YASH RAJ FILMS P.LTD, MUMBAI V. ITO (TDS) RG 3(5), MUMBAI

ITA 2918/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7916 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 18-05-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 14-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Assessee Lawyers: RAJESH P MEHTA
• Keywords: Additional evidence
• Section: 133A; 194C; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E , MUMBAI BEFORE S HRI G.S. PANNU (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 2918 /MUM/20 1 5 ASSESSMENT YEAR: 2011 - 12 M/S YASH RAJ FILMS PVT. LTD., 5 SHAH INDUSTRIAL ESTATE, OFF VEERA DESAI ROAD, ANDHERI ( WEST), MUMBAI - 400053 PAN: AAACY1176E VS. THE INCOME TAX OFFICER (TDS), RANGE 3(5), CHARNI ROAD, MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJESH P. MEHTA ( A R ) REVENUE BY : SHRI V. JUSTIN (DR) DATE OF HEARING: 18 /09 /201 7 DATE OF PRONOUNCEMENT: 13 / 12 /201 7 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST ORDER DATED 23/02/2015 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 52 , MUMBAI , FOR THE A S S ESSMENT YEAR 2011 - 12 , WHEREBY THE LD. CIT (A) HAS PARTLY ALLOWED THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER PASSED U/S 201/201(IA) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE A CT). 2. BRIEF FACTS OF THE CASE ARE THAT THE APPE LLANT /ASSESSEE IS A PRIVATE LTD. COMPANY ENGAGED IN THE BUSINESS OF FILM PRO DUCTION AND DISTRIBUTION. A SURVEY ACTION U/S 133A OF THE ACT WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE. IT WAS NOTICED THAT THE ASSESSEE HAD NOT DELETED TAX AT SOURCE AS PER THE PROVISIONS OF SECTION 194J OF THE ACT IN RESPECT OF PAYMENTS MADE TO M/S ADLABS LTD., WHICH HAD MADE COPIES OF F ILMS/PRINTS OF THE FILMS PRODUCED BY THE ASSESSEE. ACCORDINGLY, THE AO ISSUED A SHOW CAUSE NOTICE U/S 2 ITA NO. 2918 / MUM/2015 ASSESSMENT YEAR: 2011 - 12 201(1)/201(1A) OF THE ACT. THE ASSESS EE CONTENDED THAT SUCH PAYMENTS ARE COVERED U/S 194C OF THE ACT AND NOT 194J OF THE ACT. HOWEVER, THE AO REJECTED THE SAME AND PASSED ORDER U/S 201 (1) OF THE ACT HOLDING THE ASSESSEE TO BE ASSESSEE IN DEFAULT FOR SHORT DEDUCTION OF TDS OF RS. 12,69,294/ - . SIMILARLY, THE AO HELD THAT TDS WAS DEDUCTIBLE AS PER SECTION 194J ON PAYMENT OF RS. 24,26,000/ - MADE TO M/S E PIGRAM DIGITAL MEDIA PVT. LTD. FOR ONLINE CAMPAIGN . SINCE, THE ASSESSEE HAD DEDUCTED TAX U/S 194C ACT , THERE IS A SHORT DEDUCTION OF TAX TO THE EX TENT OF RS. 2,01,358/ - THE AO ALSO CHARGED INTEREST U/S 201(1A) OF RS. 1,17,886/ - . 3. IN THE FIRST APPEAL, THE LD. CIT (A) DECIDED THE FIRST ISSUE IN FAVOUR OF THE ASSESSEE H O LD ING THAT SINCE NO SPECIALIZED JOB WAS TO BE DONE BY M/S ADLABS LTD., THE ASSE SSEE WAS REQUIRED TO DEDUCT THE TAX U/S 194C AND NOT U/S 194J OF THE ACT. SO FAR AS THE SECOND ISSUE IS CONCERNED, THE LD. CIT(A) UPHELD THE FINDINGS OF THE AO HOLDING THAT T HE ASSESSEE HAS NOT FURNISHED ANY DOCUMENTARY EVIDENCE IN SUPPORT OF ITS CONTENTIO N THAT ADVERTISEMENT WAS PRODUCED BY THEM AND IT WAS ONLY UPLOADED BY THE ADVERTISER AND THE ASSESSEE HAS FAILED TO FURNISH THE COPIES OF BILL RAISED BY M/S EPIGRAM DIGITAL MEDIA PVT. LTD. 4 . AGGRIEVED BY THE ORDER OF LD. CIT (APPEAL S ), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUND : - THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE TDS RATE TO BE DEDUCTED ON THE PAYMENT MADE OF RS. 24,26,000/ - TO EPIGRAM DIGITAL MEDIA PVT. LTD. U /S 194J INSTEAD OF 194C IGNORING THE FACT THAT EPIGRAM JUST DOES ADVERTISEMENT POST ON THE INTERNET PREPARED BY APPELLANTS EMPLOYEES WHICH REQUIRES TDS U/S 194C AND NOT U/S 194J. 5. BEFORE US, THE LD. COUNSEL SUBMITTED THAT DUE TO UNAVOIDABLE REASONS TH E COPY OF LEDGER ACCOUNT OF M/S EPIGRAM DIGITAL MEDIA PVT. LTD. AND COPIES OF INVOICES OF M/S EPIGRAM DIGITAL MEDIA PVT. LTD. COULD NOT BE 3 ITA NO. 2918 / MUM/2015 ASSESSMENT YEAR: 2011 - 12 PRODUCED BEFORE THE AO AND THE CIT (A). THE LD. COUNSEL FURTHER SUBMITTED THAT IN THE INTEREST OF JUSTICE APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE , WHICH HAS ALREADY BEEN FILED BY THE ASSESSEE, MAY BE ALLOWED AND THE DOCUMENTS MAY BE READ IN EVIDENCE. WE NOTICE THAT AS PER THE COPY OF LEDGER ACCOUNT OF M/S EPIGRAM DIGITAL MEDIA PVT. LTD., THE ASSESSEE HAS DEDUCTE D AT SOURCE U/S 194J . THE M/S EPIGRAM DIGITAL PVT. LTD HAS ISSUED FOUR INVOICES, WHICH ARE PLACED AT PAGE 3 TO 6. 6. ON THE OTHER HAND, T HE LD. DEPARTMENTAL REPRESENTATIVE (DR ) SUBMITTED THAT SINCE THESE DOCUMENTS WERE NOT PRODUCED BEFORE THE AO AND THE CIT (A) , THE SAME ARE REQUIRED TO BE VERIFIED BY THE AUTHORITIES BELOW. UNDER THESE CIRCUMSTANCES, WE ALLOW THE ADDITION EVIDENCE PRODUCED BY THE ASSESSEE AND SET ASIDE THE MATTER TO THE FILE OF AO FOR FRESH ADJUDICATION AFTER VERIFYING THE DOCUMENTARY EVI DENCE SUBMITTED BY THE AO BEFORE THE TRIBUNAL. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR A SSESSMENT YEAR 2011 - 201 2 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH DECEMBER , 2017 . SD/ - SD/ - ( G.S. PANNU ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 13 / 12 / 2017 ALINDRA, PS 4 ITA NO. 2918 / MUM/2015 ASSESSMENT YEAR: 2011 - 12 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI