1.. 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)
2.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)
3.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
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