M/S. Vendhar Movies vs The Joint Director on 17 September, 2018
Madras High Court
M/S. Vendhar Movies vs The Joint Director on 17 September, 2018
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on : 01.04.2019 Orders Pronounced on : 1
CORAM:
THE HONOURABLE Dr. JUSTICE ANITA SUMANTH
Writ Petition Nos.30085, 14425 & 29206 of 2018
5131 & 1199 of 2019 &
WMP Nos. 35098, 17040 & 34134 of 2018
& 5849 & 1351 of 2019
M/s. Vendhar Movies,
Represented by its Proprietor S.Madhan,
No.EA, Basement, Doshi Garden,
Vadapalani, Chennai 600 026 … Petitioner in W.P.
Super Good Films Private Limited, Represented by its Managing Director Mr. R.B.Choudary,
No.32 North Boag Road, T.Nagar,
Chennai 600 017 … Petitioner in W.P
Wunderbar Films Private Limited, Represented by Mr.S.Vinod Kumar, Director, No.13/6, 4th Floor, Jaganathan Road,
Chennai 600 034 … Petitioner in W.P.No.
& Petitioner in W.P.No
M/s. AGS Entertainment Private Limited, Represented by its Director (M/55), Flat No.B-2 First Floor,
Shoba Flats, No.12, 10th Avenue,
Ashok Nagar, Chennai 600 083 … Petitioner in W.P
vs.
1. The Joint Director,
O/o. The Directorate General of GST Intelligence, Chennai Zonal Unit, C-3 C-Wing, 2nd Floor,
Rajaji Bhavan, Besant Nagar, Chennai 600 0902.
2. Additional Commissioner,
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M/S. Vendhar Movies vs The Joint Director on 17 September, 2018
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O/o. The Commissioner of GST & Central Excise, Chennai South Commissionerate,
No.692 M.H.U. Complex, Nandanam,
Chennai 600 035 … Respondents in WP N
3. Principal Additional Director General, Directorate General of GST Intelligence, Chennai Zonal Unit, C-3 C-Wing, II Floor, Rajaji Bhavan, Besant Nagar,
Chennai 600 090 … R-1 in WP No.1
4. The Principal Commissioner,
Office of the Principal Commissioner of CGST & Central Excise, Chennai North Commissionerate,
No.26/1 Mahathma Gandhi Road,
Nungambakkam,
Chennai – 600 034 … R-2 in WP No.
& sole
WP N
& 51
5. The Commissioner of GST & Central Excise, Chennai South,
M.H.U. Complex No.692, 5th Floor,
Anna Salai, Nandanam,
Chennai 600 035 … Respondent in WP No.
Prayer in W.P.No.30085/2018:- Petition filed under Article 226 of
Constitution of India praying for the issuance of a Writ of Certio
the records in the proceedings in the impugned S
No.100/2018, dated 17.09.2018, issued by the f
F.No.INV/DGCEI/CHZU/ST/15/2016 and to quash the same as arbitrary illegal.
Prayer in W.P.No.30085/2018:- Petition filed under Article 226 of
Constitution of India praying for the issuance of a Writ of Certio
the records in the proceedings in Order in Original No.27/2018 CH.
05.03.2018 passed by the second respondent and to quash the same a
arbitrary and illegal.
Prayer in W.P.No.29206/2018:- Petition filed under Article 226 of
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Constitution of India praying for the issuance of a Writ of Certio
the records in the proceedings in C.No.V/15/67/2017-Ch.Nadj in Ord
Original No.84/2018 CH N GST (Commr.) dated 09.07.2018 passed by t
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M/S. Vendhar Movies vs The Joint Director on 17 September, 2018
respondent and to quash the same as arbitrary and illegal.
Prayer in W.P.No.5131/2019:- Petition filed under Ar
Constitution of India praying for the issuance of a Writ of Certio
the records in the proceedings in C.No.V/15/50/2018-Ch.Nadj in Ord
Original No.121/2018 CH N GST (Commr.) dated 17.12.2018 passed by respondent and to quash the same as arbitrary and illegal.
Prayer in W.P.No.1199/2019:- Petition filed under Ar
Constitution of India praying for the issuance of a Writ of Certio
the records of the respondent in the impugned Order-In-Original No
30/2018, dated 20.08.2018, quash the same as the same seeks to lev
tax on permanent transfer of copyright and is against the decision
in petitioners own case AGS Entertainment Ltd. V. Union of India i
W.P.No.29398/2010, dated 26.06.2013 wherein it has
permanent transfer of copyright is not taxable.
For Petitioner in WP Nos. 30085,
14425 & 29206 of 2018 & 5131 of 2019 : Mr. Joseph
For Petitioner in WP No.1199/2019 : Mr. AR.L.Su
Sr. Counsel
Ms. Radhika
For R-1 in W.P.No.30085/2018 & For Respondents in WP No.14425/2018
& For Respondent in WP No.29206/2018: Mr. V.Sunda
Senior Pane
For R-2 in W.P.No.30085/2018 : Mr. G.Syed
Standing Co
For Respondent in WP No.5131/2019 : Ms.Seetha L
Standing Co
COMMON ORDER
4
These five writ petitions challenge a show cause notice/o
issued by the Service Tax Department to producers
cinematograph films who have assigned some part of their copyright
cinematograph films to television channels, invoking the provision
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Finance Act, 1994 (in short Act), relating to Intellectual Property
service.
2. Heard the detailed submissions of Mr.Joseph Prabakar
Movies, (WP Nos. 30085 of 2018), Super Good Films Private Limited
(W.P.No.14425 of 2018) and Wunderbar Films Private Limited (W.P.No
2018 & W.P.No.5131 of 2019), Mr.AR.L.Sundaresan, learned Senior Co
for Ms.Radhika Chandrasekhar, learned counsel for AGS Entertainmen
Limited (W.P.No.1199 of 2019), Mr.V.Sundareswaran, learned Senior
Counsel, Mr.Noorullah learned Standing Counsel and Ms.Seet
learned Standing Counsel, for the respondents. The writ petitions,
and the case laws cited at the Bar have been studied and considere
3. I must, at the outset, make it clear that the veracity
the impugned show cause notice and orders-in-original are taken up
examination, solely since they appear to adopt a stand not in cons
the relevant provisions of law, both those in the Act as well as i
Act, 1957 (in short CR Act). This Court has not concerned itself w
factual particulars, except for the limited purpose of appreciatin
adjudicating upon the legality of the impugned notice and orders.
5
the aforesaid basis that I proceed to advert to the rival contenti
by both parties.
4. Taxable Services under service tax law include services p
any person by a holder of intellectual property rights (in short I
journey of taxation of IPR services commenced on 10.09.2004 with t
introduction of Section 65(55b) when the transfer of an IPR, eithe
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or otherwise, or the permitting of the use or enjoyment of an IRP
under the ambit of levy of service tax for the period till 15.05.2
for the period 16.05.2005 to 30.06.2012, Section 65(55b) brought t
income from the service of temporary transfer or permitting the us
enjoyment of IPR.
5. After the introduction of the negative list with effect f
IPR service was a declared service in terms of Section 66E(c). Tax
were defined in terms of section 65(105) and clause (zzzzt) thereo
follows:
65(105)(zzzzt): Taxable service means any service
provided or to be provided to any person, by any other pers
for-
- transferring temporarily; or
- permitting the use of enjoyment of,
any copyright defined in the Copyright Act, 1957, except th
rights covered under sub-clause (a) of clause (1) of sectio
of the said Act.
6. Section 13 of the CR Act enumerates the following classes
those in which copyrights subsist: (a) Original literary, dramatic
artistic work; (b) Recording of cinematograph films; (c) Sound rec
works referred to in (a) have been kept outside of the tax net and
6
works referred to in (b) and (c) have been made taxable under serv
7. The petitioners are engaged in the production of cinemato
In the regular course of business, the petitioners enter into vari
with distributors, exhibitors and television channels assigning to
rights for broadcast and exhibition of various cinematograph films
produced as well as purchased by them. The rights include satellit
broadcast, direct to home broadcast, direct satellite service, ter
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television broadcast and all other rights connected therewith incl
of the film by means of wireless diffusion and by wire for communi
public through television broadcast.
8. The salient features of the arrangements entered into by
petitioners with distributors/exhibitors are common across the wri
broadly set out below. The narration to follow also takes into acc
admitted facts, the relevant features of the assignment agreements
submissions on merits advanced by both parties:
All petitioners are companies engaged in the
distribution of cinematographic films/feature films/movi
Agreements were entered into for distribution of cinemato
produced by the petitioners, visual recording of cinemat
accompanying sound track and all other features of the f
constitute an asset/assets in which copyright subsists.
Assignment agreements are also entered into in respect of
purchased by the petitioners for theatrical distribution
7
As film producers, the entire copyright(s)
cinematograph film belongs to them and they are entitled t
such copyright to distributors for theatrical exploitation
demarcated area.
The Cinematograph film is also capable of being exploited i
of terrestrial television broadcast right and
broadcast right, exhibition by wireless distribution and b
satellite channels for broadcast, DVD rights, remake right
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rights, Oversees rights and Audio rights.
Thus, the petitioners are the owners of a bundle of rights
from the ownership of the cinematograph film as a conglome
asset. This conglomerate asset has a copyright by itself a
whole, and also contains within itself several assets with
existing copyrights.
No sales tax, either State or Central, has been paid on the
assignment/transfer of the copy rights.
The assignment of the rights are perpetual in nature, confe
permanently and absolutely and without any restriction or whatsoever, upon the assignee.
The petitioners have also assigned copyrights that are temp
nature and in respect of which service tax liability has b
Thus, the petitioners recognize a clear difference and dema
between those agreements for temporary transfer of copyrig
8
those where the transfer is perpetual and permanent and it
latter in respect of which the petitioner claims exclusion
of service tax. The burden of tax on the former category h
discharged in full.
Some of the assignment agreements state that the same are
revocable. This, by itself, does not militate against the
being permanent, since the revocability of the agreement i
cases where the consideration for the assignment was to be
instalments and conditional upon there being a default com
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the assignee in effecting such payment. Subject to the sat
the aforesaid condition, the transfer/assignment of the co
irrevocable.
Thus it is only to protect against a default in payment by
that the petitioners had provided for revocability of the
as, in the alternative, the transfer of copy right would h
completed without the petitioners having consideration in respect thereof.
Several provisions of the CR Act are referred to in extenso
counsels for the petitioners in support of their submissio
and I will detail them in the paragraphs to follow.
In some cases the petitioners have raised the plea of limit
According to them, the issue in question was well within t
9
knowledge of the service tax department from as early as i
when one of the petitioners in this batch, AGS Entertainme
Limited, along with several other similarly placed assesse
approached this Court challenging the vires of the provisi
Section 65(105)(zzzzt). After completion of pleadings, a Di
Bench of this Court had upheld the validity of the provisi
dated 26.06.2013. Thus the department was well aware of th
business activities of the petitioners, specifically the i
transfer of copyrights, both temporary as well as permanen
arise in these cases. However, show cause notices (SCN) we
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M/S. Vendhar Movies vs The Joint Director on 17 September, 2018
issued belatedly for periods prior to five (5) from date o
the notice, invoking the period of extended limitation.
In the case of AGS Entertainment, the SCN was issued on 17.
for the period 01.07.2010 to 30.06.2012 under
copyright services in terms of Sections 65(105)(zzzzt) and
the period 01.04.2013 to 31.03.2015 invoking the extended
limitation permitted under the proviso to Section 73(i) of
1994. Thereafter, a statement of demand was issued for the
subsequent period, April 2015 to June 2017 along similar l
previous notices.
Extended period of limitation is liable to be invoked only
where the Department is able to establish the existence of
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collusion or suppression on the part of the petitioner/ass
disclosing taxable income. This however, cannot be so, in
the activities of the petitioner were more than transparen
fact the subject of writ petitions that were pending since
that the Department was actively contesting from the word
the impugned orders are also barred by limitation. Relianc
upon the following decisions:
(i) Collector of Central Excise vs. Chemphar Drugs & Li
(2002) TIOL 266
(ii) Continental Foundation Joint Venture Vs. CCE (2007
177
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The decision of the Division Bench upholding the constituti
the provision is under challenge before the Supreme Court.
On merits, the impugned orders proceed on the basis that th
petitioners assign only specific copyrights while retainin
copyrights in the same cinematograph film wi
According to Mr.Sundareswaran, this renders temporary in nature.
Moreover the assignment, in all cases, is perpetual and in
cases, is for 99 years. Since the provisions of the Act pr
period of 60 years as being the life of a copyright, the t
question do not constitute permanent transfers.
The respondent also states that the transactions are not in
11
with the provisions of Section 21 of the Act.
According to the respondent, the use of the word perpetual
agreement is only a sham, designed to camouflage the true
the petitioner which is to enter into a temporary transact
the transactions are vitiated as being colourable.
The Assessing Authority relies substantially upon the decis
Division Bench in the case of AGS Entertainment Private Li
Union of India (2013) (32) STR 129 (Mad.).
According to him, the perpetual transfer as per agreement i
absolute transfer for the reason that the transfer of lega
copyright has to be to the exclusion of all person includi
transferor and during the period of such transfer, the tra
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cannot again transfer the same rights to others. AGS make
commercial exploitation of copyright in many ways includin
rights, satellite and television rights, DVD rights dubbin
rights, etc. Further, these rights are granted to various
simultaneously for exploitation in different regions. Enti
should be transferred to the other person to constitute pe
transfer or perpetual transfer which is not so in the case
Therefore, in order to constitute a perpetual transfer, th
in relation to the film would have to be transferred by th
According to the respondents, the issue has been dealt wit
Division Bench in detail, in the case of AGS Entertainment
12
which settles the matter and thus, the contentions o
would have to be rejected.
For the aforesaid reasons, on merits, the transactio
according to the Department, be held to be liable t
Mr.V.Sundareswarn, learned Senior Panel
Department, in all fairness, does not dispute the p
agreements for transfer/assignments are specifically states so, which I record.
9. It is on the basis of the above admitted factual matrix t
to dispose the writ petitions. I make it clear that this decision
applicable should there be any differences on facts in other simil
10. Before adverting to the merits, I must deal with the iss
maintainability of the present writ petitions raised by Mr.Sundare
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argument is two pronged: (i) that the issue at hand has been heard
decided against the assessee by a Division Bench of this Court in
AGS Entertainment Ltd. V. Union of India in W.P.No.29398/2010, date
26.06.2013; (ii) that the stage at which the petitioners have appr
Court is very premature in so far as only a show cause notice and
assessment have been issued/passed and that the petitioners may be
to file a reply or pursue the matter through statutory hierarchy b
appeal.
11. Reliance in this regard is placed on the following decis
(i) 2011 (269) ELT 9 (Mad.) (United Bleachers Ltd. V. CEGAT,
13
(ii) 2015 (37) STR 679 (Mad.) (T.T.Krishnamachari & Co. v
India)
(iii) Commissioner of Customs v. M/s.Sri Vasavi Gold & Bu
CMA No.813/2016, dated 08.08.2017 (DB) (Madras High Court)
(iv) 2014 (35) STR 68 (Royal Bank of Scotland N.V. v. Com
Customs and Central Excise, Noida) (DB) (Allahabad)
(v) 2017 (7) GSTL 202 (Commissioner of Service Tax v. DLF
Ltd.) (DB) (P&H)
(vi) M/s. JSK Film Corporation, Rep. by its Sole Propriet
Kumar v. The Additional Commissioner of Service Tax and two others
(W.P.Nos.28384 & 28385 of 2017) dated 07.11.2017 (DB) (Madras High
12. I have heard all learned counsel exhaustively on the
maintainability. As far as the question of maintainability and alt
is concerned, it is all too well settled that where a legal infirm
and established, there is no fetter on this Court to consider the
otherwise of such order of assessment of even a show cause notice.
rule of guidance is that, as a rule, the court will exercise extre
interfering in such matters, except where the petitioner satisfies
one or more of the following exceptions exist in the case in quest
mind that the flaw alleged should go to the root of the matter and
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purely legal in nature. Instances of such illegality may be culled
judgements of the Supreme Court to be (a) a challenge to the const
or vires of a statutory provision (b) a bar of limitation (c) assu
jurisdiction by the officer where none exists (iii) patent and app
the framing of the order, in contravention of the statutory provis
course, in determining the aforesaid, the Court will not embark up
14
examination of disputed facts and will concern itself solely with
provisions involved, and their interpretation. Since the interpret
cannot be undertaken in a vacuum, the facts admitted by all partie
shall form the backdrop for such application and analysis of the a
provisions.
13. It is indeed correct that a Division Bench of this Court
AGS Entertainment Private Limited (supra) considered a challenge t
provisions of Sections 65(105)(zzzzt) of the Finance Act, 1994 bri
the ambit of service tax income generated from temporary transfer
permitting the use or enjoyment of any copyright as defined under
At paragraph 59, the Division Bench frames the issue before it in manner:-
59. Whether temporary transfer of copyright or permission to use or enjoyment amounts to sale of goods or deemed sale within the meaning of Article 366(29A) of the Constitution, as contended by the Petitioners is to be examined, keeping in view the
normal business practice in the film industry and in t
light of the principles laid down by the Hon’ble Supre
Court in various decisions upholding the levy of servi
tax.
14. The decision exhaustively examines the transactions betw
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producers and the distributors and in conclusion upholds the vires
(105) (zzzzt) of the Act. This is what the Bench states at paragra
110. Conclusion:- We hold that the variant mo
of business transactions between the producer and
distributor, distributor and sub-distributor or area
distributor or exhibitor (theatre owner) are not sal
15
goods to fall under Entry 54 List II or Entry 92A Lis
By resorting to Entry 97 of List I Residuary Entry to
service tax, the Parliament is within its legislative
competence and Section 65(105)(zzzzt) is not ultra vi
the Constitution. From the production of the
cinematograph film till it is exhibited, there are ho
commercial activities. Service tax is the value added
which applies to the business transactions for
consideration involving commercial activities. Over a
there is a huge rise in business of film industry and
money is involved. The temporary transactions of
copyrights or the permission to use or enjoyment of t
copyright cannot be brought either under Entry 54 of II or Entry 92A of List I. Applying the ratio of the decisions of the Supreme Court, we hold that the Parliament is well within its legislative competence levying service tax resorting to Entry 97 of List I.
15. The issue before me is not a challenge to the statutory
but an alleged, gross mis-interpretation of the same. The petition
certainly bound by the provisions, as they exist, particularly see
constitutionality has been upheld. However, the case of the petiti
the provisions have been erroneously interpreted and applied to th
transactions in their case. The applicable provisions in question
statutes the Finance Act 1994 levying Service tax and The Copyrig
1957. The interpretation and interplay adopted by the Revenue is w
contrary to the basic scheme of the statutes, particularly the CR
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interpretation is left untouched, the purport and scheme of both s
stand distorted. It is on the aforesaid premise that the writ peti
filed. Whether the petitioners are correct in their averments and
against the Revenue is a different matter. However, one thing is c
before the Division Bench is entirely different from the lis proje
16
For the aforesaid reasons, I do not believe that the conclusion of
Bench in the case of AGS Entertainments impinges on the maintainab
present writ petitions.
16. As far as the other decisions relied upon by the Reven
concerned, they are all distinguishable in law in so far as they r
Petitions filed challenging orders of the Customs, Excise and Serv
Appellate Tribunal (CESTAT) (United Bleachers, Royal Bank of Scotl
Gold Resort (supra)), and an Appeal filed in terms of section 130
Customs Act, Sri Vasavi Gold & Bullion Pvt. Ltd (supra), all turni
question as to whether the lis would lie before the Supreme Court
Court for resolution. This is not the dispute before me. In the de
case of T.T.Krishnamachari, the court was reluctant to interfere f
that the matter involved disputed facts. The decision in the case
Corporation doe not appear germane to the case in point. In fine,
decisions relied upon advance the case of the Revenue. The writ pe
thus maintainable and I hold so.
17. I now advert to the merits of the arguments of the par
conclusions of the assessing authorities are best expressed in the
and the offending portion of the impugned show cause notice and tw
assessment, the rationale of which would extend in common to all p
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M/S. Vendhar Movies vs The Joint Director on 17 September, 2018
are extracted below:-
Extract from Show Cause Notice dated 17.09.2018 in W.P.300
2018:
17
….
10. Summary In view of the foregoing it appears that, Vendhar Movies is a cinema production company engaged in producing films and engaged in purchase, market and distribution of films; It was started in August 2012 with two partners viz Shri Madhan and Shri Balagurunathan and later during November 2015, Shri Balagurunathan had withdrawn from the partnership and Shri Madhan became the sole proprietor of Vendhar Movies;
They are the absolute copyright holder engaged in transfer of Copyrights for the films produced by them in respect of satellite rights, audio rights, FMS rights, etc. and also temporarily transferred or permitted the use/enjoyment of copyrights of the film for various satellite channels;
Vendhar Movies have produced two films, viz Thillu Mullu 2 and Payum Puli during the period June 13 and Sep 15 respectively; during the production of the film, Thillu Mullu 2, an Under production agreement was entered into by Vendhar Movies with M/s Vijay Television Private Limited for transfer of satellite rights of the film and they earned consideration on the same; Vendhar Movies have temporarily assigned and permitted the use and enjoyment of the copyright to M/s Vijay Television Network Ltd., the Satellite rights of the Tamil feature film Thillu Mullu 2 produced by the for a perpetual period for a consideration of Rs 2,99,00,000/-;
For the movies Paayum Puli: and Lal Bahadhur Shastri, Vendhar Movies have earned into an agreement with M/s Sun TV Network Limited and have temporarily assigned and permitted the use and enjoyment of the copyright of the movie produced by them for a perpetual period for a consideration of Rs.3,00,00,000/- and Rs.2,25,00,000/- respectively;
From the assignment agreement entered with M/s Sun TV, it appears that the assignment of copyright for the broadcast of the films will be restricted only to the rights specified in clause 4 the agreement and M/s Vendhar Movies have http://www.judis.nic.in clearly retained their ownership with respect to other rights other than those assigned to the assignees as discussed in para 3 of this notice; that the consideration received by M/s Vendhar Movies covered under the taxable services- Copyright Service for the period from 1.4.2014; Though the intention of Vendhor Movies was to assign temporary transfer, the terms perpetual has been mentioned only to claim exemption from payment of service tax; that further, from what was discussed in above paras, it appears that, the temporary transfer of satellite rights is also classifiable and liable to service tax under the category of
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taxable services. However, Vendhar Movies have not paid the service tax on the consideration received by them in connection with temporary transfer of copyrights.
Vendhar Movies had not obtained service registration for providing such taxable service at the material time and had not assessed the service tax payable on such taxable services rendered by them and had not paid the same to the exchequer at the material time….
Extract from Order-in-Original dated 09.07.2018 in W.P.29206 of 2018:
….
5.4. From the above provisions of the Acts and from various clauses of the agreement it is clear that the activities of the assessee falls under the Copyright service. However in order to know the taxability of the service the nature of such transfer has to be decided. In Copyrights of Cinematographic films, the producer of the film make commercial exploitation of these rights in many ways including but not limited to theatre rights (both distribution & exhibition), Satellite & Television rights, DVD rights, dubbing and remake rights. Further, these rights will be granted to various people simultaneously for exploitation in different regions, each active in one or more regions and need to be licensed those separately. A transaction constitutes permanent transfer of copyright only in a case where entire copyright (all modes of commercial exploitation) is transferred or leased to the exclusion of all persons http://www.judis.nic.in including owner of such copyright. On perusal of the agreements, it is seen that, the entire bundle of rights is not transferred as the copyright is capable of being exploited by different entities for earning revenue. In these agreements, M/s.WFPL have transferred enjoyment of the different copyrights as mentioned above to different parties, for the same time period for exploitation in different regions or different media. The agreement whose nature of transfer is in question does not bestow rights outside the area of assignment. On perusal of various clauses in the agreements it is seen that the producer or the absolute owner assign specific rights for a specific territory, that the agreement does not bestow rights outside the area of assignment and the distributor only gets positive prints or digital copies of the film for exhibition of the film in a specified area. From the above clauses of the assignment agreement it is clear that it is only a temporary transfer of copyright or permission to broadcast the film in a specified territory for a specified period of time.
5.5. Further these transactions cannot be called as absolute sale as in the case of sale the buyer will acquire all the rights of the seller which will enable him to exploit such acquired rights for unrestricted exploitation and the seller would cease to have any rights which is not the case in the transactions discussed above. In the case of first copy sale, all forms of rights in respect of the films in question, are transferred to the Buyer, to the exclusion of the seller / producer. This is clearly not the case in the impugned agreements as Wunderbar do not cease to hold rights on the films. While the producer retains his right to exploit that film, there is no transfer of right to use the goods amounting to sale within the meaning of Article 366(29A). On the other hand, it is a temporary transfer of copyright or permitting its use or enjoyment by the lessee. As long as the producer does not fully relinquish his right over the copyright held by him, transfer of right to use is purely temporary and levy of service tax for such transfer of copyright would apply. Extract from
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Order-in-Original dated 20.08.2018 in W.P.1199 of 2019:
….
79. Exclusion of permanent transfer of copyrights:-
It is pertinent to note that permanent transfer of http://www.judis.nic.in rights is excluded from service tax. At the time of levy of service tax on taxable service of Intellectual Property Rights (IPRs) as defined in Section 65(105)(zzr) of the act, the Department clarified as follows:
A permanent transfer of intellectual property right does not amount to rendering of
service. On such transfer, the person selling these rights no longer remains a holder
of intellectual property rights so as to come under the purview of taxable service. Thus, there would not be any service tax on permanent transfer of IPRs. (Circular No.80/10/2004-S.T., dated 17-9-2004 para 9.2).
The same proposition applies to copyright which is another form of intellectual property right. Thus, permanent transfer of copyright will not amount to rendering of service and therefore, will be excluded from the purview of service tax. 23.0. In fact the defence of AGS is also on these lines. It has been argued that the assignment of copyright is on permanent basis and since it is not a temporary transfer, no service tax is payable.
23.1. I proceed to examine the contention below. I find that it is relevant to examine whether the transfer is permanent or temporary not on the basis of the agreements churned out by the parties but by the copyright Act as such agreements will have to stand the test of law. Here I find that the copyright Act prescribes a specific method by which copyright can be renounced by the owner. As per section 21 of the Copy Right Act, 1957.
21. Right of author to relinquish copyright.- (1) The author of a work may relinquish all or any of the rights comprised in the copyright in the work by giving notice in the prescribed from to the Registrar of Copyrights and thereupon such rights shall, subject to the provisions of sub-section (3), cease to exist from the date of the notice.
- On receipt of a notice under sub-section (1), the Registrar of Copyrights shall cause it to be published in the Official Gazette and in such other manner as he may deem fit.
- The relinquishment of all or any of the rights comprised in the copyright in a work shall not affect any rights subsisting in favour of any person on the date of the notice referred to in sub-section. http://www.judis.nic.in 23.2. Further Rule 5 of Copyright Rules, 1958, which deals with relinquishment of Copy right read as follows:
Notice of relinquishment.- The author of a work desiring to relinquish under section 21 all or any of the rights comprised in the copyright in the work shall give notice to the Registrar of Copyright in
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accordance with Form. 23.3. I find that no relinquishment as contemplated in the Section 21 of the Copyright Act, 1957 or Rule 5 of Copyright Rules, 1958 was performed by AGS. In the absence of relinquishing the right as contemplated in the copyright Act the ownership of the right does not shift to the assignee but reverts back to the assignor after the said period in the agreement. Therefore I hold that such copyright is only temporary and cannot be called permanent in view of the copyright act and without relinquishing the assignor has temporarily permitted the use of enjoyment of copyright and such an assignment thereafter cannot be considered permanent by any sort of reasoning whatsoever. Secondly, I find that the argument of the assessee that the transfer can only be permanent as it is for 99 years whereas Copyright Act itself is fighting piracy, these arguments are merely theoretical and no meaningful conclusion that the transfer is permanent can be drawn because the assignment agreement provided for much more no. of years than protected by copyright.
- 4. In the agreements also nowhere it has been stated that by way of assignment the owner relinquished their copyright in favour of the assignee. AGS, it appears, feel that he can simply evade service tax merely by putting assignment for perpetuity under the misguided notation that such an agreement should be a sale and not lease as applied to goods/property. I therefore find that there is merit in the argument given by DGCEI that AGS has simply stated that the transfer is permanent without intending to do so in as much as he continues to be the owner of the intellectual property/copyright. I find that what is applicable to goods cannot be blindly applied to intellectual property and any assignment agreement of such an intellectual property for perpetuity to blindfold it to be a sale of goods only proves AGs intention to evade. Therefore even by way of assignment for perpetuity also the title http://www.judis.nic.in does not get transferred to the assignee as can be seen from the agreements of assignment. In the absence of explicit statement relinquishing copyright which amounts to equivalent of conferring title to the assignee in the agreements, the transfer effected by way of assignment is only a temporary transfer. Since there is no transfer of title, the assignor/AGS has allowed enjoyment of certain rights to the assignee. This enjoyment is in the form of oversees rights, satellite rights, dubbing rights, etc, is without any permanent transfer. The assignee has no right to modify, alter etc, which are the rights that would arise when the title is transferred to the assignee.
- From the above discussion I find it is the duty of the service provider to properly classify their service, get themselves registered for the taxable services provided by them , file ST-3 returns and to determine and pay their correct tax liability, which they failed. Had the officers of DGCEI not conducted the detailed inquiry, the said rendering of taxable services by AGS would have escaped assessment and resulted in non payment of service tax. They were aware of the facts regarding payment of service tax on the above services rendered by them and disguised such temporary transfer of copy right as transfer for perpetual period to claim the same as permanent transfer of copy right. The suppression with intent to evade payment, on part of AGS is proved beyond doubt and proviso to Section 73(1) of the Finance Act, 1994 has been rightly invoked in the instant case and the demand of service tax for the period 2010- 11 (July 2010 to March 2011) to 2014-15 is justified.
….
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28.2. In the instant case, as suppression of the material facts have been established beyond doubt as discussed above, I consider this as a fit case for imposing penalty under Section 78 of the Finance Act, 1994. AGSs intention to evade is established beyond doubt in as much as he entered into assignment agreements incorporating clauses like permanent transfer/perpetual transfer/assigned for perpetuity etc., which are applicable to goods and not intellectual property like copyright and thereby misleading the dept that no service is provided by them. But for the detailed investigation done, this evasion could not have been unearthed and AGS make themselves liable for mandatory penalty. This gets compounded by the fact http://www.judis.nic.in that there is a High court Judgment in departments favour in which AGS is also a party. Therefore AGS cannot also claim that the matter involves interpretation of law and therefore penalty is not applicable. Even after the same, AGS deserves to be penalized under section 78 of the Finance Act, 1994. Further AGS is also liable to penalty under Section 77 of Finance Act, 1994 as they failed to take registration and comply with other provisions of the services tax law.
- Taxability of IPR and copyright service has to be strictly within the contours and prescription of section 65(105)(zzzzt) of the Act read in tandem with the relevant provisions of the CR Act. The purpose of the charging provision under the Act is only to bring to tax income from those services that constitute a temporary transfer of IPR. The provision thus addresses, apparently, an intangible right. To that extent, the observation of the respondent in the order-in-original in the case of AGS Entertainment extracted above (paras 23.3 & 23.4), to the effect that the phrases permanent transfer/perpetual transfer/assigned for perpetuity etc., are only applicable to goods and not intellectual property like copyright is clearly contrary to the very statutory provision in terms of which the assessment is sought to be made. This is a perverse observation that runs counter to the statutory provisions involved.
- The petitioners have admittedly transferred independent rights relating to the exhibition of Cinematograph films to the Television Channels.
According to the Assessing Authority, it is only if the film was transferred, in entirety, that the transfer would amount to a perpetual transfer and nothing short thereof. The transfer of any part of the copyright relating to a specific http://www.judis.nic.in aspect of the cinematographic film would only be temporary in nature. This, in essence, is the argument of the respondent.
- In order to appreciate the controversy raised by the Service tax Department, it is necessary to advert to some of the provisions of the CR Act and understand the scheme of the statute, its purport and the interplay with the provisions of the Act.
- The provisions of Section 13 of the CR Act detail the works in which copyright subsists and states that subject to the provisions of this Section and other provisions of the CR Act, copyright shall subsist throughout India in: a) original literary, dramatic, musical and artistic works; (b) cinematograph films;
and (c) sound recording. Copyright is defined in Section 14 as follows:-
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14. Meaning of Copyright. For the purposes of this Act, copyright means the exclusive
right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:
(a) in the case of a literary, dramatic or musical work, not being a computer programme,
- to reproduce the work in any material form including the storing of it in any medium by electronic means;
- to issue copies of the work to the public not being copies already in circulation;
- to perform the work in public, or communicate it to the public; (iv) to make any cinematograph film or sound recording in respect of the work; (v) to make any translation of the work;
- to make any adaptation of the work;
- to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);
(b) in the case of a computer programme,
- to do any of the acts specified in clause (a);
- to sell or give on commercial rental or offer for sale or for commercial rental any
copy of the computer programme:
http://www.judis.nic.in Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.
(c) in the case of an artistic work,
- to reproduce the work in any material form including (A) the storing of it in any medium by electronic or other means; or (B) depiction in three-dimensions of a two- dimensional work; or (C) depiction in two-dimensions of a three- dimensional work;
- to communicate the work to the public;
- to issue copies of the work to the public not being copies already in circulation;
- to include the work in any cinematograph film;
- to make any adaptation of the work;
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(vi) to do in relation to adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to
(iv);
(d) in the case of a cinematograph film,
- to make a copy of the film, including (A) a photograph of any image forming part thereof; or (B) storing of it in any medium by electronic or other means;
- to sell or give on commercial rental or offer for sale or for such rental, any copy of the film;
- to communicate the film to the public;
(e) in the case of a sound recording,
- to make any other sound recording embodying it including storing of it in any medium by electronic or other means;
- to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording;
- to communicate the sound recording to the public.
- In the present case, there is no dispute with the position that the petitioners are producers or purchasers, and thus, owners of the copyright in cinematograph films.
- The Proviso to Section 17 of the CR Act recognizes the independent http://www.judis.nic.in copyright of first owners of individual works incorporated in a film and reads thus:-
…Provided that in case of any work incorporated in a cinematograph work, nothing contained in clauses (b) and (c) shall affect the right of the author in the work referred to in clause (a) of sub-section (1) of section 13.
24. Sections 18 of the CR Act deals with assignment of copyright in the following terms:
18. Assignment of copyright. (1) The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof:
….
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(2) Where the assignee of a copyright becomes entitled to any right comprised in the
copyright, the assignee as respects the rights so assigned, and the assignor as respects
the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly.
(3) In this section, the expression assignee as respects the assignment of the copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the work comes into existence.
25. Sub-Section (2) recognizes the separate and concurrent rights of an assignor &
assignee in respect of the assets and underlying rights, assigned or retained, as the
case may be. Section 19 stipulates the mode of assignment stating that no assignment
of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent.
2 6 . T h e p r o v i s i o n s o f S e c t i o n 5 6 o f C R A c t a l s o m a k e s i t c l e a r t h a t a n http://www.judis.nic.in asset comprises of several components, each holding an independent copyright in its own right. The Section states thus:-
56. Protection of separate rights. Subject to the provisions of this Act, where the
several rights comprising the copyright in any work are owned by different persons,
the owner of any such right shall, to the extent of that right, be entitled to the
remedies provided by this Act and may individually enforce such right by means of
any suit, action or other proceeding without making the owner of any other right a party to such suit, action or proceeding….
27. A conjoint reading of the provisions of Sections 13, 14, 17, 18, 19 and 56 make it
clear that the term copyright denotes a specific and special right bestowed by statute.
It may relate to one of several kinds of creative inputs, the sum total of which/portions of which, may constitute different assets, each holding a different underlying copyright.
28. A cinematograph film, the asset that we are concerned with in the present batch
of cases, is perhaps one of the best illustrations of this concept.
The cinematograph film holds a copyright in its own right, as a whole. However, the film, as an asset, comprises of various smaller but equally important components, such as the script, screenplay, background score, song lyrics, melody, instrumentation, orchestration, the use of light and camera work, to name a few. While the sum total of these inputs results in a film, the copyright of which will be held by the producer, each component thereof carries an independent and distinct copyright. This has given rise to the expression, bundle of rights, as per which the film holds a copyright by itself and also comprises of small, but equally distinct rights within itself. It is the lack of http://www.judis.nic.in appreciation of the aforesaid point that, in my view, is the fundamental and fatal flaw in the impugned show cause notice and orders of assessment.
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29. I can do no better that to quote from the judgement of the Supreme Court in the case of Indian Performing Right Society Ltd. Vs. Eastern Indian Motion Pictures Association and Others [PTC (Suppl) (1) 877 (SC)], where Justice V.R.Krishna Iyer, in conclusion and to supplement the majority judgment, states thus:
22. A cinematograph is a felicitous blend, a beautiful totality, a constellation of stars,
if I may use these lovely imageries to drive home my point, slurring over the rule against mixed metaphor. Cinema is more. than long strips of celluloid, more than miracles in photography, more than song, dance and dialogue and indeed, more than dramatic story, exciting plot, gripping situations and marvellous acting. But it is that ensemble which is the finished product of orchestrated performance by each of the several participants, although the components may, sometimes, in themselves be elegant entities. Copyright in a cinema film exists in law, but Section 13(4) of the Act preserves the separate survival, in its individuality, of a copyright enjoyed by any ‘work’ notwithstanding its confluence in the film. This persistence of the aesthetic ‘personality’ of the intellectual property cannot cut down the copyright of the film qua film. The latter right is, as explained earlier in my learned brother’s judgment, set out indubitably in Section 14(1)(c)…
- It is thus, too well settled, that an asset, such as a cinematograph film, comprises of a bundle of rights. Setting this principle against the context and purpose of Section 65(105)(zzzzt), the right mentioned therein, relates to the right in the film as well as each of such rights comprised in the film. The interpretation accorded by the Department tends to ignore the fact that the taxable service under Service Tax Law is of any copyright denoting all rights, http://www.judis.nic.in that which vests in film as a whole, or any of the smaller but equally important rights comprised in the making of the film itself. The impugned notice and orders-in-original, to the extent to which they do not indicate appreciation as well as application of the aforesaid, are erroneous in law and are liable to be quashed.
- The respondent relies on the provisions of Section 21 of CR Act, extracted below:-
21. Right of author to relinquish copyright. (1) The author of a work may relinquish
all or any of the rights comprised in the copyright in the work by giving notice in the
prescribed form to [the Registrar of Copyrights or by way of public notice] and
thereupon such rights shall, subject to the provisions of sub-section (3), cease to exist
from the date of the notice.
(2) On receipt of a notice under sub-section (1), the Registrar of Copyrights shall cause it to be published in the Official Gazette and in such other manner as he may deem fit.
[(2-A) The Registrar of Copy rights shall, within fourteen days from the publication of the notice in the Official Gazette, post the notice on the official website of the Copyright Office so as to remain in the public domain for a period of not less than three years.] (3) The relinquishment of all or any of
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the rights comprised in the copyright in a work shall not affect any rights subsisting in favour of any person on the date of the notice referred to in sub-section (1).
32. The respondent appears to have entirely missed the ambit and scope of Section 21 extracted above. Section 21 deals with the relinquishment or the giving up of a right and not the assignment thereof. The two are different concepts. The assignment of a copyright is by way of transfer, dealt with under section 18 and 19 of the CR Act. On the other hand, sub-section (1) of Section 21 entitles the author to relinquish the whole or any part of the rights http://www.judis.nic.in comprised in the work. This cannot be equated with a transfer of a copyright which is what is dealt with under the Act for the purposes of levy of Service tax.
Reference to Section 21 by the respondents is wholly misconceived as it hardly comes to their aid. Rather, it supports the case of the petitioners as, incidentally, Section 21 itself provides for the entitlement of an author to relinquish his copyright specifically using the phrase all or any of the rights comprised in the copy rights in the work. This supports the conclusion that a work may either comprise of a single right or a bundle of rights, some that may be relinquished and others that are pursued and will survive.
33. The petitioners before me all confirm that the documentation entered into by them with Television Channels specifically uses the word perpetual and this is specifically and fairly admitted by Mr.Sundareshwaran.
Apparently, in such a case, the transaction clearly stands outside the ambit of service tax. The stand of the Department is that the use of the word perpetual is a mere camouflage. The Assessing Authority proceeds on the basis that the use of the words in perpetuity are not in consonance with the spirit of the agreement and is only used to disguise the actual fact that the transfer was temporary and to avoid tax. However, this is only a suspicion and nothing is brought on record to prove the allegation.
- As regards the use of the word revocable in some agreements, the argument of the petitioners that the revocability is solely restricted to those situations where the consideration for the right has not been remitted in full by the purchaser, appears, prima facie, reasonable and acceptable. It is, of course, http://www.judis.nic.in for the assessing officer to determine any aberrations or deviations, in fact, to the aforesaid submission in the course of assessment proceedings and consequently, either accept or reject the stand of the assessee on a case to case basis.
- An assessment under service tax law is to be based on material available on record and cannot base itself only upon suspicion. No doubt, the Department is empowered to pierce the veil and disprove the averments of an assessee, and to this effect, call upon the assessee to produce all material that the Department or assessee itself believes are necessary to establish its case. It is also entitled to go behind the apparent and assess a transaction as it really is, rather than what the contract/agreement portrays it to be. Though the initial burden is upon an assessee to establish the proper nature of a transaction and the stand taken by it in law and on facts, once it has done so, such burden then shift upon the department to disprove the picture painted by the assessee and establish
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the falsity of the agreement as well as the true nature of transaction entered into between the parties. This burden is not discharged in the present cases and the officers merely allege falsity without, in any manner, being able to disturb the transaction as portrayed by the petitioners.
36. This Court, in the case of Mrs.K.Bagyalakshmi v. Deputy Commissioner of Income Tax, Media Circle-I, Chennai (265 CTR 545), has decided the following substantial questions of law raised for its resolution in terms of Section 260-A of the Income Tax Act 1961:
- Whether on the facts and circumstances of the http://www.judis.nic.in case, the learned Income Tax Appellate Tribunal erred in upholding the disallowance under Section 40(a)(ia) of the Income Tax Act, 1961 as against the appellant?
- Whether the learned Income Tax Appellate Tribunal erred in failing to appreciate the proposition that a disallowance of expenses under Section 40(a)(ia) of the Income Tax Act, 1961 would not lie on payments already made?
- Whether the learned Income Tax Appellate Tribunal erred in concluding that the payments made by the appellant were tantamount to Royalty?
- Whether the learned Income Tax Appellate Tribunal erred in relying upon the decision of a Co- ordinate Bench of the Tribunal in the Shri Balaji Communications case?
- Whether the learned Income Tax Appellate Tribunals findings are perverse on the facts and circumstances of the case, and therefore liable to be set aside?
37. The Division Bench was concerned with the case of an individual who was carrying on business in purchase and sale of Telugu Films and whether she was liable to deduct tax at source under Section 194-J of the Act on the amounts paid for purchase of film rights. The case of the Department was that the amount paid for purchase of film rights was of the nature of royalty liable to deduction of tax at source under Section 194-J of the Act. The rights had been transferred by the petitioner for a period of 99 years and the assessee contended that the transfer for 99 years would constitute an outright sale of all rights in the film whereas the Department contended that the copy right in the film was itself only for a period of 60 years. While deciding this issue the Division Bench of this Court in Para-17 says as follows:
17.We have seen the various conditions contained in the sample transfer deed and there is a transfer of copy right in favour of the assessee. Though the agreement speaks of perpetual transfer for a period of 99 years, in terms of Section h t t p : / / w w w . j u d i s . n i c . i n 2 6 o f t h e C o p y R i g h t A c t , 1 9 5 7 , i n t h e c a s e o f cinematographic film, copy right shall subsist until 60 years from the beginning of the calendar year next following the year in which the film is published. Therefore, the agreement in the case on hand, is beyond the period of 60 years, for which the copy right would be valid, the document could only be treated as one of sale.
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- In the present case admittedly all agreements use the term perpetual transfer and some transfer the asset specifically for a period of 99 years, both in excess of the period of 60 years set out under the provisions of the CR Act. The assignment is, simplicitor, permanent/perpetual and seen not temporary. In this backdrop, the conclusion of the respondents to the effect that a perpetual transfer or a transfer for 99 years, though in excess of the period stipulated in the Act, is temporary, appears, to me, fundamentally unsound and defies logic.
- In fine, I am of the categoric view that the provisions of the CR Act have not been looked at or applied in the proper perspective in the impugned SCN/orders. In the light of the discussions and reasons as set out above I am inclined to set aside the impugned show cause notice (WP.No.30085 of 2018) and orders-in-original (WP.Nos.29206 & 14425 of 2018, 1199 & 5131 of 2019).
The Department is given full liberty to initiate proceedings afresh, bearing in mind the observations and conclusions as above, in accordance with law. The aspect of limitation shall also be gone into afresh bearing in mind the burden that is imposed upon the Department in terms of Section 73 and specifically the proviso thereto, in the facts and circumstances of the present assessees. The http://www.judis.nic.in writ petitions are allowed in the above terms. Consequently, connected miscellaneous petitions are closed with no order as to costs.
16.04.2019 Speaking Order Internet: Yes Index: Yes ska Issue order copy on 03/06/2019 http://www.judis.nic.in Dr.ANITA SUMANTH,J., ska To
- The Joint Director, O/o. The Directorate General of GST Intelligence, Chennai Zonal Unit, C-3 C-Wing, 2nd Floor, Rajaji Bhavan, Besant Nagar, Chennai 600 0902
- Additional Commissioner, O/o. The Commissioner of GST & Central Excise, Chennai South Commissionerate, No.692 M.H.U. Complex, Nandanam, Chennai 600 035
- Principal Additional Director General, Directorate General of GST Intelligence, Chennai Zonal Unit, C-3 C-Wing, II Floor, Rajaji Bhavan, Besant Nagar, Chennai 600 090
- The Principal Commissioner, Office of the Principal Commissioner of CGST & Central Excise, Chennai North Commissionerate, No.26/1 Mahathma Gandhi Road, Nungambakkam, Chennai – 600 034
- The Commissioner of GST & Central Excise, Chennai South, M.H.U. Complex No.692, 5th Floor, Anna Salai, Nandanam, Chennai 600 035 W.P.Nos.30085, 14425 & 29206 of 2018 5131 & 1199 of 2019 & WMP Nos. 35098, 17040 & 34134 of 2018 & 5849 & 1351 of 2019 http://www.judis.nic.in
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