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TMI Blog2016 (4) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... the cable operator/D.T.H. operators which require application of human mind with technical skill and falls within the ambit of section 194J of the Act. iii) Without prejudice to Ground No. (H) of appeal, since providing the services of preferred channel placement on account of which placement charges are paid requires use of industrial, commercial or scientific equipment within the meaning of sub clause (iva) to Explanation to sub clause (vi) of Section 9(1) of the Income tax Act, 1961, the said payment is on account of royalty and therefore, section 194J is clearly applicable. Accordingly, CIT(A) has erred in law and on facts in not appreciating this factual and legal position and in giving relief to the assessee. iv) The Ld. CIT(A) has further erred on facts and in law in not appreciating that in any case the nature of services rendered by the cable operator/ multi service operators consists of implied agency, such payment on account of carriage fee is in nature of commission or brokerage as defined in Explanation to section 194H of the Income tax Act. 1961. v) The Ld. CIT(A) has erred in law and on facts in holding that section 194C applies to the payment of uplinking char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 94J of the Act as held by the AO on payments made on account of outsourcing of production works has been considered and held in favour of the assessee by the decision of the Coordinate Bench of this Tribunal in the assessee's own case for A.Y. 2009- 10 in ITA No. 3515/Mum/2012 and others vide order dated 14.10.2015 at paras 18 to 24 thereof and at paras 24 & 25 it has been held as under: - "24. We have considered the rival submissions and also perused the relevant material on record. We find that this issue regarding payment for production of programmes for broadcasting and telecasting has been considered and decided by the Hon'ble Delhi High Court in the case of CIT Vs. Prasar Bharati (supra) as discussed above. Respectfully following the same, this issue is accordingly decided in favour of the assessee. 25. In view of the above finding, we find that there is no merit in the appeal of the Revenue and the same is hereby dismissed." 4.6.2 Respectfully following the aforesaid decisions of the Coordinate Bench in the assessee's own case for A.Y. 2009-10 (supra) in which the Coordinate Bench followed the decision of the Hon'ble Delhi High Court in the case of Prasar Bharat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Tribunal in the assessee's own case for A.Y. 2009-10 in ITA No. 3515/Mum/2012 and others vide order dated 14.10.2015 and for A.Y. 2011-12 in ITA No. 2201/Mum/2014 dated 16.12.2015. A copy of the cited decisions was placed before the Bench. 5.6.1 We have heard the rival contentions and perused and carefully considered the material on record, including the judicial pronouncements cited. We find that the issue of whether TDS on payments made on account of placement charges/carriage fees to cable operators/DTH operators is to be made under section 194C of the Act as contended by the assessee or under section 194J of the Act as held by the AO has been considered and decided in favour of the assessee by the Coordinate Bench of this Tribunal in the assessee's own case for A.Y. 2009-10 in ITA No. 3515/Mum/2012 and others vide order dated 14.10.2015 at paras 3 to 10 thereof and at paras 9 &10 thereof it has been held as under: - "9. We have considered the rival submissions, decisions referred to above and carefully perused the materials on record. We find that the issue regarding deduction of tax at source for the payment made to cable operators as placement charges is fully covere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that uplinking involved operation of complex equipments at the uplink centres and payments in this regard were in the nature of royalty payments and therefore the provisions of section 194J of the Act were attracted for making TDS thereon. 6.3 On appeal, the learned CIT(A) reversed the finding of the AO following the decision of the Hon'ble Delhi High Court in the case of Prasar Bharati (supra) and CBDT Circular No. 720 dated 30.08.1995 and held that uplinking was an integral part of broadcasting/telecasting and as such is covered by the Explanation to section 194C of the Act. 6.4 The learned D.R. placed strong reliance on the decision of the AO on this issue. 6.5 Per contra, the learned A.R. for the assessee submitted that this issue stands covered in favour of the assessee by the decisions of Coordinate Benches of this Tribunal in the assessee's own case for A.Y. 2009-10 in ITA No. 3515/Mum/2012 and others vide order dated 14.10.2015 and for A.Y. 2011-12 in ITA No. 2201/Mum/2014 dated 16.12.2015. A copy of the cited decisions was placed before the Bench. 6.6.1 We have heard both parties and perused and carefully considered the material on record, including the judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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