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TMI Blog2021 (5) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... setaside/stayed/orverruled by higher judicial forum. In such a situation, we find no reason to interfere with the order of CIT(A). We therefore dismiss the ground of the Revenue. Additions u/s 69A - HELD THAT:- We find that CIT(A) while deleting the addition has given a finding that the AO has made addition merely on the basis of suspicion without having any material against the assessee. He has further given a finding that entire has been received by the assessee, recorded in the Books of account and therefore no addition u/s 69A can be made merely because the receipt was disclosed of in each two different account. No material has been placed by the Revenue to point out any fallacy in the findings of CIT(A). We therefore find no reason to interfere with the order of CIT(A) and thus the ground of Revenue is dismissed. - ITA No. 5998/Del/2014 - - - Dated:- 27-5-2021 - SH. ANIL CHATURVEDI , ACCOUNTANT MEMBER AND SH. AMIT SHUKLA , JUDICIAL MEMBER Assessee by : Shri Satish Agarwal , C.A. Revenue by : Dr. Kumar Pranav , Sr. D.R. ORDER PER ANIL CHATURVEDI , AM : This appeal filed by the Revenue is directed against the order dated 29.05.2014 passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issions of the assessee were not found acceptable to AO. AO was of the view that Section 194J states that it is incumbent on a person making payments for professional service, technical service and royalty, to deduct at source and Explanation (ba) to the said section also states that term Royalty will have the same meaning as given in Explanation 2 to clause (vi) of Section 9(1) of the I.T. Act. AO was thus of the view that consideration for transfer of all or any rights in respect of any copyright, including copyright for films and video tapes, used in connection with television or tapes, would fall within the definition of royalty . He was therefore of the view that the payment made by the assessee falls within the definition of royalty and the assessee was required to deduct the TDS u/s 194J of the Act. Since assessee had not deducted the TDS, the provisions of Section 40(a)(ia) of the Act stood attracted and he accordingly disallowed the payment of ₹ 6 crore claimed as Royalty . 7. Aggrieved by the order of AO, assessee carried the matter before the CIT(A). CIT(A) while deleting the addition has given a finding that AO has been unable to show as to under which of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de of the royalty to sub section (vi) of Section 9(1) and therefore the provisions of Section 194J were not applicable. We further find that on identical issue in assessee s own case for A.Y. 2011-12 vide Para No.9 the co-ordinate Bench of the Tribunal ITA No.2880/Del/2016 had dismissed the ground of Revenue by observing as under : 9. We find that Clause (v) of Explanation 2 to Section 9(1) consists of two different transactions, one inclusive another non inclusive. The inclusive part consists of the transfer of all or any rights (including the granting of a licence) in respect of any copyright, literary, artistic or scientific work including films or video tapes for use in connection with television or tapes for use in connection with radio broadcasting. The non-inclusive part consists of consideration for the sale distribution or exhibition of cinematographic films. The Assessing Officer misread the provision in the second part of the clause with regard to exhibition of cinematographic films. He wrongly held that what the assessee purchased is copyrights and hence liable to TDS. In fact, the copyrights are always with the producer. The distributor is only given the right exh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce M/s Jordan Electronics has became a part of Eagle Entertainment Pvt. Ltd., their TDS has been issued in the said name. The submissions made by the assessee was not found acceptable to AO as according to AO, assessee had failed to substantiate the contentions with support of documentary evidences. He therefore considered ₹ 20,00,000/- to be received by the assessee which were not recorded in the Books of accounts of the assessee to be unexplained money u/s 69A of the Act and accordingly made its addition. Aggrieved by the order of AO, assessee carried the matter before the CIT(A) who deleted the addition by observing as under: 8.26 The Appellant has challenged in Ground No.2(d) 8, the addition of ₹ 20,00,000/- made in the assessment order u/s 69A. The Assessing Officer has made an addition of ₹ 20,00,000/- on the ground that as per Form 26AS, the assessee had received a sum of ₹ 40,00,000/- from M/s Eagle Home Entertainments Pvt. Ltd., but as per the ledger Account of this company in the books of M/s Sukrit Pictures, Proprietary concern of the Assessee, the assessee had shown a receipt of only ₹ 20,00,000/- from M/s. Eagle Entertainments Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authenticity of the declaration letter from M/s Eagle Home Entertainments Pvt. Ltd. filed by the Assessee during the assessment proceedings, then direct enquiry could have been done from that company which was having its registered office at J-12, Jangpura Extension, New Delhi-110014. It is obvious that the Assessing Officer has made this addition merely on the basis of suspicion without having any material or evidence against the Assessee. If the Learned Assessing Officer was having suspicion regarding the claimed merger or the authenticity of the declaration filed, than further enquiries could have been done to gather evidence against the Assessee, but the Assessing Officer could not take the decision against the Assessee without any evidence or material. 8.28 It is further seen that the Ld. Assessing Officer has made the addition u/s 69A treating the amount of ₹ 20,00,000/- received in respect of old balance of M/s Jordan Electronics, from M/s Eagle Home Entertainments Pvt. Ltd. as not being recorded in the books of accounts of the Assessee, i.e. in the proprietary concern M/s Sukrit Films. However, this is not the case and the Assessee has recorded the receipt o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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