AI Drafter 
TaxTMI 
TaxTMI 
2014 (12) TMI 265
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....ount of "live telecast royalty" being royalties covered by Section 194J of the Act as TDS was not deducted on the said expenses. 3. The CIT (Appeals) upheld the finding of the Assessing Officer in respect of expenses incurred after 13.07.2006 i.e. the date when royalty was included in the scope of Section 194J of the Act. The Tribunal allowed the appeal by the assessee relying upon the judgment of Mumbai Bench of the Tribunal in DIT vs. Neo Sports Broadcast (P) Ltd. 133 ITD 468 (Mumbai) and holding that there was no creation of "work" as defined under Section 2(y) of the Copyright Act, 1957. 4. Mr.Kamal Sawhney, learned Senior Standing Counsel for the appellant revenue would submit that Clause (v) to Explanation 2 to clause (vi) of sub section (1) of Section 9 is not restricted to Copyright alone as the commas are used between the words "Copyright", "literary" and "artistic" and further disjunctive conjunction "or" is used between the words "artistic" and "scientific work". Had the intention of the legislation being to include only copyright work alone, there was no reason to include other words. The mere fact that "scientific work" had been joined in the clause with disjunct....
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....Sports vs. Global Broadcast News Ltd. & Ors. reported as 2012 2 RAF 430 (Delhi), it is his submission that the analysis, commentary and use of technology to the live feed make the broadcast a subject matter of the distinct copyright from the copyright of the live feed. In other words, even if the live feed of the horse race may not have been the subject matter of any copyright but the commentaries and analysis are definitely subject matter of "copyright" and therefore would be covered within the definition of "royalty". 6. On the other hand, Mr.Satyen Sethi would submit that the right to broadcast/telecast is a special right distinct and different from "copyright" and the payment for live telecast was not a payment for transfer of any "copyright". According to him, the broadcast/telecast, except labour, skill and capital, does not have any underlying creativity. A sports event is a performance and not a work. It is not copyrightable. According to him, a sporting event is meant for public viewing and payment made for live telecast cannot be said to be a payment for transfer of "copyright". He would also state that Section 40(a) (ia) is required to be strictly construed and no dis....
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....i) to (iv), (iva) and (v). 8. A perusal of clause (v) as reproduced above would reveal that consideration for transfer of all or any rights in respect of any "copyright" and the word "copyright" is followed by the words "literary", "artistic" or "scientific work". It also exists in other works like dramatic, musical etc. It is not in dispute that "copyright" exists in literary and artistic work. It also exists in other works like dramatic, musical etc. If the intention of the legislature was to include other works like dramatic, musical etc. the legislature would have said so or would not have qualified the word "copyright" with the words "literary" and "artistic" as the word "copyright" encompasses in itself all the categories of work. Having not done, it is a case of "Expressio Unis". (The mention of one thing is the exclusion of the other). We also note that the word "copyright" does not synchronize with the word "literary", "artistic" as they are the works in which "copyright" exists. The provision if read as suggested by the revenue to that extent would be meaningless. We, are thus of the view that the provision would be more meaningful if the word "in" is read by implicati....
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....he bill was passed into law. [Ref.: Union of India Vs. Hansoli Devi, AIR 2002 SC 3240, p. 3246]. 11. We also note, in Siraj-ul-haq case (supra), wherein, Section 5(2) of the U.P Muslims Waqf Act, 1936 which provides mutwalli of a waqf or any person interested in a waqf or a central board may bring suit in a Civil Suit of competent jurisdiction for a declaration that any transaction held by the Commissioner of Waqfs to be a waqf is not a waqf, the Supreme Court interpreted the words "any person interested in a Waqf" as meaning "any person interested in what is held to be a waqf". The Supreme Court in this judgment further held that, "[W]here literal meaning of the words used in a statutory provision would defeat its object by making a part of it meaningless and ineffective, it is legitimate and even necessary to adopt the rule of liberal construction so as to give meaning to all parts of the provision and to make the whole of it effective and operative." 12. Further the Supreme Court in its opinion reported as State Bank of Tranvancore vs. Mohammad, AIR 1981 SC 1744 construed the words "any debt due before the commencement of this Act to any banking company" as occurring in Se....
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....ion to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public. Section 13 of the Copyright Act stipulates the work in which "copyright" subsist. The said provision is reproduced as under:- ` "13. Works in which copyright subsists.-(1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,- (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) *[sound recording]. (2) Copyright shall not subsist in any work specified in subsection (1), other than a work to which the provisions of Section 40 or Section 41 apply, unless,- (i) in the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India; (ii) in the case of an unpublished work other than *[work of architecture], the author is at the date of the making of the wor....
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....ss of whether such copy has been sold or given on hire on earlier occasions; (iii) to communicate the film to the public; (e) in the case of a sound recording,-- (i) to make any other sound recording embodying it; (ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording, regardless of whether such copy has been sold or given on hire on earlier occasions; (iii) to communicate the sound recording to the public. Explanation.-For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation.]" 16. A live T.V coverage of any event is a communication of visual images to the public and would fall within the definition of the word "broadcast" in Section 2(dd). That apart we note that Section 13 does not contemplate broadcast as a work in which "copyright" subsists as the said Section contemplates "copyright" to subsist in literary, dramatic, musical and artistic work, cinematograph films and sound recording. Similar is the provision of Section 14 of the Copyright Act which stipulates the exclusive right to do certain acts. A reading of Section 14 would reveal that "copyright" means excl....
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....ourt in the case of Akuate Internet Services (P) Ltd. & Anr. vs. Star India (P) Ltd. & Anr. FA(OS) 153/2013 as relied upon by learned counsel for the respondent assessee wherein a Division Bench of this Court has applied the test of "minimum requirement of creativity" for claiming a right under the Copyright Act, which is absent in a "live telecast of an event". We note for benefit that the United States Court of Appeal Second Circuit Ruling in National Basket Ball Association and NBA Properties NIC vs. Motorola INC 105 F3d 841 (1997) held that a sports event is a performance and not a work. It is not copyrightable. 19. Insofar as the submission of Mr.Sawhney that the live telecast of an event is the outcome of "scientific work" and payment thereof would be covered under the definition of "royalty" is concerned, the said submission is also liable to be rejected first it runs contrary to his earlier submission and also for the simple reason the clause (v) to explanation 2 to clause (vi) or sub section 1 of Section 9 would relate to work which includes films or video tapes for use in connection with television or tapes for use in connection with radio broadcasting. It is to be ....