JCIT(TDS)(OSD)-2(3), MUMBAI V. VIACOM 18 MEDIA P. LTD, MUMBAI

ITA 2102/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1409 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 05-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV K GUBGOTRA
• Keywords: TDS
• Section: 194C

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE HONBLE SH. SANDEEP GOSAIN , J M & HONBLE SH. N. K. PRADHAN , A M ./ I.T.A. NO . 2102 /MUM/201 8 ( / ASSESSMENT YEAR: 2008 - 09 ) J CIT (TDS) (OSD) - 2(3 ), 718, 7 TH FLOOR, SMT K. G. MITTAL AYURVEDIC HOSPITAL BUILDING, CHARNI ROAD (WEST), MUMBAI - 400 002 / VS. M/S VIACOM 18 MEDIA PVT. LTD. ZION BIZ WORLD, SUBHASH ROAD, A VILE PARLE (W), MUMBAI - 400 057 ./ ./ PAN NO. AA ACM9164E ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI RAJEEV K. GUBGOTRA , DR / RESPONDENTBY : SHRI MADHUR AGARWAL, AR / DATE OF HEARING : 15 .04 .201 9 / DATE OF PRONOUNCEMENT : 23.04.2019 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT APPE AL FILED BY THE REVENUE IS AGAINST THE ORDER OF LD. CIT (APPEAL) 60, MUMBAI DATED 31.01.18 F OR AY 20 08 - 09 . 2 I.T.A. NO. 2102 /MUM/201 8 M/S VIACOM 18 MEDIA PVT. LTD 2 . THE SOLITARY GROUND RAISED BY THE REVENUE RELATES TO CHALLENGING THE ORDER OF LD. CIT (A) IN HOLDING THAT PLACEMENT CHARGES PAID BY THE ASSESSEE TO THE SERVICES RENDERED BY THE CABLE OPERATORS /DTH OPERATORS , WHICH COMES WITHIN THE PURVIEW OF SECTION 194C OF THE ACT, WHEREAS ACCORDING TO THE REVENUE, SUCH PLACEMENT IN THE NATURE OF TECHNICAL FEE W ITHIN THE MEANING OF SECTION 194J OF THE ACT, THEREFORE WE THOUGHT IT FIT TO DISPOSE OF THE SAME BY THIS COMMON ORDER. 3 . AT THE VERY OUTSET, LD. AR APPEARING ON BEHALF OF THE ASSES S E E SUBMITTED BEFORE US THAT THIS GROUND IS COVERED BY THE ORDER OF HONBLE ITAT IN ITA NO. 3515, 4208 & 4209/MUM/12 AND ITA NO. 2201 7 5421/MUM/14 IN ASSESSEES OWN CASE , WHICH WERE ALSO UPHELD BY HONBLE BOMBAY HIGH COURT IN ITA NO. 1410 OF 2016 AND 1409 OF 2016 . LD. AR ALSO REFERRED TO THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VRS. UTV ENTERTAINMENT TELEVISION LTD, WHEREIN THE IDENTICAL GROUND RA ISED IN THE PRESENT APPEA L HAS ALREADY BEEN DECIDED ON MERITS. 3 I.T.A. NO. 2102 /MUM/201 8 M/S VIACOM 18 MEDIA PVT. LTD 4 . ON THE OTHER HAND, LD. DR CONTESTED THE APPEAL AND RELIED UPON THE ASSESSMENT ORDER PAS SED BY AO. 5 . WE HAVE HEARD BOTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. WE FIND THAT THE IDENTICAL GROUND HAS ALREADY BEEN DECIDED BY THE COORDINATE BENCH OF ITAT IN ITA NO. 3515, 4208 & 4209/MUM/12 AND ITA NO. 2201 7 5421/MUM/14 IN ASSESSEES OWN CASE , WHICH WERE ALSO UPHELD BY HONBLE BOMBAY HIGH COURT IN ITA NO. 1410 OF 2016 AND 1409 OF 2016 . WE HAVE ALSO DRAWN ATTENTION TO THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN T HE CASE OF CIT VRS. UTV ENTERTAINMENT TELEVISION LTD (ITA NO. 525, 732, 741 & 1035 OF 2015) , WHEREIN THE IDENTICAL GROUND RAISED IN THE PRESENT APPEAL HAS ALREADY BEEN DECIDED ON MERITS. THE OPERATIVE PORT ION OF THE ORDER OF HONBLE BOMBAY HIGH COURT IN TH E CASE OF CIT VRS. UTV ENTERTAINMENT TELEVISION LTD CIT VRS. UTV ENTERTAINMENT TELEVISION LTD IS CONTAINED IN PARA NO. 17 , WHICH IS REPRODUCED BELOW: - 4 I.T.A. NO. 2102 /MUM/201 8 M/S VIACOM 18 MEDIA PVT. LTD 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 ON 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, THE 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 FEE 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. 6 . T HEREFORE , R ESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF ITAT AS WELL AS HONBLE BOMBAY HIGH COURT AND IN O RDER TO MAINTAIN JUDICIAL CONSISTENCY , WE APPLY THE SAME FINDINGS WHICH ARE APPLICABLE MUTATIS MUTANDIS IN THE PRESENT CASE. RE SULTANTLY, THIS GROUND RAISED BY THE REVENUE STANDS DISMISSED. 5 I.T.A. NO. 2102 /MUM/201 8 M/S VIACOM 18 MEDIA PVT. LTD 7 . IN THE NET RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD APRIL , 2019 . SD/ - SD/ - ( N. K. PRADHAN ) (SANDEEP GOSAIN) / A COUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 23 . 04 .201 9 SR.PS . DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI