Friday, September 10, 2010

SC: All payments made abroad not within ambit of withholding tax

All payments made abroad not within ambit of withholding tax, rules SC

NEW DELHI: The Supreme Court on Thursday rejected the income-tax department's contention that companies based in India were liable to deduct tax when they make any payment overseas, offering relief to domestic firms and multinational companies based here that would have had to cough up huge amounts as tax on payments made to overseas suppliers.

The apex court rejected the sweeping interpretation of law on withholding tax, or tax deducted from overseas payments. The judgement clears the air on the contentious issue and removes uncertainties faced by companies that have overseas dealing.

Taxation experts and companies welcomed the ruling. "The ruling settles the issue of withholding tax on payments made to non-residents," said Kaushik Mukherjee, partner at consulting firm PwC.

For GE, Samsung Electronics, Hewlett-Packard, Sonata Software and other firms, which had approached the Supreme Court against a Karnataka High Court decision, the issue is far from over. They will have to approach the high court to decide whether they will have to pay tax on payments made for shrink-wrapped software.

"Had the high court order been upheld, Sonata would have had to pay more than `200 crore to the income-tax department immediately," said B Ramaswamy, president and managing director, Sonata Software.

Sonata had made a financial disclosure for a contingent liability of Rs 252 crore. "The company's auditors would now take a call on how to treat it under the accounting standards," said N Venkatraman, head of strategic finance at Sonata.

The Karnataka High Court ruling had allowed the tax authorities to take a larger interpretation of a provision that any import from a non-resident is an income to the seller, hence the buyer needs to deduct tax. If the buyer does not want to withhold tax, he has to get an approval from a revenue officer, instead of an auditor at present.

In this particular issue the goods concerned were software and buyers of software, the concerned companies, assuming that tax was not to be withheld in India on the payments made to the supplies of software, made the payment without deducting the tax.

However, the tax authorities treated the payments as "royalty" which is taxable here since those software packages had "copyrights". The income tax department also declared that those who have not withheld taxes were "assessee in default" and hence liable to pay interest, penalty.

Samsung India was among the first batch of companies which had appealed against the I-T department's decision. The company even got relief from the Income-Tax Appellate Tribunal. But, the Karnataka HC reversed the ITAT judgement and accepted the contention of tax authorities opening a pandora's box with regard to taxation of overseas payments.

"The judgement has large ramifications not only on the applicability of withholding tax on payments towards packaged software but on cross-border payment towards goods or services," said Mukesh Butani, partner, BMR Legal.

The Thursday's judgement given by a bench comprising chief justice of India, justice S H Kapadia, and justice K S Radhakrisnan, has made it clear that withholding tax has to be deducted only if the non-resident's income was chargeable to tax in India.

Senior advocates including Fali S Nariman, Harish Salve, Atul Chitale and S Ganesh represented the companies while additional solicitor general V Tankha appeared for the income-tax department. Interestingly, the new Direct Taxes Code bill, that seeks to replace the present income tax act, has a provision in line with today's apex court's decision.


CIVIL APPEAL NOs.7541-7542 OF 2010
(Arising out of SLP(C) No. 34306-34307 of 2009)

GE India Technology Centre Private Ltd. .... Appellant(s)


Commissioner of Income Tax & Anr. ....Respondent(s)


Civil Appeal Nos.7543-7544/2010 @ S.L.P. (C)
Civil Appeal Nos.7545-7548/2010 @ S.L.P. (C)
Civil Appeal Nos.7549-7758/2010 @ S.L.P. (C)
Civil Appeal Nos.7759-7764/2010 @ S.L.P. (C)
Civil Appeal Nos.7765-7767/2010 @ S.L.P. (C)
Civil Appeal No.7768/2010 @ S.L.P. (C)
Civil Appeal No.7769/2010 @ S.L.P. (C)
Civil Appeal No.7770/2010 @ S.L.P. (C)
Civil Appeal Nos.7771-7772/2010 @ S.L.P. (C)
Civil Appeal No.7773/2010 @ S.L.P. (C)
Civil Appeal No.7774/2010 @ S.L.P. (C)
Civil Appeal Nos.7775-7776/2010 @ S.L.P. (C)
Civil Appeal No.7777/2010 @ S.L.P. (C)
No.13442/2010 and

Civil Appeal No.7778/2010 @ S.L.P. (C) No.16264/2010



1. Leave granted.

2. The short question which arises for determination

in this batch of cases is - whether the High Court was right

in holding that the moment there is remittance the

obligation to deduct tax at source (TAS) arises? Whether

merely on account of such remittance to the non-resident

abroad by an Indian company per se, could it be said that

income chargeable to tax under the Income Tax Act, 1961

(for short "I.T. Act") arises in India?

Facts in the leading case of Sonata Information
Technology Ltd.

3. Appellant(s) are the distributors of imported pre-

packaged shrink wrapped standardized software from

Microsoft and other Suppliers outside India. During the

relevant assessment year(s) appellant(s) made payments to

the said software Suppliers which according to the

appellant(s) represented the purchase price of the

abovementioned software. The ITO(TDS) held that since the

sale of software included a license to use the same,

payments made by the appellant(s) to the foreign Suppliers

constituted royalty, which was deemed to accrue or arise in

India. Therefore, TAS was liable to be deducted under

Section 195 of the I.T. Act. The said finding of the ITO(TDS)

was upheld by the Commissioner (A). In second appeal, the

ITAT, however, held that the amount paid by appellant(s) to

the foreign software Suppliers was not "royalty" and the

same did not give rise to any income taxable in India, and

therefore, the appellant(s) was not liable to deduct TAS.

4. The Department appealed to the Karnataka High

Court. Before the High Court, the Department for the first

time raised the contention that unless the payer makes an

application to the ITO(TDS) under Section 195(2) and has

obtained a permission for non-deduction of the TAS, it was

not permissible for the payer to contend that the payment

made to the non-resident did not give rise to "income"

taxable in India and that, therefore, there was no need to

deduct any TAS. This argument of the Department was

accepted by the High Court vide the impugned judgment.

For reaching this conclusion, the High Court placed strong

reliance on the judgment of this Court in Transmission

Corporation of A.P. Ltd. Vs. C.I.T. [239 ITR 587(SC)].

Aggrieved by the said decision, the appellant(s) has come to

this Court by way of civil appeal(s).

Analysis of Section 195

5. At the outset, we quote hereinbelow the relevant

provisions of Section 195, as it stood at the relevant time.

"195. (1) Any person responsible for paying to a non-
resident, not being a company, or to a foreign company, any
interest (not being interest on securities) or any other sum
chargeable under the provisions of this Act (not being
income chargeable under the head "Salaries") shall, at the
time of credit of such income to the account of the payee or
at the time of payment thereof in cash or by the issue of a
cheque or draft or by any other mode, whichever is earlier,
deduct income-tax thereon at the rates in force :
(2) Where the person responsible for paying any such
sum chargeable under this Act (other than interest on
securities and salary) to a non-resident considers that the
whole of such sum would not be income chargeable in the
case of the recipient, he may make an application to the
Assessing Officer to determine, by general or special order,
the appropriate proportion of such sum so chargeable, and
upon such determination, tax shall be deducted under sub-
section (1) only on that proportion of the sum which is so
(3) Subject to rules made under sub-section (5), any

person entitled to receive any interest or other sum on
which income-tax has to be deducted under sub-section (1)
may make an application in the prescribed form to the
Assessing Officer for the grant of a certificate authorizing
him to receive such interest or other sum without deduction
of tax under that sub-section, and where any such
certificate is granted, every person responsible for paying
such interest or other sum to the person to whom such
certificate is granted shall, so long as the certificate is in
force, make payment of such interest or other sum without
deducting tax thereon under sub-section(1)."

6. At this stage we may also quote hereinbelow Section

195 (6) as inserted by Finance Act, 2008 w.e.f. 1.4.2008.

"195(6) The person referred to in sub-section (1) shall
furnish the information relating to payment of any sum in
such form and manner as may be prescribed by the Board."

7. Under Section 195(1), the tax has to be deducted at

source from interest (other than interest on securities) or

any other sum (not being salaries) chargeable under the I.T.

Act in the case of non-residents only and not in the case of

residents. Failure to deduct the tax under this Section may

disentitle the payer to any allowance apart from prosecution

under Section 276B. Thus, Section 195 imposes a statutory

obligation on any person responsible for paying to a non-

resident, any interest (not being interest on securities) or

any other sum (not being dividend) chargeable under the

provisions of the I.T. Act, to deduct income tax at the rates

in force unless he is liable to pay income tax thereon as an

agent. Payment to non-residents by way of royalty and

payment for technical services rendered in India are

common examples of sums chargeable under the provisions

of the I.T. Act to which the aforestated requirement of tax

deduction at source applies. The tax so collected and

deducted is required to be paid to the credit of Central

Government in terms of Section 200 of the I.T. Act read with

Rule 30 of the I.T. Rules 1962. Failure to deduct tax or

failure to pay tax would also render a person liable to

penalty under Section 201 read with Section 221 of the I.T.

Act. In addition, he would also be liable under Section

201(1A) to pay simple interest at 12 per cent per annum on

the amount of such tax from the date on which such tax

was deductible to the date on which such tax is actually

paid. The most important expression in Section 195(1)

consists of the words "chargeable under the provisions of

the Act". A person paying interest or any other sum to a

non-resident is not liable to deduct tax if such sum is not

chargeable to tax under the I.T. Act. For instance, where

there is no obligation on the part of the payer and no right

to receive the sum by the recipient and that the payment

does not arise out of any contract or obligation between the

payer and the recipient but is made voluntarily, such

payments cannot be regarded as income under the I.T. Act.

It may be noted that Section 195 contemplates not merely

amounts, the whole of which are pure income payments, it

also covers composite payments which has an element of

income embedded or incorporated in them. Thus, where an

amount is payable to a non-resident, the payer is under an

obligation to deduct TAS in respect of such composite

payments. The obligation to deduct TAS is, however, limited

to the appropriate proportion of income chargeable under

the Act forming part of the gross sum of money payable to

the non-resident. This obligation being limited to the

appropriate proportion of income flows from the words used

in Section 195(1), namely, "chargeable under the provisions

of the Act". It is for this reason that vide Circular No. 728

dated October 30, 1995 the CBDT has clarified that the tax

deductor can take into consideration the effect of DTAA in

respect of payment of royalties and technical fees while

deducting TAS. It may also be noted that Section 195(1) is

in identical terms with Section 18(3B) of the 1922 Act. In

CIT Vs. Cooper Engineering [68 ITR 457] it was pointed

out that if the payment made by the resident to the non-

resident was an amount which was not chargeable to tax in

India, then no tax is deductible at source even though the

assessee had not made an application under Section 18(3B)

(now Section 195(2) of the I.T. Act). The application of

Section 195(2) pre-supposes that the person responsible for

making the payment to the non-resident is in no doubt that

tax is payable in respect of some part of the amount to be

remitted to a non-resident but is not sure as to what should

be the portion so taxable or is not sure as to the amount of

tax to be deducted. In such a situation, he is required to

make an application to the ITO(TDS) for determining the

amount. It is only when these conditions are satisfied and

an application is made to the ITO(TDS) that the question of

making an order under Section 195(2) will arise. In fact, at

one point of time, there was a provision in the I.T. Act to

obtain a NOC from the Department that no tax was due.

That certificate was required to be given to RBI for making

remittance. It was held in the case of Czechoslovak Ocean

Shipping International Joint Stock Company Vs. ITO [81

ITR 162(Calcutta)] that an application for NOC cannot be

said to be an application under Section 195(2) of the Act.

While deciding the scope of Section 195(2) it is important to

note that the tax which is required to be deducted at source

is deductible only out of the chargeable sum. This is the

underlying principle of Section 195. Hence, apart from

Section 9(1), Sections 4, 5, 9, 90, 91 as well as the

provisions of DTAA are also relevant, while applying tax

deduction at source provisions. Reference to ITO(TDS)

under Section 195(2) or 195(3) either by the non-resident or

by the resident payer is to avoid any future hassles for both

resident as well as non-resident. In our view, Sections

195(2) and 195(3) are safeguards. The said provisions are of

practical importance. This reasoning of ours is based on

the decision of this Court in Transmission Corporation

(supra) in which this Court has observed that the provision

of Section 195(2) is a safeguard. From this it follows that

where a person responsible for deduction is fairly certain

then he can make his own determination as to whether the

tax was deductible at source and, if so, what should be the

amount thereof.

Submissions and findings thereon

8. If the contention of the Department that the

moment there is remittance the obligation to deduct TAS

arises is to be accepted then we are obliterating the words

"chargeable under the provisions of the Act" in Section

195(1). The said expression in Section 195(1) shows that

the remittance has got to be of a trading receipt, the whole

or part of which is liable to tax in India. The payer is bound

to deduct TAS only if the tax is assessable in India. If tax is

not so assessable, there is no question of TAS being

deducted. [See : Vijay Ship Breaking Corporation and

Others Vs. CIT 314 ITR 309]

9. One more aspect needs to be highlighted. Section

195 falls in Chapter XVII which deals with collection and

recovery. Chapter XVII-B deals with deduction at source by

the payer. On analysis of various provisions of Chapter XVII

one finds use of different expressions, however, the

expression "sum chargeable under the provisions of the Act"

is used only in Section 195. For example, Section 194C

casts an obligation to deduct TAS in respect of "any sum

paid to any resident". Similarly, Sections 194EE and 194F

inter alia provide for deduction of tax in respect of "any

amount" referred to in the specified provisions. In none of

the provisions we find the expression "sum chargeable

under the provisions of the Act", which as stated above, is

an expression used only in Section 195(1). Therefore, this

Court is required to give meaning and effect to the said

expression. It follows, therefore, that the obligation to

deduct TAS arises only when there is a sum chargeable

under the Act. Section 195(2) is not merely a provision to

provide information to the ITO(TDS). It is a provision

requiring tax to be deducted at source to be paid to the

Revenue by the payer who makes payment to a non-

resident. Therefore, Section 195 has to be read in

conformity with the charging provisions, i.e., Sections 4, 5

and 9. This reasoning flows from the words "sum

chargeable under the provisions of the Act" in Section

195(1). The fact that the Revenue has not obtained any

information per se cannot be a ground to construe Section

195 widely so as to require deduction of TAS even in a case

where an amount paid is not chargeable to tax in India at

all. We cannot read Section 195, as suggested by the

Department, namely, that the moment there is remittance

the obligation to deduct TAS arises. If we were to accept

such a contention it would mean that on mere payment

income would be said to arise or accrue in India. Therefore,

as stated earlier, if the contention of the Department was

accepted it would mean obliteration of the expression "sum

chargeable under the provisions of the Act" from Section

195(1). While interpreting a Section one has to give

weightage to every word used in that section. While

interpreting the provisions of the Income Tax Act one cannot

read the charging Sections of that Act de hors the

machinery Sections. The Act is to be read as an integrated

Code. Section 195 appears in Chapter XVII which deals

with collection and recovery. As held in the case of C.I.T.

Vs. Eli Lilly & Co. (India) (P.) Ltd. [312 ITR 225] the

provisions for deduction of TAS which is in Chapter XVII

dealing with collection of taxes and the charging provisions

of the I.T. Act form one single integral, inseparable Code

and, therefore, the provisions relating to TDS applies only to

those sums which are "chargeable to tax" under the I.T. Act.

It is true that the judgment in Eli Lilly (supra) was confined

to Section 192 of the I.T. Act. However, there is some

similarity between the two. If one looks at Section 192 one

finds that it imposes statutory obligation on the payer to

deduct TAS when he pays any income "chargeable under the

head salaries". Similarly, Section 195 imposes a statutory

obligation on any person responsible for paying to a non-

resident any sum "chargeable under the provisions of the

Act", which expression, as stated above, do not find place in

other Sections of Chapter XVII. It is in this sense that we

hold that the I.T. Act constitutes one single integral

inseparable Code. Hence, the provisions relating to TDS

applies only to those sums which are chargeable to tax

under the I.T. Act. If the contention of the Department that

any person making payment to a non-resident is necessarily

required to deduct TAS then the consequence would be that

the Department would be entitled to appropriate the moneys

deposited by the payer even if the sum paid is not

chargeable to tax because there is no provision in the I.T.

Act by which a payer can obtain refund. Section 237 read

with Section 199 implies that only the recipient of the sum,

i.e., the payee could seek a refund. It must therefore follow,

if the Department is right, that the law requires tax to be

deducted on all payments. The payer, therefore, has to

deduct and pay tax, even if the so-called deduction comes

out of his own pocket and he has no remedy whatsoever,

even where the sum paid by him is not a sum chargeable

under the Act. The interpretation of the Department,

therefore, not only requires the words "chargeable under the

provisions of the Act" to be omitted, it also leads to an

absurd consequence. The interpretation placed by the

Department would result in a situation where even when

the income has no territorial nexus with India or is not

chargeable in India, the Government would nonetheless

collect tax. In our view, Section 195(2) provides a remedy

by which a person may seek a determination of the

"appropriate proportion of such sum so chargeable" where a

proportion of the sum so chargeable is liable to tax. The

entire basis of the Department's contention is based on

administrative convenience in support of its interpretation.

According to the Department huge seepage of revenue can

take place if persons making payments to non-residents are

free to deduct TAS or not to deduct TAS. It is the case of the

Department that Section 195(2), as interpreted by the High

Court, would plug the loophole as the said interpretation

requires the payer to make a declaration before the

ITO(TDS) of payments made to non-residents. In other

words, according to the Department Section 195(2) is a

provision by which payer is required to inform the

Department of the remittances he makes to the non-

residents by which the Department is able to keep track of

the remittances being made to non-residents outside India.

We find no merit in these contentions. As stated

hereinabove, Section 195(1) uses the expression "sum

chargeable under the provisions of the Act." We need to give

weightage to those words. Further, Section 195 uses the

word `payer' and not the word "assessee". The payer is not

an assessee. The payer becomes an assessee-in-default

only when he fails to fulfill the statutory obligation under

Section 195(1). If the payment does not contain the element

of income the payer cannot be made liable. He cannot be

declared to be an assessee-in-default. The abovementioned

contention of the Department is based on an apprehension

which is ill founded. The payer is also an assessee under

the ordinary provisions of the I.T. Act. When the payer

remits an amount to a non-resident out of India he claims

deduction or allowances under the Income Tax Act for the

said sum as an "expenditure". Under Section 40(a)(i),

inserted vide Finance Act, 1988 w.e.f. 1.4.89, payment in

respect of royalty, fees for technical services or other sums

chargeable under the Income Tax Act would not get the

benefit of deduction if the assessee fails to deduct TAS in

respect of payments outside India which are chargeable

under the I.T. Act. This provision ensures effective

compliance of Section 195 of the I.T. Act relating to tax

deduction at source in respect of payments outside India in

respect of royalties, fees or other sums chargeable under the

I.T. Act. In a given case where the payer is an assessee he

will definitely claim deduction under the I.T. Act for such

remittance and on inquiry if the AO finds that the sums

remitted outside India comes within the definition of royalty

or fees for technical service or other sums chargeable under

the I.T. Act then it would be open to the AO to disallow such

claim for deduction. Similarly, vide Finance Act, 2008,

w.e.f. 1.4.2008 sub-Section (6) has been inserted in Section

195 which requires the payer to furnish information relating

to payment of any sum in such form and manner as may be

prescribed by the Board. This provision is brought into

force only from 1.4.2008. It will not apply for the period

with which we are concerned in these cases before us.

Therefore, in our view, there are adequate safeguards in the

Act which would prevent revenue leakage.

Applicability of the judgment in the case of
Transmission Corporation (supra)

10. In Transmission Corporation case (supra) a non-

resident had entered into a composite contract with the

resident party making the payments. The said composite

contract not only comprised supply of plant, machinery and

equipment in India, but also comprised the installation and

commissioning of the same in India. It was admitted that

the erection and commissioning of plant and machinery in

India gave rise to income taxable in India. It was, therefore,

clear even to the payer that payments required to be made

by him to the non-resident included an element of income

which was exigilble to tax in India. The only issue raised in

that case was whether TDS was applicable only to pure

income payments and not to composite payments which had

an element of income embedded or incorporated in them.

The controversy before us in this batch of cases is,

therefore, quite different. In Transmission Corporation

case (supra) it was held that TAS was liable to be deducted

by the payer on the gross amount if such payment included

in it an amount which was exigible to tax in India. It was

held that if the payer wanted to deduct TAS not on the gross

amount but on the lesser amount, on the footing that only a

portion of the payment made represented "income

chargeable to tax in India", then it was necessary for him to

make an application under Section 195(2) of the Act to the

ITO(TDS) and obtain his permission for deducting TAS at

lesser amount. Thus, it was held by this Court that if the

payer had a doubt as to the amount to be deducted as TAS

he could approach the ITO(TDS) to compute the amount

which was liable to be deducted at source. In our view,

Section 195(2) is based on the "principle of proportionality".

The said sub-Section gets attracted only in cases where the

payment made is a composite payment in which a certain

proportion of payment has an element of "income"

chargeable to tax in India. It is in this context that the

Supreme Court stated, "If no such application is filed,

income-tax on such sum is to be deducted and it is the

statutory obligation of the person responsible for paying such

`sum' to deduct tax thereon before making payment. He has

to discharge the obligation to TDS". If one reads the

observation of the Supreme Court, the words "such sum"

clearly indicate that the observation refers to a case of

composite payment where the payer has a doubt regarding

the inclusion of an amount in such payment which is

exigible to tax in India. In our view, the above observations

of this Court in Transmission Corporation case (supra)

which is put in italics has been completely, with respect,

misunderstood by the Karnataka High Court to mean that it

is not open for the payer to contend that if the amount paid

by him to the non-resident is not at all "chargeable to tax in

India", then no TAS is required to be deducted from such

payment. This interpretation of the High Court completely

loses sight of the plain words of Section 195(1) which in

clear terms lays down that tax at source is deductible only

from "sums chargeable" under the provisions of the I.T. Act,

i.e., chargeable under Sections 4, 5 and 9 of the I.T. Act.

11. Before concluding we may clarify that in the present

case on facts the ITO (TDS) had taken the view that since

the sale of the concerned software, included a license to use

the same, the payment made by appellant(s) to foreign

Suppliers constituted "royalty" which was deemed to accrue

or arise in India and, therefore, TAS was liable to be

deducted under Section 195(1) of the Act. The said finding

of the ITO(TDS) was upheld by the CIT(A). However, in

second appeal, the ITAT held that such sum paid by the

appellant(s) to the foreign software Supplier was not a

"royalty" and that the same did not give rise to any "income"

taxable in India and, therefore, the appellant(s) was not

liable to deduct TAS. However, the High Court did not go

into the merits of the case and it went straight to conclude

that the moment there is remittance an obligation to deduct

TAS arises, which view stands hereby overruled.

12. Since the High Court did not go into the merits of

the case on the question of payment of royalty, we hereby

set aside the impugned judgments of the High Court and

remit these cases to the High Court for de novo

consideration of the cases on merits. The question which

the High Court will answer is -whether on facts and

circumstances of the case the ITAT was justified in holding

that the amount(s) paid by the appellant(s) to the foreign

software Suppliers was not "royalty" and that the same did

not give rise to any "income" taxable in India and, therefore,

the appellant(s) was not liable to deduct any tax at source?

13. Subject to what is stated hereinabove, we set aside

the impugned judgment(s) and remit these cases to the High

Court to answer the question framed hereinabove.

Accordingly, the appeal(s) filed by the appellant(s) stands

allowed with no order as to costs.

(S. H. Kapadia)

(K.S. Radhakrishnan)

New Delhi;
September 09, 2010


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