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16. The order of the CIT(A) being erroneous be set aside and the A.O's order be restored".

6. The facts pertaining to these grounds are that the assessee pays carriage fee to cable operator/MSO for putting the channel on a particular frequency. This is done, because in India, broadcasters face bandwidth constraints. By doing this, the broadcaster gets better viewership and revenues. For taking this service from cable operator, the assessee pays carriage fee, on which it deducts TAS u/s 194C. According to the AO, the assessee should have deducted TAS u/s 194J, because

Accordingly, the assessee committed a default u/s 201(1) of the Income Tax Act, 1961.

7. The assessee raised the issue before the CIT(A) and reiterated the submissions. The CIT(A), after examining the entire issue, held, Zee Entertainment Enterprises Ltd.

ITA 3931 to 3935/Mum/2013 "I have considered the facts of the case, the submissions and the arguments of the Ld. ARs as well as the order passed by the AO. The Appellant has made payment of placement charges to cable operators. It is evidenced from the placement Agreement that the cable operators agree with the Appellant to place the channels on certain preferred frequencies for a consideration which is termed as 'carriage or placement fee'. It s seen that the cable operators are as such required to place the channels on some frequency. Hence in my view, by agreeing to place the channel on any preferred band, the cable operator does not render any technical service to the distributor I TV channel. In terms of the provisions of section 194C of the Act, it is provided that expression work' shall include, inter alia, broadcasting and telecasting including production of programmes for such broadcasting and telecasting. Therefore, it is evident that where the payment is for a work involving broadcasting and telecasting, the same shall be subject to deduction of tax at source in terms of section 194C of the Act. 3.12 Thus, payment made to cable operators for placement charges should be regarded to be in the nature of carrying out work of broadcasting and telecasting and hence, subjected to TDS under section 1940 of the Act. Similar view has been taken by the Hon'ble Punjab & Haryana High Court in the case of Kurukshetra Darpans (F) Ltd. v. CIT (2008) (169 Taxman

344). Therefore, I am of the view that payment of placement fee by the Appellant to the cable operators should be subjected to TDS @ 2% as per the provisions of section 194C of the Act.

3.13 I do not agree with the stand adopted by the AO in the impugned order that the placement fee should be treated as Fees for technical services for the purpose of TDS under section 194J of the Act. It is a settled position in law that merely because as part of providing any service or facility, if the service provider requires technical equipments that does not mean that any technology or technical service is provided by the service provider. Under the current arrangement, what the cable operator does is to only give preference to a particular channel over the other to place it on a particular band for which they charge a consideration. Merely because as part of providing this privilege/facility, it requires the cable operators to put the channel on a particular band using technical equipments, does not mean that any technology or technical service is provided by the cable operators to the Appellant. Having regard to the decision of Madras High Court in the case of Skycell Communications Ltd and various other judicial precedents relied upon by the Appellant, placement of channels being a standard facility, the consideration in respect thereof would not qualify as fees for technical services for the purpose of section 194J of the Act. 3.14 Also, I agree with the Appellant that whether the payment is towards a standard fee or placement fee, the activities involved are the same in both cases. For placement of a channel, be it on a prime band or any Zee Entertainment Enterprises Ltd.

ITA 3931 to 3935/Mum/2013 other band the cable operator performs the same activities and he is required to do so as part of the business he is carrying on i.e. of carrying channels to make them available to viewers! subscribers. If as per the AO, the payment of standard fee falls under section 194C of the Act then there is no reason as to why placement fee should not fall under section 194C of the Act since activities involved in both the cases are same. The placement of channel is part of the process of broadcasting/telecasting the channel and hence, payment of placement fee is for doing 'work' involving broadcasting of channels. Therefore, the same is liable for TDS under Section 194C in view of the specific definition of 'work' contained therein. 3.15 The Appellant has cited other decisions also in support of its contention as to why the payments cannot be treated as fees for technical services under Section 194J. The placement fee is a consideration for providing choice of the desired placement of the channels and it is not in the nature of 'fees for technical services'. Hence, I am of the view that provisions of Section 194J cannot apply to the payment of placement charges/ carriage fees. In view of the facts of the instant case, the payments of placement fee made to cable operators! MSOs are not in the nature of 'fees for technical services' because any services of managerial, technical or consultancy nature were not rendered by the cable operators! MSOs as defined in Section 194J read with Explanation 2 to Section 9(1)(vii) of the Act. This is so because in the process of placement of channels, the cable operators! MSOs are as such required to place the channels on some frequency. In any case, I have already held above, that in view of the specific provisions contained in Section 194C which deal with payments for broadcasting and telecasting work, other general provisions cannot apply.