GEM ENTERTAINMENT KFT,HUNGARY vs. ACIT, INT. TAXN.-CIRCLE-2(2), CHENNAI
What did the Tribunal hold?
The Tribunal noted that the AO taxed the entire license fee as royalty without proper bifurcation between theatrical and non-theatrical rights. The assessee contended that the agreements clearly bifurcated consideration for theatrical and non-theatrical rights, and the latter should be taxed as royalty, while the former should be excluded. The Tribunal, in the interest of justice, directed the AO to segregate the receipts into theatrical and non-theatrical components based on the agreements. Only the portion attributable to non-theatrical rights should be taxed as royalty after due verification. The AO was also instructed to consider the applicability of the India-Hungary Double Taxation Avoidance Agreement (DTAA), its beneficial provisions, relevant case laws, and CBDT circulars before re-determining taxability. The assessment order was set aside, and the matter was restored to the AO for de novo adjudication, with an opportunity for the assessee to substantiate its claims.
What were the facts?
The assessee, GEM Entertainment KFT, a Hungarian tax resident engaged in film production and distribution, filed an appeal against the final assessment order dated 30.10.2014 passed by the Assessing Officer (AO) under Section 147 read with Section 144C(13) of the Income-tax Act, 1961. This order was pursuant to directions from the Dispute Resolution Panel (DRP). The AO reopened the assessment based on information that M/s. Viswas Films P. Ltd. had remitted Rs. 66,61,000/- to the assessee for film purchases without deducting tax, which the AO considered royalty. During assessment, the AO identified total remittances of Rs. 8,21,71,715/- from four Indian entities, classifying them as royalty.
What were the issues?
1. Whether the remittances totaling Rs. 8,21,71,715/- received by the assessee from Indian entities for distribution and licensing of cinematographic films constitute royalty under Section 9(1)(vi) of the Income-tax Act, 1961, considering the exclusion for sale, distribution, or exhibition of cinematographic films. Assessee's contention: The remittances are for the sale, distribution, and exhibition of cinematographic films, which are explicitly excluded from the definition of royalty by Explanation 2 to Section 9(1)(vi). The DRP erred in classifying the entire income as royalty, ignoring this exclusion. The assessee also argued that license fees for theatrical rights, clearly bifurcated in agreements, should not be taxed as royalty. Reliance was placed on SPE India Films Holdings LLC and Yashovardhan Tyagi cases, and CBDT Circular No. 728. Revenue's contention: The remittances include consideration for non-theatrical rights such as TV, home video, Pay TV, and internet TV rights, which clearly fall under the definition of royalty, as only cinematographic rights were excluded.
Which sections of the Income-tax Act were involved?
Section 9(1)(vi),Section 147,Section 144C(13),Section 143(3),Section 144C(1),Section 144C(5)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, ‘D’ BENCH: CHENNAI
Before: SHRI SS VISWANETHRA RAVI & SHRI JAGADISH
आदेश / O R D E R
PER JAGADISH, A.M : Aforesaid appeal filed by the assessee for Assessment Year (AY) 2018-19 arises out of final assessment order dated 30.10.2014 passed by Assessing Officer (A.O) u/s.147 r.w.s 144C(13) of the Income-tax Act, 1961 (hereinafter “the Act”) pursuant to the directions of Ld. Dispute Resolution Panel-2, Bengaluru u/s. 143(3) r.w.s 147 r.w.s 144C(1) of the Act dated 07.12.2023.
IT(TP)A No.02/Chny/2024 GEM Entertainment KFT :- 2 -:
The assessee is a foreign company being a tax resident of
Hungary and in the business of production / distribution of
cinematography rights for films, video, audio etc. The A.O has
reopened the assessment on the basis of information that an Indian
company M/s. Viswas Films P. Ltd. has remitted Rs. 66,61,000/- to the
assessee towards purchase of films, but has not deducted tax on the
payment, which is Royalty as per DTAA and as per Income-tax Act.
During the assessment proceedings, the A.O found that the assessee
has received remittances of Rs. 8,21,71,715/- from the following
companies which is Royalty in nature:
S.No Name of Indian Entity TAN Amount 1 M/s. Viswass Films (P) Ltd. CHEV06339E Rs. 92,41,400/- 2 Avinaash Ranchor Jumani MUMA35884C Rs. 1,49,70,172/- 3 PVR Pictures Ltd. DELP07397F Rs. 5,41,33,124/- 4 VR Films & Studios Ltd. MUMV15594F Rs. 38,27,71,715/- Total Remittance received for the FY 2017-18 Rs. 8,21,71,715/-
The A.O after examining these receipts, Section 9 of Income-tax
Act, Article 12 of the India-Hungary DTAA and the agreement with the
company remitting the amount has held that above amount is in the
nature of royalty and proposed to be added in the total income. The
assessee filed objection before DRP and the Ld. DRP after examining
the distribution and license agreement has held that assessee-
IT(TP)A No.02/Chny/2024 GEM Entertainment KFT :- 3 -:
company, as per the agreement, has given theatrical as well as non
theatrical rights (like TV, Home Video, Pay TV, Internet TV rights etc.)
to the Indian entities for television broadcast, therefore, as per the
Explanation 2 to Section 9(1)(v) of the Act, such rights are squarely
covered under the Royalty. The Ld. DRP accordingly rejected the
objection and issued direction to the A.O to pass the order u/s.
144C(5) of the Act. Accordingly, the A.O passed the assessment
order making addition of Rs. 8,21,71,715/- as Royalty.
The Ld. Authorized Representative (A.R) of the assessee has
submitted that Explanation to Section 9(1)(vi) for A.Y 2018-19 prior to
the amendment in 2020 clearly stipulated that for the purpose of this
clause, Royalty means consideration (including any lump sums
consideration, but excluding any consideration which would be the
income of the recipient chargeable under the head “capital gains”) for
the transfer of all or any rights (including the granting of a license) in
respect of any copyright, literary, artistic or scientific work including
films or video tapes for use in connection with television or tapes for
use in connection with radio broadcasting, but not including
consideration for the sale, distribution or exhibition of
cinematographic films. The Ld. AR therefore, argued that the
IT(TP)A No.02/Chny/2024 GEM Entertainment KFT :- 4 -:
remittance of Rs. 8.2 Crores, was consideration for the sale,
distribution and exhibition of cinematographic films in India, which was
specifically excluded from definition of royalty and therefore cannot be
taxed as royalty. The Ld. AR has argued that the Hon’ble DRP failed
to observe that irrespective of whether cinematographic films were
exhibited in theatres or on TV etc, the entire film distribution income
earned by the assessee was termed to be royalty, ignoring the
exclusion clause of Explanation-2(v) of Section 9(1)(vi) of the Act. The
Ld. DRP has ignored the case laws in the case of SPE India films
Holdings LLC dated 03.06.2019 (ITAT-Mumbai) and in the case of
Yashovardhan Tyagi dated 23.06.2021 (ITAT-Delhi). The Ld. AR
without prejudice has stated that in all distribution agreements the ratio
of allocation of license fee to the assessee as theatrical and non
theatrical was mentioned, therefore the license fee for theatrical
cannot be taxed as royalty. The Ld. AR has also argued that as per
CBDT Circular No.728 dated 30.10.1995, the tax should be deducted
at source as per the provisions of the Act or DTAA whichever is more
beneficial to the assessee and in the present case, the Income tax Act
is more beneficial and therefore, the same should be applicable.
IT(TP)A No.02/Chny/2024 GEM Entertainment KFT :- 5 -:
The Ld. Departmental Representative (DR), On the other hand,
has relied on the order of A.O/Ld. DRP and submitted that only
cinematographic rights has been excluded from the definition of
Royalty, but the assessee has also distributed the internet right non
theatrical rights like TV, home video, Pay TV, internet TV rights,
therefore, same clearly falls under the royalty.
We have heard the rival submissions, and perused the
materials available on record. The A.O has assessed the remittance
of Rs.8,21,71,715/- from various Indian entities for the distribution
right/copy right acquired by way of purchase of films as royalty. The
assessee, through the distribution/license agreements has brought out
that the remittance is for theatrical as well as non theatrical rights and
as per the Explanation 2 to Section 9(1)(vi) of the Act consideration for
sale, distribution or exhibition for cinematographic films are to be
excluded from the definition of Royalty. The assessee has submitted
that the license agreements clearly bifurcates the consideration
between theatrical and non-theatrical rights. However, the A.O has
taxed the entire license fee as Royalty, without undertaking a proper
bifurcation of income attributable to theatrical and non-theatrical rights.
In light of the above, and in the interest of justice, we are of the
IT(TP)A No.02/Chny/2024 GEM Entertainment KFT :- 6 -:
considered view that the matter requires a fresh examination. The A.O is, accordingly, directed to segregate the receipts into theatrical and non-theatrical components based on the terms of the agreements, and tax only the portion attributable to non-theatrical rights as Royalty, after due verification. The A.O shall also consider the applicability of DTAA and the beneficial provisions thereof, along with the relevant case laws and CBDT circulars, before re-determining the taxability. Accordingly, we set aside the assessment order and restore the matter to the file of the A.O for denovo adjudication, in accordance with law and after giving due opportunity to the assessee to substantiate its claims.
In the result, the appeal filed by the assessee is allowed for statistical purposes only.
Order pronounced on 08th day of July, 2025 at Chennai.
Sd/- Sd/- (यस यस िव�ने� रिव) (जगदीश) (Jagadish) (SS Viswanethra Ravi) लेखा सद�य लेखा सद�य /Accountant Member सद�य / Judicial Member लेखा लेखा सद�य सद�य �याियक सद�य �याियक �याियक �याियक सद�य सद�य चे�नई/Chennai, �दनांक/Dated: 08th July, 2025. EDN/-
IT(TP)A No.02/Chny/2024 GEM Entertainment KFT :- 7 -:
आदेश क� �ितिल�प अ�े�षत/Copy to: 1. अपीलाथ�/Appellant 2. ��थ�/Respondent 3. आयकर आयु�/CIT, Chennai/Madurai/Coimbatore/Salem 4. िवभागीय �ितिनिध/DR 5. गाड� फाईल/GF
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