED U/S 194I OF THE ACT ON PAYMENT OF PARKING CHARGES. LASTLY, THE LD. CIT(A) HELD THAT THE ASSESSEE WOULD NOT BE CONS IDERED AS EURO RSCG ADVERTISING P.L. 5 AN ASSESSEE IN DEFAULT U/S 201 OF THE ACT IN CASE T HE PAYEES HAVE PAID TAX ON THE PAYMENT MADE TO THEM. BOTH THE PARTIES HAVE COME IN APPEAL BEFORE US FOR THEIR RESPECTFUL GRIEVANCES AGAINST THE ORDER PASSED BY THE LD. CIT(A). LD. DR HAS RELIED UPON THE ORDER OF THE AO. WHEREAS THE LD. COUNSEL O F THE ASSESSEE HAS TAKEN FOLLOWING ARGUMENTS: (I) THE ASSESSEE HAD MADE PAYMENT TO PRODUCTION HOU SES FOR PRODUCTION CHARGES AND THE PAYMENTS HAVE NOT BEEN M ADE TO INDIVIDUAL PERSONS FOR THE INDIVIDUAL SERVICES. THU S, PAYMENTS HAVE BEEN MADE IN PURSUANCE TO CONTRACT; THEREFORE, TDS HAS RIGHTLY BEEN DEDUCTED U/S 194C. THUS, LD. CIT(A) HA S ERRED IN BIFURCATING THE PAYMENTS IN THE TWO PARTS. ALL THE PAYMENTS SHOULD BE PUT INTO THE CATEGORY OF U/S 194C. (II) THE LD. CIT(A) HAS HELD THAT ASSESSEE SHOULD N OT BE CONSIDERED AS ASSESSEE IN DEFAULT U/S 201 OF THE AC T IN CASE PAYEES HAVE PAID TAX ON THE PAYMENTS MADE TO THEM. ALL THE PAYEES OF THE ASSESSEE ARE INCOME TAX ASSES SEES. THIS FACT MAY BE VERIFIED BY THE AO BY EXERCISING POWERS CONFERRED UPON HIM UNDER THE LAW. THEREFORE, NO TAX SHOULD BE RECOVERED FROM THE ASSESSEE. IN VIEW OF THE JUDGMEN TS OF HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGES PVT. LTD. V. CIT 293 ITR 226 (SC) AS WELL AS JUDGMENTS OF HONBLE ALLAHABAD HIGH COURT IN THE CA SE OF JAGRAN PRAKASHAN LTD. V. DCIT 345 ITR 288(ALL). IT WAS ALSO SUBMITTED THAT SLP FILED BY THE DEPARTMENT AGAINST ABOVE JUDGMENTS HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT VIDE ORDER DATED 5 TH MAY 2014. IT WAS THUS VEHEMENTLY EURO RSCG ADVERTISING P.L. 6 SUBMITTED THAT IN ABSENCE OF ANY LEAKAGE OF REVENUE , NO TAX SHOULD BE RECOVERED FROM THE ASSESSEE. (III) IT WAS LASTLY SUBMITTED THAT TAX EFFECT INVOL VED IN REVENUES APPEAL LESS THAN RS.10 LAKHS. THEREFORE, REVENUES APPEAL SHOULD BE DISMISSED IN VIEW OF HIS BOARDS CIRCULAR NO. 21 OF 2015 DATED 10.12.2015. IT WAS ALSO SUBMITTED THAT C ROSS OBJECTION CAN BE ADJUDICATED INDEPENDENTLY, IN VIEW OF THE JUDGMENT OF DELHI BENCH OF TRIBUNAL IN THE CASE OF ACIT V. AJAY KALIA 157 ITD 187 (DEL). 5.3. WE HAVE GONE THROUGH THE FACTS OF THE CASE. IT IS NOTED THAT IN ADDITION TO THE DECISION ON MERITS, LD. CIT (A) GAVE RELIEF TO THE ASSESSEE BY RELYING UPON JUDGMENT OF HONBLE SUPREME COURT BY OBSERVING AS UNDER: 3.3.3 AS REGARDS THE ALTERNATE PLEA / GROUND OF APPEAL RAISED BY THE APPELLANT THAT IT OUGHT NOT TO BE HELD LIABLE FOR PAYMENT OF TAXES AS THE PAYEES MUST HAVE PAID TAXES THEREON IN THEIR RESPECTIVE RETURNS OF INCOME, THE SAME IS FOUND TO BE TENABLE IN VIEW OF THE HON'BLE APEX COURT'S DECISION IN THE CASE OF HINDUSTAN COCA COLA BEVERAGES PRIVATE LIMITED ACCORDINGLY, THE A.O. IS HEREBY DIRECTED TO ALLOW RELIEF ON THIS COUNT IN RESPECT OF THE INVOICES SPECIFICALLY MENTIONED IN THE PRECEDING PARAGRAPH AFTER DUE VERIFICATION AS TO WHETHER THE PAYEES HAV E ACTUALLY OFFERED THE CORRESPONDING INCOME TO TAX IN THEIR RESPECTIVE RETURNS OF INCOME FOR THE YEAR. NOTWITHSTANDING THE ABOVE, THE APPELLANT SHALL BE LIABLE FOR THE LIABILITY OF INTEREST U/S 201(1A) OF THE ACT AS PER THE DECISION CITED SUPRA. THUS, THE RELEVANT GROUND NO.3 OF APPEAL STANDS PARTLY ALLOWED. 5.4. IN THIS REGARD LD. COUNSEL HAS SUPPORTED THE VIEW TAKEN BY THE LD. CIT(A) WITH THE JUDGMENT OF HONBLE ALLAHABAD EURO RSCG ADVERTISING P.L. 7 HIGH COURT IN THE CASE OF JAGRAN PRAKASHAN LTD. (SUPRA) WHEREIN SIMILAR VIEW WAS TAKEN WITH FOLLOWING OBSER VATIONS: SECTION 191 PROVIDES THAT IN THE CASE OF INCOME IN RESPECT OF WHICH PROVISION IS NOT MADE UNDER THIS CHAPTER F OR DEDUCTING INCOME TAX AT SOURCE AND WHERE INCOME TAX HAS NOT BEEN DEDUCTED IN ACCORDANCE WITH THE PROVIS ION OF THIS CHAPTER, INCOME TAX SHALL BE PAYABLE BY THE ASSESSEE DIRECT. THUS, BOTH THE CONDITIONS I.E. (I) IN THE CASE OF INCOME IN RESPECT OF WHICH PROVISION IS NOT MADE UNDER CHAPTER XVII FOR DEDUCTING INCOME TAX AT THE TIME OF PAYMENT AND ('II) IN CASE WHERE INCOME TAX HAS NOT BEEN DEDUCTED IN ACCORDANCE WITH THE PROVISIONS OF CHAPT ER XVII THE INCOME TAX IS PAYABLE BY THE ASSESSEE DIRE CT. SECTION 191 THUS RE-ENFORCES THAT PRIMARILY THE LIA BILITY OF PAYMENT OF INCOME TAX IS ON THE PERSON, WHO INCOME IS TO BE TAXED AS DELINEATED UNDER SUBSECTION (1) OF SECT ION 4 AND SUB-SECTION (2) OF SECTION 190. THE EXPLANATION TO SECTION 191 PROVIDES THAT WHERE A DEDUCTOR WHO WAS REQUIRED TO DEDUCT INCOME TAX AT SOURCE DOES NOT DE DUCT OR AFTER DEDUCTION DOES NOT PAY AND WHERE THE ASSESSEE HAS ALSO FAILED TO PAY SUCH TAX DIRECTLY THEN SUCH PERS ON SHALL WITHOUT PREJUDICE TO ANY OTHER CONSEQUENCE BE DEEME D TO BE AN ASSESSEE IN DEFAULT WITHIN THE MEANING OF SUB - SECTION (1) OF SECTION 201 IN RESPECT OF SUCH TAX. THE EXPLANATION TO SECTION 191 THUS HAS TO BE READ INTO SECTION 201 (1). SUB-SECTION (1) OF SECTION 201 PROVIDES THAT WHERE DEDUCTOR DOES NOT DEDUCT OR DOES NOT PAY AFTER DEDU CTION SUCH PERSON SHALL WITHOUT PREJUDICE TO ANY OTHER CONSEQUENCES WHICH HE MAY INCUR, BE DEEMED TO BE AN ASSESSEE IN DEFAULT IN RESPECT OF SUCH TAX. THE LAN GUAGE OF THE EXPLANATION TO SECTION 191 AND SUB-SECTION (1) OF SECTION 201 IS ALMOST SIMILAR EXCEPT WITH ONE DIFFE RENCE. IN EXPLANATION TO SECTION 201, THE DEDUCTOR SHALL BE D EEMED TO BE AN ASSESSEE IN DEFAULT WHERE THE ASSESSEE HAS ALSO FAILED TO PAY SUCH TAX DIRECTLY, WHEREAS IN SUB-SEC TION (1) OF SECTION 201, THE ABOVE CONDITION IS NOT MENTIONE D. WHILE INTERPRETING THE PROVISIONS OF SECTIONS 191 AND SUB SECTION (1) OF SECTION 201, A HARMONIOUS CONSTRUCTION HAS T O BE ADOPTED AND SUCH INTERPRETATION IS TO BE PUT WHICH GIVES MEANING AND PURPOSE TO BOTH THE PROVISIONS. EXPLANA TION EURO RSCG ADVERTISING P.L. 8 TO SECTION 191 SPECIFICALLY MENTIONS . BE DEEMED TO BE AN ASSESSEE IN DEFAULT WITHIN THE MEANING OF SUB-SECTI ON (1) OF SECTION 201 IN RESPECT OF SUCH TAX. THE ABOVE M EANING THUS HAS TO BE READ IN SUB-SECTION (1) OF SECTION 2 01, WHICH HAS BEEN SPECIFICALLY PROVIDED FOR NOT REPEATING TH E SAID CONDITION AGAIN IN SECTION 201 (1) IS INCONSEQUENTI AL. THUS, DEDUCTOR WHO FAILS TO DEDUCT INCOME TAX AT SOURCE SHALL BE DEEMED TO BE AN ASSESSEE IN DEFAULT ONLY WHEN THE ASSESSEE HAS ALSO FAILED TO PAY SUCH TAX DIRECTLY. THUS, IT FLOWS THAT THERE IS NO OCCASION TO TREAT THE DEDUCTOR AS AN ASSESSEE IN DEFAULT UNLESS THE ASSESSEE HAS NOT PAID THE TAX DIRECTLY. 5.6. IT WAS ALSO STATED BEFORE US THAT THE AFORESAID OR DER WAS CARRIED BY THE DEPARTMENT TO THE HONBLE SUPREME CO URT, WHERE SLP FILED BY THE DEPARTMENT HAS BEEN DISMISSE D BY THE HONBLE SUPREME COURT. THUS, THE VIEW THAT MERGES B EFORE US IS THAT WHERE TDS HAS BEEN DEDUCTED BY THE DEDUCTOR IN MOST BONA FILE MANNER AS APPLICABLE AND NO REVENUE LEAKAGE HAS BEEN POINTED OUT, THEN THE DEDUCTOR SHOULD NOT BE P ENALIZED FOR ANY UNINTENDED SHORT FALL IN DEDUCTION OF TDS S O LONG AS THE PAYEES ARE INCOME TAX ASSESSEE AND THEY HAVE IN CLUDED THE IMPUGNED PAYMENTS AS PART OF THEIR INCOME OFFERED T O TAX. IN THE CASE BEFORE US, THE ADMITTED CASE OF THE ASSESS EE IS THAT ALL THE PAYEES ARE PROPERLY IDENTIFIED AND DULY ASSESSE D WITH THE INCOME TAX DEPARTMENT. LD. CIT(A) HAS ALREADY FOLLO WED THIS VIEW AND ACCORDINGLY DIRECTED THE AO TO VERIFY THES E FACTS AND EXONERATED THE ASSESSEE FROM THE LIABILITY OF SHORT FALL UNDER SUCH CASES. UNDER THESE CIRCUMSTANCES, RESPECTFULLY FOLLOWING AFORESAID JUDGMENTS WE UPHOLD THE VIEW TAKEN BY IN THIS REGARD BY LD. CIT(A), AND DIRECT THE AO TO EXERCISE HIS POWERS UNDER THE LAW TO MAKE REQUISITE VERIFICATION WITH T HE PAYEES. IF THE PAYEE IS ASSESSED WITH THE TAX DEPARTMENT AND H AS FILED ITS EURO RSCG ADVERTISING P.L. 9 INCOME TAX RETURN, THEN LIABILITY ON ACCOUNT OF SHO RT DEDUCTION OF TDS WOULD NOT BE RECOVERED FROM THE ASSESSEE. TH E ASSESSEE SHALL EXTEND REQUISITE COOPERATION TO THE AO BY SUBMITTING COMPLETE PARTICULARS OF THE PAYEES CONTA INING NAME, ADDRESS, PAN NO. AND COPIES OF INVOICES. FURT HER, IF THE NEED ARISES, THE ASSESSEE SHALL BE FREE TO DEMONSTR ATE THAT THE ASSESSEE HAD MADE THE PAYMENTS TO PRODUCTION HOUSES AND NOT TO THE PERSONS DIRECTLY FOR AVAILING TECHNICAL SERVICES AND SHALL ALSO BE FREE TO RAISE ALL LEGAL AND FACTUAL I SSUES TO ESTABLISH THAT TDS WAS DEDUCTED IN ACCORDANCE WITH LAW ONLY. THE AO SHALL ALSO TAKE INTO ACCOUNT ALL THE FACTS O F THE CASE AS WELL AS THE JUDGMENTS AS MAY BE RELIED UPON BY THE ASSESSEE. THUS, GROUND NO.1 OF THE CO MAY BE TREATED AS ALLOW ED FOR STATISTICAL PURPOSES. 5.7. AS FAR AS THE RELIEF GRANTED BY THE LD. CIT(A) IS CONCERNED FOR WHICH REVENUE IS AGGRIEVED, IT IS NOTED THAT DU RING THE COURSE OF ITS BUSINESS THE ASSESSEE HAD UTILIZED TH E SERVICES OF PRODUCTION HOUSES. THE AO WAS OF THE OPINION THAT T HESE SERVICES RENDERED BY THESE PRODUCTION HOUSES WERE H IGHLY TECHNICAL IN NATURE; THEREFORE, PAYMENTS MADE TO TH ESE PERSONS WERE COVERED U/S 194J. LD. CIT(A) ANALYSED THE PROVISIONS OF SECTION 194C AS WELL AS CIRCULAR OF T HE BOARD NO.714 OF 1995 DATED 03.08.1995 AND CIRCULAR NO.715 OF 1995 DATED 8 TH AUGUST 1995 AND HELD THAT ALL THE PAYMENTS MADE TO THE PRODUCTION HOUSES (OTHER THAN THE PAYMENTS WHIC H HAVE BEEN CONTESTED BY THE ASSESSEE IN ITS C.O.) WERE CO VERED U/S 194C, SINCE PAYMENTS MADE FOR PRODUCTION OF BROADCA STING AND TELECASTING PROGRAMME ARE COVERED WITHIN THE DE FINITION OF EURO RSCG ADVERTISING P.L. 10 WORK AS CONTAINED IN SECTION 194C OF THE ACT. HE RE LIED UPON THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CAS E OF CIT V. PRASAR BHARTI 292 ITR 580 (DEL) WHEREIN IT WAS HELD THAT SECTION 194C OF THE ACT SPECIFICALLY INCLUDES PRODU CTION OF PROGRAMME FOR BROADCASTING AND TELECASTING. HE GAVE HIS DECISION AFTER ANALYZING THE FACTS OF THE CASE THAT PAYMENTS MADE TO THE PRODUCTION HOUSES TOWARDS COST OF PRODU CTION OF FILM/ADVERTISEMENT WERE NOTHING BUT CONTRACT PAYMEN TS MADE BY THE ASSESSEE COMPANY IN PURSUANCE OF THE PURCHAS E ORDERS, AND THEREFORE, THESE WOULD FALL WITHIN THE PURVIEW OF PROVISIONS OF SECTION 194C AND NOT U/S 194J OF THE ACT. 5.8. SIMILARLY, WITH REGARD TO AMC SERVICES, LD. CIT(A) ANALYSED ALL THE FACTS OF THE CASE AS WELL AS AFORE SAID CIRCULARS OF THE BOARD AND HELD THAT THESE PAYMENTS ARE WITHI N THE PURVIEW OF PROVISIONS OF SECTION 194C OF THE ACT. W E FIND THAT ORDER OF THE LD. CIT(A) IS BASED UPON PROPER REASON ING AND ANALYSIS OF FACTS. THEREFORE WE DO NOT FIND ANY JUS TIFICATION TO INTERFERE IN THE FINDING OF LD. CIT(A). THUS, ALL T HE GROUNDS RAISED BY THE REVENUE ARE HEREBY DISMISSED. 6. NOW, WE SHALL TAKE UP GROUND NOS. 2 & 3 OF CROSS OBJECTION WHEREIN ASSESSEE IS AGGRIEVED WITH THE ACTION OF LOWER AUTHORITIES IN TREATING PAYMENTS MADE TOWARDS CAR PARKING CHARGES AS RENT UNDER SECTION 194I INSTEAD OF CONTRACT PAYMENT COVERED UNDER SECTION 194C. IT HAS BEEN HELD BY AO THAT CAR PARKING CHARGES WERE IN THE NAT URE OF RENT AND THUS LIABLE FOR DEDUCTION OF TDS U/S 194I OF THE ACT. LD. CIT(A) THOUGH UPHELD THE ACTION OF THE AO, HOWEVER ALLOWED PART RELIEF TO THE ASSESSEE TO THE EXTENT P AYEE HAD EURO RSCG ADVERTISING P.L. 11 PAID TAX OR OFFERED TO TAX THE AMOUNT RECEIVED BY T HEM. DURING THE COURSE OF HEARING BEFORE US, DETAILED AR GUMENTS HAVE BEEN MADE BY THE LD. COUNSEL. IT HAS ALSO BEEN SUBMITTED THAT AO HAD NOT WORKED OUT THE LIABILITY AFTER VERIFYING THE FACTS FROM THE PAYEES. UNDER THESE CIRCUMSTANCES, WE SEND THESE ISSUES BACK TO THE FIL E OF THE AO TO MAKE DIRECT VERIFICATION WITH THE PAYEE WITH THE SAME DIRECTIONS AS WERE GIVEN WHILE DISPOSING GROUND NO 1 OF THE CO. IF NEED ARISES, THE ASSESSEE WOULD BE FREE TO T AKE ALL THE LEGAL AND FACTUAL ISSUES WITH REGARD TO ITS LIABILI TY TO DEDUCT TAX U/S 194C AND NOT U/S 194I.THESE GROUNDS MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL FILED BY THE REVENUE IS HERE BY DISMISSED AND CROSS OBJECTION FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH JANUARY, 2017. SD/- SD/- ( MAHAVIR SINGH ) ( ASHWANI TANEJA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 11 /01/2017 CTX? P.S/. .. !'#$%&%'# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A)- , MUMBAI 5. #$% &' , &' ) , / DR, ITAT, MUMBAI 6. %*+ , / GUARD FILE. EURO RSCG ADVERTISING P.L. 12 / BY ORDER, # //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI