YASH RAJ FILMS P.LTD, MUMBAI V. ASST CIT CEN CIR 29, MUMBAI

ITA 7560/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8854 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 06-12-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 24-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNITA BILLA
• Assessee Lawyers: RAJESH P SHAHAR
• Keywords: Depreciation; Business expenditure
• Section: 133A

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -GBENCH MUMBAI , , BEFORE S/SH.RAJENDRA,ACCOUNTANT MEMBER AND AMARJIT SINGH,JUDICIAL MEMBER ./I.T.A./3238/MUM/2014, / ASSESSMENT YEAR: 2005-06 ./I.T.A./5596/MUM/2014, / ASSESSMENT YEAR: 2006-07 ./I.T.A./14/MUM/2014, / ASSESSMENT YEAR: 2008-09 ACIT-CENTRAL CIRCLE-29 MUMBAI. VS. M/S. YASH RAJ FILMS PVT. LTD. 5 SHAH INDUSTRIAL ESTATE, VEERA DESAI RD. ANDHERI (WEST),MUMBAI-400 053. PAN:AAACY 1176 E ( /APPELLANT ) ( / RESPONDENT) ./I.T.A./7560/MUM/2013, / ASSESSMENT YEAR: 2008-09 M/S. YASH RAJ FILMS PVT. LTD. ANDHERI (WEST),MUMBAI-400 053. VS. ACIT-CENTRAL CIRCLE-29 MUMBAI. ( /APPELLANT ) ( / RESPONDENT) / REVENUE BY: MS. SUNITA BILLA-CIT-DR /ASSESSEE BY: SHRI RAJESH P. SHAH-AR / DATE OF HEARING: 06/12/2016 / DATE OF PRONOUNCEMENT:25.01.2017 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) , / PER RAJENDRA A.M. - CHALLENGING THE ORDERS OF THE CIT (A)-40,MUMBAI THE ASSESSING OFFICER (AO)AND THE ASSESSEE HAVE FILED CROSS APPEALS FOR THE AY 2008-0 9.THE AO HAS FILED APPEALS FOR AY.S 2005-06 & 2006-07 ALSO.ASSESSEE-COMPANY,ENGAGED IN PRODUCTION AND DISTRIBUTION OF FEATURE FILMS. THE DETAILS OF FILING OF RETURNS, RETURNED I NCOMES AND ASSESSED INCOMES ETC. CAN BE SUMMARISED AS UNDER : AY. ROI FILED ON RETURNED INCOME ASSESSMENT DATE ASSESSED INCOME CIT(A)ORDER DT. 2005-06 07.03.2006 11.68 CRORES 14.12.2011 42,47,87 ,644/- 21/02/2014 2006-07 27.11.2006 39.32 CRORES 14.12.2011 61,41,92 ,451/- 23/06/2014 2008-09 27.09.2008 26.90 CRORES 31.12.2010 49,80,27 ,120/- 29/10/2013 ITA/3238/MUM/2014,AY.2005-06: 2. FIRST GROUND OF APPEAL(GOA)IS ABOUT DELETING THE AD DITION OF RS.1.38 CRORES MADE ON ACCOUNT OF DISALLOWANCE OF COST OF PRODUCTION.DURIN G THE ASSESSMENT PROCEEDINGS,THE AO OBSERVED THAT THERE WERE DISCREPANCIES IN THE IMPOU NDED BOOKS OF ACCOUNTS AND REGULAR BOOKS MAINTAINED BY THE ASSESSEE,THAT THE PRODUCTION EXPE NSES WERE SHOWN AT RS.57.35 CRORES, THAT 3238,5596,7560&14- YASH RAJ FILMS(05-06;06-07&08-09) 2 UNDER THE HEAD OTHER PRODUCTION EXPENSES THE ASSESS EE HAD SHOWN AN AMOUNT OF RS.5.41 CRORES.CONSIDERING THESE FACTS,HE HELD THAT THESE E XPENSES WERE MOSTLY IN CASH AND WERE PART OF THE ADJUSTMENT ENTRIES MADE BY THE ASSESSEE TO R EDUCE ITS PROFIT. HE MADE AN ADDITION OF RS.1,38,14,588 TO THE TOTAL INCOME OF THE ASSESSEE UNDER THE HEAD BOGUS EXPENDITURE. 2.1. AGGRIEVED BY THE ORDER OF AO THE ASSESSEE PREFERR ED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA). BEFORE HIM,IT WAS STATED THAT THE D ETAILS OF OTHER PRODUCTION EXPENSES WERE FURNISHED TO THE AO DURING THE ASSESSMENT PROCEEDIN GS VIDE ITS LETTER DATED 09.11.2011, THAT THE AO HAD NOT DENIED THE FILING OF DETAILS.AFTER C ONSIDERING THE SUBMISSION OF THE ASSESSEE AND THE ASSESSMENT ORDER THE FAA HELD THAT THE AO H AD NOT POINTED OUT ANY DISCREPANCY IN THE DETAILS FILED BY THE ASSESSEE, THAT HE HAD NOT PROVED THAT EXPENSES CLAIMED BY ASSESSEE WERE BOGUS.HE FINALLY DELETED THE ADDITION MADE BY AO. 2.2. BEFORE US, THE DR SUPPORTED THE ORDER OF THE AO.THE AR RELIED UPON THE ORDER OF THE FAA. 2.3. WE FIND THAT AS PER THE DIRECTION OF THE AO THE ASS ESSEE HAD FILED DETAILS OF RS.1.38 CRORES, THAT THE AO HAD ADDED THE SAID SUM TREATING IT AS BOGUS EXPENDITURE,THAT HE HAD NOT GIVEN ANY REASON AS TO HOW AND WHY THE EXPENSES WER E NOT GENUINE.TO MAKE ANY DISALLOWANCE OR TO MAKE ANY ADDITION,THE AO IS SUPP OSED TO PASS A REASONED AND SPEAKING ORDER SPECIALLY WHEN THE ASSESSEE PRODUCES DOCUMENT ARY EVIDENCES.MERE STATING THAT EXPENDITURE INCURRED BY AN ASSESSEE IS NOT SUFFICIE NT TO FASTEN TAX LIABILITY TO THAT ASSESSEE.IN THE CASE UNDER CONSIDERATION, THE AO HAD NOT EXPLAI NED AS TO HOW THE EXPENDITURE CLAIMED UNDER THE HEAD OTHER PRODUCTION EXPENSES WAS NON-GE NUINE.THEREFORE,WE ARE OF THE OPINION THAT ORDER,PASSED BY THE FAA, NEEDS NO INTERFERENCE FROM OUR SIDE.UPHOLDING HIS ORDER,WE DECIDE THE FIRST GROUND OF APPEAL AGAINST THE AO. 3. SECOND GROUND OF APPEAL (GOA) IS ABOUT DISALLOWANCE MADE U/S.40A(3) OF THE ACT.DURING THE ASSESSMENT PROCEEDINGS THE AO FOUND THAT THE AS SESSEE HAD MADE CASH PAYMENTS OF RS.2.75 CRORES. HE OBSERVED THAT THE PAYMENTS MADE BY IT WERE HIT BY THE PROVISIONS OF SECTION 40A(3)OF THE ACT,THAT THE ASSESSEE HAD FAI LED TO PRODUCE THE SUPPORTING VOUCHER FOR VERIFICATION OF THE DISPUTED EXPENDITURE, THAT THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE WERE NOT RELIABLE. THEREFORE,HE MADE A DISALLOWED 2 0% OF THE EXPENDITURE,AMOUNTING TO RS.55.04 LAKHS. 3238,5596,7560&14- YASH RAJ FILMS(05-06;06-07&08-09) 3 3.1. BEFORE THE FAA THE ASSESSEE ARGUED THAT IT WAS MAIN TAINING SEPARATE CASH BOOK FOR PRODUCTION OF EACH MOVIE,THAT CASH BOOKS OF ALL THE MOVIES WERE MERGED WITH THE MAIN CASH BOOK,THAT THE ENTRIES APPEARING ON THE 31 ST MARCH OF EACH YEAR DID NOT INDICATE THAT EXPENSES WERE INCURRED ON LAST DAY OF THE YEAR OR THAT THE S AME WERE MORE THAN RS.20,000/-, THAT EACH INDIVIDUAL VOUCHER WAS LESS THAN RS.20,000/-, THAT IT HAD FURNISHED DOCUMENTARY EVIDENCES IN THAT REGARD DURING ASSESSMENT PROCEEDINGS. THE FAA DIRECTED THE ASSESSEE TO PRODUCE THE CASH B OOK DURING THE APPELLATE PROCEEDINGS. AFTER GOING THROUGH IT, HE OBSERVED THAT MOST OF TH E EXPENSES WERE LESS THAN RS.20,000/-, THAT SAME WERE NOT HIT BY THE PROVISIONS OF SECTION 40A (3), THAT THERE WERE SEVERAL INDIVIDUAL EXPENSES,THAT WERE MORE THAN RS.20,000/-.HE RESTRIC TED THE DISALLOWANCE TO RS.10.00 LAKHS. 3.2. BEFORE US, THE DR AND THE AR SUPPORTED THE ORDER OF THE AO AND THE FAA RESPECTIVELY. WE FIND THAT THE AO HAD MADE A DISALLOWANCE @20% OF TOTAL EXPENDITURE ON ADHOC BASIS, THAT HE HAD NOT GIVEN THE DETAILS OF EXPENDITURE TH AT WAS COVERED BY SECTION 40A(3), THAT THE FAA HAD VERIFIED THE CASH BOOK AND HAD OBSERVED THA T MOST OF THE EXPENDITURE WERE LESS THAN RS.20,000/-.SO, IN OUR OPINION HE WAS JUSTIFIED IN RESTRICTING THE DISALLOWANCE AT RS.10 LAKHS CONSIDERING THE FACT THAT THERE WERE CERTAIN EXPENS ES THAT WERE MORE THAN RS.20,000/-. HIS ORDER DOES NOT SUFFER FROM ANY INFIRMITY.GROUND NO. 2 IS DISMISSED. 4. NEXT GROUND DEALS WITH DELETING THE ADDITION OF RS. 96.50 LAKHS.THE AO,DURING THE ASSESSMENT PROCEEDINGS NOTED THAT THERE WAS A DIFFE RENCE OF RS.96.50 LAKHS BETWEEN THE IMPOUNDED BOOKS OF ACCOUNT AND FINANCIAL STATEMENT FILED WITH RETURN OF INCOME ON ACCOUNT OF MISCELLANEOUS RECEIPTS.AS PER THE DIRECTION OF T HE AO THE ASSESSEE FURNISHED RECONCILIATION STATEMENT IN THAT REGARD.HOWEVER,THE AO REJECTED TH E EXPLANATION FILED BY THE ASSESSEE ON THE GROUND THAT IN THE AY.2007-08 THE ASSESSEES BO OKS WERE HELD TO BE UNRELIABLE. THEREFORE, HE MADE AN ADDITION OF RS.96,50,048/- U/S.68 OF THE ACT. 4.1. IN THE APPELLATE PROCEEDINGS,BEFORE THE FAA,THE ASS ESSEE MADE DETAILED SUBMISSION AND OBJECTED TO INVOCATION OF PROVISIONS OF SECTION 68. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AND THE ASSESSMENT ORDER HE REPRODUCED TH E RECONCILIATION STATEMENT AS UNDER: MISCELLANEOUS INCOME AS PER IMPOUNDED BOOKS OF ACCO UNTS 1,31,89,800 LESS: DVD INCOME RECEIVED FROM YASHRAJ FILMS USA WA S WRONGLY CREDITED TO MISC. INCOME. NOW RECTIFIED AND CREDITED TO YASHRAJ FILMS (USA) DVD INCOME 87,50,000 LESS: RE-IMBURSEMENT OF TRAVELLING EXPENSES RECEIVE D FROM YASH RAJ FILMS INT LTD. UK WAS WRONGLY TO MISC. INCOME NOW RECTIFIED A ND REDUCED FROM TRAVELLING EXPS. 41,19,470 ADD: CREDIT BALANCE WRITTEN BACK DISTRIBUTION DIVIS ION 7,30,549 ADD: COMMISSION RECEIVED FROM TARASINGH & SONS 1,63 ,951 ADD:MISC RECEIPT OF HOME ENTERTAINMENT I.E. INCOME FROM PUBLIC PERFORMANCE & 23,24,922 3238,5596,7560&14- YASH RAJ FILMS(05-06;06-07&08-09) 4 SYNCHRONISATION BALANCE AS PER FINANCIALS 39,39,752 HE FURTHER OBSERVED THAT THE AO HAD IGNORED THE EXP LANATION, THAT HE DID NOT MAKE ANY EFFORT TO REVERT THE RECONCILIATION, THAT THE DIFFERENCE B ETWEEN IMPOUNDED BOOKS AND REGULAR BOOKS WAS ONLY BECAUSE OF PRESENTATION, THAT THE ENTIRE M ISCELLANEOUS REPORT OF RS.1,31,89,800/- WAS OFFERED FOR TAXATION.FINALLY,HE DELETED THE ADDITIO N. 4.2. BEFORE US,THE DR STATED THAT MATTER COULD BE DECIDE D ON MERITS. THE AR RELIED UPON THE ORDER OF THE FAA. 4.3. WE FIND THAT THERE WAS NO DIFFERENCE WITH REGARD TO MISCELLANEOUS RECEIPTS AS APPEARING IN THE IMPOUNDED BOOKS AND REGULAR BOOKS. THE AO FAILE D TO UNDERSTAND THE DIFFERENCE IN PRESENTATION.THE FAA HAS GIVEN A CATEGORICAL FINDIN G OF FACT THAT,AS PER THE TABLE GIVEN ABOVE,ENTIRE RECEIPT WAS OFFERED FOR TAXATION BY TH E ASSESSEE DURING THE YEAR UNDER APPEAL.IN THESE CIRCUMSTANCES,THERE IS NO NEED TO INTERFERE W ITH HIS ORDER.GROUND NO.3 STANDS DISMISSED. 5. NEXT GROUND IS ABOUT DELETING THE DISALLOWANCE OF E XPENDITURE AMOUNTING TO RS.29.26 LAKHS.DURING THE ASSESSMENT PROCEEDINGS ,THE AO HEL D THAT BUSINESS EXPENDITURE TO THE TUNE OF RS.29,26,512/- INCURRED VIA CREDIT CARDS WAS OF PERSONAL NATURE AND HENCE DISALLOWABLE. 5.1. BEFORE THE FAA THE ASSESSEE EXPLAINED THAT THE EXPE NDITURE IN QUESTION WAS NOT PERSONAL, THAT THESE WERE BUSINESS EXPENSES, THAT IN THE CASE OF A COMPANY THERE COULD NOT BE ANY EXPENDITURE OF PERSONAL NATURE.THE FAA REFERRED TO THE ORDER OF THE CIT(A) -40, MUMBAI FOR THE AY.2007-08,WHERE HE HAD ALLOWED THE APPEAL FILE D BY THE ASSESSEE, FOLLOWING THE ORDER OF THE TRIBUNAL FOR AY.2006-07(ITA/6350/MUM/2010/,5.4 .2013).WE FIND THAT WHILE DECIDING THE APPEAL FOR THE SUBSEQUENT YEAR THE TRIBUNAL HAS DEALT THE ISSUE AS UNDER :- AFTER CONSIDERING THE SUBMISSIONS AND THE FACTS AN D THE EVIDENCE BROUGHT ON RECORD, WE FIND THAT THE ASSESSEE HAD ACTUALLY RETURNED IN ITS FBT RETURN THE ENTERTAINMENT EXPENSES SO CLAIMED. THEREFORE, A FURTHER DISALLOWANCE WOULD DE FINITELY AMOUNT TO DOUBLE ADDITION OF THE SAME EXPENSE.FURTHER, WE FIND THAT THE AO DISALLOWE D THE EXPENSES BEING OF PERSONAL IN NATURE. THE ASSESSEE IS A PRIVATE LIMITED COMPANY, THEREFORE, THERE CANNOT BE ANY PERSONAL EXPENSE SO FAR AS A LEGAL PERSON IS CONCERNED, THER EFORE, WE DO NOT FIND ANY REASON IN SUSTAINING AN ADDITION OF RS.6,05,545/-.THE AO IS A CCORDINGLY DIRECTED TO DELETE THIS ADDITION.GROUND NO.11 IS ACCORDINGLY ALLOWED. CONSIDERING THE ABOVE,GROUND NO.4 IS DECIDED AGAINS T THE AO. 6. NEXT GROUND PERTAINS TO DELETING THE ADDITION OF RS .5.15 CRORES ON ACCOUNT OF REMUNERATION PAID TO THE DIRECTORS.DURING THE ASSESSMENT PROCEED INGS,THE AO FOUND THAT A SUM OF RS.7.50 CRORES HAD BEEN PAID TO VARIOUS DIRECTORS OF THE C OMPANY.HE OBSERVED THAT PAYMENT WAS HIT BY PROVISIONS OF SECTION 40A(2)(B) OF THE ACT,THAT A SUM OF RS.3 CRORES WAS PAID TO YASH 3238,5596,7560&14- YASH RAJ FILMS(05-06;06-07&08-09) 5 CHOPRA FOR DIRECTING ONE FILM RELEASED DURING THE Y EAR,THAT ADITYA CHOPRA WAS PAID RS.3 CRORES FOR WRITING THE SCRIPT OF THREE FILMS,THAT T HE USUAL PAYMENT FOR WRITING THE SCRIPT OF A MOVIE WAS RS.15-20 LAKHS, THAT PAYAL CHOPRA WAS PAI D RS.50 LAKHS FOR COSTUME DESIGNING OF ONE FILM,THAT PAMELA CHOPRA WAS PAID RS.50 LAKHS,TH AT SHE HAD NOT RENDERED ANY SKILLED SERVICES TO THE COMPANY.HE DISALLOWED RS.2 CRORES,R S.2.40 CRORES, RS.25 LAKHS, RS.50 LAKHS FROM THE REMUNERATION PAID TO ABOVE MENTIONED FOUR DIRECTORS. 6.1. DURING THE APPELLATE PROCEEDINGS THE ASSESSEE FILED DETAILED EXPLANATION WITH REGARD TO REMUNERATION PAID TO THE DIRECTORS.THE FAA REFERRI NG TO THE ORDER OF THE TRIBUNAL FOR AY. 2006-07(SUPRA),DELETED THE ADDITION MADE BY THE AO. 6.2. BEFORE US,THE DR AND THE AR RELIED UPON THE AO AND THE FAA RESPECTIVELY.WE FIND THAT THE TRIBUNAL HAS ,WHILE ADJUDICATING THE APPEAL FO R SUBSEQUENT YEAR HAS DECIDED THE ISSUE AS UNDER : 22.WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL EVIDENCE BROUGHT ON RE CORD. IT IS NOT IN DISPUTE THAT THE LD. CIT(A) HAS MADE ENHANCEMENT TO THE DISALLOWANCE MAD E BY THE AO WITHOUT AFFORDING ANY OPPORTUNITY TO THE ASSESSEE. WE MAY CANCEL THE ADD ITION AT THIS STAGE ONLY. HOWEVER ON MERITS, WE FIND THAT THE REVENUE AUTHORITIES HAVE N OT APPRECIATED THE FACTS AND THE CIRCUMSTANCES INVOLVED IN MAKING OF MOVIE. IT IS T HE SAY OF THE REVENUE AUTHORITIES THAT THE ASSESSEE COULD NOT BRING ANY EVIDENCE TO SHOW WHAT EXTRA SERVICES HAVE BEEN PUT BY THEM TO JUSTIFY THEIR REMUNERATION. NO DOUBT, IN THE MOVIE MAKING SPECIALISTS ARE INVOLVED FOR EVERY DEPARTMENT.HOWEVER, AT THE END OF THE DAY, IT IS FO R THE PRODUCERS OF THE FILM TO SEE THAT THEIR FILM GETS VERY HIGH PUBLICITY, IT IS ONLY AFTER THE COMPLETION OF THE MOVIE , THE PRODUCERS EXTRA ROLE COMES INTO PLAY TO SAFEGUARD THEIR HEAVY INVES TMENTS TOWARDS COST OF PRODUCTION. THE PRODUCERS HAS TO SEE THAT THE MOVIE GETS GOOD PREV IEW FROM PRINT AND ELECTRONIC MEDIA FOR WHICH EXTRA EFFORTS HAVE TO BE DONE AS A PRO. FURT HER , TO SEE THAT THE MOVIES GET GOOD CINEMA HALLS,THE PRODUCERS HAVE TO BARGAIN WITH MUL TIPLEXS AND SINGLE SCREEN THEATRES REGARDING PROFIT SHARING. THEREFORE, IT CANNOT BE SAID THAT THE PRODUCERS HAVE NO ROLE TO PLAY AFTER THE MOVIE IS COMPLETED. FURTHER CONSIDERING THE MAGNITUDE OF THE PRODUCTION HOUSE OF THE ASSESSEE, IT CANNOT BE SAID THAT SHRI ADITYA C HOPRA AND MRS. PAYAL CHOPRA HAVE NOT PUT ANY EXTRA EFFORT.ALL THESE FACTS HAVE NOT BEEN APPR ECIATED BY THE REVENUE AUTHORITIES WHO HAVE GONE BY GENERAL OBSERVATIONS, THEREFORE, CONSI DERING THE ENTIRE FACTS INVOLVED IN THIS LINE OF BUSINESS, IN OUR CONSIDERATE VIEW, THE REMU NERATION PAID TO THE DIRECTORS WAS REASONABLE AND COMMENSURATE WITH THE SERVICES PROVI DED BY THEM. ACCORDINGLY, WE DIRECT THE AO TO DELETE THE ADDITION MADE BY HIM AND ALSO DELE TE THE ENHANCEMENT DONE BY THE LD. CIT(A). GROUND NO. 3 IS ACCORDINGLY ALLOWED. FOLLOWING THE ORDER FOR THE AY.2006-07 OF THE TRIBU NAL,WE DECIDE GROUND NO.5 AGAINST THE AO. 7. NEXT GROUND IS ABOUT DELETING THE ADDITION OF RS.1 .71 CRORES,ON ACCOUNT OF VARIOUS EXPENSES INCLUDING PAYMENT MADE TO JUNIOR ARTISTS A ND EXPENSES RELATED WITH DRESS/MAKE UP/ COSTUMES/DUBBING AND MIXING ETC. 3238,5596,7560&14- YASH RAJ FILMS(05-06;06-07&08-09) 6 7.1. WE FIND THAT IDENTICAL ISSUE WAS DECIDED BY THE TRI BUNAL FOR THE AY.2006-07(SUPRA).VIDE PARA 28-29 OF THE ORDER AT PG-21 AND 22,IT HAD ALLO WED 100% DEDUCTION FOR PAYMENT MADE TO JUNIOR ARTISTES AND RESTRICTED THE DISALLOWANCE TO 5% ON OTHER PAYMENTS.RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL WE DIRECT THE AO TO RESTRICT THE DISALLOWANCE TO 5% OF ALL EXPENSES OTHER THAN EXPENSES INCURRED TOWARDS PAYME NTS MADE TO JUNIOR ARTISTS.PAYMENT MADE TO JUNIOR ARTISTS HAS TO BE ALLOWED FULLY.SIXT H GROUND IS DECIDED IN FAVOUR OF THE AO IN PART. 8. LAST GROUND OF APPEAL (GOA-7) IS ABOUT DELETING THE ADDITION OF RS.11.88 CRORES ON ACCOUNT OF PROPORTIONATE COST OF PRODUCTION BY APPL YING RULE 9A (5) OF THE RULES. DURING THE ASSESSMENT PROCEEDINGS,THE AO DISALLOWED COST OF PRODUCTION BY APPLYING RULE 9A AND MADE PROPORTIONATE DISALLOWANCE OF 28.72%,CO NSIDERING THE FACT THAT THE ASSESSEE HAD NOT OFFERED FOR TAX SATELLITE FEE PAYABLE TO IT .HE WAS OF THE OPINION THAT AS PER THE PROVISI- ONS OF RULE 9A(5) OF THE RULES PROPORTIONATE EXPENS ES WERE TO BE DISALLOWED. ACCORDINGLY, HE WORKED OUT DISALLOWANCE,AFTER TAKING INTO CONSID ERATION PRODUCTION COST OF THREE MOVIES. 8.1. DURING THE APPELLATE PROCEEDINGS,THE FAA OBSERVED T HAT SIMILAR ISSUE WAS DEALT BY THE TRIBUNAL IN ASSESSEES OWN CASE IN THE AY.2006-07. FOLLOWING THE SAME,HE ALLOWED THE APPEAL FILED BY THE ASSESSEE. 8.2. WE WOULD LIKE TO REPRODUCE THE RELEVANT PORTION OF THE TRIBUNAL FOR AY.2006-07AND IT READS AS UNDER: 44.GROUND NO. 13 RELATES TO THE ENHANCEMENT MADE B Y THE LD. CIT(A) BY CONSIDERING COST OF PRODUCTION OF RS. 14.93 CRORES AND RS. 1,39 CROES UNDER RULE 9A(6). 45.DURING THE COURSE OF THE APPELLATE PROCEEDINGS, THE LD. CIT(A) OBSERVED THAT THE LICENCE FEE OF RS.18 CRORES PAYABLE TO THE ASSESSEE HAS NOT BEE N OFFERED FOR TAX ALTHOUGH THE AGREEMENT WAS SIGNED DURING THE FINANCIAL YEAR UNDER CONSIDER ATION. THE LD. CIT(A) WAS OF THE FIRM BELIEF THAT RULE 9A(5) BARS DEDUCTION ALLOWABLE UND ER RULE 9A IN THE EVENT OF NON-CREDITING OF AMOUNT REALIZED BY THE FILM PRODUCER FROM EXHIBITIO N OF FEATURE FILMS OR SELLING OF THE RIGHTS OF EXHIBITION OF THE FEATURE FILMS IN THE BOOKS OF ACC OUNT.THE LD. CIT(A) FURTHER OBSERVED THAT THE ASSESSEE WAS DUE TO RECEIVE RS.1.5 CRORES OUT OF TH E TOTAL CONSIDERATION OF RS.18 CRORES WITHIN 7 DAYS FROM THE DATE OF THE EXECUTION OF THE AGREEMEN T. AS THE LD.CIT(A) PROPOSED TO ENHANCE THE INCOME OF THE ASSESSEE AN OPPORTUNITY WAS GIVEN TO THE ASSESSEE. WITH REGARD TO THE NON- RECOGNITION OF RS. 1.5 CRORES, THE ASSESSEE SUBMITT ED THAT THE RIGHT TO AIR THE MOVIE IS EFFECTED ONLY AFTER THE DATE MENTIONED IN THE AGREEMENT AND THE EFFECTIVE DATE WAS FROM 1.4.2006 AND SO FAR AS APPLICABILITY OF RULE 9A(5) AND 9A(6) IS CON CERNED, THE ASSESSEE SUBMITTED THAT THE PRODUCER IS UNCERTAIN TOWARDS THE FUTURE REVENUE AN D HENCE IT IS NOT POSSIBLE TO ALLOCATE THE PROPORTIONATE COST OF THE MOVIE TOWARDS VARIOUS STR EAM OF REVENUE. THE ASSESSEE FURTHER EXPLAINED THAT RULE 9A(5) ONLY REFERS TO REVENUE OF A FILM TO BE CREDITED TO THE PROFIT & LOSS ACCOUNT RELATED TO THE CURRENT YEAR AND NOT OF THE FURTHER 4 TO 5 YEARS. AS REGARDS APPLICABILITY OF RULE 9A(6), THE ASSESSEE SUBMITTED THAT THE RUL E IS APPLICABLE ONLY WHEN THE RIGHTS OF EXHIBITION OF THE FEATURE FILMS HAVE BEEN TRANSFERR ED BY A MODE NOT COVERED BY THE PROVISION OF RULE 9A. THEREFORE, RULE 9A(6) CANNOT BE APPLIED. 3238,5596,7560&14- YASH RAJ FILMS(05-06;06-07&08-09) 7 45.1.AFTER CONSIDERING THE FACTS AND THE SUBMISSION S OF THE ASSESSEE, THE LD. CIT(A) WAS OF THE FIRM BELIEF THAT RULE 9A SQUARELY APPLIED ON THE FA CTS OF THE CASE. THE LD. CIT(A) FURTHER OBSERVED THAT IN TERMS OF RULE 9A(5) THE COST OF PR ODUCTION CLAIMED BY THE ASSESSEE IS NOT ADMISSIBLE BECAUSE IT IS IN CONTRADICTION TO THE RE QUIREMENT OF RULE 9A(5)(A) AND (B). SINCE THE ASSESSEE HAS NOT CREDITED THE CONSIDERATION OF RS.1 8 CRORES IN THE BOOKS OF ACCOUNT/PROFIT AND LOSS ACCOUNT IN RESPECT OF THE YEAR IN WHICH THE D EDUCTION HAS BEEN CLAIMED. THEREAFTER, THE LD. CIT(A) WENT ON TO DISCUSS THE PROVISIONS OF RUL E 9A(5) AND WAS OF THE OPINION THAT ALL REVENUES FROM FILMS PRODUCED AND RELEASED DURING TH E CURRENT YEAR HAVE TO BE NECESSARILY ACCOUNTED FOR DURING THE CURRENT YEAR ONLY. THE LD . CIT(A) FURTHER OBSERVED THAT THE ASSESSEE HAS RECOGNIZED REVENUE FROM THREE MOVIES, IT WOULD BE ONLY JUST AND FAIR TO RESTRICT THE DISALLOWANCE PROPORTIONATE TO THE RECEIPTS NOT CRED ITED TO THE BOOKS OF ACCOUNT/PROFIT AND LOSS ACCOUNT FOR THE YEAR. THE LD. CIT(A) THUS CALCULAT ED THE TOTAL DISALLOWANCE AS EXHIBITED AT PAGES 56 AND 57 OF HIS ORDER AT RS.14.93 CRORES AND RS.1.39 CRORES. 46.THE LD. COUNSEL FOR THE ASSESSEE STRONGLY OBJECT ED TO THIS FINDINGS OF THE LD. CIT(A). IT IS THE SAY OF THE COUNSEL THAT RULE 9A IS APPLICABLE O N THE MOVIES WHICH ARE RELEASED PRIOR TO 90 DAYS FROM THE CLOSE OF THE ACCOUNTING YEAR. THE LD . COUNSEL DREW OUR ATTENTION TO PAGE 542 OF THE PAPER BOOK WHICH EXHIBITS THE COST OF PRODUCTIO N OF INCOME FOR THE FILM RELEASED DURING THE YEAR UNDER CONSIDERATION. THE LD. COUNSEL FURTHER SUBMITTED THAT THERE IS NO SUCH BAR IN RULE 9A WHICH PREVENTS THE APPORTIONMENT OF COST OF PROD UCTION TO DISTRIBUTION VIS--VIS SATELLITE RIGHT.THE LD. COUNSEL VEHEMENTLY SUBMITTED THAT ASS ESSEES CLAIM IS COVERED BY RULE 9A(2) THEREFORE, NO DISALLOWANCE MADE ON THIS ACCOUNT COU LD BE JUSTIFIABLE. 47.THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY SUP PORTED THE FINDINGS OF THE LD. CIT(A). 48.WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL EVIDENCES BROUGHT ON RECORD. WE F IND THAT THE ENTIRE ISSUE REVOLVES AROUND THE APPLICABILITY OF RULE 9A WHICH RELATES TO DEDUC TION IN RESPECT OF EXPENDITURE ON PRODUCTION OF FEATURE FILM. RULE 9A(2) IS VERY RELEVANT ON TH E FACTS OF THE CASE WHICH PROVIDES AS UNDER: 9A(2) WHERE A [***] FEATURE FILM IS CERTIFIED FOR RELEASE BY THE BOARD OF FILM CENSORS IN ANY PREVIOUS YEAR AND IN SUCH PREVIOUS Y EAR, (A) THE FILM PRODUCER SELLS ALL RIGHTS OF EXHIBITI ON OF THE FILM, THE ENTIRE COST OF PRODUCTION OF THE FILM SHALL BE ALLOWED AS A DEDUCTION IN COMPUTI NG THE PROFITS AND GAINS OF SUCH PREVIOUS YEAR; OR (B) THE FILM PRODUCER (I) HIMSELF EXHIBITS THE FILM ON A COMMERCIAL BASI S IN ALL OR SOME OF THE AREAS; OR (II) SELLS THE RIGHTS OF EXHIBITION OF THE FILM IN RESPECT OF SOME OF THE AREAS; OR (III) HIMSELF EXHIBITS THE FILM ON A COMMERCIAL BA SIS IN CERTAIN AREAS AND SELLS THE RIGHTS OF EXHIBITION OF THE FILM IN RESPECT OF ALL OR SOME OF THE REMAINING AREAS, AND THE FILM IS RELEASED FOR EXHIBITION ON A COMME RCIAL BASIS AT LEAST [NINETY] DAYS BEFORE THE END OF SUCH PREVIOUS YEAR, THE ENTIRE COST OF P RODUCTION OF THE FILM SHALL BE ALLOWED AS A DEDUCTION IN COMPUTING THE PROFITS AND GAINS OF SUC H PREVIOUS YEAR. 49.A PERUSAL OF THIS RULE SHOW THAT WHEN THE MOVIE IS RELEASED FOR EXHIBITION ON COMMERCIAL BASIS, ATLEAST 90 DAYS BEFORE THE END OF SUCH PREVI OUS YEAR, THE ENTIRE COST OF PRODUCTION OF THE FILM SHALL BE ALLOWED AS DEDUCTION IN COMPUTING THE PROFITS AND GAINS OF SUCH PREVIOUS YEAR. IT IS ONLY WHEN THE FILM IS NOT RELEASED ATLEAST 90 DAYS BEFORE THE END OF SUCH PREVIOUS YEAR , IT IS PROVIDED THAT THE COST OF PRODUCTION IS RESTR ICTED TO THE AMOUNT REALIZED BY THE FILM PRODUCER. IN THE INSTANT CASE, WE FIND THAT ALL THE THREE MOVIES WERE RELEASED BEFORE 90 DAYS FROM THE END OF THE PREVIOUS YEAR. A PERUSAL OF THE CHART EXHIBITED ON PAGE-542 OF THE PAPER BOOK SHOW THAT THE ASSESSEE HAS SHOWN AGGREGATE IN COME WHICH IS MUCH HIGHER THAN THE COST OF PRODUCTION OF THESE MOVIES. AS THE FACTS ARE IN LINE WITH THE PROVISIONS OF RULE 9A(2), THE ENTIRE COST OF PRODUCTION DESERVE TO BE ALLOWED. A CCORDINGLY, WE DIRECT THE AO TO DELETE THE ENHANCEMENT MADE BY THE LD. CIT(A) AT RS. 4.93 CROR ES AND RS. 1.39 CRORES. IT WOULD NOT BE OUT OF PLACE TO MENTION THAT THE LD. CIT(A) HAS MAD E ENHANCEMENT KEEPING IN MIND ISSUES INVOLVED IN GROUND NO. 1 OF THIS APPEAL. AS WE HAV E ALLOWED GROUND NO. 1, THE SAME WILL HOLD GOOD FOR THIS GROUND OF APPEAL ALSO. GROUND NO. 13 IS ACCORDINGLY ALLOWED. 3238,5596,7560&14- YASH RAJ FILMS(05-06;06-07&08-09) 8 WE HAVE DEALT THE ISSUE IN DETAIL WHILE ADJUDICATIN G THE APPEAL FOR THE AY.2007-08 (ITA/ 2597/MUM/2012,DTD.21.01.2017).CONSIDERING THE ABOVE ,WE DISMISS GROUND NO.7,RAISED BY THE AO. ITA/5596/MUM/2014-AY. 2006-07: 9. SOLITARY GROUND OF APPEAL RAISED BY THE AO DEALS WI TH DELETING THE ADDITION OF RS.1.11 CRORES ON ACCOUNT OF PRODUCTION COST. DURING THE COURSE OF SURVEY ACTION,CARRIED OUT, ON 10/9/2009,UNDER SECTION 133A OF THE ACT, CERTAIN DOCUMENTS AND COMPUTER BACKUPS WERE IMPOUND ED.ON COMPARISON OF THE IMPOUNDED DOCUMENTS WITH THE REGULAR BOOKS OF ACCOUNTS CERTAI N PRIME ASSESSEE DISCREPANCIES WERE NOTED.ONE OF THE DISCREPANCIES WAS ON ACCOUNT OF DI FFERENCE IN COST OF PRODUCTION BETWEEN THE FINANCIAL STATEMENTS FILED ALONG WITH RETURN OF INCOME AND THE IMPOUNDED BOOKS OF ACCOUNTS.THE AO CALLED FOR EXPLANATION IN THAT REGA RD. THE ASSESSEE CONTENDED THAT THE BOOKS OF ACCOUNTS IMPOUNDED FROM THE BUSINESS PREMISES WE RE ONLY FOR PRODUCTION DIVISION,THAT IF THE COST OF PRODUCTION,PAID BY THE DISTRIBUTION DIV ISION,AMOUNTING RS.1.11 CRORES,WAS ADDED TO COST OF PRODUCTION DIVISION THERE WOULD NOT BE A NY DISCREPANCY. HOWEVER, THE AO DID NOT AGREE WITH THE ASSESSEE AND HELD THAT PRODUCTION EX PENSES/OTHER PRODUCTION EXPENSES REPRESENTED CASH PAYMENTS, THAT THESE PAYMENTS WERE ADJUSTMENT ENTRIES MADE BY THE ASSESSEE TO REDUCE THE PROFITS. 9.1. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PREF ERRED AN APPEAL BEFORE THE FAA. BEFORE HIM, IT WAS CONTENDED THAT THE EXPENDITURE I N QUESTION WAS INCURRED BY THE DISTRIBUTION DIVISION,THAT SAME WAS RECORDED IN THE AUDITED FINA NCIALS OF THE PRODUCTION DIVISION, THAT IT WAS TOWARDS SERVICE CHARGES PAID BY THE DIVISION WH ICH WAS DULY INCORPORATED INTO THE FINANCIAL ACCOUNTS UNDER COST OF PRODUCTION, THAT A UDITED ACCOUNTS OF DISTRIBUTION DIVISION, PRODUCTION DIVISION AND HOME ENTERTAINMENT DIVISION FORMED PART OF THE FINAL BALANCE SHEET, THAT IN THE EARLIER YEARS THE THEN FAA HAD ACCEPTED THE CONTENTION OF THE ASSESSEE IN THAT REGARD,THAT THE FAA HAD ADMITTED THAT IT WAS A QUES TION OF MERE TRANSFER FROM ONE DIVISION TO ANOTHER DIVISION, THAT HE HAD UPHELD THE METHOD OF ACCOUNTING FOLLOWED BY THE ASSESSEE AND HAD DELETED THE ADDITION MADE BY THE AO,THAT THE AO DID NOT OBJECT TO CLUBBING OF DISTRIBUTION DIVISIONS INCOME WITH THE PRODUCTION D IVISION INCOME,THAT HE OBJECTED THE INCLUSION OF EXPENSES OF ONE DIVISION BEING PAID BY OTHER,THAT THE COST OF PRODUCTION,AS REFLECTED IN AUDITED BALANCE SHEET,WAS DULY VERIFIE D BY THE AO COMPLETED UNDER SECTION 143(3),THAT AT THAT TIME THE AO DID NOT MAKE ANY OB SERVATION REGARDING DIFFERENCE IN COST OF PRODUCTION. 3238,5596,7560&14- YASH RAJ FILMS(05-06;06-07&08-09) 9 AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE A ND THE ASSESSMENT ORDER,THE FAA HELD THAT SIMILAR ISSUE AROSE IN THE EARLIER ASSESSMENT YEARS , THAT THE THEN FAA HAD ACCEPTED THAT THE BOOKS OF ALL THREE DIVISIONS, NAMELY PRODUCTION ENT ERTAINMENT AND DISTRIBUTION WERE TO BE MERGED TO SEE THE FINAL PICTURE, THAT DURING THE AS SESSMENT PROCEEDINGS,THE ASSESSEE HAD FURNISHED DETAILS OF PRODUCTION EXPENSES ALONG WITH THE RECONCILIATION STATEMENT, THAT THE AO WAS NOT ABLE TO SHOW AS TO HOW SERVICE CHARGES EXPE NDITURE OF RS. 1.1 CRORES PAID FROM DISTRI -BUTION DIVISION WERE NOT ALLOWABLE.FINALLY,HE DELE TED THE ADDITION. 9.2. DURING THE COURSE OF HEARING BEFORE US,THE DR RELIE D UPON THE ORDER OF THE AO.THE AR STATED THAT IDENTICAL ISSUE WAS DECIDED BY THE FAA IN FAVOUR OF THE ASSESSEE IN EARLIER YEARS BY THE FAA. 9.3. WE HAVE HEARD THE RIVAL SUBMISSIONS.WE FIND THAT TH E ASSESSEE HAD FILED A RECONCILIATION STATEMENT GIVING DETAILS OF PAYMENTS MADE BY THE DI STRIBUTION DIVISION,THAT THE AO DID NOT POINT OUT ANY DISCREPANCY IN THE STATEMENT,THAT WHI LE DETERMINING THE INCOME OF THE ASSESSEE HE HAD CLUBBED THE INCOMES OF ALL THE DIVISIONS, TH AT HE DID NOT ALLOW CLUBBING THE EXPENSES OF THE SAME DIVISIONS, THAT HE HAS NOT BROUGHT ON R ECORD ANY PROOF THAT DISPUTED AMOUNT WAS PART OF THE INFLATED EXPENSES,THAT DURING THE ORIGI NAL ASSESSMENT PROCEEDINGS HE HAD CONSIDERED THE ISSUE OF COST OF PRODUCTION AND HAD NOT MADE ANY ADDITION.THEREFORE,WE ARE OF THE OPINION THAT THE ORDER OF THE FAA DOES NOT SUFF ER FROM ANY LEGAL OR FACTUAL INFIRMITY. CONFIRMING HIS ORDER,WE DECIDE THE EFFECTIVE GROUND OF APPEAL AGAINST THE AO. ITA/14/MUM/2014-AY.2008-09: 10. FIRST GROUND OF APPEAL, IS ABOUT DELETING THE DISAL LOWANCE OF RS. 4.86 CRORES ON ACCOUNT OF PROFESSIONAL FEES PAID TO THE DIRECTORS.WHILE DECID ING THE APPEAL FOR THE ASSESSMENT YEAR 2007-08,WE HAVE DISMISSED THE APPEAL FILED BY THE A O IN THAT REGARD, THAT IN THE EARLIER YEAR ALSO THE TRIBUNAL HAD DECIDED THE ISSUE AGAINST THE AO.FOLLOWING THE ORDERS OF ABOVE- MENTIONED TWO ASSESSMENT YEARS,WE DECIDE GROUND NUM BER ONE AGAINST THE AO. 11. SECOND GROUND OF APPEAL IS ABOUT DELETING THE DISAL LOWANCE, MADE BY THE AO, ON ACCOUNT OF DEPRECIATION OF BUNGALOW. THE IDENTICAL ISSUE HA S BEEN DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE AO BY US,WHILE AJDUDICATING THE APP EAL FOR AY.2007-08(SUPRA).AS THE FACTS FOR BOTH THE AY.S SIMILAR,SO,FOLLOWING ORDER OF THA T YEAR,WE DISMISS GROUND NUMBER TWO. 3238,5596,7560&14- YASH RAJ FILMS(05-06;06-07&08-09) 10 12. LAST GROUND OF APPEAL IS ABOUT THE DIRECTION GIVEN TO THE AO TO GIVE RELIEF OF RS. 3.01 CRORES IN THE YEAR UNDER CONSIDERATION ON THE BASIS THAT THE DISALLOWANCE OF RS. 3.01 CRORES HAD BEEN CONFIRMED IN THE ASSESSMENT YEAR 2007-08. 12.1. WHILE DECIDING THE APPEAL,FILED BY THE ASSESSEE, FO R THE AY.2007-08(SUPRA) WE HAVE HELD THAT THE AMOUNT IN QUESTION WAS TO BE ASSESSED IN THAT YEAR.THERE IS NO NEED TO QUOTE ANY AUTHORITY TO HOLD THAT SAME INCOME CANNOT BE TAXED TWICE.AS THE ISSUE OF TAXABILITY OF THE INCOME IN A PARTICULAR YEAR HAS REACHED FINALITY,SO ,IN OUR OPINION THE ORDER OF THE FAA DOES NOT NEED ANY INTERFERENCE FROM OUR SIDE.GROUND NUMB ER THREE STANDS DISMISSED. ITA/7560/MUM/2013-AY.2008-09: 13. GROUND OF APPEAL RAISED BY THE ASSESSEE,IS ABOUT CO NFIRMING THE ACTION OF THE AO OF NOT REDUCING SUM OF RS.18 CRORES EVEN THOUGH THE SAME W AS ADDED TO BE TAXABLE INCOME BY THE AO IN AY.2007-08. 13.1. BEFORE US,THE AR STATED THAT DECISION TAKEN WITH RE GARD TO THE ISSUE IN EARLIER YEARS WOULD HAVE BEARING ON THE GROUND RAISED.THE DR LEFT THE ISSUE TO THE DISCRETION OF THE BENCH. 13.2. WE FIND THAT ISSUE OF YEAR OF TAXING THE IMPUGNED I NCOME HAD ARISEN IN THE EARLIER AY.S.ALSO AND THE TRIBUNAL,WHILE DECIDING THE APPEA LS FOR THE AY.S.2006-07 AND 2007-08,HAS DELIBERATED UPON THE ISSUE.THE AO IS DIRECTED TO FO LLOW THE INSTRUCTION OF PRECEDING YEARS AND NOT TO TAX THE SAME AMOUNT TWICE.EFFECTIVE GROUND O F APPEAL,FILED BY THE ASSESSEE,IS ALLOWED. AS A RESULT,APPEAL OF THE AO FOR THE AY.2005-06 IS PARTLY ALLOWED,APPEALS FOR THE AY. S. 2006-07AND 2008-09 STAND DISMISSED.APPEAL FILED BY THE ASSESSEE IS ALLOWED. . . 2005-06 , . . 2006-07 2008-09 . , ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JANUARY, 2017. 25 , 2017 SD/- SD/- ( / AMARJIT SINGH ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 25 01.2017. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR G BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.