TaxTMI 
TaxTMI 
2018 (7) TMI 2391
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....rges and Bandwidth charges to the various parties had deducted tax at source at 2% as per the provisions of section 194C. According to the Assessing Officer, the said payments made by the assessee were covered by section 194J and the assessee, therefore, was required to deduct tax at source at 10% instead of 2%. Since TDS was not deducted as per the provisions of 194J, AO made disallowance of these payments by invoking provisions of Section 40(a)(ia). 4. By the impugned order, CIT(A) deleted disallowance after observing as under:- "3.2 I have considered the issue under appeal carefully. I find that this is not a case of no TDS but is a case of less IDS, hence disallowance of expenditure cannot be made. Such issue has been decided against the department in the case of DCIT Vs M/s. S.K. Tekriwal ITA No. 1135/Kol/2010 and DCIT-11(2) Vs M/s.Chandabhoy & Jassobhoy. Further, it is important to point out the issue related to TDS has also been decided by the CIT(A)-24, Kolkata in the appellant's own case against the department/ findings of the AO vide appeal; No. 1292/CIT(A)-24/KOL/2014-15 dated 15-01- 2016. Considering the facts of 3.3 In the result, Ground No.1 i....
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....he customer 11. It was further argued by learned AR that Judgement of High Court of Kerala in the case of CIT-1, Kochi vs P V S Memorial Hospital Ltd is not relevant to the assessee on the following grounds: a) The line of business the Appellant is of television channel whereas the judgement given in the support is of Hospital; b) The definition of professional as per the IT Act is Doctors, Chartered Accountants, Architects etc. which are qualified degree holders of respective institute specified for that profession and in the judgement given the services have been taken by one professional person from another professional person, be which is definitely a professional service as defined in the Act; c) In the judgement the nature of payment is professional services taken from one professionals and to other professional (hospital), which required deduction of TDS u/s 194J whereas in the case of Appellant the nature of service is broadcasting which is covered under the definition of Section 194C as per the definition of the Act; d) The case law relates to the High Court of Kerala which is not in the jurisdiction of Mumbai as the Mumbai High Court....
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....d by learned DR that assessee has already deducted tax at 11% in respect of very similar payment made to BT India Pvt. Ltd., and BT Global Communication India Pvt. Ltd.,, therefore, there was no justification for deducting tax at source at 2% for the payment made to Essel Shyam Communications Ltd., 18. It was replied by learned AR that assessee has deducted tax at high rate of 10% on the plea that both these companies were foreign companies, who have agreed for deduction of tax at higher percentage. As per learned DR, CIT(A) has not decided merit of the case with regard to the nature of payment and is merely relied on the order of the Tribunal wherein Tribunal have observed that no finding was given by the AO. With regard to nature of payment, therefore Tribunal concurred with the CIT(A) with regard to nature of payment. As per learned DR in this case, specific finding has been given by AO with regard to the nature of payment being royalty. 19. Rival contentions have been heard and record perused. 20. The issue under consideration is squarely covered by the decision of Tribunal in assessee's own case for the very same A.Y. 2012-13 wherein, the Tribunal have held that the p....
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....r mode, whichever is earlier, deduct an amount equal to". "194J-fees for professional or technical services: (1) Any person, not being an individual or a Hindu undivided family, who is responsible for paying resident any sum by way of- (a) Fees for professional services, or (b) Fees for technical services, (c) Royalty, or (d) Any sum referred to in clause (va) of section 28. Shall, at the time of credit of such sum to the account of the payee or at the time of payment thereof in or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to per cent, of such sum as income tax on income comprised therein. We find that the assessee produced various types of programmes/serials and news and these were telecasted/broadcasted through Multi System Operators for which payments were made to them under the head 'carriage charges'. The assessee has duly deducted and paid tax under section 194C of the Act. We agree with the Id CIT(Appeals) that no technical services were involved in payment of carriage charges made by the assessee for broadcasting of the programmes produced by the ass....