Dy. Commissioner of Income Tax (TDS), Kanpur V. Shri Paresh Chaturvedi, Rrop., Kanpur

ITA 317/LKW/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83317 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 02-09-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 04-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P K DEY
• Assessee Lawyers: AJAY KUMAR KEDIA
• Keywords: Opportunity of being heard; Additional evidence
• Section: 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO S . 317 & 318/LKW/2012 ASSESSMENT YEAR S : 2009 - 10 & 2010 - 11 DY. CIT (TDS) KANPUR V. SHRI. PARESH CHATURVEDI PROP. VEE COMMUNITATION 26/89, KARACHI KHAN KANPUR PAN: AEKPC4325G (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. P. K. DEY, D.R. RESPONDENT BY: SHRI. AJAY KUMAR KEDIA, FCA DATE OF HEARING: 02 09 2014 DATE OF PRONOUNCEMENT: 10 0 9 2014 O R D E R PER SUNIL KUMAR YADAV: THESE APPEALS ARE PREFERRED BY THE REVENUE AGAINST THE RESPECTIVE ORDER OF THE LD. CIT(A) ON COMMON GROUND THAT THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN TREATING PAYMENTS MADE BY THE ASSESSEE AS ADVERTISING CH ARGES; WHEREAS THE PAYMENTS MADE TO THE VARIOUS T.V. CHANNELS AS PAYMENT FOR TECHNICAL SERVICES. 2 . THE FACTS IN BRIEF BORNE OUT FROM THE ORDERS OF THE LOWER AUTHORITIES ARE THAT ON NON - DEDUCTION OF TDS ON PAYMENT TO VARIOUS T.V. CHANNELS IN BOTH THE ASSESSME NT YEARS, A NOTICE UNDER SECTION 201 (1 ) READ WITH SECTION 201(1A) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') WAS ISSUED IN ORDER TO HOLD THE ASSESSEE IN DEFAULT, AS TDS WAS REQUIRED TO BE DEDUCTED UNDER SECTION 194J OF THE ACT ON P AYMENT S MADE TO VARIOUS T.V. CHANNELS ON ACCOUNT OF TECHNICAL SERVICES PROVIDED BY THEM. NOBODY ATTENDED ON BEHALF OF THE ASSESSEE AND THE ASSESSING PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : OFFICER TREATED THE ASSESSEE IN DEFAULT IN RESPECT OF RS.10,71,205/ - FOR FINANCIAL YEAR 2009 - 10 AND RS.5,8 2,545/ - FOR FINANCIAL YEAR 2008 - 09. 3 . AGGRIEVED, ASSESSEE PREFERRED APPEALS BEFORE THE LD. CIT(A) WITH THE SUBMISSION THAT PROVISIONS OF SECTION 194J OF THE ACT ARE NOT APPLICABLE TO THE PAYMENTS MADE TO T.V. CHANNELS , SINCE NO TECHNICAL SERVICES ARE INVOLVE D. IT WAS ALSO CONTENDED THAT THE ASSESSEE DID NOT MAKE ANY PAYMENT TO MODELS, ARTISTS, PHOTOGRAPHERS, ETC SO AS TO BE COVERED BY SECTION 194J OF THE ACT. HE HAS ALSO FILED A COPY OF CIRCULAR NO.715 DATED 8.8.1995 OF CBDT WITH THE SUBMISSION THAT THE PAY MENTS TO T.V. CHANNELS ARE NOT COVERED UNDER THE PROVISIONS OF SECTION 194J OF THE ACT. THE LD. CIT(A) EXAMINED THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE SUBMISSIONS AND BEING CONVINCED WITH THE EXPLANATIONS OF THE ASSESSEE, HE ACCEPTED THE CLAIM AND DELETED THE ADDITIONS MADE BY THE ASSESSING OFFICER. 4 . AGGRIEVED, THE REVENUE IS IN APPEAL S BEFORE THE TRIBUNAL WITH THE SUBMISSION THAT THE LD. CIT(A) HAS NOT CALLED ANY REMAND REPORT FROM THE ASSESSING OFFICER ON THE ADDITIONAL EVIDENCE FILED BEFORE THE LD . CIT(A). HAVING ACCEPTED THE SAME, HE DELETED THE ADDITIONS MADE BY THE ASSESSING OFFICER. 5 . THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, HAS INVITED OUR ATTENTION TO THE CLARIFICATION ISSUED BY THE CBDT APPEARING AT PAGE 5 OF THE COMPILATION OF TH E ASSESSEE , WITH THE SUBMISSION THAT ADVERTISING AGENTS ARE NOT REQUIRED TO DEDUCT TDS ON PAYMENTS MADE TO MEDIA WHICH INCLUDES BOTH PRINT AND ELECTRONIC MEDIA. THEREFORE, THE ASSESSEE WAS NOT REQUIRED TO DEDUCT TDS ON PAYMENTS MADE TO T.V. CHANNELS. DUR ING THE COURSE OF HEARING, A SPECIFIC QUERY WAS RAISED FROM THE LD. COUNSEL FOR THE ASSESSEE AS TO WHETHER HE CAN PLACE SOME EVIDENCE THAT THE ASSESSEE IS AN ADVERTISING AGENCY AND WERE ACTING ON BEHALF OF THE ELECTRONIC MEDIA FOR COLLECTING THE ADVERTISEM ENTS FROM THE PUBLIC , B UT NO EVIDENCE WAS FURNISHED. WE HAVE ALSO CAREFULLY PERUSED THE ORDERS OF THE LD. CIT(A) AND PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : WE FIND THAT BEFORE THE LD. CIT(A) A SPECIFIC PLEA WAS RAISED BY THE ASSESSEE THAT T HE ASSESSEE IS NOT GOVERNED BY THE PROVISIONS OF SECTI ON 194J OF THE ACT, AS NO TECHNICAL SERVICES ARE RENDERED. THE CLARIFICATION ISSUED BY THE CBDT WAS NOT EVEN REFERRED BEFORE THE LD. CIT(A) AND THE LD. CIT(A) AFTER ADMITT ING THE CLAIM OF THE ASSESSEE , HELD THAT ASSESSEE WAS NOT REQUIRED TO DEDUCT TDS , AS IT IS NOT COVERED BY THE PROVISIONS OF SECTION 194J OF THE ACT AS NO TECHNICAL SERVICES WERE PROVIDED. NOW BEFORE US, ASSESSEE HAS FILED THE CLARIFICATION ISSUED BY THE CBDT, BUT IN THIS CLARIFICATION IT IS REQUIRED TO BE PROVED THAT THE ASSESSEE IS AN A DVERTISING AGENCY. IN THE LIGHT OF THIS NEW EVIDENCE, WE ARE OF THE VIEW THAT THIS MATTER SHO U LD BE RE - EXAMINED BY THE LD. CIT(A) AFTER CALLING A REMAND REPORT IN THIS REGARD FROM THE ASSESSING OFFICER , AS THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE BEFOR E HIM. NEEDLESS TO MENTION HERE THAT THE LD. CIT(A) WILL ADJUDICATE THE ISSUE AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6 . IN THE RESULT, APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENT I ONED ON THE CAPTION PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10 TH SEPTEMBER , 2014 JJ: 0209 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )