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TMI Blog2010 (1) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... job of art work and photography to others, the claim of the assessee that job often had been given on contract basis has to be accepted. all the payments made by the assessee will be covered under the provisions of section 194C(1). The order of CIT(A) is modified to that extent, appeals of the assessee are partly allowed. - IT Appeal Nos. 2269 to 2272 (Mum.) of 2007 - - - Dated:- 20-1-2010 - D.K. Agarwal, Rajendra Singh, JJ. Vipul Joshi, Adv. for the Appellant Kishan Vyas, Adv. for the Respondent ORDER Per Bench 1. These appeals by the assessee are directed against the common order dated 31-1-2007 of CIT(A) for the assessment years 2000-01 to 2003-04. The only dispute raised in these appeals is regarding charge of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt work and photography treated the parties as professionals and deducted the tax at the rate of 5.5 per cent under section 194J. 2.2 The assessee disputed the decision of Assessing Officer and submitted before CIT(A) that Assessing Officer was not justified in treating the assessee as a contractor and holding it liable for deduction at source under section 194C(1) whereas the assessee was a sub-contractor liable for tax deduction under section 194C(2). The assessee explained that it was an event management company rendering event management and other related services to clients. For the purposes of completion of the contract, the assessee was required to undertake activities such as giving advertisement of events in media, arrangement fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal firm, then the work got done by it from others in case of their professional duties could not be treated as a contract or sub-contract and in that case, no tax could be deducted at all. 2.3 CIT(A) was, however, not satisfied by the explanation given by the assessee. It was observed by him that the payments received from the assessee from the clients had been subjected to TDS under section 194J which is applicable 'to professionals. Moreover section 194J was not limited to only professionals as it also applied to fees for technical services as defined in section 9(1)(vii). The said section is reproduced below as a ready reference:- "Fees for technical services means any consideration (including any lump sum consideration) for the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'professional services' as per the Explanation to section 194J was inclusive which also included art work and photography. CIT(A), therefore, upheld the order of Assessing Officer in applying the provisions of sections 194C(1) and 194J aggrieved by which the assessee is in appeal before the Tribunal. 3. Before us the learned AR for the assessee reiterated the submissions made before CIT(A). It was emphasized that the assessee was a subcontractor and, therefore, provisions of section 194C(2) should be applied. It was also submitted that the department had applied the provisions of section 194J in case of photography and art work job which the assessee had got done from others. It was pointed out that definition of 'professional services' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that case, it was held that 'stunt artist' could not be treated as an actor in the absence of specific mention of the phrase in the definition or in the Notification. He also referred to the decision of Delhi Bench of Tribunal in case of Dy. CIT v. Parasrampuria Synthetics Ltd. [2008] 20 SOT 248 in which it was held that rendering services using technical knowledge or skills was not the same as the rendering technical services. It was, thus, argued that art work and photography could not be treated as professional services in the absence of specific mention of these words in the definition or in the Notification. The learned DR, on the other hand, placed reliance on the order of authorities below. 4. We have perused the records and cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had awarded the job work. But the Assessing Officer has given a clear finding that the assessee had not given these agreements nor any such agreements had been produced before CIT(A) or even at the stage of Tribunal. Under these circumstances, the status of the assessee can be decided only on the basis of treatment given to the assessee by the clients. There is no dispute that the clients have treated the assessee as a professional and had deducted the tax under section 194J in relation to the payment made to the assessee. Thus, in our view, the decision of authorities below to treat the assessee as professional and not as a contractor of the clients is reasonable on the facts of the case and has to uphold. This being the position, the job ..... X X X X Extracts X X X X X X X X Extracts X X X X
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