2009 (3) TMI 4 - SC - Income Tax

Whether the foreign exchange earned by transferring the right of exploitation of the films outside India by way of lease is admissible for deduction u/s 80HHC Department submit that movies/films are not goods/merchandise - held that such rights would fall in the category of articles of trade and commerce, hence, merchandise further, there is merit in the contention of assessee that u/r 9A & 9B, the word lease is included in the word sale hence subject transaction will fall u/s 80HHC

Summary

Issues:
- Whether foreign exchange earned by transferring film rights outside India by lease is admissible for deduction under Section 80HHC of the Income Tax Act 1961.
- Whether films transferred on beta-cam tapes qualify as goods/merchandise for Section 80HHC.

Analysis:
- The main issue in this batch of Civil Appeals was to determine the admissibility of foreign exchange earned through the transfer of film rights outside India by lease under Section 80HHC. The Department argued that films are not goods or merchandise, thus Section 80HHC does not apply, emphasizing the distinction between "sale" and "lease" transactions.
- In Civil Appeal No. 3300/2007, the assessee transferred feature film rights for exploitation outside India during the relevant Assessment Year and claimed a deduction under Section 80HHC. The Assessment Officer initially denied the deduction, but the CIT(A) and Tribunal ruled in favor of the assessee based on a judgment of the Bombay High Court.
- The Revenue contended that films recorded on beta-cam tapes did not qualify as goods or merchandise, as there was no sale involved, only a lease of rights. On the other hand, the assessee argued that Section 80HHC aims to promote foreign exchange earnings from exports, including the sale of goods and merchandise, which should be interpreted broadly to include films as articles of trade and commerce.
- The Supreme Court analyzed the provisions of Section 80HHC and the definitions of goods and merchandise in light of technological advancements and globalization. It concluded that the transfer of film rights for exploitation outside India through lease qualifies as merchandise under Section 80HHC. The Court also noted that lease transactions are considered within the meaning of sale under relevant rules.
- Ultimately, the Court dismissed the Civil Appeals filed by the Department, citing the judgment of the Bombay High Court and affirming that the foreign exchange earned through the transfer of film rights by lease falls within the scope of Section 80HHC.