INTERNATIONAL FISCAL ASSOCIATION EA ST E R N R EG I O N C H A P T E R Taxation of Non Residents and TDS u/s 195 Recent Developments O N 3 r d J U LY 2 0 1 5 BY SUSHIL LAKHANI OVERVIEW Part A :Scope Of Income Of A Non-resident Part B : Overview Of Section 195 Part C: Remittance Certificate By CA 03/07/2015 SUSHIL LAKHANI 2 PART - A SCOPE OF INCOME OF A NON-RESIDENT SCOPE OF A INCOME OF A NON-RESIDENT 1.

Business Profits Taxable if Business Connection in India or property or asset or source in India or transfer of a capital asset situated in India. {New retrospective Explanations 4 and 5 to section 9(1)(i) for meaning of through and to cover indirect transfers} 2. Salaries Taxable if services are rendered in India [Section 9(1)(ii)] (Refer Eli Lilly 312 ITR 225 (SC)) 3. Dividends Taxable if paid by an Indian Company [Section 9(1)(iv)]- (At present exempt) 4. Capital Gains on Shares /

Property Taxable if situs of Shares / Property in India 5. Rental from Properties Taxable if situs of Property in India 6. Interest/Royalty/FTS Taxable if sourced from India 03/07/2015 SUSHIL LAKHANI 4 SCOPE OF A INCOME OF A NON-RESIDENT Business (Connection) Receipts of a non-resident: Taxability under the Act, U/s 9(1)(i) Taxability if business connection exists or if asset or source in India.(Vodafone (SC ) & E-Trade Mauritius (Bom) (HC))

Specific exclusions Explanation 1(b); 1(c) & 1(d) of Section 9(1)(i) Concept of Dependent Agent Included (Refer Speciality Mag. 274 ITR 310(AAR)) 03/07/2015 SUSHIL LAKHANI 5 SCOPE OF A INCOME OF A NON-RESIDENT Explanation 4 and 5 to section 9(1)(i) Explanation 4 :For the removal of doubts it is herby clarified that the expression through shall mean and include and shall be deemed to be always meant and included by means of, in consequence of, or by reason of Explanation 5: For the removal of doubts it is herby clarified that an asset or a capital asset being any share or interest in a company or entity registered or incorporated outside India shall be deemed to have been situated in India, if the shares or interest derives, directly or indirectly, its values substantially from the asset located in India 03/07/2015 SUSHIL LAKHANI 6

SCOPE OF A INCOME OF A NON-RESIDENT Interpretation of Section 9(1)(i) CIT Vs. R.D. Agarwal (56 ITR 20)(SC): SC observation regarding income arising from business connection (288 ITR 408 (SC)) Mere existence of a business connection may not result in income accruing or arising in India; Existence of a Permanent Establishment does not necessarily mean existence of business connection Where severable parts of a composite contract are performed in different jurisdictions, the principle of apportionment should be applied to determine profits taxable in each Jurisdiction. 03/07/2015 SUSHIL LAKHANI 7 SCOPE OF A INCOME OF A NON-RESIDENT Place Of Accrual (Section 5 & Section 9 Of The Act) : Accrue where service are utilized (SRK (230 ITR 206) (AAR), Wallace 278 ITR 97 (AAR), South West Mining 278 ITR 233 (AAR), Titan Industries 11 SOT 206 (Bang ITAT))

Accrue where the payer is situated (ABC 238 ITR 296 (AAR)) Accrue where right to receive income arose (Rajiv Malhotra 284 ITR 564(AAR)) Commission on export sales cannot be considered as accrued in India, since it is earned for rendering service outside India(Toshoku (125 ITR 525) (SC)) Source was sales outside India, since royalty was paid out of export sales (Aktiengesellschaft (125 Taxman 928(Mad) ) Source was outside India where entire income has been earned from non-resident through activities carried on outside India(Lufthansa Cargo 91 ITD 133 (Delhi)) 03/07/2015 SUSHIL LAKHANI

8 SCOPE OF A INCOME OF A NON-RESIDENT Place Of Accrual (Section 5 & Section 9 Of The Act) Contd. Decision of the SC in Ishikawajima-Harima Heavy Industries case (288 ITR 408): Offshore services to be regarded as accruing in India if rendered in India as well as used in India There must be sufficient territorial nexus to warrant imposition of tax Explanation to section 9 (as amended by Finance Act 2010 w.e.f. 01.04.1976) Purportedly to give legal sanctity to the source rule Royalty/FTS deemed to accrue or arise in India shall be included in the total income of a non-resident whether or not the non-resident has a residence or place of business or business connection in India or services rendered in India Implications of amendment in section 9 on Treaty?? 03/07/2015 SUSHIL LAKHANI 9 SCOPE OF A INCOME OF A NON-RESIDENT Business Income (of NR) Off-shore Supply: (288 ITR 408 (SC))

If title to goods passed outside India & payment outside India not taxable. Signing in India not relevant. Performing of certain activities in India (loading, unloading, inland transportation) not relevant. Payments to Foreign Agents Operation outside India ( CBDT Circulars 23 & 786), Model Exims [2014] 42 446 (Allahabad) Not taxable in India (125 ITR525 (SC),(267 ITR725) Contrary view taken by AAR in case of Wallace Pharma (278 ITR 97) & Rajiv Malhotra 284 ITR 564 (AAR) Marketing Survey Services and identifying potential customersis consultancy services(39 50 ) (Cochin Tribunal) 03/07/2015 SUSHIL LAKHANI 10 SCOPE OF A INCOME OF A NON-RESIDENT Royalties & FTS: Sec. 9(1)(vi) & Section 9(1)(vii): These sub-sections override Sec. 9(1)(i) (167 ITR 884) Difference between Royalty & FTS

Royalty - Act Vs. Treaty FTS - Act Vs. Treaty Make available definition of FTS TDS where FTS Article is missing in Treaty 03/07/2015 SUSHIL LAKHANI 11 SCOPE OF A INCOME OF A NON-RESIDENT Source rule u/s 9 Section 9(1)(vi)/(vii) of the Act deem royalty/FTS to accrue or arise in India where it is: Payable by the Government Payable by resident unless it is payable in respect of any right, property or information used or services utilized: for the purpose of or in the business or profession carried on by such resident outside India or for the purpose of making or earning any income from any source outside India Payable by non-resident only if it is payable in respect of any right, property or information used or services utilized: for the purpose of or in the business or profession carried on by such nonresident in India or for the purposes of making or earning any income from any source in India Royalty / FTS income is taxable in India if service is used/ utilise

Place of rendering service not relevant (GVK Industries(2015) 54 Taxm 03/07/2015 SUSHIL LAKHANI 12 SCOPE OF A INCOME OF A NON-RESIDENT Source Rule (Contd) Source Rule Under Article 10,11 & 12 of the Treaty Interest, Royalty & FTS are deemed to arise in India only if: Payer is a resident of India or Payer has a PE in India in Connection with which the liability to pay interest, royalty or FTS has arisen and Such payment is borne by the PE. 03/07/2015 SUSHIL LAKHANI

13 SCOPE OF A INCOME OF A NON-RESIDENT Royalties And FTS (contd) Consideration for designs & drawings outright purchase not royalty (190 ITR 626) (Pfizers Case (271 ITR 101(AAR)) contrary (94 ITD 211), Heubach Colour (P.) Ltd. ([2015] 54 377 (Ahmedabad - Trib.)) when it forms part of composite contract for supply of machines (243 ITR 459; 259 ITR 248; 255 ITR 354) (contrary 271 ITR 193(AAR) & 279 ITR 165 (AAR)) Services provided in course of business not FTS (237 ITR 142) (contrary 271 ITR 193(AAR) & 279 ITR 165 (AAR)) Payment for initial know-how rendered from abroad (148 ITR 774; 145 ITR 84; 143 ITR 720; 164 ITR 419 & 224 ITR 724 (SC)) 03/07/2015 SUSHIL LAKHANI 14 SCOPE OF A INCOME OF A NON-RESIDENT Royalties & FTS (Sec. 9(1)(vi) & Sec. 9(1)(vii) New Explanations 4, 5 and 6 to section 9(1)(vi) Explanation 4: For the removal of doubts it is hereby clarified that the transfer of all or any

rights in respect of any such a right, property or information includes and has always included transfer of all or any right for use or right to use a computer software (including granting of a license) irrespective of the medium through which such right is transferred. Explanation 5 : For the removal of doubts it is hereby clarified that royalty includes and has always included consideration in respect of any right, property or information whether or not The possession or control of such a right, property or information is with the payer such a right, property or information is used directly by the payer The location of such a right, property or information is in India Explanation 6.For the removal of doubts, it is hereby clarified that the expression process includes and shall be deemed to have always included transmission by satellite (including up-linking, amplification, conversion for down-linking of any signal), cable, optic fibre or by any other similar technology, whether or not such process is secret;. 03/07/2015 SUSHIL LAKHANI 15 SCOPE OF A INCOME OF A NON-RESIDENT

Royalties And FTS (Contd) Software / E-Commerce Payments License to use Software or for electronic downloading of computer programs / digital content may give rise to use of copyright as per Copyright Act. Is it, thus, covered in royalty? The Test (OECD / IRS View) : What is the consideration for ? if for rights to use copyright then royalty; if use of copyright only incidental, then business profits; if for a copyrighted article then business profits; 03/07/2015 SUSHIL LAKHANI 16 SCOPE OF A INCOME OF A NON-RESIDENT Royalties And FTS (contd) The Test (OECD / IRS View) : What is the consideration for ? (Contd)

if for rights in the copyright i.e. for transfer of ownership then Business Income or Capital Gains. if for rights in relation to copyright to use & make copies for operation only within its business then business profits. if Capital Gains a Mixed Payment i.e. sale of hardware with embedded software then break-up unless one part is the dominant part & other parts are ancillary. 03/07/2015 SUSHIL LAKHANI 17 SCOPE OF A INCOME OF A NON-RESIDENT Purchase of Software.. Embedded in hardware Sold As Copyrighted Article Not Royalty. If software is supplied along with hardware as part of the equipment

software is an integral part of the supply of equipment there is no separate sale of software As decided in Ericsson( 343 ITR 470), AKTIENGESELLSCHAFT (ITA No 4502/Mum/2009). SIEMENS Implications of New Explanation 4 to Section 9(1)(vi) 03/07/2015 SUSHIL LAKHANI 18 SCOPE OF A INCOME OF A NON-RESIDENT Sold As Copyrighted Article : Held As Not Royalty: Velankani Mauritius v. DDIT (ITAT Bangalore), Kansai Nerolac Paints v. ADIT (ITAT Mumbai) & Dassault Systems 229 CTR 105 (AAR) it has been held following Tata Consultancy Services 271 ITR 401 (SC) that : Income from software supply is not royalty but is business profits & not chargeable to tax in the absence of a PE Delhi High Court in case of Infrasoft ltd (39 88) held:

What was transferred was neither the copyright in the software nor the use of the copyright in the software, but what was transferred was the right to use the copyrighted material or article which was distinguishable from the rights in a copyright. The right that was transferred was not a right to use the copyright but was only limited to the right to use the copyrighted material and the same would not give rise to any royalty income and would be business income. The view has been affirmed by Delhi Tribunal in the case of Aspect Software Inc v. ADIT (2015) (Delhi)(Trib.) 03/07/2015 SUSHIL LAKHANI 19 SCOPE OF A INCOME OF A NON-RESIDENT Sold As Copyrighted Article Held as Royalty In case of Synopsys & Samsung ( 203 Taxmann477) Karnataka High Court held Software purchase are for certain rights in the copyrights & meets the definition of royalty as per applicable Treaty as well as under the act. right to make a copy of the software and storing the same in the hard

disk of the designated computer and taking backup would amount to copyright work Samsung Verdict. Mumbai ITAT in case of Reliance Infocom explained It is well settled that copyright is a negative right. It is an umbrella of many rights and licenses granted for making use of the copyright in respect of software. Therefore, the contention of the taxpayer that there is no transfer of copyright or any part thereof under the agreements with the non-resident supplier of software cannot be accepted In the current case before ITAT, software was supplied separately and not as embedded software along with equipment and hence payments in this case amounts to Royalty 03/07/2015 SUSHIL LAKHANI 20 SCOPE OF A INCOME OF A NON-RESIDENT Payment for use of electronic data base Gartner v. ADIT 37 16, Wipro Ltd v. ITO 94 ITD 9 (Blr) & DCIT v. Infosys Technologies Ltd, HEG (263 ITR 230)

Payment for online data processing Favorable : Kotak Mahindra Primus Ltd. v. DDIT 105 TTJ 578 (Mum) Contrary : In re. Cargo Community Network Pte Ltd 289 ITR 355 (AAR) On-line data Access/processing Neither Royalty nor FTS (Mumbai ITAT in Kotak Security (unreported) Contrary view: 238 ITR 296(AAR) Connectivity payment Standard facilities - (Wipro (80 TTJ 191); Skycell (251 ITR 53)) Satellites (Asiasat (85 ITD 478)(Del), & (Raj TV (Unreported) Implications of New Explanation 6 to section 9(1)(vi) India considers payments for roaming calls, spectrum license, leasing of transponder as Royalty Indias position on OECD Commentary. 03/07/2015 SUSHIL LAKHANI

21 SCOPE OF A INCOME OF A NON-RESIDENT E Commerce : Right Florists (P.) Ltd. (32 99) It is the Web-server and not the Website which constitutes a Permanent Establishment examined only on the basis of website simplicitor and no other additional basis. eBay International AG (140 ITD 20) User Fees paid by Indian users of website cannot be characterised as Fees For Technical Services Pinstorm (2012) and Yahoo India (2011) Whether payments for keyword advertising are for use of equipmentHeld No 03/07/2015 SUSHIL LAKHANI 22 SCOPE OF A INCOME OF A NON-RESIDENT Royalties And FTS (Contd) Payments for repairs Sahara Airlines (79 TTJ 268) [ Specialized Repairs FTS ]

Lufthansa Cargo (91 ITD 133 (Delhi)) [ General repairs Not FTS ] Airport Authority of India (273 ITR 437) Contrary view Mannesmann Demag (26 ITD 198) Payments for testing charges Maruti Udyog Ltd. (34 SOT 480)(Delhi ITAT) South West Mining Ltd (278 ITR 233) Ashapura Minichem (ITAT Mumbai) Payments to Credit Rating Agency Taxable as royalty under the Treaty as held in (Essar Oil)(4 SOT 161 / Mum) Payment for services related to GDR Issue (80 TTJ 120, 30 SOT 374, 34 SOT 187) Success Fees For Arranging Loans held Fees For Technical Services (GVK Industries(2015) 54 Taxmann.com347(SC)) 03/07/2015 SUSHIL LAKHANI 23 SCOPE OF A INCOME OF A NON-RESIDENT Make Available Meaning

Included Services defined narrowly to mean services which make available technical knowledge, experience, skill, know-how or processes or which consist of development and transfer of technical plan or technical design MoU of the India USA Tax Treaty: Technology will be considered "made available" when the person acquiring the service is enabled to apply the technology Provision of requiring technical input by the person providing the service does not per se mean that technical knowledge, skills, etc., are made available Use of a product which embodies technology shall not per se be considered to make the technology available If the services do not make available technical knowledge, etc., then, they are outside the ambit of FIS Article and not taxable 03/07/2015 SUSHIL LAKHANI 24 SCOPE OF A INCOME OF A NON-RESIDENT Make Available (Contd) Services regarded as make available: Providing technical plan, design and information to enable recipient to execute and install the water features [Gentex Merchants (P) Ltd. 94 ITD 211 (Kol)] Technical assistance to enable recipient to design, construct and operate a plant to manufacture aluminum and training for application of technical know how

[Hindalco Industries Ltd. v. ACIT 94 ITD 242 (Mum)] Preparing a bankable project report with complete details and vetting a project report to enable the service recipient to raise a foreign loan for its project [ITO v. Sinar Mas Pulp & Paper (India) Ltd. 85 TTJ 794 (Del)] 03/07/2015 SUSHIL LAKHANI 25 SCOPE OF A INCOME OF A NON-RESIDENT Make Available (Contd) Services not regarded as Make Available Services of preparing material safety data sheets in EU format which contained information required as per EU regulations [Nocil v. DCIT 96 TTJ 765 (Mum)] Strategy consultancy services such as marketing and sales strategy, business strategy and portfolio strategy [DCIT v. Boston Consulting Group Pte Ltd 93 TTJ 293 (Mum), 99 ITD 549 (Mum), 39 SOT 187 (Mum)] Services which are of general nature & which dont result into transfer of technology fall outside the purview of make available [Veeda Clinical Research (Ahmedabad ITAT) (35 577)] Repair of software [In re. Airports Authority of India 273 ITR 437 (AAR)] Surveillance for the purpose of ISO certification [NQA Quality Systems Registrar Ltd. v. DCIT 92 TTJ 946 (Del)] Managerial Services Not Make available [(80 TTJ 120)(Mum), (242 ITR 208 (AAR)) & (99 TTJ 857/Mum)]

03/07/2015 SUSHIL LAKHANI 26 SCOPE OF A INCOME OF A NON-RESIDENT FTS to have HUMAN ELEMENT.. In case of Bharti (319 ITR 139) , it was held the words "technical services" have to be read in the narrower sense by applying the rule of noscitur a sociis, particularly, because the words "technical services" appear in between the words "managerial and consultancy services 03/07/2015 SUSHIL LAKHANI 27 REIMBURSEMENT Nature of Expenses Case law in Favour of Assessee Case law in against the

Assessee Reimbursement of C U Inspections India Pvt Ltd. Cost of services of (Mum ITAT) (ITA Third Party engaged by No.577/Mum/2011) Non Resident Nathpa Jhakri Joint Venture 37 SOT 160 (Mum) Wallace Pharmaceuticals P Ltd 278 ITR 9 (AAR) Madicon Network P Ltd 14 SOT 204 (Del) Reimbursement of allocated cost 03/07/2015 CIT vs. Dunlop Rubber Co. Ltd., (1983) 142 ITR 493 (Cal.) ABB Limited (2010) 322 ITR 564 (AAR) A.P. Moller Maersk A/S. (Bom.)

SUSHIL LAKHANI Danfoss Ind. 268 ITR 1 (AAR) 28 Nature of Expenses Case law in Favour of Assessee Case law in against the Assessee Payment for services rendered at cost Timken India Ltd - 273 ITR 67 (AAR) A. T. & S India (P.) Ltd. 58 73 (Kolkata - Trib.) Telco Ltd - 245 ITR 823 (Bom) AT&S P Ltd 157 Taxman 198 (AAR) Reimbursement Reimbursement of incidental expenses in

addition to payments of Royalty & FTS Industries Engg Project (P) Ltd - 202 ITR 1014 (Del) 03/07/2015 Bovis Land Lease 36 SOT 166 (Bang) Clifford Chance - 82 ITD 106 (Mum) Ashok Leyland - 120 ITD 14 (Chennai) Mahindra and Mahindra Ltd - 1 SOT 896 (Mum) SRK Consulting - 230 ITR 206 (AAR) Fortis Healthcare Ltd - 45 SOT 190 (Chd) Reimbursement of living allowance, etc of a person deputed to India by the non-resident

CSC Singapore Pte Ltd - 2012-TII-35ITAT-DEL-INTL (Del) BHEL - 252 ITR 218 (Del) Goslino Mario - 241 ITR 312 (SC) Morgenstern Werner - 233 ITR 751(All) HCL Info System (274 ITR 261 (Delhi) SUSHIL LAKHANI Cochin Refineries Ltd ITR 354 (Ker) 222 Centerica Offshore (44 300 (Delhi) 29 PART - B OVERVIEW OF SECTION 195 RELEVANT PROVISIONS : Section Provisions

195(1) Scope and conditions of applicability 195(2) Application by the payer to the AO 195(3) Application by the payee to the AO 195(4) Validity of certificate issued by the AO 195(5) Powers of CBDT to issue Notifications 195(6) Furnish the information relating to the payment of any sum 195(7) Power of CBDT to specify class of persons or cases where

application to AO u/s 195(2) compulsory. 195A Grossing up of tax 206AA Permanent Account Number 90 (2) Act or Treaty whichever more beneficial to non-resident 90 (4) Tax Residency Certificate 03/07/2015 SUSHIL LAKHANI 31 SCOPE OF SECTION 195 (1): Any person responsible for paying To a non-resident

Or a Foreign Company Any interest or any other sum Chargeable to tax under the provisions of this Act 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 03/07/2015 SUSHIL LAKHANI 32 SECTION 195(1) (CONTD.) 03/07/2015 What is covered Any int. or any other sum chargeable to tax under the provisions of this Act

Who are covered Any person responsible for paying to Non-Resident or a foreign company When it is applicable At the time of credit or at the time of payment whichever is earlier 125 ITR 525; 211 ITR 256; SUSHIL LAKHANI 33 AN OVERVIEW OF TDS U/S. 195 (Cont..) Section 195(1) contd. Any Person making payment -------- --Scope of ? New Explanation 2 added retrospectively: For the removal of doubts, it is herby clarified that the obligation to comply with section 195 sub section (1) and to make deduction thereunder applies and shall be deemed to have always applied and

extends and shall have deemed to be always extended to all persons, residents or non-residents, whether or not the non-resident person has A residence or place of business connection in India; or Any other presence in any manner whatsoever in India. 03/07/2015 SUSHIL LAKHANI 34 AN OVERVIEW OF TDS U/S. 195 (Cont..) Section 195(1) Contd Any sum chargeable to tax means GE India Technology Centre (234 CTR 153) (SC) The moment there is a remittance out of India, it does not trigger Sec 195. The payer is bound to deduct tax only if the sum is chargeable to tax in India read with sec 4, 5 and 9. Sec 195 not only covers amounts which represents pure income payments but also covers composite payments which has an element of income embedded in them However, obligation to deduct TDS on such composite payments would be limited to the appropriate proportion of income forming part of the gross sum 03/07/2015

SUSHIL LAKHANI 35 AN OVERVIEW OF TDS U/S. 195 (Cont..) Section 195(1) any Sum Chargeable scope of? Chargeability to tax governed by provisions of Act/DTAA Nature of Income Act* Treaty Business/Profession S. 9(1)(i) A.5, A.7 & A.14 Salary Income S. 9(1)(ii) A.15 Dividend Income

S. 9(1)(iv), S.115A A.10 Interest Income S. 9(1)(v), S.115A A.11 Royalties S. 9(1)(vi), S.115A A.12 FTS S. 9(1)(vii), S.115A A.12 Capital Gains S. 9(1)(i), S.45 A.13

* Apart from S.5, wherever applicable ACT/DTAA, whichever is beneficial prevails 03/07/2015 SUSHIL LAKHANI 36 AN OVERVIEW OF TDS U/S. 195 (Cont..) Section 195(1) Any Sum Chargeable Contd Tax withholding from payment in kind Kanchanganga Sea Foods Ltd. (325 ITR 540) (SC) Payments by one non-resident to another non-resident inside / outside India ? (Asia Sat (85 ITD 478(Del)); Vodafone, [White Consolidated Ind. Inc (ITA 250 of 1995 (AAR)) & AP Power (105 ITD 423) for noncompliance by a NR of TDS provisions if recipient pays advance tax) Sec 195 applies w.r.t. Payments made to a foreign company (2(23A)) which is resident in India (ITO v. Intel Tech India Pvt. Ltd.) Payment of sum exempt under sec 10 should not be subject to TDS (Hyderabad Industries Ltd. 188 ITR 749 Kar) 03/07/2015 SUSHIL LAKHANI 37

AN OVERVIEW OF TDS U/S. 195 (Cont..) Issues --- Sec 195 (1) Can one rely on the residential status of the previous year? (218 ITR 413 (AAR); 212 ITR 275 (AAR)) Income to FII Section 196D & not Section 195. 03/07/2015 SUSHIL LAKHANI 38 AN OVERVIEW OF TDS U/S. 195 (Cont..) Issues --- Sec 195(1) Cont Payments by a Branch of a foreign entity to its HO or other Branches ? (Circular 740 & Circular 649, Sumitomo Mitsui Banking Corpn. ( 26 111 (Mum)), Mizuho Corporate Bank Ltd. (24 268 (Mum)),ABN Amro Bank (198 Taxman 376 (KOL); Dresdner Bank (11 SOT 158 (Mum)) DCIT v British Bank of Middle East (2008) 19 SOT 730 ) Payments by a resident to a branch in India of a foreign entity say Citibank? (Circular No. 20 dt. 3.8.1961) Payment made to a Foreign branch of an Indian Company is a payment to a Resident only Payments by a resident to an agent (U/s. 163) of non-resident ? (35 ITR 134). 03/07/2015

SUSHIL LAKHANI 39 AN OVERVIEW OF TDS U/S. 195 (Cont..) Time of deduction: Twin conditions for attracting section 195 For payer credit or payment of income For payee Sum chargeable to tax in India 03/07/2015 SUSHIL LAKHANI 40 AN OVERVIEW OF TDS U/S. 195 (Cont..) Time of deduction Contd: On credit or payment whichever is earlier (125 ITR 525; 211 ITR 256; 267 ITR 727) Merely on the basis of a book entry passed by the payer no income accrues to the non-resident recipient - ITO Vs. M/s. Pipavav Shipyard Ltd. Mumbai ITAT - ITA No. 2603/Mum/2011 Exception for interest payment by Government or PSB. When FEMA/RBI approval awaited ? (211 ITR 256; 249 ITR 141; 259 ITR 391)

TDS when adjustment of amount payable to a non-resident against dues i.e. when no payment no credit ? (223 ITR 271) Dividend is declared but not paid pending govt. approval, accrues in the year of payment (Pfizer Corporation v. CIT (2003) 259 ITR 391 (Bom). 03/07/2015 SUSHIL LAKHANI 41 AN OVERVIEW OF TDS U/S. 195 (Cont..) Time of deduction Contd: If no income accrues to non-resident although accounting entry incorporating a liability is passed no TDS. ( UB Ltd. Vs. DCIT 211 ITR 256 (Kar.)) Payee should be ascertainable. (IDBI V. ITO 107 ITD 45 (Mum)) Time of Deduction from the point of view of the payer and not payee. Relevant in cases where one of them maintain the books on cash basis and the other on accrual basis (C.J. International Hotels 91 TTJ (Del) 318)) Year of accrual of income in the hands of the non-resident or the year of chargeability of income in the hands of the non-resident is irrelevant (Broadcom India Research (P.) Ltd. 55 456 (Bangalore - Trib.)) 03/07/2015 SUSHIL LAKHANI 42

AN OVERVIEW OF TDS U/S. 195 (Cont..) Rates in force (Section 2(37A)(iii); Circular 728 & 740) Is surcharge to be added to Treaty rates ? Is Education Cess to be added to Treaty rates? (33 252) ( 22 310) Section 44D/44DA read with 115A Section 44B-Non-resident in shipping business (7.5% DPR) Section 44BB-Non-residents business of prospecting. Etc of mineral oil (10% DPR) Section 44BBB-Non-resident civil construction business in certain turnkey power projects (10% DPR) Presumptive provisions (44B, 44BB, 44BBB etc). 03/07/2015 SUSHIL LAKHANI 43 EXCHANGE RATE APPLICABLE Rule 26 TDS to be deducted

On income payable in foreign currency Value of rupee shall be SBI TT buying rate on the date on which tax is required to be deducted Rule 115 Rate of exchange of income in foreign currency shall be SBI TT buying rate as follows: Income from salaries, int. on securities, Profits and gains from shipping business, dividend and capital gains Last day of the month immediately preceding the month in which the income is due Income form house property, profits and gains of business or profession and other sources 03/07/2015

Last day of the previous year of the assessee SUSHIL LAKHANI 44 AN OVERVIEW OF TDS U/S. 195 (Cont..) Tax Residency Certificate (Section 90(4)) Finance Act,2012 has introduced sub-section (4) to Section 90 w.e.f. 14-2013 to provide that a non-resident will not be entitled to claim benefits under the Treaty unless he obtains a tax residency certificate from the Government of his residence country/territory certifying that he is a tax resident of that country. The requirement applies to all Non Residents, whether Individuals, Companies, LLPs, etc., irrespective of the quantum of relief to be obtained. 03/07/2015 SUSHIL LAKHANI 45

AN OVERVIEW OF TDS U/S. 195 (Cont..) Furnishing TRC mandatory requirement Notification 57/2013 dated 1 August 2013 issued by CDBT, which mandates submission of following information in Form 10F: Status (individual, company, etc) of the assessee Nationality or country or specified territory of incorporation or registration Assessees tax identification number in the country or specified territory of residence and in case there is no such number, then, a unique number on the basis of which the person is identified by the Government of the country or the specified territory of which the assessee claims to be a resident; Period for which the residential status, as mentioned in the certificate referred to in sub-section (4) of section 90 or sub-section (4) of section 90A, is

applicable; and Address of the assessee in the country or specified territory outside India, during the period for which the certificate, as mentioned in (iv) above, is applicable. Declaration not required, if TRC contains above particulars 03/07/2015 SUSHIL LAKHANI 46 AN OVERVIEW OF TDS U/S. 195 (Cont..) Grossing up of tax (Section 195A): Not to be done in cases of presumptive Tax (ONGC (264 ITR 340) Uttranchal) Exchange Rate Applicable (Rule 26 Vs Rule 115) SBI TT Buying Rate.

TDS Certificate to be issued even in case of Grossing up : Circular 785 dt. 24.11.1999 Absence of the words tax to be borne by the payer in case of net of tax payment contracts (175 ITR 243 (AP)) 03/07/2015 SUSHIL LAKHANI 47 AN OVERVIEW OF TDS U/S. 195 (Cont..) Section 206AA (1) Notwithstanding anything contained in any other provisions of this Act, any person entitled to receive any sum or income or amount, on which tax is deductible under Chapter XVIIB (hereafter referred to as deductee) shall furnish his Permanent Account Number to the person responsible for deducting such tax (hereafter referred to as deductor), failing which tax shall be deducted at the higher of the following rates, namely:i.

at the rate specified in the relevant provision of this Act; or ii. at the rate or rates in force; or iii. at the rate of twenty per cent. . 03/07/2015 SUSHIL LAKHANI 48 AN OVERVIEW OF TDS U/S. 195 (Cont..) Section 206AA cont.. Issues: Whether it is applicable to those who are exempt from obtaining PAN ? (Sec 139A(8)(d), Rule 114C (1) & Sec 272BB) (Smt. A. Kowsalya Bai -22 157) Whether Section 206AA applies to payments to non-residents?

Whether Section 206AA applies only when tax is deductible? Validity of sec206AA when the basic rate of taxation is lower than 20% : Bhavani Cotton Mills (20 STC 290 (SC)) Ely Lilly (312 ITR 225 (SC) Suman Enterprises v. SOK 2010 (69) Kar. L. J. 1(HC) Whether Section 206AA overrides the beneficial tax rates under a Tax Treaty? Sec 206AA vs. Sec 90 03/07/2015 SUSHIL LAKHANI

49 AN OVERVIEW OF TDS U/S. 195 (Cont..) Issues Contd: Whether the rate of 20% under section 206AA is subject to levy of surcharge or education cess? Whether TDS deducted at higher rate on account of Sec 206AA can be claimed as a refund by filing a return u/s 139 by the non-resident?? Whether Section 206AA overrides the DTAA (Dy. Dir. Of IT Vs. Serum Institute of India - 56 1 (Pune - Trib.)) 03/07/2015 SUSHIL LAKHANI 50 AN OVERVIEW OF TDS U/S. 195 (Cont..) Issues Contd:

Is Section 206AA applicable where Grossing up applies. PARTICULARS Net of Tax Payment to nonresident (+) Grossing up Total (-) TDS Payment to be made to the non-resident Option I 100 Option II 100 Option III 100 11.11* 111.11 11.11 100 11.11* 111.11 22.22

88.89 20 120 20 100 * Assuming a treaty rate of 10% In the case of Bosch Ltd [TS-904-ITAT-2012(Bang)], it was held that higher rate of deduction at 20% u/s 206AA is not applicable for tax grossing-up u/s 195A, if TDS is borne by the Indian payer. Higher TDS rate u/s 206AA is applicable only where non-resident recipient has income chargeable to tax in India and does not furnish Permanent Account Number (PAN) u/s 195 03/07/2015 SUSHIL LAKHANI 51 Interplay of DTAA, PAN & TRC Sec 206AA applicable Higher of 20% or rate as per rates in force No tax deductible.

PAN not required Yes Is TRC available ? No Is the payment liable to tax under DTAA Is payees PAN available No No Tax as per I.Tax Act

Yes YesIs DTAA rate beneficial No No Is TRC available? Yes No 03/07/2015 Yes Yes Is payees PAN available Sec 206AA N.A Rate as per Rates in force

Sec 206AA N.A: Rate as per DTAA Sec 206AA applicable Higher of 20% or rate as per DTAA SUSHIL LAKHANI 52 AN OVERVIEW OF TDS U/S. 195 (Cont..) Section 195(2) Application by Payer S.195(2) - Application by the Payer to the AO for determining appropriate portion of sum chargeable Appeal against order under S. 195(2) - S. 248 Amendment by Finance Act 2007

S. 248 allows the payer to file an appeal before the CIT(A) provided the tax is deposited by the payer in the exchequer of the Government If tax is borne by the payee, a payer cannot file an appeal under section 248 of the Act 03/07/2015 SUSHIL LAKHANI 53 AN OVERVIEW OF TDS U/S. 195 (Cont..) Section 195(2) - Application by Payer Contd Whether an application can be made under S. 195(2) for NIL Withholding order? Held yes in case of Mangalore Refinery and Petrochemicals Ltd (113 ITD 85) (Mum) However, a contrary view has been taken in the following cases:

03/07/2015 Czechoslovak Ocean (81 ITR 162) (Cal) Graphite Vicarb India Ltd (28 TTJ 425) (Cal) Biocon Biopharmaceuticals (36 291) (Bang) Practical Purposes, Application u/s 195(2) is adopted for both nil as well as lower withholding tax rate order SUSHIL LAKHANI 54 AN OVERVIEW OF TDS U/S. 195 (Cont..) Section 195(2) - Application by Payer Contd Whether applying for WHT certificate compulsory?

Principles laid down in GE India Technology Centre (234 CTR 153) (SC): Application u/s 195(2) presupposes that the payer is in no doubt that tax is payable in respect of some part but is not sure as to what should be the amount on which tax is so deductible. Where a person is fairly certain about the portion of sum chargeable to tax, then he can make his own determination as to whether TDS is deductible and if so what should be the amount. In case of composite payments, where a payer has a doubt regarding determining the appropriate portion of sum chargeable under the act, he must make an application u/s 195 [List of cases on the above issue before the above Supreme Court Decision was delivered: Held yes in 320 ITR 209 (Kar), 274 ITR 20 (Delhi), 117 TTJ 456(Delhi ITAT),278 ITR (AT) 57 (Bangalore ITAT), 22 DTR 361 (MUM-SB), 86 ITD 791 (Mum), 90 ITD 793 (Mum) Held no in 230 CTR 365 (Delhi HC), 2010-TIOL-182-ITAT-MAD-SB (Chennai SB), 99 ITD 91 (Mum, ITAt), 76 ITD 37 (Hyd. ITAT),111 ITD 155 (Chennai ITAT), 114 TTJ 632] 03/07/2015 SUSHIL LAKHANI

55 AN OVERVIEW OF TDS U/S. 195 (Cont..) Section 195(2) - Application by Payer Contd Whether a work involves multiple phase, in such scenario, is it sufficient if order under S. 195 is obtained for phase I of the work or whether order is to be obtained for all the phases of the work? Mangalore Refinery and Petrochemicals Ltd. (113 ITD 85) (Mum) Whether order under S. 195(2) of the Act is subject to revision under S. 263? BBCI vs. DCIT (exemption) (97 TTJ 751) (Mum) Whether order u/s 195(2) are not conclusive and whether the department can take a contrary view in the assessment proceedings? CIT vs. Elbee Services Pvt. Ltd. 247 ITR 109 (Bom) 03/07/2015 SUSHIL LAKHANI 56 AN OVERVIEW OF TDS U/S. 195 (Cont..) Section 195(2) - Application by Payer Contd No time limit for passing order u/s 195(2): Blackwood Hodge (India) Pvt. Ltd. 81 ITR 807 (Cal) Central Associated Pigment Ltd. 80 ITR 631 (Cal) Application Under Sec 195(2) can not be made for Salary

payment 03/07/2015 SUSHIL LAKHANI 57 AN OVERVIEW OF TDS U/S. 195 (Cont..) Section 195(3) - Application by Payee Section 195(3) - Application by NR payee for NIL tax withholding (Rule 29B) Applicable to: Foreign bank branches and Other branches (in operation for at least 5 years) Value of Fixed assets in India exceed Rs. 50 Lakhs Whether certificate under S. 195(3) of the Act can be appealed? 03/07/2015 SUSHIL LAKHANI 58 AN OVERVIEW OF TDS U/S. 195 (Cont..)

Section 195(4) Validity of certificate issued by AO A certificate granted u/s 195(3) shall remain in force: for FY mentioned therein, or until cancelled by the AO before expiry of FY Provisional Certificate only Payer may be liable as an Agent u/s 163 National Industrial Development Corp. Limited (253 ITR 489) (Del) (HC) Hindalco Industries (ITAT Mumbai) 03/07/2015 SUSHIL LAKHANI 59 AN OVERVIEW OF TDS U/S. 195 (Cont..) Refund of Tax Withheld u/s. 195: Conditions to be satisfied for refund : contract is cancelled and no remittance is made to the NR the remittance is duly made to the NR, but the contract is cancelled and the remitted amount has been returned to the payee contract is cancelled after partial execution and no remittance is made to the NR for the non-executed part; contract is cancelled after partial execution and remittance related to non-executed part made to the

NR has been returned to the payee or no remittance is made but tax was deducted and deposited when the amount was credited to the account of the NR; remitted amount gets exempted from tax either by amendment in law or by notification an order is passed under Sec 154 or 248 or 264 reducing the TDS liability of the payee; deduction of tax twice by mistake from the same income; payment of tax on account of grossing up which was not required payment of tax at a higher rate under the domestic law while a lower rate is prescribed in DTAA. Refund of TDS pursuant to favorable appellate order ? TELCO (83 TTJ 458) (Mum) Samcor Glass Ltd. (94 ITD 202) (Del) Kotak Mahindra Primus (105 TTJ 578) (Mum) Impact of Circular No. 7 dated October 23, 2007? 03/07/2015 SUSHIL LAKHANI 60 AN OVERVIEW OF TDS U/S. 195 (Cont..) Refund of Tax Withheld u/s. 195 contd

However , the refund can be claimed subject to the following further conditions: Prior approval of the Chief Commissioner of Income-tax or the Director General of Income-tax concerned would be required; The claim for refund should be made within two years from the end of the financial year in which the tax is deducted at source. The excess tax can be first adjusted against the existing liability of the deductor if any and then the balance amount if any may be refunded; A undertaking stating that no certificate under section 203 of the Income Tax Act has been issued to the non- resident or in case where certificate has been issued, the same shall be recalled or he shall indemnify the Income Tax Department from any loss on account of any separate claim of refund for the same amount by the non-resident; The refund under this circular would be granted only if the deductee has not filed return of income and the time limit for filing the return of income has expired; The Circular also states that the amount paid into the Government account in such cases is no longer tax. In view of this, no interest under section 244A is admissible on such refunds. 03/07/2015

SUSHIL LAKHANI 61 AN OVERVIEW OF TDS U/S. 195 (Cont..) Interest U/s 234B not leviable where TDS u/s 195 required - GE Packaged Power Inc. 56 190 (Delhi) Consequences of non / short deduction of TDS Disallowance u/s. 40(a)(i) or Section 58(1)(a)(ii): Favorable view no disallowance if tax deducted though at incorrect rate Apollo Tyres Ltd (35 593), UE Trade Corpn. (28 77), (25 171),Bench of Mumbai ITAT in ITA No. 20/Mum/2010 in the case of DCIT v M/s Chandabhoy & Jassobhoy ( 17 158), S K Tekriwal Kolkata High Court (ITA No 1135/Kol/2010) Against view - proportionate disallowance - Beekaylon Synthetics Ltd. (ITA No. 6506/M/08) Can deprecation be disallowed, if, TDS on capital expenditure not deducted? (3 SOT 798 (2005)) If the Indian Co. has not deducted the Tax at source u/s 195, can the dept proceed to recover the tax from both?. i.e. Indian Party and Foreign party. (Explanation to Sec. 191 r.w. Section 205) 03/07/2015 SUSHIL LAKHANI

62 AN OVERVIEW OF TDS U/S. 195 (Cont..) Interest u/s. 201(1A) Simple Interest @ 1% per month is payable by the person who fails to deduct the tax as required and/or pay it within time. ITAT decision in Todi Investments (P) Ltd. (4 ITD (Cal) 360) held that the date of actual deduction of tax is relevant for levying interest U/s. 201(1A). If the payee has already paid the tax due on the payment received, the payer is not liable for the tax but continues to remain liable for the interest & penalty. (Hindustan Coca-Cola Beverage (P) Ltd. (293 ITR 226(SC))) Penalties Prosecution - (Section 276 B) Failure to pay the tax deducted - Section 221 Failure to deduct tax - Section 271C Failure to file the TDS Return - Section 272A 03/07/2015 SUSHIL LAKHANI 63 AN OVERVIEW OF TDS U/S. 195 (Cont..) Penalties - (Section 221; Section 271C)(Refer Hindustan Coca Cola (293 ITR

226(SC)) The Finance Act, 2008 was retrospectively amended w.e.f 1.6.2002, Section 201(1) of the Act to provide that if any person who is required to deduct tax in accordance with the Act does not deduct or does not pay whole or part of the amount, he shall be deemed to be assessee in default Finance Act 2012 w.e.f 1.7.2012 inserted a proviso to section 201 to provide that such person will not be deemed to be an assessee in default if the recipient of the amount from which tax has to be deducted is Resident and if such resident: has furnished his return of income under section 139; has taken into account such sum for computing income in such return of income; and has paid the tax due on the income declared by him in such return of income, and the person furnishes a certificate to this effect from an accountant in such form as may be prescribed Finance Act, 2015 has inserted Sec 271-I to provide for a penalty of One Lakh Rupees in case a person fails to furnish information or furnishes inaccurate information u/s 195(6). 03/07/2015 SUSHIL LAKHANI 64 PART - C CERTIFICATE BY A CA FOR REMITTANCE (As Amended By Notification No.58/2013 w.e.f. 1 s t

October 2013) CERTIFICATE BY A CA FOR REMITTANCE CA Certificate to be obtained in Form No. 15CB Form 15CA to be furnished electronically by the assessee on e-filing portal. Finance Act 2015 has amended Section 195 (6) to make reporting mandatory in respect of every payment whether or not chargeable to tax!! As per Explanation 2 of Rule 37BB ( as it existsnew Rule yet not prescribed!!), the following 28 payments do not require any information to be furnished: 03/07/2015 SUSHIL LAKHANI 66

Purpose code as per RBI Sl. No. Nature of payment 1 S0001 Indian investment abroad-in equity capital (shares) 2 S0002 Indian investment abroad-in debt securities 3 S0003 Indian investment abroad-in branches and wholly owned subsidiaries 4

S0004 5 S0005 Indian investment abroad-in subsidiaries and associates Indian investment abroad-in real estate 6 S0011 Loans extended to Non-Residents 7 S0202 Payment for operating expenses of Indian shipping companies operating abroad 8 S0208

Operating expenses of Indian Airlines companies operating abroad 9 S0212 Booking of passages abroad - Airlines companies 10 S0301 Remittance towards business travel 11 S0302 Travel under basic travel quota (BTQ) 12 S0303 Travel for pilgrimage

13 S0304 Travel for medical treatment 03/07/2015 SUSHIL LAKHANI 67 Sl. No. 14 15 16 17 18 19 20 21 22 23 24 25 26

27 28 03/07/2015 Purpose Nature of payment code as per RBI S0305 Travel for education (including fees, hostel expenses etc.) S0401 Postal services S0501 Construction of projects abroad by Indian companies including import of goods at project site S0602 Freight insurance - Relating to import and export of goods S1011 Payments for maintenance of offices abroad S1201 Maintenance of Indian embassies abroad S1 202 Remittances by foreign embassies in India S1301 Remittance by non-residents towards family maintenance and savings S1302 Remittance towards personal gifts and donations S1303 Remittance towards donations to religious and charitable institutions abroad S1304 Remittance towards grants and donations to other Governments and charitable institutions established by the Governments S1305 Contributions or donations by the Government to international institutions S1306 Remittance towards payment or refund of taxes S1501 Refunds or rebates or reduction in invoice value on account of exports S1503 Payments by residents for international bidding.

SUSHIL LAKHANI 68 CERTIFICATE BY A CA FOR REMITTANCE W.e.f. 1.10.2013 till 31.3.15: Only Taxable remittances were required to be reported in Form 15CA----till new Rule 37BB is prescribed Form being insisted for every payment . Obtaining Form 15CB was not required if, taxable remittances are covered by Part A of new Form 15CA sum remitted does not exceed Rs. 50,000 per transaction and the aggregate of such payments during the financial year doesn't exceed Rs. 2,50,000 For sums other than above, 15CB was required. Form 15CA to be signed by person competent to sign tax return Digital Signature is mandatory 03/07/2015 SUSHIL LAKHANI 69 Revised Remittance Procedures Flow Chart 03/07/2015

SUSHIL LAKHANI 70 Form 15CB Analysis CA certificate to be provided in physical form Information to be uploaded online in Part B of Form 15CA Documents that should be reviewed Certified copy of signed contract Certified copy of signed/stamped invoice Certified ledger account Correspondence on which reliance is placed including emails Supporting vouchers in case of reimbursements a must Print out of website details of Payee Physical certificate should be amended for documents

reviewed 03/07/2015 SUSHIL LAKHANI 71 CERTIFICATE BY A CA FOR REMITTANCE Some Issues: Whether CA Certificate is an Alternate to Sec 195(2)? Mahindra & Mahindra Ltd vs. ADIT 106 ITD 521 (Mum ITAT) (2007) It is clear that the new scheme of remittance being allowed on the basis of CA Certificate is not in substitution of the scheme u/s 195(2) but merely to supplement the same. The CA Certificate has no role to play for determination of TDS liability but is merely to support assessees contention while making remittance to a non-resident A payer at his own risk can approach a CA and make remittance to a non-resident on the basis of CAs Certificate. Consequences of nondeduction and short deduction would, however, follow. In the said case, it was also held that no appeal to a CIT (A) u/s 248 is maintainable against the CA Certificate issued under CBT circular no. 759 03/07/2015 SUSHIL LAKHANI 72

CERTIFICATE BY A CA FOR REMITTANCE Some Issues (Contd): Consequence of difference of opinion between a CA and AO Consequence of change in the view due to an amendment or a judicial decision or circular subsequent to issue of certificate. Determination of any special relation between payer and payee. Tax residency certificate if not available? Tax residency certificatenot sufficient -- dual residency? Validity period of tax residency certificate / undertaking / declaration

from the payee for a year or for single payment? 03/07/2015 SUSHIL LAKHANI 73 THANK YOU SUSHIL LAKHANI Sushil Lakhani & Associates, Chartered Accountants 4th Floor, Bharat House, 104, Mumbai Samachar Marg, Fort, Mumbai-400023 Tel: +91-22-40693900 (M) : 9821111852 E-mail : [email protected] 03/07/2015 SUSHIL LAKHANI 74

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