ITO(TDS),Wd-57(1),Kolkata, Kolkata V. M/s. Shristi Television, Kolkata

ITA 1297/KOL/2012

• Counselvise Citation: 129723514 RSA 2012
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-12-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 10-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K CHAKRABORTY
• Section: 194C; 28

Judgement Text

I.T.A. NO.: 1297/KOL./2012 ASSESSMENT YEAR : 2009-10 & 2010-11 & ITA NO. 276/KOL/2013 ASSESSMENT Y EAR : 2011-2012 PAGE 1 TO 5 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA CORAM : SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI SHAMIM YAHYA (ACCOUNTANT MEMBER) I.T.A. NO.: 1297/KOL./ 2012 ASSESSMENT YEAR : 2009-2010 & 2010-2011 & I.T.A. NO.: 276/KOL./ 2013 ASSESSMENT YEAR : 2011-2012 INCOME TAX OFFICER (TDS),...................,...... .........APPELLANT WARD-57(1), KOLKATA, 10, MIDDLETON ROW, KOLKATA-700 071 -VS.- M/S. SRISTI TELEVISION,............................ ........................RESPONDENT PROP. ASHOK AGARWAL, 17, PARK LANE, KOLKATA-700 017 APPEARANCES BY: SHRI P.K. CHAKRABORTY, JCIT, SR. D.R., FOR THE DEPA RTMENT SHRI SUNIL SURANA, A.R. FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : DECEMBER 24, 2013 DATE OF PRONOUNCING THE ORDER : DECEMBER 24, 2013 O R D E R PER SHAMIM YAHYA: 1. THESE APPEALS BY THE REVENUE ARE DIRECTED AGAINS T THE COMMON ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-I , KOLKATA DATED 14.06.2012 FOR THE ASSESSMENT YEAR 2009-10 & 2010-1 1. 2. AT THE THRESHOLD, IT IS NOTED THAT THERE IS A DE LAY IN FILING THE APPEAL IN ITA NO. 276/KOL/2013 BY 149 DAYS. A CONDONATION PETITION HAS BEEN FILED IN THIS REGARD. IT HAS BEEN PLEADED THAT CONS OLIDATED APPEAL WAS FILED FOR THE ASSESSMENT YEARS 2010-11 AND 2011-12. THERE AFTER IT WAS POINTED OUT BY THE LD. AR THAT SEPARATE APPEALS WERE REQUIR ED TO BE FILED WHICH LED TO THE DELAY IN FILING OF APPEALS. IT IS PRAYED THAT THE SAME MAY KINDLY BE CONDONED. I.T.A. NO.: 1297/KOL./2012 ASSESSMENT YEAR : 2009-10 & 2010-11 & ITA NO. 276/KOL/2013 ASSESSMENT Y EAR : 2011-2012 PAGE 1 TO 5 2 3. WE HAVE HEARD THE LD. COUNSELS AND PERUSED THE R ECORDS. IN OUR CONSIDERED OPINION, THE DELAY IN FILING THE APPEAL IN THIS REGARD IS LIABLE TO BE CONDONED. ACCORDINGLY, WE CONDONE THE SAME. 4. THE COMMON ISSUES RAISED IN THESE APPEALS ARE AS UNDER :- (1) THE NATURE OF SERVICE RENDERED BY PAYEE, I.E. M SO IS PURELY OF TECHNICAL NATURE I.E. PROVIDING UPLINKING FACILITY VIA- SATELLITE. (2) MSO IS NEITHER PRODUCING THE PROGRAMME NOR TELECASTING THEM. IT IS MERELY A CONDUIT PROVIDING UPLINKING FACILITY AFTER PRODUCTION OF THE PROGRAMME TO THE T ELECASTER CHANNEL. 5. IN THIS CASE, A SURVEY WAS CONDUCTED IN THE BUSI NESS/OFFICE PREMISE OF M/S. SRISTI TELEVISION. DURING THE COURSE OF SUR VEY, IT WAS FOUND THAT ASSESSEE WAS ENGAGED IN THE BUSINESS OF MEDIA CHANN EL UNDER THE NAME OF SRISTI TELEVISION AND PAID CARRIAGE FEES TO VARIO US PARTIES. THE ASSESSEE DEDUCTED TDS @ 2% ON PAYMENT MADE TO THOSE PARTIES. ASSESSING OFFICER WAS OF THE OPINION THAT TDS ON PAYMENT OF CARRIAGE FEES WAS TO BE DEDUCTED @ 10% UNDER THE PROVISIONS OF SECTION 194J OF THE INCOME TAX ACT, 1961. ASSESSEE-RESPONDENT IN THIS REGARD STATE D THAT PAYMENT OF CARRIAGE FEES IS A CONTRACTUAL PAYMENT, ACCORDINGLY TDS SHOULD BE DEDUCTED AS PER THE PROVISIONS OF SECTION 194C AND IT SHOULD NOT BE TREATED AS PAYMENT FOR TECHNICAL SERVICE RENDERED BY THE VARIOUS PARTIES TO WHOM THE PAYMENT WAS MADE. THE ASSESSEE IN THIS REGARD PLACED RELIANCE ON THE DECISION OF THE HONBLE PUNJ AB & HARYANA HIGH COURT IN THE CASE OF KURUKSHETRA DARPAN (P) LTD. V S.- CIT [217 CTR 326. HOWEVER, ASSESSING OFFICER OPINED THAT THE DECISION WAS ON THE APPLICABILITY OF SECTION 194C IN CASE OF CABLE NETW ORK CONNECTION WHO IS IN THE BUSINESS OF DISTRIBUTING CABLE CONNECTIONS T O THE CUSTOMERS AND THE SAME HAD NO RELATION IN THE INSTANT CASE. THE ASSES SING OFFICER PROCEEDED TO HOLD THAT PAYMENT MADE BY THE ASSESSEE TOWARDS C ARRIAGE FEES ARE BEING TREATED AS PER PROVISIONS OF SECTION 194J AND ACCORDINGLY THE ASSESSEE WAS HELD ALLOWABLE FOR DEDUCTION OF TDS @ 10%. I.T.A. NO.: 1297/KOL./2012 ASSESSMENT YEAR : 2009-10 & 2010-11 & ITA NO. 276/KOL/2013 ASSESSMENT Y EAR : 2011-2012 PAGE 1 TO 5 3 6. UPON ASSESSEES APPEAL, LD. CIT(APPEALS) DELETED THE ADDITION CONCLUDING AS UNDER :- I FIND THAT THERE WAS DISPUTE THAT THE ASSESSEE PR ODUCES VARIOUS TYPES OF PROGRAMMES/ SERIALS AND NEWS AND T HESE TELECAST/BROADCAST THROUGH MULTI SYSTEM OPERATORS F OR WHICH PAYMENTS ARE MADE TO THEM UNDER THE HEAD CARRIAGE CHARGES. THERE IS ALSO NO DISPUTE THAT THE APPELLANT DULY DEDUCTED AND PAID TAX U/S 194C. IN M Y OPINION NO TECHNICAL SERVICES WERE INVOLVED IN PAYM ENT OF CARRIAGE CHARGES MADE BY THE ASSESSEE FOR BROADCAST ING OF THE PROGRAMMES PRODUCED BY THE ASSESSEE. THE ADMITT ED FACT WAS THAT THE ASSESSEE PRODUCED VARIOUS TYPES O F PROGRAMMES/SERIALS AND NEWS. THESE WERE TELECAST/BROADCASTED THROUGH MULTI SYSTEM OPERATORS FOR WHICH PAYMENTS WERE MADE TO THEM FOR WHICH NOMENCLATURE USED WAS CARRIAGE CHARGES. FOR THIS PAYMENT TAX WAS DEDUCTIBLE U/S 194C EXPLANATION IV( B) WHICH IS CLEAR FROM THE SECTION ITSELF AS CITED BY THE ASSESSEE AND QUOTED EARLIER. THE AO SHOULD HAVE LOO KED INTO THE DEFINITION OF TECHNICAL SERVICES AS GIVEN IN EXPLANATION TO SECTION 9 OF THE I.T. ACT, 1961. AS PER THE SAID DEFINITION, THE DEDUCTEE SHOULD HAVE RENDERED MANAGERIAL, TECHNICAL OR CONSULTANCY SERVICES BUT T HERE IS NO SUCH FINDING OF THE AO. THE DEDUCTEE HAS ONLY TELECASTED THE PROGRAMMES PRODUCED BY THE ASSESSEE. IT HAS BEEN HELD IN THE CASE OF DCIT, CIR 4(2), MUMBAI , APPELLANT VS.- M/S. NNM SECURITIES LTD., RESPONDEN T (ITAT) IF THE ASSESSEE IS USING ANY FACILITY OF ANY ONE THE SAME IS NOT TECHNICAL SERVICES. THE HONBLE PUNJAB & HARYANA HIGH COURT HAS HELD THAT TELECASTING OF THE PROGRAMME WAS COVERED U/S. 194C. IN VIEW OF THE ABOVE THE ORDER OF THE AO IS NOT PROPER TREATING THE ASSESSEE AS ASSESSEE IN DEFAULT AN SAME IS THEREFORE, CANCELLED. IN VIEW OF MY ABOVE DECISION, I AM NOT INCLINED TO DECIDE THE ISSUE THAT THE DEDUCTEES HAS PAID THE TA X AND IN VIEW OF THE JUDGMENT IN THE CASE OF HINDUSTHAN C OCA COLA (SC) REPORTED IN 293 ITR PAGE 226 THAT WHILE T HE DEDUCTEES HAVE PAID THE TAXES THE ASSESSEE CANNOT B E TREATED AS ASSESSEE IN DEFAULT AND NO DEMAND CAN BE RAISED AGAINST HIM. 7. AGAINST THE ABOVE ORDER OF LD. CIT(APPEALS), REV ENUE IS IN APPEAL BEFORE THE TRIBUNAL. I.T.A. NO.: 1297/KOL./2012 ASSESSMENT YEAR : 2009-10 & 2010-11 & ITA NO. 276/KOL/2013 ASSESSMENT Y EAR : 2011-2012 PAGE 1 TO 5 4 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. WE CAN GAINFULLY REFER TO THE PROVISIONS OF SECTIONS 194C AND 194J, WHICH ARE REPRODUCED AS UNDER :- 194C PAYMENTS TO CONTRACTORS : ANY PERSON RESPONSIBLE FOR PAYING ANY SUM TO ANY RESIDENT (HEREAFTER IN TH IS SECTION REFERRED TO AS THE CONTRACTOR) FOR CARRYING OUT ANY WORK (INCLUDING SUPPLY OF LABOUR FOR CARRYING OUT ANY WO RK) IN PURSUANCE OF A CONTRACT BETWEEN THE CONTRACTOR AND A SPECIFIED PERSON SHALL, AT THE TIME OF CREDIT OF SU CH SUM TO THE ACCOUNT OF THE CONTRACTOR OR AT THE TIME OF PAY MENT THEREOF IN CASH OR BY ISSUE OF A CHEQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEVER IS EARLIER, DEDUCT AN AMOUNT EQUAL TO. 194J FEES FOR PROFESSIONAL OR TECHNICAL SERVICES : (1) ANY PERSON, NOT BEING AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY, WHO IS RESPONSIBLE FOR PAYING RESIDENT ANY SUM BY WAY OF (A) FEES FOR PROFESSIONAL SERVICES, OR (B) FEES FOR TECHNICAL SERVICES, (C) ROYALTY, OR (D) ANY SUM REFERRED TO IN CLAUSE (VA) OF SECTION 28 ,: SHALL, AT THE TIME OF CREDIT OF SUCH SUM TO THE ACC OUNT OF THE PAYEE OR AT THE TIME OF PAYMENT THEREOF IN O R BY ISSUE OF A CHEQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEVER IS EARLIER, DEDUCT AN AMOUNT EQUAL TO PER CENT, OF SUCH SUM AS INCOME TAX ON INCOME COMPRISED THEREIN. WE FIND THAT THE ASSESSEE PRODUCED VARIOUS TYPES OF PROGRAMMES/ SERIALS AND NEWS AND THESE WERE TELECASTED/BROADCASTED THRO UGH MULTI SYSTEM OPERATORS FOR WHICH PAYMENTS WERE MADE TO THEM UND ER THE HEAD CARRIAGE CHARGES. THE ASSESSEE HAS DULY DEDUCTED AND PAID TAX UNDER SECTION 194C OF THE ACT. WE AGREE WITH THE LD. CIT( APPEALS) THAT NO TECHNICAL SERVICES WERE INVOLVED IN PAYMENT OF CARR IAGE CHARGES MADE BY THE ASSESSEE FOR BROADCASTING OF THE PROGRAMMES PRO DUCED BY THE ASSESSEE. THE ASSESSEE PRODUCED VARIOUS TYPES OF PR OGRAMMES/SERIALS AND NEWS AND THESE WERE TELECASTED/BROADCASTED THRO UGH MULTI SYSTEM OPERATORS. PAYMENTS IN THIS REGARD WERE MADE AS CAR RIAGE CHARGES FOR I.T.A. NO.: 1297/KOL./2012 ASSESSMENT YEAR : 2009-10 & 2010-11 & ITA NO. 276/KOL/2013 ASSESSMENT Y EAR : 2011-2012 PAGE 1 TO 5 5 WHICH PAYMENT OF TAX WAS DEDUCTIBLE UNDER SECTION 1 94C OF THE INCOME TAX ACT. AS PER DEFINITION OF TECHNICAL SERVICES GI VEN IN EXPLANATION TO SECTION 9 OF THE ACT, THE DEDUCTEE SHOULD HAVE REND ERED MANAGERIAL, TECHNICAL OR CONSULTANCY SERVICES. IN THIS CASE, WE FIND THAT THERE IS NO SUCH FINDING OF THE ASSESSING OFFICER. THE DEDUCTEE HAS ONLY TELECASTED THE PROGRAMMES PRODUCED BY THE ASSESSEE. IN THE CAS E LAW REFERRED TO BY THE LD. CIT(APPEALS) DECISION IN THE CASE OF DCIT VS.- NNM SECURITIES LIMITED, ITAT HELD THAT IF THE ASSESSEE IS USING AN Y FACILITY OF ANY ONE THE SAME IS NOT TECHNICAL SERVICES. HONBLE PUNJAB & HA RYANA HIGH COURT IN THE CASE OF KURUKSHETRA DARPAN (P) LTD. VS.- CIT [ 217 CTR 326] HAS HELD THAT TELECASTING ON THE PROGRAMME WAS COVERED UNDER SECTION 194C OF THE ACT. 9. IN THE BACKGROUND OF ABOVE DISCUSSION AND FOLLOW ING THE PRECEDENT AS ABOVE, WE DO NOT FIND ANY REASON TO INTERFERE WI TH THE ORDER OF LD. CIT(APPEALS). ACCORDINGLY WE UPHOLD THE SAME. 10. IN THE RESULT, BOTH THE APPEALS FILED BY REVENU E STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH DAY OF DECEMBER, 2013. SD/- SD/- MAHAVIR SINGH SHAMIM YAHYA (JUDICIAL MEMBER) (ACC OUNTANT MEMBER) KOLKATA, THE 24 TH DAY OF DECEMBER, 2013 COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.