IN THE ITAT MUMBAI BENCH ‘K’
The Income-tax Officer (TDS), Mumbai
v.
Shringar Cinemas (P.) Ltd.
Sunil Kumar Yadav, Judicial Member
And R. K. Panda, Accountant Member
IT Appeal Nos. 1932, 1933, 1935 and 1936 (Mum) of 2006
[Assessment years 2004-2005 and 2005-2006]
December 11, 2007
Section 194C, read with section 194-I, of the Income-tax Act, 1961 -
Deduction of tax at source - Contractors/sub-contractors, payments to -
Assessment years 2004-05 and 2005-06 - Whether provisions of section 194C can
only be invoked where payments are made to any resident contractor for carrying
out any work including supply of labour for carrying out any work in pursuance
of a contract between contractor and various bodies given under section 194C -
Held, yes - Whether provisions of section 194-I can only be invoked where
payments of rent are made and further these provisions are not attracted in
sharing of proceedings of film exhibitions between film distributor and film
exhibitor owning cinema theatre - Held, yes - Assessee-company was engaged in
business of exhibition of films - Assessee made payments to distributor of film
on account of supply of film prints of various films at certain fixed
percentage of net weekly collection from exhibition of films, on basis of
Standard Film Renting Contract (SFRC) entered into between assessee and
distributor - Whether since agreement between assessee and distributor was not
executed to perform/carry out a particular work, provisions of section 194C
were not attracted in instant case -Held, yes - Whether provisions of section
194-I were also not applicable to instant case - Held, yes - Whether,
therefore, assessee was not liable to deduct tax at source in respect of
payments made to distributor - Held, yes
Circulars and Notifications
-Circular No. 736, dated 13-2-1996
The assessee-company was engaged in the business of exhibition of films. During the relevant previous years, the assessee made payments to a distributor of films on account of supply of film prints of various films at certain fixed percentage of the net weekly collection from exhibition of the films, on the basis of Standard Film Renting Contract (SFRC) entered into between the assessee and the distributor. The Assessing Officer held that the payments made to the distributor was in the nature of contractual payment which attracted provisions of section 194C. He, therefore, treated the assessee in default under section 201(1) for not deducting tax at source on these payments and, accordingly, raised demand under section 201(1) read with section 194C against the assessee. He also levied interest under section 201(1A) upon the assessee.
On appeal, the Commissioner (Appeals) held that the Assessing Officer was not justified in treating the assessee in default for not deducting the tax at source under section 194C. He, therefore, deleted the demand raised under section 201(1) and also the interest levied under section 201(1A).
On revenue’s appeal to the Tribunal
The provisions of section 194C can only be invoked where the payments are
made to any resident contractor for carrying out any work including supply of
labour for carrying out any work in pursuance of a contract between the
contractor and the various bodies given under section 194C. In the instant case
the agreement between the assessee and the distributor was not executed to
perform/carry out a particular work. It was basically leasing/renting of film
by distributor to the exhibitor and whatever proceeds were collected, they were
shared between the exhibitor and the distributor in accordance with the terms
agreed between them. Further the provisions of section 194-I can only be
invoked where the payments of rent are made, but it relates to the payment of
rent for the use of the machinery or land or building, etc. It could not be
invoked to the instant case and it has been clarified by the Board Circular No.
736, dated 13-2-1996 that exhibitors does not let out the cinema hall to the
distributor. Generally the share of exhibitor is on account of composite
service and the distributor does not take cinema building on lease or sub-lease
or tenancy or under any agreement of similar nature. The word, thus, clarified
that provisions of section 194-I are not attracted in the sharing of
proceedings of film exhibitions between film distributor and film exhibitor
owning cinema theatre. Therefore, neither the provisions of section 194C nor
section 194-I were attracted in the instant case. Therefore, the Commissioner
(Appeals) was justified in his action.
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