DCIT (TDS) 1(1), MUMBAI V. GENX ENTERTAINMENT LTD, MUMBAI

ITA 4986/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93272 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: G
• Next Hearing Date: 13-07-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 02-07-2013
• Court: TRIBUNAL
• Department Lawyers: PARAS S SAVLA
• Assessee Lawyers: S T BIDARI SR
• Keywords: Rule of consistency
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND AMIT SHUKLA, JUDICIAL MEMBER I.T.A. NO. 4986/M/2013 (AY:2010 - 2011 ) I.T.A. NO. 4987/M/2013 (AY:2010 - 2011 ) DCIT (TDS) 1(1), R.NO.804, K.G. MITTAL HOSPITAL BLDG, CHARNI ROAD, MUMBAI - 02. / VS. GENX ENTERTAINMENT LTD., 1171/72, SOLITAIRE CORPORATE PARK, CHAKALA, ANDHERI (E), MUMBAI - 400 012. ./ PAN : AACCG7831Q ( / APPELLANT) .. ( / RESPONDENT ) C.O.NO.236/M/2014 (AY 2010 - 2011) C.O.NO.237/M/2014 (AY 2010 - 2011) GENX ENTERTAINMENT LTD., 1171/72, SOLITAIRE CORPORATE PARK, CHAKALA, ANDHERI (E), MUMBAI - 400 012. / VS. DCIT (TDS) 1(1), R.NO.804, K.G. MITTAL HOSPITAL BLDG, CHARNI ROAD, MUMBAI - 02. ./ PAN : AACCG7831Q ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI S.T. BIDARI, SR. AR / RESPONDENT BY : SHRI PARAS S.SAVLA, DR / DATE OF HEARING : 13.07.2015 / DATE OF PRONOUNCEMENT : 22 .07.2015 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE FOUR APPEALS UNDER CONSIDERATION. OUT OF THE FOUR APPEAL, THE MAIN APPEALS ITA NO.4986 & 4987/M/2013 ARE FILED BY THE REVENUE AND THE CROSS OBJECTION NOS.236 & 237/M/2014 ARE FILED BY THE ASSESSEE. SINCE, THE ISSUES RAISED IN ALL THESE APPEALS ARE CONNECTED, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD COMBINEDLY AND DISPOSED OF IN THIS CONSOLIDATED OR DER. 2. WE SHALL TAKE UP THE REVENUES APPEAL ITA NO.4986/M/2013 FOR THE AY 2010 - 2011 IS AGAINST THE ORDER OF THE CIT (A) - 14, MUMBAI DATED 18.3.2013. IN THIS APPEAL, THE ISSUES RAISED BY THE REVENUE ARE ARGUMENTATIVE IN NATURE AND THE ISSUES 2 RAISED IN THE SE GROUNDS RELATE TO THE REQUIREMENT OF TDS AS PER THE PROVISIONS OF SECTION 194J OF THE ACT IN RESPECT OF THE PAYMENTS MADE (I) TOWARDS CHANNEL PLACEMENT AND (II) TOWARDS DUBBING ACTIVITY. 3. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BRIEFLY NARRATE D THE FACTS OF THE CASE AND BROUGHT OUR ATTENTION TO THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE AYS 2008 - 2009 AND 2009 - 2010 VIDE ITA NOS.2627 & 4197/M/2012 AND OTHERS DATED 14.1.2015, COPY OF WHICH IS PLACED AT PAGE 1 OF THE PAPER BOOK . LD COUNSE L ALSO FILED CERTAIN OTHER DECISIONS IN SUPPORT OF THE ASSESSEES CASE NAMELY; (I) ACIT VS. UTV ENTERTAINMENT TELEVISION LIMITED IN ITA NOS. 2699/MUM/2012 AND OTHERS DATED 29.10.2014; (II) ACIT VS. M/S. NGC NETWORKS (I) PVT LTD IN ITA NO. 1382/M/2014 DATED 9.7.2014; (III) DCIT VS. ZEE ENTERTAINMENT ENTERPRISES LTD IN ITA NOS. 3931 TO 3935/MUM/2013 DATED 20.2.201 5. IN CONNECTION WITH THE DEDUCTIBILITY OF THE TDS IN RESPECT OF THE CHANNEL PLACEMENT CHARGES , LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT CONSIDER ING THE SPECIFIC PROVISIONS PROVIDED IN SECTION 194C(IV)(B) OF THE ACT, WHERE THE EXPRESSION PRESCRIBED IS MENTIONED. THIS CHANNEL PLACEMENT CONSTITUTES WORK DEFINED IN THE SAID SECTION. THEREFORE, THE TDS WAS DONE AS PER THE PROVISIONS OF SECTION 19 4C AND THE IDENTICAL ISSUE WAS DECIDED BY THE TRIBUNAL VIDE PARA S 2 TO 7 OF THE TRIBUNALS ORDER FOR THE AYS 2008 - 2009 AND 2009 - 2010 (SUPRA). 4. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE CITED ORDERS OF THE TRIBUNAL, WE FIND THE TRIBUNAL HAS DEC IDED THE IDENTICAL ISSUE RELATING TO THE CHANNEL PLACEMENT CHARGES RELYING ON THE VARIOUS DECISIONS AS DISCUSSED IN PARAS 2 TO 7 OF THE CITED TRIBUNALS ORDER (SUPRA) DATED 14.1.2015. CONSIDERING THE SIGNIFICANCE OF THE SAID PARAS 2 TO 7 OF THE TRIBUNAS ORDER AS WELL AS FOR THE SAKE OF COMPLETENESS OF THIS ORDER, THE SAME ARE EXTRACTED AS FOLLOWS: - 2. THE GROUND NO. 1 IS REGARDING APPLICABILITY OF SECTION 194C OR SECTION 194J IN RESPECT OF THE PAYMENT MADE TO CABLE OPERATORS/DTH OPERATORS FOR CHANNEL P LACEMENT. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DISTRIBUTION OF TELEVISION CHANNELS. THE TV CHANNELS ARE DISTRIBUTED BY THE ASSESSEE THROUGH CABLE OPERATORS/MSOS. DUE TO BANDWIDTH CONSTRAINS, IT WAS UP TO THE CABLE OPERATOR TO DECIDE WHICH CHANNEL WIL L REACH THE END VIEWER AT WHAT FREQUENCY (PLACEMENT). ACCORDINGLY, BROADCASTERS MAKE PAYMENTS TO THE CABLE OPERATOR TO CARRY THEIR CHANNELS AT A PARTICULAR FREQUENCY WHICH IS GENERALLY REFERRED AS CARRIAGE FEES/PLACEMENT FEES. THE PAYMENT OF PLACEMENT FEE IS FOR PLACEMENT OF CHANNELS IN PRIME BAND TO ENHANCE THE VIEWERSHIP AND FURTHER LEAD TO BETTER ADVERTISEMENT REVENUE FOR THE TV CHANNELS. THE ASSESSEE HAS DEDUCTED TAX AT SOURCE AT THE RATE OF 2% U/S 194C OF THE ACT IN RESPECT OF THE SAID PAYMENTS MA DE TOWARDS 3 PLACEMENT FEE TO THE CABLE OPERATORS/MSOS. THE ASSESSING OFFICER HELD THAT THE PAYMENT MADE TOWARDS PLACEMENT OF CHANNELS IS FOR PROVIDING TECHNICAL SERVICES TO THE ASSESSEE AND, THEREFORE, THE SAID PAYMENT OUGHT TO BE SUBJECTED TO TDS U/S 194J AT THE RATE OF 10%. 3. ON APPEAL, THE CIT(A) HELD THAT THE PAYMENT FOR PLACEMENT OF CHANNEL FALLS U/S 194C FOR THE PURPOSE OF DEDUCTION OF TAX AND NOT U/S 194J. 4. BEFORE US, THE LD. DR HAS SUBMITTED THAT THE CHANNEL PLACEMENT FEES ARE CHARGES PAID BY THE BROADCASTER TO THE CABLE OPERATORS/MSOS FOR PLACING THEIR CHANNELS ON A PARTICULAR FREQUENCY OR BANDWIDTH. THUS THESE CHARGES ARE PAID TO PUT THE CHANNEL IN PRIME FREQUENCY/BAND SO THAT VIEWERSHIP AS WELL AS QUALITY OF CHANNELS CAN BE INCREASED. PLACING A PARTICULAR CHANNEL ON A PARTICULAR FREQUENCY IS INTEGRAL PART OF BROADCASTING PROCESS AND, THEREFORE, THE FEE/CHARGES PAID BY ASSESSEE ARE IN THE NATURE OF ROYALTY OR FEE FOR TECHNICAL SERVICES AS PER SECTION 9(1)(VI) OF THE INCOME TAX ACT. THE FEE IS PA ID FOR PLACING THE CHANNEL IN A PARTICULAR PRIME BAND OR BANDWIDTH INVOLVES THE PROCESS OF TRANSMISSION AND, THEREFORE, THE PROVISIONS OF SECTION 194J ARE APPLICABLE ON SUCH PAYMENT. HE HAS RELIED UPON THE ORDERS OF AUTHORITIES BELOW. 5. ON THE OTHER HAND, THE LD. COUNSEL HAS SUBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISIONS OF THIS TRIBUNAL IN THE CASE OF ACIT VS. UTV ENTERTAINMENT TELEVISION LTD. VIDE ORDER DATED 29.10.2014 AND FURTHER IN THE CASE OF ACIT VS. M/S. NGC NETWOR KS (I) PVT. LTD. DATED 09.07.2014, WHEREIN THE TRIBUNAL HAS HELD THAT THE FEE FOR PLACEMENT OF CHANNEL DOES NOT FALL U/S 194J BUT THE SAME FALLS U/S 194C. HENCE THE CIT(A) HAS RIGHTLY HELD THAT THE TDS IN RESPECT OF THE PAYMENT HAS TO BE DEDUCTED U/S 194C . 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. AT THE OUTSET, WE NOTE THAT AN IDENTICAL ISSUE HAS BEEN CONSIDERED BY THIS TRIBUNAL IN THE CASE OF ACIT VS. UTV ENTERTAINMENT TELEVISION LIMITED (SUPRA) IN PARA 6 TO 10 A S UNDER: - 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE PAYMENT IN QUESTION WAS MADE BY THE ASSESSEE TO THE CABLE OPERATORS/ MSOS FOR PLACING THE TV CHANNELS IN THE PRIME BAND IN ORDER TO ENHANCE THE VIEWERSHI P AND BETTER ADVERTISEMENT REVENUE. IN THE CASE OF KURUKSHETRA DARPANS (P) LTD. VS. CIT (SUPRA) , THE HONBLE HIGH COURT OF PUNJAB & HARYANA WHILE DEALING WITH AN IDENTICAL QUESTION HAS HELD IN PARA 13 TO 18 AS UNDER: - 13. AFTER HEARING LEARNED COUNSEL FO R THE PARTIES, WE ARE OF THE VIEW THAT THE CONTENTIONS OF THE COUNSEL FOR THE APPELLANT ARE LIABLE TO BE REJECTED. SEC. 194C OF THE ACT CREATES AN OBLIGATION ON A PERSON RESPONSIBLE FOR PAYING ANY SUM SPECIFLED THEREIN TO A PERSON FOR CARRYING OUT ANY WOR K, TO DEDUCT THE TAX AT SOURCE.' PRESENTLY, WE ARE CONCERNED WITH THE WORK' AS REFERRED TO IN CL(B) OF EXPLN. III BELOW S.194C(2)OF THE ACT. 14. IN TERMS OF THE SAID EXPLANATION. IT IS PROVIDED THAT EXPRESSION 'WORK' SHALL INCLUDE INTER ALIA BROADCASTIN G AND TELECASTING INCLUDING PRODUCTION OF PROGRAMMES FOR SUCH BROADCASTING AND TELECASTING. BY WAY OF SUCH EXPLANATION, IT IS EVIDENT THAT WHERE THE PAYMENT IS FOR A WORK INVOLVING BROADCASTING AND TELECASTING. THE SAME SHALL BE SUBJECT TO DEDUCTION OF. TA X AT SOURCE IN TEMS OF SECTION 194 OF THE ACT. THE ASSESSEE IS A CABLE NETWORK OPERATOR THROUGH WHICH IT PROVIDES TELECASTING OF PROGRAMMES TO THE ULTIMATE 4 CONSUMERS/SUBSCRIBERS. THE ASSESSEE IN TURN ENTERS INTO A CONTRACT WITH THE LICENSOR OF VARIOUS TV CHANNELS. ON THE PAYMENT SO MADE, S. 194C OF THE ACT' IS ATTRACTED. THIS IS FOR THE REASON THAT THE LICENSOR. IS A PERSON WHO IS PERFORMING THE WORK WHICH IS COVERED WITHIN THE MEANING OF C1. (B) OF EXPLN. III TO S. 194C(2) OF THE ACT. 15. IT IS ALSO REL EVANT TO MENTION HERE THAT IN THE AGREEMENT BETWEEN THE ASSESSEE AND THE LICENSOR, THE LICENSOR IS REFERRED TO AS 'COMPANY ENGAGED IN THE BUSINESS OF DISTRIBUTION OF SATELLITE BASED TELEVISION CHANNEL(S) SERVICES INCLUDING THE SERVICE AND HAS EXCLUSIVE RIG HTS TO MARKET AND DISTRIBUTE THE SERVICES IN INDIA TO VARIOUS CUSTOMERS AND USERS OF THE SERVICE'. FURTHER, THE AGREEMENT REFERS TO THE ASSESSEE SUBSCRIBER AS A PARTY, WHICH IS DESIROUS TO SUBSCRIBE FOR AND RECEIVE THE TELECAST SIGNALS OF THE SERVICE FROM THE COMPANY IN ORDER TO FURTHER DISTRIBUTE THE SAME TO THE CUSTOMERS). 16. FROM THE RECITAL OF THE AGREEMENT 'ITSELF, IT IS CLEAR THAT THE SERVICE THAT THE ASSESSEE SUBSCRIBER IS AVAILING IS THE RECEIPT OF 'TELECASTING SIGNALS' FROM THE LICENSOR OR THE C OMPANY. THE EXPRESSION 'SERVICE' HAS ALSO BEEN REFERRED TO MEAN THE TV CHANNEL WHICH IS DEALT WITH BY THE LICENSOR OR THE COMPANY. THEREFORE, WHAT THE ASSESSEE HAS TRANSACTED FOR WITH THE LICENSOR OR COMPANY CERTAINLY INCLUDES WITHIN ITS AMBIT BROADCASTING AND TELECASTING FACILITY. THE ESSENCE OF THE CONTRACT IS TO OBTAIN BROADCASTING AND TELECASTING OF TV CHANNELS AND THEREAFTER ITS DISTRIBUTION AMONGST ULTIMATE CUSTOMERS THROUGH THE CABLE NETWORK OF THE ASSESSEE. 17. ANOTHER PLEA OF THE ASSESSEE/SUBSCRI BER WAS THAT THE LICENSOR OR THE PERSON TO WHOM THE ASSESSEE IS MAKING PAYMENT BY ITSELF DOES NOT DO THE WORK OF BROADCASTING' AND TELECASTING AND IS THEREFORE OUTSIDE THE PURVIEW OF S. 194C OF THE ACT. THIS ARGUMENT DESERVES TO BE NEGATED AT THE THRESHOLD . AS WE HAVE POINTED OUT EARLIER WHAT THE ASSESSEE SUBSCRIBER IS LOOKING FOR IS TO OBTAIN THE TELECAST SIGNALS FROM THE LICENSOR, WHICH IS ENOUGH. TO DEDUCE THAT THE IMPUGNED CONTRACT INVOLVES BROADCASTING AND TELECASTING OF TV SIGNALS . MOREOVER, THE LIC ENSOR OR THE COMPANYV, AS IS EVIDENT FROM THE SPECIMEN AGREEMENT ON RECORD, IN THE BUSINESS OF DISTRIBUTION OF SATELLITE BASED TV CHANNELS AND HAS EXCLUSIVE RIGHTS TO MARKET AND DISTRIBUTE SAID SERVICES IN INDIA, THE SERVICE THAT IS REFERRED TO IN THEAGREE MENT IS THE BROADCASTING AND TELECASLING OF TV SIGNALS. 18. FOR THE REASONS RECORDED ABOVE. WE HAVE NO HESITATION IN CONCLUDING THAT THE TRIBUNAL WAS CORRECT IN HOLDING THAT THE ASSESSEE WAS REQUIRED TO DEDUCT TAX AT SOURCE IN TERMS OF S. 194C OF THE ACT ON PAYMENTS MADE TO THE LICENSOR FOR OBTAINING TV SIGNALS. CABLE TV NETWORK OWNED BY THE ASSESSEE . 7. THUS AFTER EXAMINATION OF THE EXPLANATION III TO THE THEN SECTION 194C, THE HON'BLE HIGH COURT HELD THAT THE PAYMENT FOR OBTAINING THE TELECAST LICENSE S FROM THE LICENSOR FALLS UNDER THE PROVISIONS OF SECTION 194C. WE FIND THAT THE WORK OF BROADCASTING/TELECASTING INCLUDING PRODUCTION OF PROGRAMME OR SUCH BROADCASTING OR TELECASTING FALLS UNDER THE DEFINITION OF WORK AS PROVIDED UNDER CLAUSE (IV) OF T HE EXPLANATION TO SECTION 194C WHICH READS AS UNDER: - 5 EXPLANATION - FOR THE PURPOSE OF THIS SECTION - ********************************* ********************************* (IV) WORK SHALL INCLUDE - (A) ADVERTISING; (B) BROADCASTING AND TELECASTING INCLUDING PRODUCTION OF PROGRAMMES FOR SUCH BROADCASTING OR TELECASTING (C) CARRIAGE OF GOODS OR PASSENGERS BY ANY MODE OF TRANSPORT OTHER THAN BY RAILWAYS; (D) CATERING; (E) MANUFACTURING OR SUPPLYING A PRODUCT ACCORDING TO THE REQUIREMENT OR SPECIFICATION OF A CUSTOMER BY USI NG MATERIAL PURCHASED FROM SUCH CUSTOMER, BUT DOES NOT INCLUDE MANUFACTURING OR SUPPLYING A PRODUCT ACCORDING TO THE REQUIREMENT OF SPECIFICATION OF A CUSTOMER BY USING MATERIAL PURCHASED FROM A PERSON, OTHER THAN SUCH CUSTOMER.] 8. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. PRASAR BHARATI (BROADCASTING CORPORATION OF INDIA) (SUPRA), HAS OBSERVED IN PARA 11 AS UNDER: - WE ARE UNABLE TO AGREE WITH THIS SUBMISSION. WE OBSERVE THAT EXPLANATION III, WHICH WAS INTRODUCED SIMULTA NEOUSLY WITH SECTION 194J, IS VERY SPECIFIC IN ITS APPLICATION TO NOT ONLY BROADCASTING AND TELECASTING BUT ALSO INCLUDE ' PRODUCTION OF PROGRAMMES FOR SUCH BROADCASTING AND TELECASTING'. IF, ON THE SAME DATE, TWO PROVISIONS ARE INTRODUCED IN THE ACT, ONE S PECIFIC TO THE ACTIVITY SOUGHT TO BE TAXED AND THE OTHER IN MORE GENERAL TERMS, RESORT MUST BE HAD TO THE SPECIFIC PROVISION WHICH MANIFESTS THE INTENTION OF THE LEGISLATURE. IT IS NOT, THEREFORE, POSSIBLE TO ACCEPT THE CONTENTION OF THE REVENUE THAT PROGR AMMES PRODUCED FOR TELEVISION, INCLUDING 'COMMISSIONED PROGRAMMES', WILL FALL OUTSIDE THE REALM OF SECTION 194C, EXPLANATION III OF THE ACT. WE FIND NO INFIRMITY IN THE VIEW TAKEN BY THE INCOME - TAX APPELLATE TRIBUNAL WHICH WE HEREBY AFFIRM. 9. THE HONBL E DELHI HIGH COURT HAS MADE IT CLEAR THAT WHEN TWO PROVISIONS ARE SIMULTANEOUSLY INTRODUCED IN THE ACT., ONE IS SPECIFIC AND ANOTHER IS MORE GENERAL IN TERMS THEN THE RESORT MUST BE TO THE SPECIFIC PROVISION. THEREFORE, WHEN THE WORK OF BROADCASTING AND TE LECASTING OF THE PROGRAMMES SPECIFICALLY FALLS UNDER THE AMBIT OF PROVISIONS OF SECTION 194C, THEN IN VIEW OF THE DECISION OF HONBLE DELHI HIGH COURT (SUPRA), THE PROVISIONS OF SECTION 194J CANNOT BE APPLIED ON SUCH PAYMENTS. THE CBDT CIRCULAR NO. 720 DAT ED 30.08.1995, ALSO SUPPORTS THIS VIEW AS IT WAS CLARIFIED IN THE SAID CIRCULAR AS UNDER: - 1261. PAYMENT OF ANY SUM SHALL BE LIABLE FOR DEDUCTION OF TAX ONLY UNDER ONE SECTION . IT HAS BEEN BROUGHT TO THE NOTICE OF THE BOARD THAT IN SOME CASES PERSONS RESPONSIBLE FOR DEDUCTING TAX AT SOURCE ARE DEDUCTING SUCH TAX BY APPLYING MORE THAN ONE PROVISION FOR THE SAME PAYMENT. IN PARTICULAR, IT HAS BEEN POINTED OUT THAT THE SUMS PAID FOR CARRYING OUT WORK OF ADVERTISING ARE BEING SUBJECTED TO DEDUCTION OF TAX AT SOURCE UNDER SECTION 194C AS PAYMENT FOR WORK CONTRACT AS ALSO UNDER SECTION 1941 AS PAYMENTS OF FEES FOR PROFESSIONAL SERVICES. 2. IT IS HEREBY CLARIFIED THAT EACH SECTION, REGARDING TDS UNDER CHAPTER XVII, DEALS WITH A PARTICULAR KIND OF PAYMENT TO THE EXCLUSION OF ALL OTHER SECTIONS IS THIS CHAPTER. THUS, PAYMENT OF ANY SUM SHALL BE LIABLE FOR DEDUCTION OF TAX ONLY UNDER ONE SECTION. 6 THEREFORE, A PAYMENT IS LIABLE FOR TAX DEDUCTION ONLY UNDER ONE SECTION. 10. IN VIEW OF THE ABOVE DISCUSSION AS WELL AS THE DECISIONS OF HONBLE PUNJAB & HARYANA HIGH COURT AND HONBLE DELHI HIGH COURT, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF CIT(A) QUA THIS ISSUE. 7. WE FURTHER NOTE THAT AN IDENTICAL ISSUE WAS ALSO DECIDED BY THE TRIBUNAL IN THE CASE OF ACIT VS. NGC NETWORK PVT. LTD. IN ITA NO. 1382/MUM/2014 VIDE ORDER DATED 9 - 7 - 2014, WHEREIN THE TRIBUNAL HAS TAKEN THE SIMILAR VIEW. ACCORDINGLY, FOLLOWING THE EARLIER ORDERS OF THIS TRIBUNAL ON THIS ISSUE, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDER OF CIT(A) QUA THIS ISSUE. 5. CONSIDERING THE COVERED NATURE OF THE ISSUE, WE RESPECTFULLY FOLLOWING THE ABOVE ORDER OF THE TRIBUNAL AS WELL AS FOLLOWING THE PRINCIPLE OF CONSISTENCY, THIS ISSUE RAISED BY THE REVENUE SHOULD BE DECIDED IN FAVOUR OF THE ASSESSEE . 6. THE SECOND ISSUE RELATES TO THE DEDUCTIBILITY OF TAX FROM THE DUBBING CHARGES PAID BY THE ASSESSEE. IN THIS REGARD, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO PARA 8 OF THE SAID ORDER OF THE TRIBUNAL DATED 14.1.2015 (SUPRA), WHEREIN THE TRIBUNAL DECIDED THE IDENTICAL ISSUE BY RELYING ON THE DECISION OF THE ITAT IN THE CASE OF ACIT VS. MANISH DUTT (12 TAXMANN.COM 50). 7. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE CITED ORDER OF THE TRIBUNAL (SUPRA) DATED 14.1.2015, W E FIND PARAS 8 TO 10 OF THE TRIBUNALS ORDER ARE RELEVANT IN THIS REGARD. CONSIDERING THE SIGNIFICANCE OF THE SAID PARAS AS WELL AS FOR THE SAKE OF COMPLETENESS OF T HIS ORDER, THE SAID PARAS 8 TO 10 OF THE TRIBUNALS ORDER ARE EXTRACTED AS FOLLOWS. 8. GR OUND NO. 2 IS REGARDING APPLICABILITY OF SECTION 194J OR SECTION 194C IN RESPECT OF DUBBING CHARGES. 9. WE HAVE HEARD THE LD. DR AS WELL AS LD. AR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. AT THE OUTSET WE NOTE THAT AN IDENTICAL ISSUE WAS CONSIDERED AND DECIDED BY THIS TRIBUNAL IN THE CASE OF ACIT VS. MANISH DUTT (12 TAXMANN.COM 50), WHEREIN IT WAS HELD THAT THE PAYMENT MADE FOR DUBBING WORK FALLS UNDER SECTION 194C AND NOT U/S 194I. THE TRIBUNAL AGAIN IN CASE OF UTV ENTERTAINMENT TELEVISION LIMITED (SUPRA) HAD DECIDED A SIMILAR ISSUE IN PARA 12 AND 13 AS UNDER: - 12. WE HAVE HEARD THE LD. DR AS WELL AS LD. AUTHORIZED REPRESENTATIVE AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE CIT(A) WHILE DECIDING THIS ISSUE HAS RELIED UPON THE DECISION OF T HIS TRIBUNAL IN THE CASE OF ACIT VS. MANISH DUTT (12 TAXMANN.COM 50) , WHEREIN, THE TRIBUNAL HELD IN PARA 8 TO 12 AS UNDER: - 8. WE HAVE ALREADY SEEN THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DOING DUBBING WORK. THE ASSESSEE WAS HAVING HIS OWN STUDIO COMPRISING OF VARIOUS DUBBING EQUIPMENTS AND PROFESSIONAL ARTIST TO CARRYON THE WORK OF DUBBING. WHENEVER THE ASSESSEE'S OWN STUDIO COULD NOT BE USED THE ASSESSEE USED TO GIVE THE JOB OF CARRYING OUT DUBBING WORK TO OTHER DUBBING STUDIOS. IN RESPECT OF ONE SUCH WORK ENTRUSTED BY THE ASSESSEE TO ANOTHER STUDIO BY NAME NINETY DEGREES 7 THE ASSESSEE HAD MADE A PAYMENT OF RS. 1,60,00 0. ACCORDING TO THE ASSESSEE, THE PAYMENT WAS MADE TO A SUB - CONTRACTOR FOR EXECUTION OF A CONTRACT AND, THEREFORE, IN TERMS OF SECTION 194C THE ASSESSEE DEDUCTED TAX AT SOURCE AT 2 PER CENT. THE ASSESSING OFFICER HOWEVER, WAS OF THE VIEW THAT THE PAYMENT IN QUESTION WAS RENT PAID BY THE ASSESSEE AND, THEREFORE, IN TERMS OF SECTION 194 - 1 OF THE ACT THE ASSESSEE OUGHT TO HAVE DEDUCTED TAX AT SOURCE AT 20 PER CENT. SINCE THE ASSESSEE DID NOT DEDUCT TAX AT SOURCE AT THE PROPER RATE THE ASSESSING OFFICER DISALL OWED THE CLAIM OF THE ASSESSEE FOR DEDUCTION OF A SUM OF RS. 1,60,000 UNDER THE HEAD STUDIO HIRE CHARGES BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. 9. BEFORE THE CIT(A), THE ASSESSEE SUBMITTED THAT THE CONTRACT DETAILS WERE NOT CALLED FO R DURING THE ASSESSMENT AND THAT THE WORK DONE BY 90 DEGREE WAS FOR WORK AS PROVIDED FOR UNDER SECTION 194C OF THE ACT. THE ASSESSEE POINTED OUT THAT STUDIO IS BOOKED AND DUBBING WORK IS UNDERTAKEN USING STUDIO EQUIPMENT, STAFF ETC. THE WORD STUDIO HIRE IS A TERM GENERALLY USED BY INDUSTRY TO DENOTE THE VARIOUS SERVICES RENDERED BY THE DUBBING STUDIO. BUT THE REAL NATURE OF WORK IS A CONTRACT FOR CARRYING OUT WORK. THE ASSESSEE RELIED ON EXPLANATION TO SECTION 194C(7) WHERE AT (IV) 'WORK' WOULD INCLUDE BROA DCASTING AND TELECASTING INCLUDING PRODUCTION OF PROGRAMMES FOR SUCH BROADCASTING OR TELECASTING. THE ASSESSEE FURNISHED DETAILS OF THE WORK CARRIED OUT BY IT FROM STUDIO 90 DEGREE WHICH SHOWED THAT IN RESPECT OF TV SERIAL KARMA THE ASSESSEE UNDERTOOK DUB BING WORK. THE AGREEMENT BETWEEN THE ASSESSEE AND TURNER ENTERTAINMENT A TELECASTING COMPANY WAS ALSO FILED. 10. ON CONSIDERATION OF THE ABOVE SUBMISSIONS, THE CIT(A) HELD AS FOLLOWS: '2.3.2 FACTS AND MATERIALS ON RECORD ARE CONSIDERED. IT IS SEEN THAT ASSESSING OFFICER HAD ONLY ASKED APPELLANT TO EXPLAIN THE PAYMENT BUT HAD NOT SPECIFIED ANY EVIDENCE TO BE FURNISHED. THE SUBMISSIONS MADE DURING THE APPEAL INDICATE THAT THE STUDIO WAS HIRED FOR UTILIZING THE DUBBING FACILITIES WHICH INCLUDED SERVICE THRO UGH THE STUDIO STAFF. CONDITION OF SECTION 194C(7) EXPLANATION (IV) ARE MET ALSO. AS SUCH THE PAYMENT MADE WAS COVERABLE UNDER SECTION 194C UNDER WHICH TAX WAS DEDUCED. ON FACTS, THEREFORE, THE DISALLOWANCE MADE UNDER SECTION 40(A)(IA) IS DELETED.' 11. A GGRIEVED BY THE ORDER OF THE CIT(A) THE REVENUE HAS RAISED GROUND NO.2 BEFORE THE TRIBUNAL. 12. WE HAVE HEARD THE RIVAL SUBMISSIONS. AS CAN BE SEEN FROM THE ORDER OF THE CIT(A), THE ASSESSEE HAD UTILIZED THE SERVICES OF DUBBING STUDIO NINETY DEGREES BY U SING THEIR EQUIPMENTS AS WELL AS THE ARTISTS WHO WERE WORKING FOR STUDIO NINETY DEGREES. THE ASSESSEE HAD THUS CARRIED OUT THE WORK OF DUBBING BY ENGAGING SERVICES AND THE SAME WAS OF THE NATURE OF GETTING WORK DONE THROUGH A SUB - CONTRACTOR. THE FINDINGS O F THE CIT(A) IN THIS REGARD ARE NOT IN CHALLENGE BEFORE US. IN SUCH CIRCUMSTANCES WE ARE OF THE VIEW THAT THE PROVISIONS OF SECTION 194C WERE APPLICABLE AND THE ASSESSEE HAS RIGHTLY DEDUCTED TAX AT SOURCE AT 2 PER CENT TREATING THE PAYMENT AS A PAYMENT TO SUB - CONTRACTOR FOR CARRYING OUT A WORK. WE DO NOT FIND ANY GROUND TO INTERFERE WITH THE ORDER OF CIT(A). CONSEQUENTLY GROUND NO.2 RAISED BY THE REVENUE IS DISMISSED. 13. NO CONTRARY DECISION HAS BEEN REFERRED OR PRODUCED BEFORE US. THEREFORE, FOLLOWING THE DECISION OF THIS TRIBUNAL, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDER OF CIT(A) QUA THIS ISSUE. 8 10. FOLLOWING THE EARLIER ORDERS OF THIS TRIBUNAL, THIS ISSUE IS DECIDED AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. 8. CONSIDERING THE C OVERED NATURE OF THE ISSUE, WE RESPECTFULLY FOLLOWING THE ABOVE ORDER OF THE TRIBUNAL AS WELL AS FOLLOWING THE PRINCIPLE OF CONSISTENCY, THIS ISSUE RAISED BY THE REVENUE SHOULD BE DECIDED IN FAVOUR OF THE ASSESSEE. 9. THUS, THE DECISION TAKEN BY THE CIT (A ) IN GRANTING RELIEF IN RESPECT OF BOTH THE ISSUES IN VIEW OF THE BINDING DECISION OF THE TRIBUNAL IN THE ASSESSEES OWN CASE (SUPRA), WE ARE OF THE OPINION, THE ORDER OF THE CIT (A) IS FAIR AND REASONABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE. ACCORD INGLY, GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 10. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ITA NO.4987/M/2013 (AY 2011 - 2012) (BY REVENUE) 11. SINCE, THE REVENUE RAISED IDENTICAL ISSUES IE., REQUIREMENT OF TDS AS PER THE PROVISIONS OF SECTION 194J OF THE ACT IN RESPECT OF THE PAYMENTS MADE (I) TOWARDS CHANNEL PLACEMENT AND (II) TOWARDS DUBBING ACTIVITY, WHICH ARE ADJUDICATED BY US IN THE ABOVE PARAS OF THIS ORDER WHILE DECIDING THE APPEAL ITA NO.4986/M/2013 FOR THE AY 2009 - 2010, THEREFO RE, THE DECISION GIVEN BY US IN THE SAID APPEAL FOR THE AY 2009 - 2010 SQUARELY APPLIES TO THE INSTANT APPEAL TOO. CONSIDERING THE SAME, GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 12. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. C.O.NO.236/M/2014 (A Y 2010 - 2011) C.O.NO.237/M/2014 (AY 2010 - 2011) 13. NOW, WE CAN TAKE UP THE CROSS OBJECTIONS RAISED BY THE ASSESSEE. IN CONNECTION WITH THE ASSESSEES CROSS OBJECTIONS , AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT IF THE REVENUES APPEALS ARE DISMISSED, THE CROSS OBJECTIONS ARE NOT PRESSED. IN ANY CASE, THE INSTANT CROSS OBJECTIONS ARE FILED BELATED WITH A DELAY OF 14 DAYS. CONSIDERING OUR DECISION IN RESPECT OF THE REVENUES APPEALS AS WELL AS LD COUNSELS PRAYER FOR NOT PRESSING CROSS OBJEC TIONS, WE DISMISS BOTH CROSS OBJECTIONS RAISED BY THE ASSESSEE ARE DISMISSED. 9 14. IN THE RESULT, BOTH THE CROSS OBJECTIONS RAISED BY THE ASSESSEE ARE DISMISSED. 15. CONCLUSIVELY, BOTH THE REVENUES APPEALS AS WELL AS BOTH THE CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND JULY, 2014. SD/ - SD/ - (AMIT SHUKLA) (D. KARUNAKRA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 22 .7 .2015 . . ./ OKK , SR. PS / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI