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TMI Blog2016 (1) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER PER AMARJIT SINGH, JM: All these four appeals filed by the Revenue are directed against different orders dated 31-01-2012 and 30-03-2012 passed under Section 201/201(A) of the Income Tax Act, 1961 [hereinafter referred to as the Act ] by the learned Commissioner of Income Tax (Appeals), Mumbai [hereinafter referred to as the CIT(A)] relating to the aforementioned assessment years. The facts being similar and the question of law involved therein being common and identical in all the assessment years, therefore are being taken up for adjudication. All the appeals are being heard together and are being disposed of by this common order. 2. For adjudicating the common identical issues involved in these appeals, we are taking the Revenue‟s appeal in ITA No.2697/Mum/2012 for assessment year 2008-09. The common grounds raised in all these four appeals are reproduced herein below from the appeal for assessment year 2008-09:- 1. (i) The Ld. CIT(A) has erred on facts in law and not correctly appreciating the nature of the services rendered by the cable operators/ MSOs for which placement charges are paid and holding that such charges come within the purview of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... broadcasting of English Business News. Survey action u/s 133A of the Act was conducted on 10-02-2012 in the case of the assessee company to verify whether the assessee company was complying with the provisions of Chapter XVII B of the Act and also to verify whether the assessee company in respect of the payments debited to its profit loss account on which appropriate TDS compliance is made under the provisions of the Act. On appraisal of the profit loss account of the assessee company, it was found by the Assessing Officer [hereinafter referred to as the AO ] that the assessee company has debited an amount of ₹ 1,49,69,250/- during the financial year 2007-08 on account of carriage fees. The assessee was asked to give the details of the payments made against carriage fees and the services rendered to them along with copy of the agreement entered into. The assessee company had deducted TDS under the provisions of Section 194C of the Act. The AO found that the payments were made to MSO/Cable Operators to retransmit and/or carry out services of the channels on S‟ Band in their respective territories. The AO took the view that the services rendered by MSO/Cable Operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by setting the order in question. 5. On the other hand, the learned Representative of the assessee [hereinafter referred to the AR ] argued that the assessee company is engaged in the business of broadcasting business news through TV Channels and submitted that the payment is covered specifically under the provisions of section 194C. He has referred to the Explanation to section 194C and submitted that as per clause (iv) of the Explanation, the work shall include inter alia Broadcasting and Telecasting including production of programme for such Broadcasting and Telecasting. Therefore, he has submitted that when the payment is in relation to broadcasting work which is specifically provided u/s 194C, then the general provisions u/s 194J cannot be applied. He has further referred to the CBDT Circular No. 720 dated 30.08.1995, wherein it was clarified that each section under chapter XVII, deals with a particular kind of payment to the exclusion of all other sections in this chapter. The payment of any sum shall be liable for tax deduction only under one section. In support of his contention he has relied upon the decision of Hon‟ble Punjab Haryana High Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting and telecasting including production of programmes for such broadcasting and telecasting. By way of such Explanation, 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 194 of the Act, the assessee is a cable network operator through which it provides telecasting of programmes to the ultimate consumers/subscribers. The assessee in turn enters into a contract with the licensor of various TV channels. On the payment so made, s. 194C of the Act is attracted. This is for the reason that the licensor, is a person who is performing the work which is covered within the meaning of c1. (b) of Expln. III to s. 194C(2) of the Act. 15. It is also relevant to mention here that in the agreement between the assessee and the licensor, the licensor is referred to as 'company engaged in the business of distribution of satellite based television channel(s) services including the service and has exclusive rights to market and distribute the services in India to various customers and users of the service'. Further, the agreement refers to the assessee subscriber as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k as provided under clause (iv) of the Explanation to section 194C which reads as under:- Explanation - For the purpose of this section - ********************************* ********************************* (iv) work shall include- (a) Advertising; (b) Broadcasting and telecasting including production of programmes for such broadcasting or telecasting (c) Carriage of goods or passengers by any mode of transport other than by railways; (d) Catering; (e) Manufacturing or supplying a product according to the requirement or specification of a customer by using material purchased from such customer, But does not include manufacturing or supplying a product according to the requirement of specification of a customer by using material purchased from a person, other than such customer.] 8. The Hon‟ble Delhi High Court in the case of CIT Vs. Prasar Bharati (Broadcasting Corporation of India) (supra), has observed in Para 11 as under:- We are unable to agree with this submission. We observe that Explanation III, which was introduced simultaneously with section 194J, is very specific in its application to not only broadca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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