ASST CIT 11(1), MUMBAI vs. YASH RAJ FILS P.LTD, MUMBAI

Order u/s.254(1)of the Income-tax Act,1961(Act) लेखा लेखा सद�य लेखा लेखा सद�य सद�य, रा सद�य रा राजे�� रा जे�� जे�� केकेकेके अनुसार जे�� अनुसार अनुसार/ PER Rajendra A.M.- अनुसार Challenging the orders of the CIT (A)-40,Mumbai the Assessing Officer (AO)and the assessee have filed cross appeals for the AY 2008-09.The AO has filed appeals for AY.s 2005-06 & 2006-07 also.Assessee-company,engaged in production and distribution of feature films. The details of filing of returns, returned incomes and assessed incomes etc. can be summarised as under : AY. ROI filed Returned income Assessment date Assessed CIT(A)order on income dt. 2005-06 07.03.2006 11.68 Crores 14.12.2011 42,47,87,644/- 21/02/2014 2006-07 27.11.2006 39.32 Crores 14.12.2011 61,41,92,451/- 23/06/2014 2008-09 27.09.2008 26.90 Crores 31.12.2010 49,80,27,120/- 29/10/2013 ITA/3238/Mum/2014,AY.2005-06: 2.First Ground of appeal(GOA)is about deleting the addition of Rs.1.38 crores made on account of disallowance of cost of production.During the assessment proceedings,the AO observed that there were discrepancies in the impounded books of accounts and regular books maintained by the assessee,that the production expenses were shown at Rs.57.35 crores, that

3238,5596,7560&14- Yash Raj Films(05-06;06-07&08-09) under the head other production expenses the assessee had shown an amount of Rs.5.41 crores.Considering these facts,he held that these expenses were mostly in cash and were part of the adjustment entries made by the assessee to reduce its profit. He made an addition of Rs.1,38,14,588 to the total income of the assessee under the head bogus expenditure. 2.1.Aggrieved by the order of AO the assessee preferred an appeal before the First Appellate Authority(FAA). Before him,it was stated that the details of other production expenses were furnished to the AO during the assessment proceedings vide its letter dated 09.11.2011, that the AO had not denied the filing of details.After considering the submission of the assessee and the assessment order the FAA held that the AO had not pointed out any discrepancy in the details filed by the assessee, that he had not proved that expenses claimed by assessee were bogus.He finally deleted the addition made by AO. 2.2.Before us, the DR supported the order of the AO.The AR relied upon the order of the FAA. 2.3.We find that as per the direction of the AO the assessee had filed details of Rs.1.38 crores, that the AO had added the said sum treating it as bogus expenditure,that he had not given any reason as to how and why the expenses were not genuine.To make any disallowance or to make any addition,the AO is supposed to pass a reasoned and speaking order specially when the assessee produces documentary evidences.Mere stating that expenditure incurred by an assessee is not sufficient to fasten tax liability to that assessee.In the case under consideration, the AO had not explained as to how the expenditure claimed under the head other production expenses was non-genuine.Therefore,we are of the opinion that order,passed by the FAA, needs no interference from our side.Upholding his order,we decide the first Ground of appeal against the AO.

3.Second Ground of appeal (GOA) is about disallowance made u/s.40A(3) of the Act.During the assessment proceedings the AO found that the assessee had made cash payments of Rs.2.75 crores. He observed that the payments made by it were hit by the provisions of section 40A(3)of the Act,that the assessee had failed to produce the supporting voucher for verification of the disputed expenditure, that the books of account maintained by the assessee were not reliable. Therefore,he made a disallowed 20% of the expenditure,amounting to Rs.55.04 lakhs.

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3.1.Before the FAA the assessee argued that it was maintaining separate cash book for production of each movie,that cash books of all the movies were merged with the main cash book,that the entries appearing on the 31st March of each year did not indicate that expenses were incurred on last day of the year or that the same were more than Rs.20,000/-, that each individual voucher was less than Rs.20,000/-, that it had furnished documentary evidences in that regard during assessment proceedings.

The FAA directed the assessee to produce the cash book during the appellate proceedings. After going through it, he observed that most of the expenses were less than Rs.20,000/-, that same were not hit by the provisions of section 40A(3), that there were several individual expenses,that were more than Rs.20,000/-.He restricted the disallowance to Rs.10.00 lakhs. 3.2.Before us, the DR and the AR supported the order of the AO and the FAA respectively. We find that the AO had made a disallowance @20% of total expenditure on adhoc basis, that he had not given the details of expenditure that was covered by section 40A(3), that the FAA had verified the cash book and had observed that most of the expenditure were less than Rs.20,000/-.So, in our opinion he was justified in restricting the disallowance at Rs.10 lakhs considering the fact that there were certain expenses that were more than Rs.20,000/-. His order does not suffer from any infirmity.Ground No.2 is dismissed. 4.Next Ground deals with deleting the addition of Rs.96.50 lakhs.The AO,during the assessment proceedings noted that there was a difference of Rs.96.50 lakhs between the impounded books of account and financial statement filed with return of income on account of miscellaneous receipts.As per the direction of the AO the assessee furnished reconciliation statement in that regard.However,the AO rejected the explanation filed by the assessee on the ground that in the AY.2007-08 the assessee’s books were held to be unreliable. Therefore, he made an addition of Rs.96,50,048/- u/s.68 of the Act. 4.1.In the appellate proceedings,before the FAA,the assessee made detailed submission and objected to invocation of provisions of section 68.After considering the submission of the assessee and the assessment order he reproduced the reconciliation statement as under:

Miscellaneous income as per impounded books of accounts 1,31,89,800 Less: DVD income received from Yashraj Films USA was wrongly credited to 87,50,000 Misc. Income. Now rectified and credited to Yashraj Films (USA) DVD Income Less: Re-imbursement of Travelling Expenses received from Yash raj Films Int 41,19,470 Ltd. UK was wrongly to Misc. Income now rectified and reduced from Travelling Exps. Add: Credit balance written back Distribution division 7,30,549 Add: Commission received from Tarasingh & Sons 1,63,951 Add:Misc Receipt of Home Entertainment i.e. income from public performance & 23,24,922 3

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Synchronisation Balance as per Financials 39,39,752 He further observed that the AO had ignored the explanation, that he did not make any effort to revert the reconciliation, that the difference between impounded books and regular books was only because of presentation, that the entire miscellaneous report of Rs.1,31,89,800/- was offered for taxation.Finally,he deleted the addition. 4.2.Before us,the DR stated that matter could be decided on merits. The AR relied upon the order of the FAA. 4.3.We find that there was no difference with regard to miscellaneous receipts as appearing in the impounded books and regular books. The AO failed to understand the difference in presentation.The FAA has given a categorical finding of fact that,as per the table given above,entire receipt was offered for taxation by the assessee during the year under appeal.In these circumstances,there is no need to interfere with his order.Ground No.3 stands dismissed. 5.Next Ground is about deleting the disallowance of expenditure amounting to Rs.29.26 lakhs.During the assessment proceedings ,the AO held that business expenditure to the tune of Rs.29,26,512/- incurred via credit cards was of personal nature and hence disallowable. 5.1.Before the FAA the assessee explained that the expenditure in question was not personal, that these were business expenses, that in the case of a company there could not be any expenditure of personal nature.The FAA referred to the order of the CIT(A) -40, Mumbai for the AY.2007-08,where he had allowed the appeal filed by the assessee, following the order of the Tribunal for AY.2006-07(ITA/6350/Mum/2010/,5.4.2013).We find that while deciding the appeal for the subsequent year the Tribunal has dealt the issue as under :- “After considering the submissions and the facts and the evidence brought on record, we find that the assessee had actually returned in its FBT return the entertainment expenses so claimed. Therefore, a further disallowance would definitely amount to double addition of the same expense.Further, we find that the AO disallowed the expenses being of personal in nature. The assessee is a private limited company, therefore, there cannot be any personal expense so far as a legal person is concerned, therefore, we do not find any reason in sustaining an addition of Rs.6,05,545/-.The AO is accordingly directed to delete this addition.Ground No.11 is accordingly allowed.” Considering the above,Ground No.4 is decided against the AO. 6.Next Ground pertains to deleting the addition of Rs.5.15 crores on account of remuneration paid to the directors.During the assessment proceedings,the AO found that a sum of Rs.7.50 crores had been paid to various directors of the company.He observed that payment was hit by provisions of section 40A(2)(b) of the Act,that a sum of Rs.3 crores was paid to Yash

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Chopra for directing one film released during the year,that Aditya Chopra was paid Rs.3 crores for writing the script of three films,that the usual payment for writing the script of a movie was Rs.15-20 lakhs, that Payal Chopra was paid Rs.50 lakhs for costume designing of one film,that Pamela Chopra was paid Rs.50 lakhs,that she had not rendered any skilled services to the company.He disallowed Rs.2 crores,Rs.2.40 crores, Rs.25 lakhs, Rs.50 lakhs from the remuneration paid to above mentioned four directors. 6.1.During the appellate proceedings the assessee filed detailed explanation with regard to remuneration paid to the directors.The FAA referring to the order of the Tribunal for AY. 2006-07(supra),deleted the addition made by the AO. 6.2.Before us,the DR and the AR relied upon the AO and the FAA respectively.We find that the Tribunal has ,while adjudicating the appeal for subsequent year has decided the issue as under : “22.We have considered the rival submissions and perused the orders of the lower authorities and the material evidence brought on record. It is not in dispute that the Ld. CIT(A) has made enhancement to the disallowance made by the AO without affording any opportunity to the assessee. We may cancel the addition at this stage only. However on merits, we find that the Revenue authorities have not appreciated the facts and the circumstances involved in making of movie. It is the say of the Revenue authorities that the assessee could not bring any evidence to show what extra services have been put by them to justify their remuneration. No doubt, in the movie making specialists are involved for every department.However, at the end of the day, it is for the producers of the film to see that their film gets very high publicity, it is only after the completion of the movie , the producer’s extra role comes into play to safeguard their heavy investments towards cost of production. The producer’s has to see that the movie gets good preview from print and electronic media for which extra efforts have to be done as a PRO. Further , to see that the movies get good cinema halls,the producers have to bargain with multiplexs and single screen theatres regarding profit sharing. Therefore, it cannot be said that the producers have no role to play after the movie is completed. Further considering the magnitude of the production house of the assessee, it cannot be said that Shri Aditya Chopra and Mrs. Payal Chopra have not put any extra effort.All these facts have not been appreciated by the Revenue authorities who have gone by general observations, therefore, considering the entire facts involved in this line of business, in our considerate view, the remuneration paid to the Directors was reasonable and commensurate with the services provided by them. Accordingly, we direct the AO to delete the addition made by him and also delete the enhancement done by the Ld. CIT(A). Ground No. 3 is accordingly allowed.” Following the order for the AY.2006-07 of the Tribunal,we decide Ground No.5 against the AO. 7.Next ground is about deleting the addition of Rs.1.71 crores,on account of various expenses including payment made to junior artists and expenses related with dress/make up/ costumes/dubbing and mixing etc.

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7.1.We find that identical issue was decided by the Tribunal for the AY.2006-07(supra).Vide para 28-29 of the order at pg-21 and 22,it had allowed 100% deduction for payment made to junior artistes and restricted the disallowance to 5% on other payments.Respectfully following the order of the Tribunal we direct the AO to restrict the disallowance to 5% of all expenses other than expenses incurred towards payments made to junior artists.Payment made to junior artists has to be allowed fully.Sixth Ground is decided in favour of the AO in part. 8.Last Ground of appeal (GOA-7) is about deleting the addition of Rs.11.88 crores on account of proportionate cost of production by applying Rule 9A (5) of the Rules. During the assessment proceedings,the AO disallowed cost of production by applying Rule 9A and made proportionate disallowance of 28.72%,considering the fact that the assessee had not offered for tax satellite fee payable to it.He was of the opinion that as per the provisi- ons of Rule 9A(5) of the Rules proportionate expenses were to be disallowed. Accordingly, he worked out disallowance,after taking into consideration production cost of three movies. 8.1.During the appellate proceedings,the FAA observed that similar issue was dealt by the Tribunal in assessee’s own case in the AY.2006-07.Following the same,he allowed the appeal filed by the assessee. 8.2.We would like to reproduce the relevant portion of the Tribunal for AY.2006-07and it reads as under: “44.Ground No. 13 relates to the enhancement made by the Ld. CIT(A) by considering cost of production of Rs. 14.93 crores and Rs. 1,39 croes under Rule 9A(6). 45.During the course of the appellate proceedings, the Ld. CIT(A) observed that the licence fee of Rs.18 crores payable to the assessee has not been offered for tax although the agreement was signed during the financial year under consideration. The Ld. CIT(A) was of the firm belief that Rule 9A(5) bars deduction allowable under Rule 9A in the event of non-crediting of amount realized by the film producer from exhibition of feature films or selling of the rights of exhibition of the feature films in the books of account.The Ld. CIT(A) further observed that the assessee was due to receive Rs.1.5 crores out of the total consideration of Rs.18 crores within 7 days from the date of the execution of the agreement. As the Ld.CIT(A) proposed to enhance the income of the assessee an opportunity was given to the assessee. With regard to the non- recognition of Rs. 1.5 crores, the assessee submitted that the right to air the movie is effected only after the date mentioned in the agreement and the effective date was from 1.4.2006 and so far as applicability of Rule 9A(5) and 9A(6) is concerned, the assessee submitted that the producer is uncertain towards the future revenue and hence it is not possible to allocate the proportionate cost of the movie towards various stream of revenue. The assessee further explained that Rule 9A(5) only refers to Revenue of a film to be credited to the profit & loss account related to the current year and not of the further 4 to 5 years. As regards applicability of Rule 9A(6), the assessee submitted that the Rule is applicable only when the rights of exhibition of the feature films have been transferred by a mode not covered by the provision of Rule 9A. Therefore, Rule 9A(6) cannot be applied.

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45.1.After considering the facts and the submissions of the assessee, the Ld. CIT(A) was of the firm belief that Rule 9A squarely applied on the facts of the case. The Ld. CIT(A) further observed that in terms of Rule 9A(5) the cost of production claimed by the assessee is not admissible because it is in contradiction to the requirement of Rule 9A(5)(a) and (b). Since the assessee has not credited the consideration of Rs.18 crores in the books of account/profit and loss account in respect of the year in which the deduction has been claimed. Thereafter, the Ld. CIT(A) went on to discuss the provisions of Rule 9A(5) and was of the opinion that all revenues from films produced and released during the current year have to be necessarily accounted for during the current year only. The Ld. CIT(A) further observed that the assessee has recognized revenue from three movies, it would be only just and fair to restrict the disallowance proportionate to the receipts not credited to the books of account/profit and loss account for the year. The Ld. CIT(A) thus calculated the total disallowance as exhibited at pages 56 and 57 of his order at Rs.14.93 crores and Rs.1.39 crores. 46.The Ld. Counsel for the assessee strongly objected to this findings of the Ld. CIT(A). It is the say of the Counsel that Rule 9A is applicable on the movies which are released prior to 90 days from the close of the accounting year. The Ld. Counsel drew our attention to page 542 of the Paper book which exhibits the cost of production of income for the film released during the year under consideration. The Ld. Counsel further submitted that there is no such bar in Rule 9A which prevents the apportionment of cost of production to distribution vis-à-vis Satellite right.The Ld. Counsel vehemently submitted that assessee’s claim is covered by Rule 9A(2) therefore, no disallowance made on this account could be justifiable. 47.The Ld. Departmental Representative strongly supported the findings of the Ld. CIT(A). 48.We have considered the rival submissions and perused the orders of the lower authorities and the material evidences brought on record. We find that the entire issue revolves around the applicability of Rule 9A which relates to deduction in respect of expenditure on production of feature film. Rule 9A(2) is very relevant on the facts of the case which provides as under: 9A(2)…… Where a [***] feature film is certified for release by the Board of Film Censors in any previous year and in such previous year,— (a) the film producer sells all rights of exhibition of the film, the entire cost of production of the film shall be allowed as a deduction in computing the profits and gains of such previous year; or (b) the film producer— (i) himself exhibits the film on a commercial basis in all or some of the areas; or (ii) sells the rights of exhibition of the film in respect of some of the areas; or (iii) himself exhibits the film on a commercial basis in certain areas and sells the rights of exhibition of the film in respect of all or some of the remaining areas, and the film is released for exhibition on a commercial basis at least [ninety] days before the end of such previous year, the entire cost of production of the film shall be allowed as a deduction in computing the profits and gains of such previous year. 49.A perusal of this Rule show that when the movie is released for exhibition on commercial basis, atleast 90 days before the end of such previous year, the entire cost of production of the film shall be allowed as deduction in computing the profits and gains of such previous year. It is only when the film is not released atleast 90 days before the end of such previous year , It is provided that the cost of production is restricted to the amount realized by the film producer. In the instant case, we find that all the three movies were released before 90 days from the end of the previous year. A perusal of the chart exhibited on page-542 of the paper book show that the assessee has shown aggregate income which is much higher than the cost of production of these movies. As the facts are in line with the provisions of Rule 9A(2), the entire cost of production deserve to be allowed. Accordingly, we direct the AO to delete the enhancement made by the Ld. CIT(A) at Rs. 4.93 crores and Rs. 1.39 crores. It would not be out of place to mention that the Ld. CIT(A) has made enhancement keeping in mind issues involved in ground No. 1 of this appeal. As we have allowed ground No. 1, the same will hold good for this ground of appeal also. Ground No. 13 is accordingly allowed.”

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We have dealt the issue in detail while adjudicating the appeal for the AY.2007-08 (ITA/ 2597/Mum/2012,dtd.21.01.2017).Considering the above,we dismiss ground No.7,raised by the AO. ITA/5596/Mum/2014-AY. 2006-07: 9.Solitary ground of appeal raised by the AO deals with deleting the addition of Rs.1.11 Crores on account of production cost. During the course of survey action,carried out, on 10/9/2009,under section 133A of the Act, certain documents and computer backups were impounded.On comparison of the impounded documents with the regular books of accounts certain prime assessee discrepancies were noted.One of the discrepancies was on account of difference in cost of production between the financial statements filed along with return of income and the impounded books of accounts.The AO called for explanation in that regard. The assessee contended that the books of accounts impounded from the business premises were only for production division,that if the cost of production,paid by the distribution division,amounting Rs.1.11 crores,was added to cost of production division there would not be any discrepancy. However, the AO did not agree with the assessee and held that production expenses/other production expenses represented cash payments, that these payments were adjustment entries made by the assessee to reduce the profits. 9.1.Aggrieved by the order of the AO, the assessee preferred an appeal before the FAA. Before him, it was contended that the expenditure in question was incurred by the distribution division,that same was recorded in the audited financials of the production division, that it was towards service charges paid by the division which was duly incorporated into the financial accounts under cost of production, that audited accounts of distribution division, production division and home entertainment division formed part of the final balance sheet, that in the earlier years the then FAA had accepted the contention of the assessee in that regard,that the FAA had admitted that it was a question of mere transfer from one division to another division, that he had upheld the method of accounting followed by the assessee and had deleted the addition made by the AO,that the AO did not object to clubbing of distribution divisions income with the production division income,that he objected the inclusion of expenses of one division being paid by other,that the cost of production,as reflected in audited balance sheet,was duly verified by the AO completed under section 143(3),that at that time the AO did not make any observation regarding difference in cost of production.

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After considering the submissions of the assessee and the assessment order,the FAA held that similar issue arose in the earlier assessment years, that the then FAA had accepted that the books of all three divisions, namely production entertainment and distribution were to be merged to see the final picture, that during the assessment proceedings,the assessee had furnished details of production expenses along with the reconciliation statement, that the AO was not able to show as to how service charges expenditure of Rs. 1.1 crores paid from distri -bution division were not allowable.Finally,he deleted the addition.

9.2.During the course of hearing before us,the DR relied upon the order of the AO.The AR stated that identical issue was decided by the FAA in favour of the assessee in earlier years by the FAA.

9.3.We have heard the rival submissions.We find that the assessee had filed a reconciliation statement giving details of payments made by the distribution division,that the AO did not point out any discrepancy in the statement,that while determining the income of the assessee he had clubbed the incomes of all the divisions, that he did not allow clubbing the expenses of the same divisions, that he has not brought on record any proof that disputed amount was part of the inflated expenses,that during the original assessment proceedings he had considered the issue of cost of production and had not made any addition.Therefore,we are of the opinion that the order of the FAA does not suffer from any legal or factual infirmity. Confirming his order,we decide the effective ground of appeal against the AO.

ITA/14/Mum/2014-AY.2008-09: 10. First ground of appeal, is about deleting the disallowance of Rs. 4.86 crores on account of professional fees paid to the Directors.While deciding the appeal for the assessment year 2007-08,we have dismissed the appeal filed by the AO in that regard, that in the earlier year also the Tribunal had decided the issue against the AO.Following the orders of above- mentioned two assessment years,we decide ground number one against the AO. 11.Second ground of appeal is about deleting the disallowance, made by the AO, on account of depreciation of bungalow. The identical issue has been decided in favour of the assessee and against the AO by us,while ajdudicating the appeal for AY.2007-08(supra).As the facts for both the AY.s similar,so,following order of that year,we dismiss ground number two.