D.C.I.T.(TDS) RG.3(2), MUMBAI v. SAHARA ONE MEDIA & ENTERTAINMENT LTD., MUMBAI

ITA 4548/MUM/2012 | 2008-2009
Pronouncement Date: 23-10-2013 | Result: Dismissed

Appeal Details

RSA Number 454819914 RSA 2012
Assessee PAN AAACP3047R
Bench Mumbai
Appeal Number ITA 4548/MUM/2012
Duration Of Justice 1 year(s) 3 month(s) 18 day(s)
Appellant D.C.I.T.(TDS) RG.3(2), MUMBAI
Respondent SAHARA ONE MEDIA & ENTERTAINMENT LTD., MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 23-10-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 23-10-2013
Assessment Year 2008-2009
Appeal Filed On 05-07-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI . . BEFORE SHRI P.M. JAGTAP ACCOUNTANT MEMBER AND SHRI SANJAY GARG JUDICIAL MEMBER ITA NOS.4548 4549&4550/MUM/12 ASSESSMENT YEARS: 2008-09 2009-10 & 2010-11 ACIT (TDS) - 3(2) ROOM NO.1012 10 TH FLOOR SMT. K.G. MITTAL AYURVEDIC HOSPITAL BUILDING CHARNI ROAD MUMBAI- 400 002 VS. M/S. SAHARA ONE MEDIA & ENTERTAINMENT LTD. SAHARA INDIA POINT CTS 40-44 S.V. ROAD GOREGAON (W) MUMBAI. PAN: AAACP3047R ASSESSEE BY : SHRI VIJAY MEHTA A.R. REVENUE BY : SHRIJAVEDAKHTAR D.R. DATE OF HEARING : 08.08.13 DATE OF PRONOUNCEMENT :23.10.13 O R D E R PER SANJAY GARG JUDICIAL MEMBER: THESE THREE APPEALS PREFERRED BY REVENUE ARE RELAT ING TO DIFFERENT ASSESSMENT YEARS BUT CONNECTED TO THE SAME ASSESSEE . SINCE COMMON ISSUES HAVE BEEN RAISED IN THESE APPEALS HENCE THESE ARE TAKEN TOGETHER FOR DISPOSAL WITH THIS CONSOLIDATED ORDER. THE FACTS FOR THE SAK E OF CONVENIENCE ARE TAKEN FROM THE APPEAL NO.4548/M/12. ITA NO.4548/M/12.(ASSESSMENT YEAR 2008-09) 2. THIS APPEAL HAS BEEN DIRECTED AGAINST THE ORDER OF THE CIT(A) DATED 30.04.12.THE REVENUE HAS RAISED THE FOLLOWING GROUN DS OF APPEAL: 1. I) THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON THE F ACTS OF THE CASE ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 2 WITHOUT APPRECIATING THE FACT THAT THE AGREEMENT BE TWEEN THE ASSESSEE AND THE DEDUCTEE SPEAKS THAT THE COPY RIGHTS IS VESTED WITH THE PRODUCER (IN RESPECT OF PRODUCTION CHARGES) WHICH EVIDENCES THE FACT THAT THE AGREEMENT IS IN THE NATURE OF ROYALTY AGREEMENT WHI CH ATTRACTS THE PROVISIONS OF SECTION 194J OF THE INCOME TAX ACT 1 961 FOR DEDUCTION OF TDS. II) THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON THE F ACTS OF THE CASE BY HOLDING THAT THE DUBBING EXPENSES/PRINT PROCESSI NG FEES AS CONTRACT THIS WORK INVOLVES TECHNICAL EXPERTISE WHICH CAN ON LY BE EXECUTED BY COMPETENT PERSONS IN THE RESPECTIVE FIELD THUS DUBB ING EXPENSES/PRING PROCESSING FEES ATTRACTS THE PROVISIONS OF SECTION 194J OF THE INCOME TAX ACT 1961 FOR DEDUCTION OF TDS. III) THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON THE F ACTS OF THE CASE BY RELYING ON THE DECISION OF ACIT VS. MANISH DUTT (2011) 12 TAXMANN. COM 50 WITHOUT APPRECIATING THAT IN THE SAID DECISI ON THE PAYMENTS MADE BY THE ASSESSEE WAS FOR USE OF RENTED PREMISES WHICH FALLS WITHIN THE PURVIEW OF SECTION 194 J OF THE INCOME TAX ACT 1961. THE LD. CIT(A) FAILED TO DISTINGUISH THE INSTANT CASE WITH THE CASE OF ACIT VS. MANISH DUTT (SUPRA) WHICH ONLY ATTRACTED THE PROVIS ION OF SECTION 194 J AND NOT OTHERWISE. IV) THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON THE F ACTS OF THE CASE WITHOUT DISTINGUISHING THE PROVISIONS OF SECTION 19 4C AND SECTION 194J THE FORMER SPEAKS OF ONLY PAYMENTS RELATED TO CONTR ACTUAL ACTIVITIES HOWEVER THE LATTER PROVIDES FOR FEES FOR PROFESSIO NAL OR TECHNICAL SERVICES AS IN THE CASE OF THE ASSESSEE IN QUESTION. 2. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY AT THE TIME OF TH E HEARING OF THE CASE OR THEREAFTER. ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 3 3. THE ORDER OF THE CIT(A) BEING ERRONEOUS BE SET A SIDE AND LD. A.O.S ORDER BE RESTORED. 3. THE ASSESSEE IS A LIMITED COMPANY AND IS INTER-ALIA ENGAGED IN THE BUSINESS OF PRODUCTION OF CINEMATOGRAPHIC MOTION PI CTURES AND SMALL SCREEN PROGRAMMES THROUGH ASSIGNED PRODUCERS. A SURVEY OPE RATION U/S 133A WAS CARRIED OUT IN THE CASE OF THE ASSESSEE AND IT WAS FOUND THAT THE ASSESSEE HAD DEBITED PRODUCTION EXPENSES AND DUBBING EXPENSES /PRINT PROCESSING FEES ON WHICH THE TAX WAS DEDUCTED UNDER SECTION 194C OF THE ACT. THE AO WAS OF THE VIEW THAT THE DUBBING EXPENSES/PRINT PROCESSI NG FEES AND PRODUCTION EXPENSES WERE IN THE NATURE OF FEES FOR TECHNICAL SERVICES AND ROYALTY RESPECTIVELY AND HENCE THE TAX SHOULD HAVE BEEN DE DUCTED UNDER SECTION 194J OF THE ACT @10% INSTEADOF @2% DEDUCTED BY THE ASSES SEE UNDER SECTION 194C WITH RESPECT TO THE PAYMENTS MADE DURING THE YEAR. AFTER CONSIDERING THE REPLY OF THE ASSESSEE IN THIS REGARD HE COMPUTED SHORT D EDUCTION OF TAX UNDER SECTION 201(1) AND RAISED DEMAND OF RS.4 74 34 481/-.HOWEVE R THE LD. CIT(A) ON APPEAL BY THE ASSESSEE WHILE ALLOWING THE APPEAL OF THE ASSESSEE DELETED THE ABOVE SAID DEMAND OF TAX. AGGRIEVED THERE FROM THE REVENUE IS IN APPEAL BEFORE US. 4. 1.GROUND NO.1(I):PRODUCTION EXPENSES: THE A. O. OBSERVED THAT THE ASSESSEE HAD MADE DEFAU LT OF SHORT PAYMENT/DEDUCTION OF TAX AT RS. 105927702/-. HOWEVE R HE NOTICED THAT A SUM OF RS. 61202380/- WAS LIABLE TO BE REDUCED FROM THE SAID AMOUNT AS THE PAYEE ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 4 COMPANIES HAD ALREADY DEPOSITED THE DUE TAX ON THE INCOME RECEIVED BY THEM THE CONFIRMATION OF WHICH WAS PRODUCED BY THE ASSES SEE. HE THUS MADE THE DEMAND OF RS. 44725322/- UNDER THIS HEAD UNDER SECT ION 201 OF THE ACT.WHILE DOING SO THE A.O. MAINLY RELIED UPON THE ARTICLE I I(B) OF THE PRODUCTION AGREEMENT BETWEEN SAHARA ONE MEDIA AND ENTERTAINMEN T LTD (REFERRED AS THE PRODUCER) AND ANANDA FILM AND TELE-COMMUNICATIONS PVT. LTD. (REFERRED AS ASSIGNED PRODUCER) WHEREIN IT HAS BEEN MENTIONED T HAT THE ASSIGNED PRODUCER HEREBY EXPRESSLY REPRESENTS AND WARRANTS TO THE PR ODUCER THAT IT OWNS THE EXCLUSIVE UN-ENCUMBERED UNRESTRICTED AND EFFECTIV E RIGHTS OF COPYRIGHT IN PERPETUITY OF THE SAID PROGRAMME AND ALL ITS ELEMEN TS LIKE CONCEPT/THEME CREATIVE FORMAT PROCESS FLOW AND MANAGEMENT SCRIP T SCREENPLAY WITH DIALOGUES LITERARY CONTENT CHARACTERS VISUALS AU DIO SONGS AND MUSICAL WORKS AND PERFORMANCESETC AND HAS OBTAINED THE REQUIRED LAWFULLY AUTHORITY FROM PPL/IPRS/TPPL/ RESPECTIVE PRODUCERS OR RIGHT HOLDER S IF REQUIRED TO USE THE MATERIAL OWNED BY OTHERS AS PART OF THE SAID PROGRA MME( SUBJECT TO HOWEVER THE APPROVAL OF THE PRODUCER) AND ABSOLUTELY GRANT IT TO THE PRODUCER AND THAT NEITHER PRIOR TO SIGNING THE AGREEMENT IT HAS GRAN TED TRANSFERRED AND/OR ASSIGNED THE SAID RIGHTS OF THE SAID PROGRAMME OR P ARTS THEREOF TO ANY OTHER PERSON PARTY COMPANY OR ORGANIZATION WHATSOEVER NOR WOULD GRANT TRANSFER ASSIGN USE AND EXPLOIT THE SAME IN ANY WAY EVER EX CEPT THIS FIRST AND CONCLUSIVE ASSIGNMENT TO THE PRODUCER HEREIN. ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 5 5. THE AO OBSERVED THAT THE ABOVE AGREEMENT WOULD FALL UNDER THE DEFINITION OF THE ROYALTY AS THERE WAS TRANSFER OF COPYRIGHTS AND THEREFORE ANY PAYMENT UNDER THE ABOVE AGREEMENT WAS LIABLE FOR DE DUCTION U/S194J. HE FURTHER OBSERVED THAT THE PRODUCER OF A PROGRAMME C OULD NOT BE CONSIDERED AS CONTRACTOR OR SUBCONTRACTOR OF THE ASSESSEE COMPANY AS REGARDS THE TELEVISION FILMMAKINGWAS CONCERNED. HE WAS ACTUALLY THE AUTHOR OF THE FILM WHO WAS FULLY IN COMMAND OF MAKING THE FILM. THEREFORE THE SPECIFIC CLAUSE REGARDING THE TRANSFER OF RIGHT WAS INSERTED IN THE AGREEMENT . 6. IN APPEAL THE LD. CIT(A) HOWEVER OBSERVED THAT I T WAS EVIDENT FROM THE SAMPLE AGREEMENT THAT THE ASSESSEE USED TO HIRE THE PRODUCERS (WHO FIRST APPROACH THE ASSESSEE) FOR PRODUCING TV PROGRAMMES FOR IT ON A COMMISSIONED WORK BASIS AND PAY CONSIDERATION TO SU CH ASSIGNED PRODUCER FOR PRODUCING THE PROGRAMMES. HE FURTHER OBSERVED THAT UNDER THE PROVISIONS OF SECTION 194C OF THE ACT IT HAS BEEN PROVIDED THAT EXPRESSION WORK SHALL INCLUDE INTER ALIA BROADCASTING AND TELECASTING I NCLUDING PRODUCTION OF PROGRAMMES FOR SUCH BROADCASTING AND TELECASTING.TH EREFORE WHERE THE PAYMENT WAS MADE FOR PRODUCTION OF TV PROGRAMMES I T WAS COVERED BY PROVISIONS OF SECTION 194C. HE FURTHER OBSERV ED THAT THE PRINCIPAL PURPOSE OF ENTERING INTO THE AGREEMENTS WAS TO GET THE P ROGRAMMES PRODUCED THROUGH THE ASSIGNED PRODUCERS ON A COMMISSIONED WORK BASI S. THE ASSESSEE WAS THE EXCLUSIVE OWNER OF THE PROGRAMMES TO BE PRODUCED BY THE PRODUCER. HE THEREFORE HELD THAT THE PAYMENT FOR CARRYING OUT TH E WORK OF PRODUCING ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 6 PROGRAMMES ON BEHALF OF ASSESSEE WAS IN THE NATURE OF WORK AS DEFINED IN SECTION 194C OF THE ACT AND THE SAME COULD NOT BE T REATED AS FEES FOR TECHNICAL SERVICES OR ROYALTY UNDER SECTION 194J OF THE AC T. WHILE HOLDING SO HE RELIED UPON THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. PRASARBHARTI BROADCASTING CORPN. OF INDIA [292 ITR 580]. IN THE SAID CASE THE ASSESSEE WAS A GOVERNMENT CORPORATION ENGAGED I N CONTROLLING VARIOUS TV CHANNELS OF DOORDARSHAN. IT WAS HELD THAT THE PAYM ENTS MADE BY IT TO VARIOUS PRODUCERS OF PROGRAMMES WERE COVERED UNDER EXPLANAT ION III(B) TO SECTION 194C OF THE ACT AS ACONTRACT FOR PRODUCTION OF PRO GRAMMES FOR BROADCASTING OR TELECASTING AND NOT AS A FEE FOR PROFESSIONAL SER VICES OR ROYALTY; HENCE THE TAX DEDUCTION AT SOURCE WAS REQUIRED TO BE MADE @2% UND ER SECTION 194C OF THE ACT AND SECTION 194J OF THE ACT WAS NOT APPLICABLE. HE THEREFORE ACCEPTED THE CONTENTION OF THE ASSESSE THAT TAX WAS DEDUCTABLE @ 2% UNDER SECTION 194 C OF THE ACT AND NOT @ 10% UNDER SECTION194 J OF THE AC T. 7. BEFORE US THE SUBMISSION OF THE LD. AR HAS BEEN TH AT IN FACT THE ASSESSEE BEING THE PRODUCER HAD BEEN THE SOLE OWNER OF THE P ROGRAMME. THERE WAS NO QUESTION OF PURCHASE OF COPYRIGHT ETC. FROM THE ASS IGNED PRODUCER AS SUCH RIGHTS VESTED IN THE PRODUCER I.E. ASSESSEE FROM TH E INCEPTION OR STARTING OF THE PRODUCTION OF THE PROGRAMME. HE HAS FURTHER EXPLAIN ED THE SEQUENCE OF EVENTS OF PRODUCTION AS UNDER: . ASSIGNED PRODUCER APPROACHES THE ASSESSEE WITH THE CONCEPT/THEME FOR PRODUCTION OF THE SERIAL; ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 7 . THE ASSESSEE AGREES TO BECOME MAIN PRODUCER OF TH E SERIAL MADE ACCORDING TO THE AGREED CONCEPT/THEME; . ASSIGNED PRODUCER WOULD PRODUCE THE SERIAL IN ACC ORDANCE TO THE CONCEPT/THEME OF THE SERIAL FOR THE ASSESSEE; . ASSIGNED PRODUCER IS RESPONSIBLE FOR DAY-TO-DAY P RODUCTION OF THE SERIAL; . THE ASSESSEE WOULD OVERSEE AND MONITOR THE OVERALL PRODUCTION ACTIVIT Y OF THE SERIAL; 8 . THE LD. AR HAS FURTHER SUBMITTED THAT IN VIEW OF THE ABOVE SEQUENCE OF EVENTS THE PRINCIPAL-CONTRACTOR RELATIONSHIP GETS ESTABLISHED BETWEEN THE ASSESSEE AND THE ASSIGNED PRODUCERS WHEREIN THE ASS IGNED PRODUCER WOULD PRODUCE THE SERIAL FOR THE ASSESSEE AND THE ASSESSE E WOULD SUPERVISE THE PRODUCTION ACTIVITY UNDERTAKEN BY THE ASSIGNED PROD UCER. 9. ON THE OTHER HAND THE LD. DR HAS SUBMITTED THAT THE PRODUCTION EXPENSES IN THIS CASE WOULD FALL UNDER THE DEFINITION OF ROY ALTY AND TAX WAS LIABLE TO BE DEDUCTED U/S 194J OF THE ACT. HE HAS RELIED UPON TH E A.O. 10. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. R EPRESENTATIVES OF THE PARTIES AND HAVE ALSO GONE THROUGH THE RECORD. FIRS T OF ALL WE HAVE TO SEE THE INTENTION OF THE PARTIES TO THE CONTRACT AS TO WHET HER THE CONTRACT WAS FOR PRODUCTION OF PROGRAMME OR FOR THE SALE OR TRANSFER OF COPY RIGHTS ETC. OF THE PROGRAMME PRODUCED BY THE SO CALLED ASSIGNED PRODUC ER. CLAUSES OF AN AGREEMENT CANNOT BE READ INTO ISOLATION BUT THE TRU E INTENTION BEHIND THE CONTRACT CAN BE GATHERED BY READING ALL THE CLAUSES TOGETHER IN HARMONY WITH EACH OTHER AND ALSO TAKING INTO CONSIDERATION THE INTER SE RELATION BETWEEN THOSE CLAUSES. A VIEW CANNOT BE FORMED ABOUT THE NATURE & OBJECT OF A CONTRACT BY ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 8 READING A CLAUSE OF IT IN ISOLATION AND IN IGNORAN CE OF THE OTHER RELEVANT CLAUSES THEREIN. 11. WE HAVE GONE THROUGH THE VARIOUS CLAUSES OF THE SAMPLE AGREEMENT PLACED IN FILE BEFORE US AND A HARMONIOUS READING O F THE WHOLE AGREEMENT REVEALS THAT THE SAID AGREEMENT IS ESSENTIALLY AN A GREEMENT TO PRODUCE TELE- SERIALS AND NOT FOR TRANSFER OF COPY RIGHTS ETC. OF A ALREADY PRODUCED PROGRAAME OF ANOTHER PRODUCER. THE CLAUSE (II)B OF THE AGREEM ENT WHICH HAS BEEN CONSIDERED BY AO WHEN READ WITH OTHER CLAUSES OF TH E AGREEMENT CLEARLY REVEALS THAT THE PURPOSE & OBJECT OF THE SAID CLAUS E IN THE AGREEMENT IS TO RECOGNIZE THE VESTING OF ALL THE RIGHT IN THE PRODU CER (ASSESSEE)RELATING TO THE PROGRAMME TO BE PRODUCED BY THE ASSIGNED PRODUCER W HICH CAN BE SAID TO BE A CONTRACT FOR THE PURPOSE OF SECTION 194C. SOME OF THE RELEVANT EXTRACT FROM THE CLAUSES OF THE AGREEMENT FOR THE SAKE OF CONVE NIENCE ARE REPRODUCED BELOW: II REPRESENTATIONS AND DECLARATIONS BY THE ASSIGNE D PRODUCER: 1. THE ASSIGNED PRODUCER HEREBY EXPRESSLY REPRESENTS AND WARRANTS TO THE PRODUCER: A) THAT IT IS PRODUCING AND/OR PROPOSES TO PRODUCE TH E SAID PROGRAMME SOLELY FOR THE PRODUCER STRICTLY IN AC CORDANCE WITH THE CONCEPT/THEME CREATIVES FORMAT PROCESS FLOW AND MANAGEMENT SYNOPSIS SCREENPLAY-SCRIPT WITH DIALOGUES STORY LEGENDARY MATERIAL CAST CREW TREATEMENT SONGS SHOOTING-SCHEDULE IN THE GIVEN MEDIUM ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 9 DELIVERY DATES AND PRODUCTION-VALUES ETC. AS DULY APPROVED BY THE PRODUCER. ANY ALTERATION IN THE APPROVED DETAILS THEREFORE HAS TO BE WITH PRIOR WRITTEN CONSENT OF THE PRODUCER ONL Y. B) THAT IT OWNS THE EXCLUSIVE UNENCUMBERED UNRESTRIC TED AND EFFECTIVE RIGHTS OF COPYRIGHT IN PERPETUITY OF THE SAID PROG RAMME AND ALL ITS ELEMENTS LIKE CONCEPT/THEME CREATIVES FORMAT PRO CESS FLOW AND MANAGEMENT SCRIPT-SCREENPLAY WITH DIALOGUES LITER ARY CONTENT CHARACTERS VISUALS AUDIO SONGS AND MUSICAL WORKS AND PERFORMANCE ETC. AND HAS OBTAINED THE REQUIRED LAWFUL AUTHORITY FROM PPL/ IPRS/TPPL/ PRESPECTIVE PRODUCERS OR RIGHT HOLDERS IF REQUIRED TO USE THE MATERIAL OWNED BY OTHERS AS PART OF THE SAID PROGRAMME (SUBJECT TO HOWEVER THE APPROVAL OF THE PRODUCER ) AND ABSOLUTELY GRANT IT TO THE PRODUCER AND THAT NEITHER PRIOR T O SIGNING THIS AGREEMENT IT HAS GRANTED TRANSFERRED AND/OR ASSIG NED THE SAID RIGHTS OF THE SAID PROGRAMME OR PARTS THEREOF TO ANY OTHER PERSON PARTY COMPANY OR ORGANIZATION WHATSOEVER NOR WOULD GRANT TRANSFER ASSIGN USE AND EXPLOIT THE SAME IN ANYWA Y EVER EXCEPT THIS FIRST AND CONCLUSIVE ASSIGNMENT TO THE PRODUCER HEREIN. . (I) THAT THE PRODUCER SHALL BE ENTITLED TO HAVE A NOMINEE PRESENT DURING ANY STAGE OF PROGRESS BE IT PRE-PRODUCTION MAIN-PRODUCTION OR POST- PRODUCTION PROCESS OF THE SAID PROGRAMME FOR THE CONSULTATIONS AND ADVICE AS MAY BE CONSIDERED NECESSARY BY THE PROD UCER FROM TIME TO TIME. THE PRODUCER ALSO RESERVES THE RIGHT TO EF FECTIVELY ADVISE BE IT CREATIVE COMMERCIAL AND OTHERWISE TO THE ASSIGNE D PRODUCER IN WRITING ON ALL PRE-PRODUCTION MAIN-PRODUCTION AND P OST-PRODUCTION MATTERS OF THE SAID PROGRAMME AND CONSTITUENTS THEREIN IN T HE COURSE OF THIS AGREEMENT AND THE SAME SHALL BE BINDING ON THE ASS IGNED PRODUCER ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 10 FOR REQUIRED MODIFICATIONS INCORPORATIONS INSERTI ONS AND COMPLIANCES WHATSOEVER. HOWEVER THE ASSIGNED PRODUCER SHALL ALONE BE RESPONSIBLE FOR ANY CONSEQUENCES ARRIVING OUT OF AN Y OMISSION AND /OR COMMISSION WITH REGARD TO THE MAKING OF THE SAID P ROGRAMME AND/OR ITS EXPLOITATIONS BY THE PRODUCER AND/OR ITS ASSIGNEE S. . N) THAT THE PRODUCER SHALL BE ENTITLED TO MARKET SELL TELECAST ASSIGN AND EXPLOIT THE SAID PROGRAMME AND PARTS THEREOF GLOBALLY IN ANY WAY BY ANY MEANS IN WHICHEVER WAY TO BE DECIDED EXCLUSIVE LY BY THE PRODUCER BEING THE ABSOLUTE OWNER AND PERPETUAL COPYRIGHT HO LDER OF THE THE SAID PROGRAMME IN WHICH THE ASSIGNED PRO DUCER SHALL HAVE NO RIGHTS/INTERESTS AND/OR CLAIMS WHATSOEVER. O) THAT THE ASSIGNED PRODUCER SHALL PROVIDE THE R ESPECTIVE SYNOPSIS CREATIVES FORMAT ITS PROCESS FLOW AND MANAGEMENT SCRIPTS- SCREENPLAY WITH DIALOGUES AND THE DETAILS OF SET P RODUCTION-DESIGN AND SCHEDULE CAST CREW PERFORMERS AND CONTRIBUTORS E TC. TO THE PRODUCER IN ADVANCE FOR NECESSARY APPRAISAL VALUE ADDITIONS AN D APPROVALS. ANY SUGGESTIONS AND/OR VALUE ADDITIONS ADVISED BY THE PRODUCER IN THE SAME SHALL HAVE TO BE INCORPORATED BY THE ASSIGNED PROD UCER. THE ASSIGNED PRODUCER SHALL IN NO EVENT DEVIATE FROM THE APPROVED FORMAT PROCESS FLOW AND MANAGEMENT AND SCRIPT-SCREENPLAY W ITH DIALOGUES AND OTHER CONSTITUENTS OF THE SAID PROGRAMME AND IF IT IS N OTICED BY THE PRODUCER IN ITS REASONABLE OPINION AS A DEVIATION COMPROMISE AND/OR ANY POOR ADVERSE IMPRESSION OF THE TREATMENT CONTENT A ND QUALITY ETC. THE ASSIGNED PRODUCER SHALL BE ASKED TO IMMEDIATELY AD DRESS THE CONCERN AND IF REQUIRED TO RE-SHOOT THE SAID PROGRAMME EI THER IN TOTALITY OR THE AFFECTED PART ALONE AS THE CASE MAY BE AT THE A SSIGNED PRODUCERS COST ALONE AND IN THE EVENT OF ITS FAILURE TO PROMP TLY DO SON OR WILLFUL AVOIDANCE/INABILITY THEREOF THE PRODUCER SHALL B E ENTITLED TO ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 11 PROPORTIONATELY FORFEIT THE CONCERNED PROSPECTIVE P AYMENTS AND IF ALREADY PAID TO CLAIM FORTHWITH REFUND AND CLAIM FOR DAMAGES FRO M THE ASSIGNED PRODUCER FOR ANY LOSS/DAMAGES/INCONVENIENCE WHATSO EVER. . R) THAT THE PRODUCER SHALL BE ENTITLED TO EXAMIN E VERIFY AND AUDIT THE PROJECT SPECIFIC BOOKS AND ACCOUNTS AS WELL AS THE PRODUCTION PROGRESS OF THE ASSIGNED PRODUCER FOR THE SAID PROGRAMME FROM TI ME TO TIME WHICH SHALL BE WITHOUT PREJUDICE TO ANY OF THE RIGH TS AND REMEDIES ARISING UNDER THIS AGREEMENT AND SHALL NOT IN ANY WAY RESTR AIN/PROHIBIT THE PRODUCER FROM QUESTIONING/DISPUTING THE ACCURACY O F ANY TRANSACTION PAYMENT AND ACTION/INACTION FOR THE PROJECT AT A LA TER DATE. IF ANY SUCH AUDIT AUTHENTICALLY REVEALS THAT THE ASSIGNED PRODUCER HAS COMPROMISED IN THE PRODUCTION VALUES OR AVOIDED CERTAIN OBLIGATION S/COMPLIANCES OR ANY OTHER OMISSION/COMMISSION ETC. THE PRODUCER SHALL BE E NTITLED DECIDES OTHER REMEDIES TO APPROPRIATELY VALUATE AND FIX/REVISE A LOWER GROSS CONSIDERATION FOR AFFECTED PROPORTION AND RECOVER/ADJUST FOR SUCH COMPROMISE OMISSION AND/OR COMMISSION ETC. WHATSOEVER AS THE CASE MAY BE. . IV.B) THE ABOVESTATED GROSS CONSIDERATION PER EPIS ODE INCLUDES ANY AND ALL COSTS INVESTMENTS AND EXPENSES IN THE COMPLETE CONDUCT OF PROCESS FLOW AND MANAGEMENT PRODUCTION DELIVERY OF THE EX CELLENT QUALITY FINISHED (BROADCASTABLE) SAID PROGRAMME AND ASSIGNMENT OF PERPETUAL AND UNIVERSAL COPYRIGHTS THEREOF INCLUDING RELATING TO THE FOLLOWING- (I) RECCE (II) PRE-PRODUCTION(STORY SCRIPT-SCREENPLAY WITH D IALOGUES CREATIVES FORMAT PROCESS FLOW PARTICIPANTS RELATES INCLUD ING SETS AND PROPERTIES ETC.) (III) MAIN-PRODUCTION (INCLUDING RAW-STOCK STUDIOS PROPERTIES COSTUMES SONG-DANCE RECORDINGS-PICTURIZATIONS EQUIPMENT AND LOCATIONS) ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 12 (IV) POST-PRODUCTION(INCLUDING GRAPHICAL AND SPECIA L EFFECTS AND PRESENTATIONS) (V) ALL STATUTORY AND OTHERWISE OBLIGATIONS AND EXP ENSES COSTS LEVIES INSURANCE PREMIA AND TAXES ETC. (VI) AUTHORITY TO USE THE FILM SONGS/OTHER CLIPPING S IN THE SAID PROGAMME WHETHER DIRECTLY OR INDIRECTLY RELATED TO THE APPEA RING GUEST IF ANY TO BE OBTAINED BY PPL/IPRS/TPPL/RESPECTIVE RIGHT HOLDE RS AS THE CASE MAY BE (VII) REMUNERATIONS AND EXPENSES OF OVERALL CAST AN D CREW SUCH AS WRITER DIRECTOR CAMERAMAN SOUND RECORDIST LYRICIST MUS IC DIRECTOR SINGERS CHOREOGRAPHERS DANCERS ARTISTES PERFORM ERS SUPPLIERS PARTICIPANTS PRESENTERS HOSTS/ ANCHORS/COMPERES AUDIENCE CONTRIBUTORS ETC. AND THE EXPENSES RELATED TO THE T RAVEL BOARDING LODGING ETC. OF THE ENTIRE UNITS AND ALL CONCERNED (VIII) PER EPISODE ALL RUSHES ON DIGI-BATA AUDIO TRACKS/SPOOLS OF MUSIC AND SONGS 02(TWO) DIGI-BETA BROADCASTABLE MASTERS WITH MIXED SOUND IN HINDI LANGUAGE 01(ONE) DIGI- BETA UNMIXED MASTER A ND 02(TWO) VHS AND/OR VCD/DVD OF EACH EPISODE WITH ONE TCR 03(TH REE) STILL NEGATIVE ROLLS (PER EPISODE) WITH POSITIVE (5X 7) (OF DESIRED NUMBER) COPIES OF EACH SNAP AS DESIRED BY THE PRODUCER; A 10(TEN) MINUTES SHOWREEL LOG SHEETS AND ALL THE PRODUCTION PROPERT IES ETC. WHICH ARE PROCURED OUT OF THE GROSS CONSIDERATION (ALL TO BE DELIVERED TO THE PRODUCER BEING THE PROPERTY OF THE PRODUCER) (IX) MAKING THE CAST AND CREW AVAILABLE FOR THE DES IRED PROMO-PUBLICITY OF THE SAID PROGRAMME AND ALSO THE MAKING OF THE SA ID PROGRAMME AND ITS TELECAST AS DESIRED BY THE PRO DUCER FOR NECESSARY PROMOTIONS OF THE SAID PROGRAMME (X) COSTS REGARDING THE SHOW PACKAGING INCLUDING R EMUNERATIONS OF PROFESSIONALS HIRED FOR THE SAME(IT IS EXPRESSLY MU TUALLY AGREED THAT THE ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 13 PRODUCER SHALL DEDUCT A SUM OF RS.4 00 000/-(RUPEE S FOUR LACS) ONLY PER 52 (FIFTY TWO) EPISODES OR AS MAY BE MUTU ALLY AGREED FOR CREATING THE DESIRED PACKAGING OF THE SAID PROGRAM ME FROM THE PAYABLES OF FIRST LOT OF EPISODES); AND (XI) ANY OTHER DIRECT AND INDIRECT EXPENSES INCLUD ING BUT NOT LIMITED TO THE ASSIGNED PRODUCERS REMUNERATION ETC. WHATSOEVER. 12. A PERUSAL OF CLAUSE II(A) OF THE AGREEMENT SH OWS THAT TRANSACTION AS IN RELATION TO PRODUCTION OF THE PROGRAMME BY THE ASSI GNED PRODUCER SOLELY FOR THE PRODUCER AND STRICTLY ACCORDING TO THE REQUIREMENTS AND SPECIFICATIONS OF THE PRODUCER OR AS APPROVED BY THE PRODUCER. AS PER CLA USE II (1) (I) THE PRODUCER SHALL BE ENTITLED TO HAVE A NOMINEE PRESENT DURING ANY STAGE OF PROGRESS OF PRODUCTION AND RESERVES THE RIGHT TO EFFECTIVELY AD VISE REGARDING THE DIFFERENT COMPONENTS AND THE STAGES OF THE PRODUCTION OF THE PROGRAMME AS MENTIONED THERE IN AND SUCH ADVICE SHALL BE BINDING ON ASSI GNED PRODUCER. AS PER CLAUSE(N) THE PRODUCER WILL BE THE ABSOLUTE OWNER AND PERPETUAL COPYRIGHT HOLDER OF THE SAID PROGRAMME IN WHICH THE ASSIGNED PRODUCER SHALL HAVE NO RIGHTS/INTERESTS AND/OR CLAIMS WHATSOEVER. AS PER C LAUSE (O) ANY SUGGESTIONS AND/OR VALUE ADDITIONS ADVISED BY THE PRODUCER IN T HE PROGRAMME SHALL HAVE TO BE INCORPORATED BY THE ASSIGNED PRODUCER AND HE SH ALL IN NO EVENT DEVIATE FROM THE APPROVED FORMAT PROCESS FLOW AND MANAGEME NT AND SCRIPT-SCREENPLAY ETC. OF THE PROGRAMME. FURTHER AS PER CLAUSE (R) THE PRODUCER SHALL BE ENTITLED TO EXAMINE VERIFY AND AUDIT THE PROJECT SPECIFIC B OOKS AND ACCOUNTS AS WELL AS THE PRODUCTION PROGRESS OF THE ASSIGNED PRODUCER FO R THE SAID PROGRAMME FROM ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 14 TIME TO TIME AND THE ASSIGNED PRODUCER SHALL NOT I N ANY WAY RESTRAIN/PROHIBIT THE PRODUCER THE PRODUCER FROM QUESTIONING/DISPU TING THE ACCURACY OF ANY TRANSACTION PAYMENT AND ACTION/INACTION FOR THE PR OJECT AT A LATER DATE. THE GROSS CONSIDERATION CLAUSE CLEARLY REVEALS THAT THE CONSIDERATION PAYABLE BY THE PRODUCER TO THE ASSIGNED PRODUCER IS RELATING TO DIFFERENT CONSTITUENTS OF THE TO BE PRODUCED PROGRAMME AS MENTIONED UNDER CLAUS E IV(B) BUT DOES NOT INCLUDE ANY SEPARATE CONSIDERATION FOR TRANSFER OR ASSIGNMENT OF COPYRIGHTS ETC. OF THE PROGRAMME. THE CLAUSE II(B) RELIED UPON BY THE AO AS REPRODUCED ABOVE WHEN READ WITH THE OTHER CLAUSES OF THE AGR EEMENT SOME OF WHICH HAVE BEEN DISCUSSED ABOVE CLEARLY REVEALS THAT THE AGRE EMENT IN QUESTION IS AN AGREEMENT TO PRODUCE THE PROGRAMME AND NOT FOR TRA NSFER OF COPYRIGHTS ETC. HENCE CLAUSE (II)B OF THE ARTICLE CANNOT BE INTERPR ETED IN A MANNER TO GIVE A DIFFERENT MEANING TO THE AGREEMENT IN QUESTION THE ASSIGNMENT OR VESTING OF COPY RIGHTS ETC. IN THE PROGRAMME ARE INCIDENTAL T O THE MAIN OBJECT OF THE AGREEMENT OR TRANSACTIONS IN QUESTION. WHEN A CONTA CTOR PRODUCES A PROGRAMME ON BEHALF OF OTHER IT IS OBVIOUS THAT ALL THE RIGH TS INCLUDING COPY RIGHTS ETC. WILL VEST IN THE PRODUCER AND THE ASSIGNED PRODUCER/CONT RACTOR WILL NOT BE LEFT WITH ANY CONTROL OR RIGHT OVER THE PROGRAMME AND SUCH RI GHTS OF THE PRODUCER HAVE BEEN RECOGNIZED WITH THE SAID ASSIGNMENT CLAUSE WH ICH IS INCIDENTAL TO THE MAIN OBJECT OF THE CONTRACT. THE OBSERVATION OF TH E AO THAT ASSIGNED PRODUCER HAS AN ABSOLUTE CONTRACT OVER THE RIGHTS OF THE PRO GRAMME IS FALSIFIED FROM THE PERUSAL OF THE DIFFERENT CLAUSES OF THE AGREEMENT. IN VIEW OF OUR ABOVE ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 15 DISCUSSION OF THE MATTER IT IS HELD THAT THE AGREE MENT IN QUESTION WAS AN AGREEMENT TO PRODUCE THE PROGRAMME BY THE ASSIGNED PRODUCER I.E. CONTRACTOR ON BEHALF OF THE PRODUCER I.E. ASSESSEE. 13. NOW COMING TO THE LEGAL ASPECT OF THE CASE THE RELEVANT EXTRACT OF THE OPERATIVE PROVISIONS OF SECTION 194C AND EXPLANATIO N III IS REPRODUCED BELOW: 194C(1) ANY PERSON RESPONSIBLE FOR PAYING ANY SUM TO ANY R ESIDENT (HEREINAFTER IN THIS SECTION REFERRED TO AS THE CON TRACTOR) FOR CARRYING OUT ANY WORK(INCLUDING SUPPLY OF LABOUR FOR CARRYING OU T ANY WORK) IN PURSUANCE OF A CONTRACT BETWEEN THE CONTRACTOR AND- .. EXPLANATION III.- FOR THE PURPOSES OF THIS SECTION THE EXPRESSION WORK SHALL ALSO INCLUDE- (A) ADVERTISING; (B) BROADCASTING AND TELECASTING INCLUDING PRODUCTI ON OF PROGRAMMES FOR SUCH BROADCASTING OR TELECASTING; (C) CARRIAGE OF GOODS AND PASSENGERS BY ANY MODE OF TRANSPORT OTHER THAN BY RAILWAYS; (D) CATERING .. 194J. FEES FOR PROFESSIONAL OR TECHNICAL SERVICES.- (1) ANY PERSON NOT BEING AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY WH O IS RESPONSIBLE FOR PAYING TO A RESIDENT ANY SUM BY WAY OF (A) FEES FOR PROFESSIONAL SERVICES OR (B) FEES FOR TECHNICAL SERVICES OR (C) ROYALTY OR (D) ANY SUM REFERRED TO IN CLAUSE (VA) OF SECTION 2 8 ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 16 SHALL AT THE TIME OF CREDIT OF SUCH SUM TO THE ACC OUNT OF THE PAYEE OR AT THE TIME OF PAYMENT THEREOF IN CASH OR BY ISSUE OF A CHEQUE OR DRAFT OR BY ANY OTHER MODE WHICHEVER IS EARLIER DEDUCT AN AMO UNT EQUAL TO TEN PER CENT OF SUCH SUM AS INCOME-TAX ON INCOME COMPRISED THEREIN : .. 14. PERUSAL OF THE ABOVE EXTRACT OF THE PROVISIONS OF SECTION 194C REVEALS THAT CLAUSE (B) TO EXPLANATION III TO SECTION 194C SPECIFICALLY COVERS THE ACTIVITY OF PRODUCTION OF PROGRAMMES HENCE THE PA YMENT MADE TO THE CONTRACTOR I.E. ASSIGNED PRODUCER FOR PRODUCTION OF PROGRAMME SPECIFICALLY FALLS WITHIN THE AMBIT OF CLAUSE(B) TO EXPLANATION III TO SECTION 194C WHEREAS THE PROVISIONS OF SECTION 194J ARE GENERAL IN NATUR E. IT IS SETTLED LAW THAT WHEN AN ACTIVITY OR TRANSACTION IS COVERED BY THE SPECIF IC PROVISIONS OF THE ACT THEN RESORT MUST BE HAVE TO THAT SPECIFIC PROVISION AND NOT TO THE GENERAL PROVISIONS ESPECIALLY WHEN GENERAL PROVISIONS ARE CONTRARY D EPARTING FROM GIVING A DIFFERENT INTENTION INTERPRETATION OR MEANING IN ANY MANNER AS COMPARED TO THE SAID SPECIFIC PROVISIONS. IT IS THUS CLEAR THAT THE PROVISIONS OF SECTION 194C WOULD PREVAIL OVER SECTION 194J OF THE ACT. 15. IN THIS CASE SECTION 194C CLEARLY STATES THAT P AYMENT FOR PRODUCTION OF PROGRAMMES CONSTITUTES PAYMENTS FOR WORK UNDER SE CTION 194C HENCE THE ASSESSEE RIGHTLY DEDUCTED TDS U/S 194C AT THE RATE OF 2% ON PAYMENTS MADE TO THE CONTRACTOR (ASSIGNED PRODUCER). WHEN FACED WITH SOMEWHAT SIMILAR ISSUE THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS . PRASARBHARTI BROADCASTING CORPN. OF INDIA(SUPRA) HAS OBSERVED AS UNDER: ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 17 WE ARE UNABLE TO AGREE WITH THIS SUBMISSION. WE OBSERVE THAT EXPLANATION III WHICH WAS INTRODUCED SIMULTANEOUSL Y WITH SECTION 194J IS VERY SPECIFIC IN ITS APPLICATION TO NOT ONLY BRO ADCASTING AND TELECASTING BUT ALSO INCLUDE PRODUCTION OF PROGRAMMES FOR SUCH BROADCASTING AND TELECASTING. IF ON THE SAME DATE TWO PROVISIONS ARE INTRODUCED IN THE ACT ONE SPECIFIC TO THE ACTIVITY SOUGHT TO BE TAXED AND THE OTHER IN MORE GENERAL TERMS RESORT MUST BE HAD TO THE SPECIFIC P ROVISION WHICH MANIFESTS THE INTENTION OF THE LEGISLATURE. IT IS N OT THEREFORE POSSIBLE TO ACCEPT THE CONTENTION OF THE REVENUE THAT PROGRAMME S PRODUCED FOR TELEVISION INCLUDING COMMISSIONED PROGRAMMES; WIL L FALL OUTSIDE THE REALM OF SECTION 194C EXPLANATION III OF THE ACT. WE FIND NO INFIRMITY IN THE VIEW TAKEN BY THE ITAT WHICH WE HEREBY AFFIRM. . 16 . THE LD. CIT(A) HAS RIGHTLY OBSERVED THAT THE ABOVE DECISION OF THE HONBLE DELHI HIGH COURT SQUARELY COVERS THE CASE O F THE ASSESSEE . IN VIEW OF THE ABOVE STATED SETTLED LEGAL POSITION THE ASS ESSEE RIGHTLY DEDUCTED THE TDS FOR PRODUCTION EXPENSES IN THE NATURE OF CONTRACT P AYMENT AT 2% IN ACCORDANCE WITH THE PROVISIONS OF SECTION 194C. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) ON THIS ISSUE AND THE SAME IS UPHELD. THIS ISSUE IS ACCORDINGLY DECIDED AGAINST THE ASSESSEE. GROUND NO.1(II)(III)&(IV): DUBBING EXPENSES/PRINT P ROCESSING FEES: ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 18 17. THE AO HELD THAT THE PAYMENTS IN RESPECT OF D UBBING EXPENSES/PRINT PROCESSING FEES ARE IN THE NATURE OF FEES FOR TEC HNICAL/PROFESSIONAL SERVICE. THEREFORE THE TAX SHOULD HAVE BEEN DEDUCTED UNDER SECTION 194J OF THE ACT INSTEAD OF SECTION 194C. HE OBSERVED THAT THE WORK OF PROCESSING OF FILM IS CREATIVE WORKING WHICH IS PERFORMED BY SKILLED AND TECHNICALLY COMPETENT PERSONS. IT IS A TECHNICAL WORK PERFORMED BY TECHNI CALLY COMPETENT PERSON WITH EXPERTISE IN THE FIELD AND THEREFORE ANY PAYMENT F OR THIS EXPENDITURE WAS LIABLE FOR TDS U/S 194J. THE LD. CIT(A) HOWEVER OBSERVED THAT THE DUBBING AND PROCESSING OF FILMS ARE PROCESSES IN THE PRODUCTION ACTIVITY UNDERTAKEN BY THE ASSESSEE. THE SERVICE OF DUBBINGTHUS WAS IN THE NAT URE OF WORK AND WOULD FALL UNDER SECTION 194C OF THE ACT. HE FURTHEROBSERVED T HAT THE SERVICE RENDERED IN REGARD TO PAYMENT OF PRINT PROCESSING FEES WAS ALSO IN THE NATURE OF WORK AND WOULD FALL UNDER SECTION 194C OF THE ACT IN VIEW OF SIMILAR PROCESSES INVOLVED. HE THEREFORE DELETED THE DEMAND OF TAX OF RS.27 09 159/- UNDER SECTION 201(1) MADE BY THE AO UNDER THIS HEAD. 18. BEFORE US THE LD. AR HAS SUBMITTED THAT BOTH D UBBING AND PROCESSING ARE PART OF PRODUCTION ACTIVITY OF THE FILM/SERIAL UNDE RTAKEN BY THE ASSESSEE. THE DUBBING IS NOTHING BUT AN ANCILLARY ACTIVITY TO THE PRODUCTION OF SERIAL/FILMS . IT IS DONE TO MAKE SURE THAT THE SERIAL COMMUNICATES W ITH THE TARGETED AUDIENCE AND TO MAKE IT READY FOR TELECAST. HE HAS FURTHER S UBMITTED THAT PRINT PROCESSING FEES IS PAID FOR PROCESSING OF RAW FILMS AND MAKING EXTRA COPIES OF THE SAME. AT THE TIME OF SHOOTING OF THE SERIAL/FIL M THE SERIAL IS SHOT USING RAW ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 19 IMAGES/FILMS. SUCH RAW FILMS ARE NOT IN EDITABLE OR PRINTABLE FORMAT. FURTHER SERIALS ARE REQUIRED TO BE TELECAST IN DIGITAL FORM ATS. CONVERSION OF SUCH RAW FILMS IS NECESSARY TO MAKE THE FILM EDITABLE AND SU ITABLE FOR TELECAST. ACCORDINGLY PROCESSING FEES ARE PAID WHOLLY AND SO LELY FOR THE PURPOSE OF MAKING THE FILM READY FOR EDITING AND READY FOR OTH ER PROCESSES OF PRODUCTION. THUS IT IS A PART OF PRODUCTION PROCESS OF A SERIA L. ON THE OTHER HAND THE LD. DR HAS RELIED UPON THE AO. 19. A PERUSAL OF THE SECTION 194C REVEALS THAT THE ACTIVITIES UNDER THIS SECTION INCLUDE BROADCASTING AND TELECASTING INCLUD ING PRODUCTION OF PROGRAMMES FOR SUCH BROADCASTING OR TELECASTING. H ENCE ALL THE ACTIVITIES FROM THE PRODUCTION OF THE PROGRAMME UP TO ITS TELECAST ARE INCLUDED UNDER THIS SECTION. THE LD. CIT(A) HAS RIGHTLY OBSERVED THAT P RODUCTION OF PROGRAMMES IS NOTHING BUT COMBINATION OF PROCESSES RIGHT FROM PLA NNING SCHEDULE TO POST PRODUCTION PROCESSES ENABLING THE SERIAL TO BE READ Y FOR TELECAST. HE RIGHTLY HELD THAT THE DUBBING CHARGES AND PROCESSING FEES BEING A PART OF PRODUCTION OF TELEVISION SERIALS AND PROGRAMMES ARE SQUARELY COV ERED UNDER THE AMBIT OF SPECIFIC PROVISIONS OF SECTION 194C OF THE ACT AND LIABLE TO TDS AT THE RATE OF 2%. THE GENERAL PROVISIONS OF SECTION 194J AS OBSER VED ABOVE ARE NOT ATTRACTED IN THIS CASE. THE FINDINGS OF THE LD. CIT (A) ON TH IS ISSUE ARE HEREBY UPHELD. SO FAR THE GROUND OF APPEAL RELATING TO WRONG APPLICAT ION OF LAW BY THE CIT(A) IS CONCERNED WE MAY OBSERVE THAT IN VIEW OF THE ABOV E DISCUSSION THE ISSUES INVOLVED UNDER THESE HEADS HAVE BEEN DECIDED IN FAV OUR OF THE ASSESSEE ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 20 INDEPENDENTLY ON MERITS EVEN WITHOUT CONSIDERING THE APPLICATION OR NON- APPLICATION OF ANY SUCH CASE LAW. THUS WE DO NOT FI ND ANY FORCE IN THE CONTENTION OF THE REVENUE IN THIS RESPECT. THE ISSS UES INVOLVED IN GROUND NO. 1(II)(III)&(IV) ARE ACCORDINGLY DECIDED AGAINST THE REVENUE. 20. GROUNDS NO.2 & 3 ARE GENERAL IN NATURE AND DO NOT REQUIRE ANY ADJUDICATION BY US. 21. IN THE RESULT APPEAL OF THE REVENUE IS HERE BY DISMISSED. 22. ITA NO.4549 FOR A.Y. 2009-10 & ITA NO. 4550/MU M/12-FOR AY 2010-11 SINCE IDENTICAL ISSUES ARE INVOLVED IN THESE APPEAL S FOR SUBSEQUENT YEARS ALSO HENCE IN VIEW OF OUR FINDINGS GIVEN ABOVE THESE AP PEALS OF THE REVENUE ARE ALSO HERE BY DISMISSED. 23. IN THE RESULT ALL THE ABOVE TITLED THREE APPEA LS OF THE REVENUE ARE HEREBY DISMISSED. 24. ORDER PRONOUNCED ON THIS 23 RD OCTOBER 2013 . !' #$% & SD/- SD/- ( P.M.JAGTAP ) ( SANJAY GARG ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER ITA NO-4548./MUM/2012 SAHARA ONE MEDIA & ENTERTAINMENT LTD. . 21 ' ( MUMBAI; #$ DATED : 23.10.2013. AK PATEL* !'#$ %$&' / COPY OF THE ORDER FORWARDED TO : 1. *+ / THE APPELLANT 2. -.+ / THE RESPONDENT. 3. / ' 0 (*) / CI T(A)-13.MUMBAI 4. / ' 0 / CIT-7 5. 34 -$56 / *7 *56/' ' ( / DR ITAT MUMBAI 6. 8 9 / GUARD FILE. ' / BY ORDER .3 - //TRUE COPY// (/* + ( DY./ASSTT.REGISTRAR) ' ( / ITAT MUMBAI