ITO, Ward-3(2),TDS, Kolkata, Kolkata V. M/s Sristi Television Vrivate Limited, Kolkata

ITA 2128/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1819 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2017
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 21-11-2014
• Court: TRIBUNAL
• Department Lawyers: BANIBRATA DUTTA
• Assessee Lawyers: SUNIL SURANA F
• Section: 194C; 201(1); 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & DR.ARJUN LAL SAINI, AM] I.T.A NO. 2128/KOL/20 14 ASSESSMENT YEAR : 2012-1 3 I.T.O., WARD-3(2),TDS -VS.- M/S. SRISTI T ELEVISION PVT.LTD. KOLKATA KOLKATA. [PAN : AAPCS 6429 P] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI BANI BRATA DUTTA, ADDL. CIT.SR.DR FOR THE RESPONDENT : SHRI SUNIL SURANA, F CA DATE OF HEARING : 12.04.2017. DATE OF PRONOUNCEMENT : 03.05.2017. ORDER PER N.V.VASUDEVAN, JM THIS IS AN APPEAL BY THE REVENUE AGAINST THE ORDER DATED 11.08.2014 OF C.I.T.(A)-I, KOLKATA RELATING TO A.Y.2012-13 (F.Y.2 011-12). 2. GROUNDS OF APPEAL RAISED BY THE REVENUE READ A S FOLLOWS :- 1. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CONSIDERING THAT THE PAYMENTS MADE FOR CARRIAGE FEES WAS NOT COVERED U/S.194J OF THE INCOME TAX ACT, 1961 . 2. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY OF THE GROUND OF APPEAL DURING THE COURSE OF HEARING. 3. THE ASSESSEE IS A COMPANY AND IS ENGAGED IN TH E BUSINESS OF PRODUCTION OF PROGRAMMES, SERIALS AND NEWS WHICH ARE TELECASTED O R BROADCASTED THROUGH MULTI SYSTEM OPERATORS. IN THE COURSE OF ITS BUSINESS OF PRODUCT ION OF SERIALS AND ADVERTISEMENTS, THE ASSESSEE PAID CARRIAGE FEES TO VARIOUS PARTIES. THE ASSESSEE DEDUCTED TAX AT SOURCE ON PAYMENT OF CARRIAGE FEES AT 2% BY TREATING THE PAYM ENT AS A PAYMENT TO A CONTRACTOR FALLING WITHIN THE AMBIT OF SECTION 194C OF THE INC OME TAX ACT, 1961 (ACT). ACCORDING TO THE ITO(TDS) WARD-59(2), KOLKATA (AO) THE PAYMEN T IN QUESTION WAS A PAYMENT FOR 2 ITA.NO.2128/KOL/2014 M/S. SRISTI TELEVISION PVT. LTD. A.YR.2012-13 2 PROFESSIONAL OR TECHNICAL SERVICES OR ROYALTY OR PA YMENT FALLING WITHIN THE AMBIT OF SECTION 28(VA) OF THE ACT AS PAYMENT FOR PROFESSION AL SERVICES. THEREFORE TDS HAD TO BE DEDUCTED IN TERMS OF SECTION 194J OF THE ACT AT 10% . IN RESPECT OF THE SHORT DEDUCTION OF TAX AT SOURCE THE AO PASSED AN ORDER U/S 201(1) AND ALSO IMPOSED INTEREST U/S 201(1A) OF THE ACT AS PER THE FOLLOWING DETAILS :- MONTH AMT. OF PAYMENT MADE TOWARDS CARRIAGE FEES TDS DEDUCTIBLE @10% TDS DEDUCTED AMOUNT OF SHORT DEDUCTION INTEREST APRIL,11 MAY,11 2226146 222615 44525 178090 33837 JUNE,11 1220064 122006 24402 97604 17569 JULY,11 1054614 105461 21093 84368 14343 AUGUST,11 1523389 152339 30468 121871 19499 SEPTEMBER,11 1164914 116491 23299 93192 13974 OCTOBER,11 1192489 119249 23851 95398 13356 NOVEMBER,11 1247639 124764 24954 99810 12975 DECEMBER,11 960859 96086 19218 76868 9224 JANUARY,12 1578539 157854 31572 126282 13891 FEBRUARY,12 1688839 168884 47014 121870 12187 MARCH,12 4355333 435533 87108 348425 31358 TOTAL 1443778 192218 TOTAL AMOUNT PAYABLE DURING THE FINANCIAL YEAR 2011 -12. SHORT DEDUCTION OF TAX : 1443778 ADD: INTEREST U/S 201(1A) : 192218 TOTAL : 1635996 3 ITA.NO.2128/KOL/2014 M/S. SRISTI TELEVISION PVT. LTD. A.YR.2012-13 3 4. THE ASSESSEE HAD FILED TDS RETURN IN FORM NO.2 6Q FOR THE FINANCIAL YEAR 2011-12 AND IT WAS FOUND ON SCRUTINY OF THE SAME THAT THER E WAS IN DEFAULT IN PART OF THE ASSESSE FOR LATE PAYMENT INTEREST U/S 201(1) WHICH WAS CALC ULATED BY THE AO AS UNDER : FINANCIAL YEAR RETURN AMOUNT 2011-12 26Q/1 RS.782 -DO- 26Q/2 RS.709 - DO - 26 Q/3 - -DO- 26Q/4 - -DO- TOTAL RS.1419 THEREFORE THE TAX DEDUCTION LIABILITY OF THE ASSES SEE FOR ALL FOUR QUARTERS OF FINANCIAL YEAR 2011-12 FOR 26Q AS PER ABOVE CALCULATION WAS D ETERMINED AS UNDER :- AMOUNT FOR THE F.Y.2011-12 RS.1635996 INTEREST FOR LATE DEPOSIT OF TAX RS. 1419 RS.1637487 5. EVEN IN THE ORDER OF AO, THERE IS A REFERENCE TO THE FACT THAT IDENTICAL PAYMENTS OF CARRIAGE FEES WAS THE SUBJECT MATTER OF ORDER PASSE D BY THE AO U/S 201(1) AND 201(1A) OF THE ACT FOR THE FINANCIAL YEAR 2009-10 AND 2010- 11 (A.Y.2010-11 AND 2011-12) WHEREIN THE AO HAD TAKEN THE VIEW THAT PROVISION OF SECTION 194J OF THE ACT ARE APPLICABLE FOR TDS ON PAYMENT OF CARRIAGE FEES AND THAT ON APPEAL BY THE ASSESSEE THE CIT(A) BY ORDER DATED 14.06.2012 HAD HELD THAT THE PROVISION OF SECTION 194C OF THE ACT WAS APPLICABLE AND CANCELLED THE ORDER U/S 201( 1) AND 201(1A) OF THE ACT AND THAT THE REVENUE WAS IN FURTHER APPEAL BEFORE THE TRIBUN AL AGAINST THE AFORESAID ORDER OF CIT(A). 6. THE ASSESSEE FILED AN APPEAL AGAINST THE ORDE R AO FOR FINANCIAL YEAR 2011-12 (A.Y.2012-13) AND POINTED OUT THAT IN FINANCIAL YE AR 2009-10 AND 2010-11 (A.Y.2010- 11 AND 2011-12) ON AN IDENTICAL ISSUE THE HONBLE I TAT IN ITA NO.1297/KOL/2012 AND 276/KOL/2013 FOR A.Y.2010-11 AND 2011-12 RESPECTIVE LY BY ITS ORDER DATED 24.12.2013 4 ITA.NO.2128/KOL/2014 M/S. SRISTI TELEVISION PVT. LTD. A.YR.2012-13 4 HAD HELD THAT PROVISION OF SECTION 194C OF THE ACT ALONE ARE ATTRACTED FOR PAYMENT OF CARRIAGE FEES. THE CIT(A) FOLLOWING THE ORDER OF TH E TRIBUNAL CANCELLED THE ORDER PASSED BY THE AO U/S 201(1) AND 201(1A) OF THE ACT. 7. AGGRIEVED BY THE ORDER OF CIT(A) THE REVENUE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS. IT WAS N OT DISPUTED BEFORE US THAT IDENTICAL ISSUE HAS ALREADY BEEN DECIDED BY THE TRIBUNAL IN T HE CASE CITED BY THE ASSESSEE BEFORE CIT(A). THE ITAT ON AN IDENTICAL ISSUE HAD HELD AS FOLLOWS :- 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE CAN GAINFULLY REFER TO THE PROVISIONS OF SECTION S 194C AND 194J, WHICH ARE REPRODUCED AS UNDER :- '194C - PAYMENTS TO CONTRACTORS: ANY PERSON RESPONS IBLE FOR PAYING ANY SUM TO ANY RESIDENT (HEREAFTER IN THIS SECTION REFERRED TO AS THE CONTRACTOR) FOR CARRYING OUT ANY WORK (INCLUDING SUPPLY OF LABOUR FOR CARRYI NG OUT ANY WORK) IN PURSUANCE OF A CONTRACT BETWEEN THE CONTRACTOR AND A SPECIFIED PERSON SHALL, AT THE TIME OF CREDIT OF SUCH SUM TO THE ACCOUNT OF TH E CONTRACTOR OR AT THE TIME OF PAYMENT 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 RESP ONSIBLE 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 2 8 SHALL, AT THE TIME OF CREDIT OF SUCH SUM TO THE ACC OUNT OF THE PAYEE OR AT THE TIME OF PAYMENT THEREOF IN OR BY ISSUE OF A CHEQUE OR DR AFT OR BY ANY OTHER MO DE, 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 THROUGH MULTI SYSTEM OPERATORS FOR WHICH PAYMENTS WERE MADE TO THEM UNDER THE HEAD 'CARRIAGE CHARGES'. THE ASSESSEE HAS DULY DEDUCTED AND PAID TAX UNDER SECTION 194C OF TH E ACT. WE AGREE WITH THE ID. 5 ITA.NO.2128/KOL/2014 M/S. SRISTI TELEVISION PVT. LTD. A.YR.2012-13 5 CITCA PPEALS) THAT NO TECHNICAL SERVICES WERE INVOL VED IN PAYMENT OF CARRIAGE CHARGES MADE BY THE ASSESSEE FOR BROADCASTING OF TH E PROGRAMMES PRODUCED BY THE ASSESSEE. THE ASSESSEE PRODUCED VARIOUS TYPES OF PR OGRAMMES/SERIALS AND NEWS AND THESE WERE TELECASTED/BROADCASTED THROUGH MULTI SYSTEM OPERATORS. PAYMENTS IN THIS REGARD WERE MADE AS CARRIAGE CHARGES FOR I .T.A. NO. : 1297/ KOL / 2012 ASSESSMENT YEAR : 2009-10 & 2010- 11 & I TA NO. 276 / KOL / 2013 ASSESSMENT YEAR: 2011-12 PAGE 1 TO 5 WHICH PAYMENT OF TAX WAS DEDUCTIBLE UNDER SECTION 194C OF THE INCOME TAX ACT. AS PER DEFINITION OF TE CHNICAL SERVICES GIVEN IN EXPLANATION TO SECTION 9 OF THE ACT, THE DEDUCTEE S HOULD HAVE RENDERED MANAGERIAL, TECHNICAL OR CONSULTANCY SERVICES. IN T HIS 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 CASE LA W REFERRED TO BY THE ID. CIT(A PPEALS) DECISION IN THE CASE OF DCIT -VS.- NNM SECU RITIES LIMITED, ITAT HELD THAT IF THE ASSESSEE IS USING ANY FACILITY OF ANYONE THE SAME IS NOT TECHNICAL SERVICES. HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF KURUKSHETRA DARPAN (P) LTD. -VS.- CIT [217 CTR 326] HAS HELD THAT TELECAST ING 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 WITH THE ORDER OF ID. CIT(APPEALS). ACCORDINGLY WE UPHOLD THE SAME. 9. IN THE AFORESAID ORDER THE NATURE OF CARRIAGE CHARGES HAS BEEN DISCUSSED IN PARA-6 AND IT HAS BEEN OBSERVED THEREIN THAT THE CARRIAGE CHARGES ARE NOTHING BUT PAYMENT MADE TO MULTI SYSTEM OPERATORS FOR TELECASTING/BROADCAST ING PROGRAMMES PRODUCED BY THE ASSESEE. IT IS NOT IN DISPUTE THAT THE NATURE OF PA YMENTS IN THE PRESENT ASSESSMENT YEAR IS IDENTICAL TO THE PAYMENTS MADE BY THE ASSESSEE IN T HE A.Y.2010-11 AND 2011-12 WHICH HAS ALREADY BEEN DECIDED BY THE TRIBUNAL. IN VIEW O F THE ABOVE WE ARE OF THE VIEW THAT THE NATURE OF PAYMENT IN QUESTION IS ONE WHICH FALL S WITHIN THE AMBIT OF SECTION 194C OF THE ACT AND THEREFORE THE ASSESSEE HAS RIGHTLY DEDU CTED TAX AT SOURCE @2%. SINCE THE PAYMENT IN QUESTION DOES NOT FALL WITHIN THE AMBIT OF SECTION 194J OF THE ACT THE ORDERS PASSED U/ 201(1) AND 201(1A) OF THE ACT WERE RIGHTL Y CANCELLED BY CIT(A). WE FIND NO INFIRMITY IN THE ORDER OF CIT(A). CONSEQUENTLY THE APPEAL BY THE REVENUE IS DISMISSED. 6 ITA.NO.2128/KOL/2014 M/S. SRISTI TELEVISION PVT. LTD. A.YR.2012-13 6 10. IN THE RESULT THE APPEAL OF THE REVENUE IS D ISMISSED. ORDER PRONOUNCED IN THE COURT ON 03.05.2017. SD/- SD/- [DR.ARJUN LAL SAINI] [ N.V.VASUDEVA N ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 03.05.2017. [RG PS] COPY OF THE ORDER FORWARDED TO: 1. M/S. SRISTI TELEVISION PRIVATE LIMITED, B.K.TOWE R, 170A, A.J.C.BOSE ROAD, 2 ND FLOOR, KOLKATA-700014. 2. I.T.O., WARD-3(2), TDS, KOLKATA 3. CIT(A)-I, KOLKATA. 4. C.I.T.-TDS, KOLKAT A. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSTT.REGISTRAR, ITAT, KOLKATA BENCHES