Section 195 Withholding Tax on Payments made to Non Residents

Freddy R Daruwala

“To Cut or Not to Cut, that is the question?

And suffer the slings and arrows of outrageous disallowances

Or Take Arms against a sea of penalties

And by litigating for long years, end them

Only until the law is amended with retrospective effect”

(with due apologies to William Shakespeare)

1. Introduction

The Bard of Avon, William Shakespeare might well have rephrased his famous lines in Hamlet as above had he been subject to the complexities of Withholding Tax (“WHT”) or Tax Deducted at Source (“TDS”) especially in relation to cross border payments. In this write up, the terms are used interchangeably though a significant difference is that WHT is a machinery provision for recovery of tax while TDS collection may also amount to an assessment in special cases relating to NRIs and FIIs.

In this sense the mnemonic equivalent of the abbreviation TDS, (tedious) would best describe this onerous section of the Income Tax Act 1961 relating to Tax deduction at source on payments to Non Residents.

.As with all sections relating to WHT, the government expects the payers of the specified sums to do its work (i.e. revenue collection) gratis, and if they delay or default in any way, impose onerous liabilities, including but not limited to disallowance of the deduction of the amount paid.

There is a now a phenomenal increase in cross border transactions both for trade as well as investment and due to the “flattening” of the world as eminent author Thomas Friedman calls it., Due to this section 195 of the Act is ever increasing in importance since it impacts nearly every commercial venture dealing in any cross border transactions, however miniscule, dealing with payments to Non Residents.

This section’s applicability has been further enhanced by two recent developments in this branch of law which virtually offer no alternative to a payer rather than to deduct tax or approach the assessing officer for a certificate under section 195(2)

These are:

• the Samsung case decision by the Karnataka High Court prima facie making it incumbent on every importer to withhold tax on import payments.

• the withdrawal of Circular No 23 of 1969 which unsettles established legal precedents and muddies the waters further.

Let us discuss the impact of this section with special emphasis on these two factors in the paragraphs that follow.

2. Objective and coverage of Section 195

The objective of section 195 is justifiable as it seeks to avoid a revenue loss as a result of tax liability in the hands of a foreign resident, by deducting the same from payments made to them at source. This will obviate the difficulty in chasing such foreign nationals for recovery of their tax dues subsequently, due to jurisdictional and other operational difficulties. Further most such foreign nationals are likely to have nil or at best very meager assets in India which may be totally inadequate to recover the tax dues.

Section 195 of the Income Tax Act 1961 is an answer to the above difficulty as it not only provides the mechanism for deduction of tax at source but also contains in a large measure the procedures to be followed in the mitigation of the same in genuine cases.

It is very pertinent to note that this section is wider in scope than all the other TDS sections insofar as all payers are covered and there is also no threshold exemption.

Section 195 as regards the payer of any sum chargeable to tax applies to any person unlike certain other sections relating to TDS and covers

• Individuals
• Hindu Undivided Families
• Firms and AOPs
• Non Residents
• Foreign Companies
• Persons having exempt income in India eg trusts and Non profit Organisations claiming exemption under sections 10 and 11 of the Income Tax Act
• Any other juristic person irrespective of whether such person has an income chargeable to tax in India or not

As regards the recipient of amounts, the section covers all Non residents in its ambit. Residents and Resident but not ordinarily resident tax status persons are not covered by the section

Some pertinent doubts that may arise in this context are as follows:

a)payment by an Indian Branch of a Foreign Company to its overseas Head Office

In this context CBDT Circulars 649/31.3.1993 and 740 /17.4.1996  give some clarification. Further the landmark Kolkota Tribunal judgment of ABN Amro Bank reported in 280 ITR 117 (Kol) also lays down the law that if a deduction for interest payment by a branch to overseas head office  is sought , then it is obligatory to deduct tax , since it presupposes a distinct Payer and Payee with separate identities and makes section 195 applicable.

b) payment by a Resident to an Indian Branch of a Foreign bank

This payment is squarely covered by CBDT Circular 20/3.8.1961 and there is no doubt that TDS has to be effected. the Payee may however apply to the Assessing Officer for Nil/ lower deduction under section 195(3). A precaution which would be advised here is that the payers of such sums like interest,bank charges etc.; (which are more often than not recovered by direct debits to their bank accounts) insist on a copy of the exemption certificate under section 195(3) from the Indian Branch of the Foreign Bank since there are a few foreign Banks which do not have a valid certificate at the time of effecting such debits

c)Payment by a resident to an agent of a non resident

This settled branch of law appears to have been overruled by the withdrawal of CBDT Circular No 23 of 1959. However one may take the help of the decisions in the Morgan Stanley case as well as the Ishikawajima Harima case 2007 158 Taxman 259 SC and come to a conclusion that the settled law in this regard remains the same. However the withdrawal of the above circular 23 of 1969 (which was binding on the department) will certainly foment disputes due to the I T Department taking a stand that all the payments would be subject to withholding unless an application under section section 195(2) is made.

d) Payment by the branch of an Indian Company located offshore to the Offshore branch of an Indian Bank

In this situation even if the amounts are not covered by the exception to section 9(1)  when interest is paid on funds for use outside India, the transaction is strictly between two residents (Indian Company and Indian Bank) and merely because it is being carried out on foreign soil will not change its character. Therefore section 195 will have no application and section 194A which specifically exempts such payments from the purview of WHT to Indian Banks will apply.

e)Payment of interest on listed  Indian Corporate Bonds  held by a Foreign Institutional Investor in dematerialized mode

This is another area where one may fall prey to the misconception that securities held in demat mode do not suffer WHT on their interest payments. This is a fallacy since the exemption on WHT on such interest is covered under section 193 which is applicable only to Indian residents. Thus the FII will have to suffer WHT since the interest paid on demat corporate listed securitiers will be out of the purview of section 193 and will be covered by section 195

This section will have an increased applicability after the Finance Act 2007 due to the proposed modification of the definition of India to cover the airspace above it with retrospective effect from 1976 as well as the non requirement of territorial nexus to constitute a business connection in India for any enterprise being proposed. The two developments listed above will also further enhance its applicability.

 f) Non resident in India paying interest to the Indian Branch of a foreign Bank

This payment will be squarely hit by the provisions of 195 and WHT will need to be affected (despite the procedural requirements of PAN,TDS returns etc.;) unless the foreign bank branch in India has obtained an exemption certificate under section 195 (3)

g) Payment to a resident agent of a Non resident Shipping company

It should be noted here that in case of a payment to Agents of a non resident Shipowner it is section 172 that will apply and not section 195 as a special provision will always override a general one . (Generalia specialibus non derogant)

3.Sums Covered under the scope of Section 195(1)

The general rules to be followed in this area may be outlined as follows:

• All sums bearing the character of Income chargeable to tax under the provisions of the Income Tax Act 1961  are covered

• All sums in which income can reasonably be expected to be embedded are covered.This rule follows the judgement in Transmissions corporation’s case 239ITR 587SC where the apex court has categorically ruled that a payer cannot sit in judgement  as to what proportion of the amount paid to the payee constitutes the income of the payee.

• A Corollary to the above rule is that if it cannot be determined with any certainity as to what part of the payment constitutes the income of the payee, then the payer is obliged to deduct tax on such gross amount. There are mitigation provisions by application to the respective assessing officer by both the payer as well as the payee in certain circumstances within the section itself

• Even payments made in kind are subject to TDS under Section 195 as ruled in Kanchenjunga Sea Foods reported in 265ITR 644 (AP)

• There is no obligation to deduct TDS on a payment made under the Decree of a court by a judgement debtor to a decree holder as decided in L P Gupta v Biratnagar Jute Mills reported in 48ITR 653

• There is no clear ruling on TDS in respect of Capital gains and one must take it up on a case to case basis.If no mitigation is available even after application by either the payer or the payee , after disclosing the quantum of Capital gains likely to be embedded in the payment , then TDS on the gross amount is advisable on the principle of ex abundant Cautela ie by way of abundant caution to mitigate the consequences of non deduction to the payer.

• TDS has to be effected even on net payments (TDS applicable on the gross amount) as decided in Raymond Ltd (86 ITD 791 Mum ITAT) or even on adjustment of dues (J B Boda & Co 223 ITR 271 SC)

• There is no liability to deduct TDS on a payment made  under a void agreement (absence of a contract) as held in Ericcson Communications  case 81 ITD 77 (Del ITAT)

4.Whether TDS needs to be affected on mere reimbursement of expenses

This is a question on which no clear direction is available and keeping in line with the general trend of tax judgments there are conflicting views held by the various courts and Tribunals in the country.

In the case of mere reimbursement of expenses, TDS need not be effected as ruled in the case of reimbursement of out of pocket expenses to a noted Law firm .Clifford Chance 82 ITD 106(Mum). The most important recent Judgement in Mahindra & Mahindra’s case reported in 10 SOT 896 Mumbai ITAT has also held that reimbursement of expenses not having the character of income chargeable to tax under the provisions of the IT Act cannot be subject to WHT

However where the cost of services is charged and recovered by way of reimbursement, even without any profit element TDS will be applicable as ruled in the case of Arthur Andersen & Co by the Mumbai tribunal reported in 94 TTJ 736 (Mum)

There are also judgements which reflect that TDS under Section 195 will be applicable even on mere reimbursement of expenses. This view finds support in the decisions given by Cochin Refineries 222 ITR 354 (Kar) and HNS VSAT Inc 95 ITD 157 (Del ITAT) and also in Hindalco 278ITR 125 (AT)

5.TDS on Royalty and Fees for Technical Services(“FTS”)

At the outset it should be noted that TDS on royalty and FTS will not only be dependent on the particular payment but will also be affected by the provisions of the relevant Double Tax Avoidance Agreement (“DTAA”) which India has with the country to which the payment is being made and the judicial decisions and the Advance rulings on the subject must be interpreted after considering this factor also.

Further the Apex court in the case of Tata Consultancy Services has also distinguished between the assignment of Copyright and the sale of a copyrighted article (ie a book or a CD containing software licenced to the purchaser). While in the former case,the payment will be in the nature of royalty and attract TDS in the latter case it will not being in the nature of the sale of goods.In the following decisions it was held that the transaction in question amounted to a mere sale of a copyrighted article and hence not liable to TDS

• Lucent Technologies Ltd 270 ITR 62 (Bangalore ITAT)

• Ericsson- Motorola –Nokia case 95 ITD 269 (Del ITAT)

Further it was also held that the mere payment of connectivity charges was not royalty or FTS and hence not liable to TDS as held in Skycell Communications Ltd 251 ITR 53 (MP)

Even payment made for  an access to a database on an overseas server will not attract TDS as held in Dun & Bradstreet Advance ruling reported in 272 ITR 99 (AAR)

FTS which covers only Fees for Included Services (“FIS”) in the relevant DTAA (eg USA) will attract TDS if the fees paid only fall under the definition of included services and not otherwise as held in the case of Calcutta Electric Supply Corporation Ltd 80 TTJ 806 (Kol). Such treaties usually have a “make available “ clause in the definition of FTS and the relevant treaty will have to be scrutinized in detail along with the nature of payment to determine whether TDS is applicable or not. The old adage that one man’s food is another mans poison may well apply here so that one man’s FTS is not taxable while the other ones may well be.

Payment for any subsidiary/ ancilliary services to sale of Capital equipment will also not attract TDS especially if the services payment is non severable and forms part of the main contract for the supply of Capital Goods (Hindalco Ltd 94 TTJ 944 (Mum). No discussion on this issue will be complete without some discussion on the Samsung case as decided by the Karnataka High Court

6. Samsung Case

In this landmark case, the Karnataka High Court has ruled that TDS u/s 195 is applicable on all payments of “shrink wrapped software” and further gone on to state that all payments to Non residents would need to suffer WHT and the only measure available to the payer of such sums to get out of this obligation would be to apply to the assessing Officer for a certificate of lower WHT under section 195(2).The position seems to have been further exacerbated with the withdrawal of the circular 23 of 1969 which had fettered the IT department from agitating on the issue of WHT on the payments which were covered within it. Transmissions corporation’s case 239ITR 587SC also seems to have been misconstrued by the Hon’ble High Court. This case also overturns the principle of the TCS case (supra) that sale of a shrink wrapped software amounts to the sale of a Copyrighted product and not to license of the copyright

Though the Apex Court has granted a stay of demand on this case, prima facie the payers of amounts to Non residents are a worried lot due to this decision as it has had the McDowell effect in the realm of TDS u/s 195.

Despite this aura of gloom, there are certain defenses which may be available to assesses and these are briefly discussed below

• Section 195(1) covers WHT on interest and other sums chargeable to tax under the provisions of this (the IT Act).With due respect to the bench, this fact emphasized above seems to have been totally ignored

• The Karnataka High Court in the earlier case of Jindal Power dealing with EPC contracts has categorically ruled that amounts not having the character of income are not subject to WHT u/s 195. This case was not cited during the hearing of the Samsung case and therefore the latter may be easily to have been decided per incuriam. Further there is a well settled principle of tax law that in case where there are two interpretations , the one favourable to the taxpayer will prevail

• Last but not least sec 195(6) gives the power to the CBDT to ask for information from persons effecting remittances offshore and in exercise of this power has prescribed Forms 15CA and 15CB (a CA’s certificate) as an alternative to section 195(2). This fact is not considered in the Samsung case

Though the above arguments will be far harder to sustain in areas subject to the jurisdiction of the Karnataka High Court, they do have some substance in cases where the I T department adopts a Procrustean approach (literally) to WHT post Samsung, which they are very likely to do.

Post Samsung, one would have expected the CBDT to issue a clarification (one way or the other) and removed the Damocles sword of TDS from over the assessee’s head.

 This they have not done and their wait and watch approach appears to exemplify Mark Antony’s classic line in Shakespeare’s Julius Caesar

“Mischief thou art afoot, Take what course thou wilt”

(upon inciting the plebians of Rome to revolt against Brutus and the other conspirators who assassinated Caesar)

7.Section 195, DTAA and Business Connection

One of the most complex situations may arise if one considers the warp and weft of the interplay of section 195 along with the provisions of a Double Tax Avoidance Agreement with the embroidery of Section 9 , dealing with Business Connection thrown in for good measure.

Initially one must consider the distinction between a legal liability to tax as opposed to a fiscal Liability. Even in this sphere there is no clarity. In Abdul Razzaq’s case 146 Taxman115 (AAR), it was held that a person was not entitled to claim the benefits of the  earlier Indo UAE Tax treaty since there was no liability to tax in the UAE , and hence the income would be subject to tax in India. However in another case of Green Emirates Shipping, the exact opposite was decided.  Currently there is a new India UAE DTAA in place which addresses this anomaly.

Another issue to be considered in this context is that taxability in the case of an airline and shipping Company is based on the theory of effective control also known as the “head & Brain” theory. The question of residence versus control and management is to be considered, Again a distinction needs to be made for effective management against mere operational management to determine the question of the situs of taxation .

Further the question of a Permanent Establishment (“PE”) as per the relevant DTAA and the attribution of income to it (different under various treaties) also needs to be considered

Taxability , if no DTAA  is subsisting, will depend on whether there is a business connection under section 9 of the act, as a business connection is wider in scope than a PE (Western Union’s case). Further the Apex court has  held that there needs to be a territorial nexus in order to constitute a PE as held in Ishiwajimakarma Harima industries case 2007 158 Taxman 259 SC.  The territorial nexus clause as a necessity for a business connection has been removed from Finance Act 2007 and the definition of India is also sought to be widened with the inclusion of the airspace.

8. Rate of Tax and point of deduction

The wording of section 195 specifies the “rates in force”. This term has been interpreted judicially to mean the lower of the rate between the Finance Act and the relevant DTAA . Further if the DTAA rate is applied and the term “income tax” is employed in the DTAA, it does not need to be augmented with any surcharge or Education cess as held in Srinivasan’s case reported in 83 ITR 346 SC.

In the case of a conflict in the intervening period between an old finance Act and a new Finance Bill , the rate more beneficial to the payee must be applied.

The next question  which arises is the point at which the TDS has to be effected. The law states that TDS has to be effected at the earlier of actual payment or credit. This would be tempered by the decision in IDBI’s case which makes the ascertainment of a definite payee  a precondition for effecting TDS. Thus mere credit to a general suspense account would not attract TDS. Certain decisions have held that TDS needs to be deducted only in the year of RBI approval Pfizer Ltd 259 ITR 391 (Mum)

9. Application for Exemption/ Mitigation of WHT

Section 195 is a self contained section and there are two different provisions for mitigation viz by the payer u/s 195 (2) and the payee u/s 195 (3)/section 197

The payer can make an application to his respective Assessing Officer seeking permission to effect nil or lower deduction on a certain payment with cogent reasoning for the same in the application.

Under Section 195 (3) there is also a provision for the payee making an application to its Assessing Officer for lesser rate of TDS or nil TDS . However this is limited by the conditions set out in rule 29B.

TDS wrongly deducted may be refunded in certain limited cases and after certain setoffs and CBDT Circular No 769/16.8.1998 deals with the conditions and procedure

An alternative mechanism has been provided by the CBDT in exercise of its powers conferred by section 195(6) which calls for uploading Form 15CA electronically and then submitting the electronic uploading acknowledgement along with Form 15CB duly certified by a Chartered Accountant for all offshore remittances. In case the C A certifying Form 15CB feels that no WHT is to be affected on the payment, provision for the same is also inbuilt (notwithstanding the Samsung ruling).The CBDT has further clarified that Form 15CB need not be certified by a CA in case of diplomatic/consular channel payments

10. Consequences for Non Deduction

As with other TDS defaults the consequences for Non deduction may be broadly classified as follows

a) Disallowances of the amounts paid under Section 40 (a) (i). It should be noted that the scope of the section dealing with payments to non residents is wider than that of 40 (a) (ia) which deals with residents. However there is no disallowance of any salary due to non deduction if the employee concerned pays the tax., but interest on the delayed period may be chargeable

b) Simple Interest at 12 % p a  u/s 201A (which is on a month to month basis after the Finance Act 2007)

c) Penalties for non deduction (u/s 271C) and failure to pay the deducted tax to the government (u/s 221)

d)Prosecution u/s 276B

Section 195 A provides for the grossing up of payments in case of Net Of Tax Payments. This is not applicable in case of Non monetary perquisites which are subject to TDS under section 192(1A). Further there is no gross up on Presumptive  tax as held in ONGC’s case in 264 ITR 340 (Uttaranchal)

11.Conclusion

Thus it is imperative for a payer to ensure that the provisions of section 195 are strictly followed in all payments to Non residents and the following rules would be helpful

If the amount of income embedded in a payment cannot be ascertained it is better to deduct based on the gross amount

In case of doubt, an application for mitigation of TDS under Section 195 (2) to the Payers assessing Officer must be made. The alternative route of the C A Certificate in form 15CB must be used in the same way as one gets into bed with a 900 pound gorilla i.e. with great care and caution. Only where there is strong justification and judicial support in the respective jurisdiction should this alternative be used. In Karnataka even if the payer is certain that no income element is embedded in the proposed payment it is advisable to use the 195(2) route until the Apex Court takes a view on the Samsung case.

The exact rate as determined by the application of a DTAA or the Act needs to be carefully determined

A point in note in this very important branch of law is that articles on the subject are ever increasing and interpretations multiplying with each passing decision.

The impending Direct Taxes Code will redraw the landscape in this important branch of law and in its present form is expected to foment litigation even more.

The following immortal words of LJ Denning in Seaford Court Estates v Asher may be referred to with profit while interpreting the scope of section 195(1)

“The English language is not an instrument of mathematical precision. …………….. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give "force and life" to the intention of the legislature………. A judge must not alter the material of which it (Section 195)is woven, but he can and should iron out the creases.”(emphasis supplied )