Bombay High Court
Commissioner Of Income Tax Tds 2 vs Viacom 18 Media Pvt Ltd on 10 January, 2019
Author: M.S.Sanklecha
Bench: Akil Kureshi, M.S.Sanklecha
Priya Soparkar 1 1 itxa 1409-16 and 2 itxa 1410-16-o-s
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INCOME TAX APPEAL NO.1410 OF 2016
WITH
INCOME TAX APPEAL NO.1409 OF 2016
Commissioner of Income Tax-TDS-2 ... Appellant
V/s.
Viacom 18 Media Pvt. Ltd. ... Respondent
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Mr.Suresh Kumar for the Appellant.
Mr.F.V.Irani with Mr.Atul Jasani for the Respondent.
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CORAM : AKIL KURESHI AND
M.S.SANKLECHA, JJ.
DATE : JANUARY 10, 2019.
P.C.:-
1. Both these appeals under Section 260-A of the Income Tax Act (Act) challenge a common order dated 14th October, 2015 passed by the Income Tax Appellate Tribunal (Tribunal). The common impugned order dated 14th October, 2015 relates to Assessment Years 2009-10, 2010-11 and 2011-12. These two appeals have been filed in respect of Assessment Years 2009-10 and 2010-11.
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Priya Soparkar 2 1 itxa 1409-16 and 2 itxa 1410-16-o-s
2. The revenue has urged the following questions of law for our consideration:-
"a) Whether on the facts and in the circumstances of the case and in law, the ITAT is correct in holding that the placement fees/carriage fees paid to cable operators/MSO/DTH Operators are payments for work contract covered u/s 194C and not fees for technical services u/s 194J, without appreciating that the services received by assessee are technical in nature?
b) Whether on the facts and in the circumstances of the case and in law, the ITAT is correct in holding that the uplinking charges paid to TV-18 India Ltd for uplinking its channels /signals from TV-18's uplinking centre are payments for work contract covered u/s 194C and not fees towards royalty u/s 194J, without appreciating that the services received by assessee are technical in nature?
c) Whether on the facts and in the circumstances of the case and in law, the ITAT is justified in holding that the payment for production of programmes constitutes payment for work u/s 194C and not fees for royalty and technical services u/s 194J, without appreciating that such payments are in nature of royalty and technical fees?
d) Whether on the facts and in the circumstances of the case and in law, the ITAT was justified in rejecting the order of the Assessing Officer by holding that the Assessee is not in default u/s 201(1) in respect of the amount of tax which has not been deducted from the payments made under the required sections and that the Assessee is not liable for levy of interest under section 201(1A)?"
3. The respondent is engaged in broadcasting and telecasting ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 02:10:51 ::: Priya Soparkar 3 1 itxa 1409-16 and 2 itxa 1410-16-o-s of various television channels in India. In the course of its business it engages the services of various persons and on making payment is required to deduction tax at source. These appeals relate to the appropriate Sections i.e. 194C or 194J under which the tax has to be deducted in subject of services engaged. It is the case of the Revenue that tax had to be deducted under Section 194J of the Act while the respondent contends that the tax is to be deducted under Section 194C of the Act.
4. Re:-Question (a)
(i) Mr. Suresh Kumar, the learned counsel for the Revenue fairly states that this question stated concluded against the revenue and in favour of the respondent-assessee. This in view of the order of this Court in The Commissioner of Income Tax, TDS-2, Mumbai Vs. M/s Zee Entertainment Enterprises Ltd. (Income Tax Appeal Nos.1117 of 2015, 1107 of 2015, 1174 of 2015 and 126 of 2016) decided on 28th February, 2018.
(ii) In view of the above decision of this Court and for the reasons indicated therein, question No.(a) as proposed does not ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 02:10:51 ::: Priya Soparkar 4 1 itxa 1409-16 and 2 itxa 1410-16-o-s give rise to any substantial question of law. Thus, not entertained.
5. Re:-Question No.b
(i) The respondent paid unlinking charges to a third party. The impugned order of the Tribunal upheld the order of the CIT (A) of the applicant's contention that these charges were liable for deduction under tax at source under 194C of the Act and not under Section 194J as contended by the revenue. This because the applicant's charges are integral part of broadcasting and telecasting and would stand specifically covered by the defination of work as included under Section 194C of the Act.
(ii) We note that Section 194C of the Act specifically defines the scope of "work" included therein by defining the meaning of "work" to include broadcasting and telecasting. The work of unlinking charges is an integral part of telecasting the programmes. Thus, the deduction of tax on the above payment would thus clearly fall within Section 194C of the Act. The revenue has not been able to show as to why Section 194C of the Act would not apply in these facts
(iii) In view of the above self evident position, the question as ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 02:10:51 ::: Priya Soparkar 5 1 itxa 1409-16 and 2 itxa 1410-16-o-s proposed does not give rise to any substantial question of law. Thus, not entertained.
6. Re:-Question No.c
(i) The respondent made payment to third party for production of programmes.
(ii) The impugned order of the Tribunal upheld the view of the respondent and the CIT (A) that the payment for production of programmes for broadcasting and telecasting were liable to tax deduction at source under Section 194C of the Act and not under Section 194J of the Act as contended by the Revenue.
(iii) We note that the Tribunal inter-alia placed reliance upon this CBDT circular bearing No.4 of 2016 dated 29th February, 2016, wherein it has been clarified that payment made by a broadcaster, telecaster to a production house for production of a programme would fall under the defination of "work" as defined in Section 194C of the Act.
(iv) In view of the binding CBDT circular dated 29 th February, 2016 the question as proposed does not give rise to any substantial question of law. Thus, not entertained. ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 02:10:51 ::: Priya Soparkar 6 1 itxa 1409-16 and 2 itxa 1410-16-o-s
7. Re:-Question No.d
(i) Admittedly, this question as urged, is consequential to the earlier questions. Therefore, would only arise if there is short deduction of tax and have made the deduction under Section 194C of the Act instead of Section 194J of the Act.
(ii) However, in view of the fact that there is no short deduction of tax this question in the present facts would not arise. In the above view, there is no question of entertaining this question.
8. Accordingly, both the appeals are dismissed. No order as to costs.
(M.S.SANKLECHA,J.) (AKIL KURESHI,J.) ....
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