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TMI Blog2015 (10) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... e years. - Decided in favour of assessee. - ITA No. 7055, 7056/Mum/2012, Cross Objection 17, 18/Mum/2014 - - - Dated:- 4-9-2015 - SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER For The Appellant Shri B D Naik For The Respondent None PER AMIT SHUKLA, JM: The aforesaid appeals have been filed by the revenue and Cross Objections by the assessee against separate impugned orders of even date, 27.08.2012, passed by CIT(A)-14 Mumbai, in relation to order passed u/s 201(1)/201(1A) for the assessment years 2010-11 and 2011-12. The grounds raised by the revenue in both the years are common except for variation in figures, hence, the said appeals and COs were clubbed together and are being disposed off by way of this consolidated order for the sake of brevity. The relevant ground as raised in AY 2010-11 reads as under (i) The Ld. CIT(A) has erred in law and on facts by ignoring the amended definition of rent w.e.f. 13.07.2006 as per section 194I and by holding that the payments made by the assessee for advertisement falls within the purview of section 194C and not section 194I. (ii) The Ld. CIT(A) has erred in law and on facts by d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancial years 2009-10 and 2010-11, the assessee has paid an amount of ₹ 80,48,15,421/- and ₹ 90,33,26,197/- respectively, out of which amount of ₹ 78,37,55, 639/- (in FY 2009-10) and ₹ 89,01,30,102/- (in FY 2010-11) was paid to two firms, M/s Portland India Outdoor Advertising Pvt Ltd ( Portland ) and M/s Poster Publicity Division of Media-edge (CIA India Pvt Limited) ( Poster ). On such payment, assessee has deducted TDS @ 2% u/s 194C. 4. On the other hand, the Assessing Officer s contention is that the payee firms were found to have sublet the hoardings site to the assessee, therefore, assessee was required to deduct TDS @ 10% as rent u/s 194I. In response to the show cause notice, the assessee filed very detail explanation vide reply dated 12.11.2011, wherein it was stated that the assessee for the business of advertising entered into contract with respective media vendors for media space and display services. The payee firms have entered with the contracts with the other hoardings contractors/service providers and Municipal Corporation for taking the space for advertisement and were themselves were not the owner of any advertisement site, kiosks, neo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding the provisions of sections 194C, 194J and 194-I of the Act make it amply clear that the case of the appellant straightaway falls in section 194C of the Act. The appellant has entered into a contract with other parties for display of advertisements of its clients and the transaction is purely in the nature of contract for the 'work' of advertising as defined in clause (iv)(a) of Explanation below section 194C. From the facts of the appellants case it is also evident that the appellant has not taken any space on hire or on subletting basis from these other parties. Even otherwise this could not have been so because these other parties namely Portland India Outdoor Advertising Pvt. Ltd, Poster Publicity (Division of Media edge: CIA India Private Limited) and others have also not taken any space on hire so as to be able to sublet the same to the appellant. 3.14 To elaborate this aspect further, there could be a situation where an assessee takes a hoarding on hire from a hoarding owner for a particular period to display the advertisements of its clients and for this particular period, the assessee has the complete control and right on the hoarding for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he nature of 'work contract' in clause (iv)(a) of Explanation below section 194C. 3.16 Coming to the case laws cited by the appellant, it is seen that in the case of Ogilvy and Mather Pvt. Ltd (supra) and Roshan Publicity Pvt. Ltd (both supra), the ITAT, Delhi and Mumbai have respectively decided exactly the same issue and have held that the work of advertisement which includes various services will fall under the category of 'work contract' and hence the tax will be deductible under section 194C of the Act in respect of the payments made by the advertiser to the parties concerned. In this regard, the appellant has relied upon various other case laws where it has been held that if there is a specific provision in the Act in regard to an issue/item (as in the case of the payments for advertising as referred to in clause (iv)(a) of explanation below Section 194C of the Act), then the general provisions of the Act cannot be made applicable. This argument of the appellant also has force and hence cannot be ignored. Finally, in the cases of Singapore Airlines Ltd, Eli Lilly Co. (India) Pvt. Ltd and Chattisgarh State Electricity Board (all supra), Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X
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