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4.3 Section 194J read with Explanation 2 to section 9(1)(vii) of the Act provides that the predominant purpose to fall in technical services should be the consideration for the rendering of any managerial, technical or consultancy services which is exactly the case of the Assessing Officer and accordingly said that the actors, musicians, orators, singers etc have rendered technical services being guests or judges of a particular programme. Section 44AA of the Act also provides for film artists to be identified for the sake of technical services. As ruled in the Hon'ble Delhi High Court decision in the case of CIT vs Delhi Transco Ltd mentioned supra, technical services consist of services of technical nature I.T.A. No.403/Coch/2018 when special skills or knowledge relating to technical field are required. In the circumstances, the payment made to the guests and judges of television programmes cannot be said as paid for the work of broadcasting and telecasting including production of programmes for such broadcasting and telecasting so as to bring the same as paid u/s 194C. It should necessarily be brought into the ambit of section 194J since the actors, musicians, orators, singers etc are invited to the programmes not as an individual but a persons of specialized skills. What they have done to the assessee when they perform as guests or judges for a television programme cannot be nothing but professional or technical services which in turn could very well be brought under the ambit of section 194J. In the backdrop of the decisions of the Hon'ble Delhi High Court and Hon'ble Tribunals relied on by the assessee are totally misplaced since in the case Prasar Bharti (292 ITR 580), payments were made to outside producers for programmes. In the Tribunals decisions also payments were made as technical fee to the managing director of the assessee company, channel placement charges to cable operators and for purchase of programme to a production house. Even, the CBDT's Circular No.4/2016/ dt.29.02.2016 is also totally misplaced since the same is on TDS to be made on payments to production houses and not to the individuals as in the case of assessee. Taking into account all the above, the CIT(A) was of the considered opinion that the provisions of section 194J alone are applicable to the assessee and thereby, the assessee ought to have deducted the tax at 10% instead of 1.27% deducted u/s 194C. As a result, the CIT(A) held I.T.A. No.403/Coch/2018 that the decision the assessing authority has taken to declare the assessee as assessee in default and then to charge interest of Rs.8,25,310/- u/s 201(1) doesn't require further interference.

"Clause (b) to Explanation III to section 194C specifically covers activity of production of programmes whereas provisions of section 194J are general in nature - Provisions of section 194C would prevail over section 194J of Act - Section 194C clearly states that payment for production of programmes constitutes payments for 'work' under section 194C - Assessee rightly deducted TDS u/s 194C at rate of 2% on payments made to contractor - CIT(A) has rightly observed that production of programmes is nothing but combination of processes right from planning - He rightly held that dubbing charges and processing fees being a part of production of television serials and programmes, are squarely covered under ambit of specific provisions of section 194C of Act and liable to TDS at rate of 2%. - General provisions of section 194J are not attracted in this case - Findings of Ld. CIT (A) upheld - Decided against Revenue."

(2) Kodak India (P.) Ltd. vs. DCIT (35 CCH 445) (Mum. Trib.) wherein it was held as under:

Deduction of tax at source--Fees for technical or professional services-- Payment for modelling--Assessee a subsidiary company of Kodak USA, was engaged in manufacturing cameras, trading in cameras and dealing in photographic films in and out of India--Pursuant to survey u/s 133A AO noticed that assessee had entered into an agreement with Actor K to act as model for all promotional materials created by Kodak including posing for photographs or promotion of product of Kodak and had deducted TDS u/s 194C--AO held that payment made by assessee to K falls within purview of Explanation (a) to section 194J and there was short deduction of tax-CIT(A) affirmed findings of AO--Held, provisions of Explanation (a) to section 1943 and Notifications issued by Board suggest that services rendered by other notified professions for purpose of section 44AA which includes film artist as listed in rule 6F, who are engaged in production of cinematographic film, constitute "fees for professional service" for purposes of section 194J--List of film artist cannot be extended to include other category of stunt actors, I.T.A. No.403/Coch/2018 although they are engaged in the production of cinematographic film--It is not that total earning of that person in lieu of services rendered which must attract provisions of section 194J--Expressions "services rendered" used in said Explanation assume significance--Taxable receipts u/s 194J are services-specific and not person specific--In instant case payments were payable for services of modelling, which is unconnected with production of cinematographic film--Impugned payments made by the assessee to K would not attract provisions of section 194]--Assessee's appeal allowed Held:

I.T.A. No.403/Coch/2018 (3) Jasminder Singh vs. Addl. CIT (2016 (11) TMI 956 - ITAT Lucknow) wherein it was held as under:

There is a difference between an "artist/entertainer" and a "film artist". An artist/entertainer can be called a film artist, if he renders his/her services pursuant to production of film. However, an artist/entertainer will not be film artist if he entertains people not involved in production of film. The case of the revenue is not that Jasbir Jassi, Kunal Ganjawala have performed an activity while film production was going on and the assessee had made the payment, for the said activity performed by these persons. There is no doubt that Jasbir Jassi. Kunal Ganjawala and others are artists and if they perform in film as an actor or director or music director or assistant director or art director or singer or editor or lyricist or story writer or dialogue writer or as a dress designer could have attracted section 194J of the Act. It is not the case of the revenue that the assessee was producing a film and the artists were engaged in any of these activities which has been stated before. Therefore, the payment made to the artist does not fall in the ken of section 194J of the Act and so no TDS need to be deducted on this as per section 194J of the Act. It has been pointed out by the learned authorised representative that the payments made to Sonlibre International and Rhythm is not as per any contract and it was only for managing and arranging the artist for carrying out the performance. The payments has been made event wise on different dates by means of different cheques. Thus, we find that each payment made to them is an independent contract so the provisions of TDS are not attracted in the facts and circumstances of this case- Decided in favour of assessee"