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TMI Blog2013 (5) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... the total earning of that person in lieu of services rendered which must attract the provisions of section 194J of the Act. The expressions services rendered used in the said Explanation assume significance and therefore, the taxable receipts under section 194J of the Act are services-specific and not person specific. In the instant case, the payments are payable for the services of modelling and it is unconnected with the production of cinematographic film. While modelling is aimed at display of merchandise, the acting is defined as to act in play or film (www.freedictionary.com), i.e., to portray a role authored by a story-writer with different purposes and objects and certainly not to displace merchandise to boost the sales of a manufacturer or a trader of the product or services. Therefore, the impugned payments made by the assessee to Matrix India on behalf of Ms. Katrina Kaif did not attract the provisions of section 194J of the Act - Accordingly, the grounds raised are allowed - We have granted relief to the assessee on the main issue - Adjudication of other ground constitutes an academic exercise. Therefore the said grounds are dismissed as academic - The appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. One such non-compliance relates to the TDS provision on the payments, i.e., short deduction of TDS made to Ms. Katrina Resomary Turcotte (Ms. Katrina Kaif). As per the Assessing Officer, the assessee has entered into an agreement with Ms. Katrina Resomary Turcotte to act as model for all promotional materials created by Kodak including posing for photographs or promotion of product of Kodak. The Assessing Officer is of the opinion that the payment made by the assessee are towards fees for a model and it falls within the purview of Explanation (a) to section 194J of the Act, where the Explanation provides for definition of "professional services" which means any services rendered in case of carrying business of advertising. He also invoked the provisions of clause (va)(a) of section 28 of the Act in an attempt to make it a case of payment for compete fee. Finally, the Assessing Officer invoked the provisions of section 194J of the Act deeming the impugned payment "professional fees". Otherwise, the assessee applied the provisions of section 194C of the Act to the impugned payments. In other words, the assessee made TDS at 1.133 per cent as per section 194C, whereas th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -compete fees and the said payment in substance constitutes the payment to Ms. Katrina Kaif attracting the provisions of section 194J of the Act and thus, confirmed the views of the Assessing Officer as per the discussion given in para 10 of the impugned order. In the background of the above facts, the assessee filed the present appeal raising the grounds mentioned above. 4. During the proceedings before us, Shri M. M. Golvala and Sandeep Chetiwal, learned counsels for the assessee filed a paper book giving copies of the agreements, the copy of the Notification of the Central Board of Direct Taxes issued for operation of section 194J of the Act and also certain judicial pronouncements for demonstrating how the impugned payments are outside the scope of section 194J of the Act. To start with, learned counsel brought our attention to the agreement and mentioned that it is a tripartite agreement and the assessee, Ms. Katrina Kaif and M/s. Matrix Entertainment Consultant P. Ltd. (Matrix India) are the signatories to it. Matrix India works for Ms. Katrina Kaif. Further, learned counsel referred to the assessee's letter dated October 7, 2008, which is filed before the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur attention to the decision of this Tribunal in the case of Dy. CIT v. Movies Stunt Artists Association [2006] 6 SOT 204 (Mumbai) and mentioned, considering the above notification, the stunt artist is held not an actor. In this regard, learned counsel read out the contents of paragraphs from 13 to 15 where the Tribunal held that the Notification does not include the stunt artist as an actor, therefore, the contention that the stunt artist is an actor is farfetched and therefore, the same is not accepted. Further, he relied on another decision of the Tribunal in the case of EMC v. ITO [2010] 37 SOT 31 (Mum) which relates to the case of payments involving event management services. In this case, the Tribunal came to the conclusion that the artwork and photography would not come in the purview of professional services. In the said decision, it was discussed that photography and artwork when not done in relation to the production of cinematographic film, the services rendered shall be covered only by the provisions of section 194C and not under the provisions of section 194J of the Act. To get covered by the said notifications, professional services must be rendered in relation to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not make a new case at this level of second appellate proceedings. Notwithstanding the above, learned counsel mentioned that it is not that all actors are covered by the Notification of 1977, only the actors who are involved in the production of cinematography alone covered by the said Notification. Therefore, even if she is a film actor, the services rendered by her to the assessee are not in connection with the production of cinematographic film and therefore, the impugned payment should not be deemed as professional services for the purpose of section 194J of the Act. 7. We have heard both parties, perused the material placed before us. The case of the assessee is that the assessee being an actor-model rendered modelling services for marketing the products of the assessee-payer of the fee. The services since not rendered for production of cinematographic film, the impugned payments are outside the scope of section 194J of the Act. Taking analogy that the "stunt actor" is not an actor, the modelling actor is also not an actor. The definitions and notifications ought not to be extended to cover the modelling services of this kind. These modelling services are not notified by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medical, engineering or architectural profession or the profession of accountancy or technical consultancy or interior decoration or advertising or such other profession as is notified by the Board for the purposes of section 44AA or of this section." 10. The above definition assumes great significance for adjudicating the issue on hand. Fee for professional services-FPS is defined in the Explanation to section 194J of the Act and it is exhaustive definition and of course, with the power to notify the professions. Therefore, the definition is exhaustive in form in view of the use of expression "means" and inclusive in substance as the Board has power to extend the list of professional services. The professions notified for the purpose of section 44AA of the Act hold good for section 194J too. As per the said Explanation qua fee for professional services, the services rendered by a person in the course of carrying on listed professions and other notified professions constitutes fee for professional services and thus the payments in connection with such services attracts the provisions of section 194J of the Act. The payer is legally bound to make TDS at the rate of 10 per cent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st and answer is negative as the same is not included in the list of the film artists. Relevant discussion is given in paras 16 and 17 and they are reproduced as under : "16. As rightly contended by the counsel for the assessee, the omission to include the 'stunt artist' anywhere in the Rules referred in para 4 cannot be treated as accidental or immaterial. The case of the Revenue is that stunt actor is also an actor, because he is also acting. Stunt artist is not included in the notification made for the purpose of section 44AA/this section 194J. Nothing prevented the competent authority, while enumerating the persons engaged in the production of cinematograph film to include a stunt artist as well in this category, this is all the more so. It does not say an actor includes a stunt artist/dupe. Therefore, the contention that stunt artist is an actor within the meaning of the rules is farfetched and cannot be accepted. Particularly, considering the fact that while enumerating a director, a music director, art director, dance director and their assistants as well included. Had the Legislature any inclination to include 'stunt artist' it would have specifically mentioned the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed under the provisions of section 194C(1). The order of the Commissioner of Income-tax (Appeals) is modified to that extent." 16. The provisions of Explanation (a) to section 194J of the Act and Notifications issued by the Board in this regard suggest that the services rendered by a person in the course of carrying on legal, medical, engineering or architectural profession or the profession of accountancy or technical consultancy or interior decoration or advertising or notified sports professionals or other notified professions for the purpose of section 44AA of the Act which includes the film artist as listed in the rules, who are engaged in production of cinematographic film, constitute "fees for professional service" (FPS) for the purposes of section 194J of the Act. It is also a settled position vide the decisions cited above that the list of film artist cannot be extended to include other category of stunt actors, although they are engaged in the production of cinematographic film. It is also the decision of the Tribunal in other case that the photographer-cameraman, who of course figure in the list of film artist, cannot be covered by the above list when such camerama ..... X X X X Extracts X X X X X X X X Extracts X X X X
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