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Saturday, April 6, 2013

S. 194J Payment for Modeling to film actress Katrina Kaif not liable to TDS

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Income Tax Appellate Tribunal, Mumbai
Kodak India (P.) Ltd.
Deputy Commissioner of Income-tax
Income Tax Appeal No. 9080 (Mum.) of 2010
[Assessment Year 2009-10]
Date of Pronouncement – 20.02.2013
The case of the assessee is that the assessee being an actor-model rendered modelling services for marketing the products of the assessee-payer of the fee. The services since not rendered for production of cinematographic film, the impugned payments are outside the scope of section 194J of the Act. Taking analogy that the “stunt actor” is not an actor, the modelling actor is also not an actor. The definitions and notifications ought not to be extended to cover the modelling services of this kind. These modelling services are not notified by the Central Board of Direct Taxes for the reasons better known to them. Therefore, the fee received directly by the Matrix India-a front company, on behalf of the Ms. Katrina Kaif, who modelled for marketing of the camera-products of the assessee-Kodak, does not constitutes professional services as the said modelling/acting is not done in relation to production of cinematographic film and she is not an actor for this purpose of section 194J of the Act.
On the other hand, the case of the Revenue is that the payments made by the assessee to Ms. Katrina Kaif should have been done after making TDS in accordance with the provisions of section 194J of the Act and as per the provisions of section 194C of the Act as the impugned payments made constitute fee for professional services for the modelling service, which is a profession by itself. As per the Departmental representative, modelling is done in the capacity of an actor-the film artist.
Held - The provisions of Explanation (a) to section 194J of the Act and Notifications issued by the Board in this regard suggest that the services rendered by a person in the course of carrying on legal, medical, engineering or architectural profession or the profession of accountancy or technical consultancy or interior decoration or advertising or notified sports professionals or other notified professions for the purpose of section 44AA of the Act which includes the film artist as listed in the rules, who are engaged in production of cinematographic film, constitute “fees for professional service” (FPS) for the purposes of section 194J of the Act. It is also a settled position vide the decisions cited above that the list of film artist cannot be extended to include other category of stunt actors, although they are engaged in the production of cinematographic film. It is also the decision of the Tribunal in other case that the photographer-cameraman, who of course figure in the list of film artist, cannot be covered by the above list when such cameraman is not engaged in skills, i.e., acting skill in films, modelling skills for display of merchandise, singing skills, etc., and such person can make earning out of such skills. It is not that the total earning of that person in lieu of services rendered which must attract the provisions of section 194J of the Act. The expressions “services rendered” used in the said Explanation assume significance and therefore, the taxable receipts under section 194J of the Act are services-specific and not person specific. In the instant case, the payments are payable for the services of modelling and it is unconnected with the production of cinematographic film. While “modelling” is aimed at display of merchandise, the “acting” is defined as “to act in play or film” (, i.e., to portray a role authored by a story-writer with different purposes and objects and certainly not to displace merchandise to boost the sales of a manufacturer or a trader of the product or services. Therefore, the impugned payments made by the assessee to Matrix India on behalf of Ms. Katrina Kaif did not attract the provisions of section 194J of the Act.

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