CBDT Circular No. 1 of 2014 Rajasthan High Court in the case of CIT(TDS) vs. Rajashthan Urban Infrastructure held that the words “any sum paid” used in Section 194J of the Income Tax Act, relate to “fees for professional services or fees for technical services”. In terms of the agreement, the amount of Service Tax was to be paid separately and was not included in the fees. Accordingly, it was decided that if Service tax is payable in addition to professional/ technical fees under the contract, the withholding tax will be restricted to the professional fees. The CBDT vide CBDT Circular No. 1 of 2014 dated 13.01.2014 has decided in exercise of powers u/s 119 that wherever the terms of the agreement/ contract between the payer and the payee, the service tax component comprised in the amount is indicated separately, tax shall be deducted at source under Chapter XVII-B of the Act on the amount paid/payable without including such service tax component. The aforesaid circular should apply to all kinds of payments made to residents.

No TDS on service tax component – CBDT Circular

  Sri Venkatesh Paper Agencies (Hyd.) (P.) Ltd. [ITA No.: 636 (Hyd) of 2011] (Hyderabad ITAT) Background: The assessee is engaged in the business of paper and boards. During the course of assessment proceedings, the AO found that the assessee has claimed interest payment of Rs. 3,12,600 to M/s. Sinermas Pulp & Papers Ltd. without deducting tax at source. The assessee contended that the amount of Rs. 3,12,600 was paid as interest on the overdue bills and that the payment of interest was not on a deposit or loan but on purchases. Therefore, it is not required to deduct tax at source. The AO however, did not accept the explanation of the assessee and disallowed the sum of Rs. 3,12,600 u/s. 40(a)(ia) on the reasoning that whether the assessee paid the interest in respect of delayed payment of purchases or deposits or loans it has to deduct tax at source as per the provisions of the Act. CIT(A), came to held that the definition of the term interest as given in section 2(28A) of the Act would mean interest payable in any manner in respect of any monies borrowed or debt incurred and held that the definition of interest is wide enough to take within its ambit the debt owed by the assessee on account of overdue bills.

Interest on trading liability not subject to TDS u/s 194A – Hyderabad ITAT

Jeans Knit (P.) Ltd v DCIT [ITA No: 19 & 23 (BANG.) OF 2010] (Bangalore ITAT) Background: The assessee is a 100% export oriented undertaking and is engaged in the business of manufacturing and export of garments. During the relevant financial year, the assessee made remittances to M/s Sharp Eagle International Ltd. (SEL), a non-resident company incorporated in Hongkong. The AO observed that the assessee made these remittances without deduction of tax at source as per provision of sec. 195(1) read with sec. 9(i)(vii) of the Act. The assessee submitted that SEL was acting on directions of the assessee for inspection of fabrics, timely dispatch of material etc. and for these services, the assessee paid 12.5% of imported value as charges to the non- resident company. The AO held that the charges paid to the non-resident company are fees for technical services (FTS) as defined in explanation 2 to sec. 9(1)(vii) and therefore, held the assessee to be defaulter u/s 201(1A) for non deduction of tax.  The assessee filed an appeal before the CIT(A) and the CIT(A) also upheld the order of the AO.

Payment to overseas agent is not FTS – Bangalore ITAT

UE Trade Corporation (India) Ltd v DCIT [ITA No.2303/Del/2011] (Delhi ITAT) Background: The assessee was engaged in trading in agricultural products. During the course of assessment proceedings from the tax audit report in Form No.3CD, the Assessing Officer noted that the tax auditor had quantified the amount of 40,41,233/- disallowable under sec. 40(a)(ia) of the Act. However, in computation of income the assessee had added back only Rs.20,16,778/-. The remaining amount of Rs.20,24,455/- was therefore, disallowed by the Assessing Officer.

No disallowance u/s 40(a)(ia) for short deduction of TDS – Delhi ITAT

ACIT v Result Services (P) Ltd [IT Appeal NO. 2846 (DELHI) OF 2011] (Delhi ITAT) Background: The assessee company is a 100% subsidiary of the holding company M/s McCann-Erickson (India) Pvt. Ltd. M/s McCann Erickson has taken on rent office premises in Delhi and Mumbai vide separate lease deeds with the landlords. M/s McCann has permitted common use of the above premises by the assessee company. The full rent for the premises have been paid directly by the holding company to the landlords after deducting tax at source u/s 194-I of the Act. During the year under consideration, the assessee paid Rs. 56,23,456/- to M/s McCann towards its portion of rent on account of the above use of office premises. The AO has disallowed the above payment u/s 40(a)(ia) by holding that TDS should also have been deducted by the appellant company on the above amount u/s 194-I of the Act.

Reimbursement of rent not subject to TDS u/s 194-I – Delhi ITAT

CIT v Bovis Lend Lease (India) (P.) Ltd. IT Appeal Nos. 15 to 22 of 2010; IT Appeal Crob. NoS. 2 to 9 of 2011† [Karnataka High Court] Background: The assessee, a private limited company, carrying on the business of project and construction management entered into a management services agreement LLAH, Singapore. Under the agreement, LLAH was to provide services like administration, personnel, legal, finance and accounting information, marketing support, insurance matters, treasury management and information technology to the assessee. LLAH filed applications under Section 197 of the Act. LLAH furnished copies of the invoices raised by them to the AO. It was contended that the consideration paid under the agreement is by way of reimbursement of actual expanses. The assessing authority issued certificates authorizing the payment without deduction of tax. Later, the Authority issued a notice under Section 201 calling upon the assessee to show cause as to why he should not be treated, as an assessee in default under Section 201(1) and also why interest should not be levied under Section 201 (1A) as the assessee has not deducted tax as required under Section 195(1) of the Act at the time of making a credit entry. The assessing authority held that the intention of the assessee was to get the benefit of LLAH’s expertise and experience in management services. The consideration was paid for such services.

NIL-Deduction Certificate issued u/s 197 provides immunity to the payer, even if the sum is ...

DCIT v TVS Electronics Ltd IT Appeal NO. 811 (MDS.) of 2010 (Chennai ITAT) Facts of the case The assessee made payment to M/s Rosewell Group Services Ltd. based in Mauritius for market survey, qualitative consumer measurement, retail store site information, etc. without deducting tax at source under section 195 of the Act The AO concluded that the payment made was nothing but fees for technical services relying on Explanation 2 to Section 9(1)(vii) of the Act. 

In the absence of FTS clause in India-Mauritius DTAA, FTS under the Act to be ...

Notification No. 21/2012 [F.No.142/10/2012-SO (TPL)] S.O. 1323(e), dated 13-6-2012 In exercise of the powers conferred by sub-section (1F) of section 197A of the Income-tax Act, 1961 (43 of 1961), the Central Government hereby notifies that no deduction of tax shall be made on the following specified payment under section 194J of the Act, namely:-

Notification: No TDS u/s 194J on “off-the-shelf” software