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M/s Texas Instruments Incorporated v DDIT (International Taxation) The assessee has not approached the deductor to deduct the tax at lower rate. It is the deductor who approached the department claiming that the payments to be made to the assessee are not chargeable to tax in India and to determine the chargeability. Where all payments made to non-resident are subject to deduction of tax at source u/s 195, the interest u/s 234B is not leviable on the non-resident.
Amounts received towards reimbursement of expenses can, under no circumstances, be regarded as a revenue Receipt and is not chargeable to income-tax (Reliance was placed on the decisions of the Kolkata HC in the case of Dunlop Rubber Co. Ltd and that of the Delhi HC in the case of Industrial Engineering Projects). CIT v. Siemens AG (310 ITR 320)
It held that the real transaction of the granting of the licence in respect of copyrights in computer programmes had been camouflaged by entering into a chain of the agreements between MS Corp and the group entities. On an in-depth analysis, it was evident that the end users made payments in respect of the granting of licence of copyright in computer programmes. Hence, the payments made by end-users were taxable as royalty in the hands of G.
ub clause (i) of Rule 28AA (1) refers to the average rate of tax as determined by the total tax payable on estimated income as reduced by advance tax and TDS as a % of the payment referred to in section 197 for which application has been made. Sub clause (ii) refers to the average of the average rates of tax paid by the assessee in the last 3 years. Hence in the present case sub clause (ii) will not apply and sub clause (i) will apply. Failure of assessee to file e-TDS return may result in independent consequence in law including penal consequences under section 271 but does not justify rejection of an application filed for lower deduction of tax under sec 197.
The assessee was engaged in the business of marine dredging and port construction. It was awarded a contract at Visakhapatnam Port Trust. For the purpose of executing the contract of dredging the assessee hired equipment from MA, Netherlands. During the relevant AYs, the assessee made payments to “MA” in respect of usage of the equipment. The AO was of the view that the equipment hired by the company constituted PE of the Netherland entity, MAin India. The AO held the assessee to be in default within the meaning of section 201 since it had not deducted tax at source u/s 195. On appeal, the Commissioner (Appeals), however, set aside the order of the AO. DDIT v. Dharti Dredging & Infrastructural Ltd
ADIT Mumbai vs Tata Communications – Copyright article is distinct from copyright per se and payment for copyright article, therefore, cannot be treated as payment of copyright, which could be brought to tax. Liability to deduct tax is a vicarious liability and it can be invoked only when primary liability survives. Since the US company itself did not have any tax liability in respect of the payments, the vicarious tax liability did not survive either
A recent circular issued by the Central Board of Direct Taxes (CBDT), Circular No. 2/2011 [ F. No. 385/25/2010-IT(B)] (new Circular) dated 27 April 2011, outline the procedure for refund of excess payment of tax deducted at source (TDS) from payments to residents. The new Circular is applicable for refunds pertaining to the period up to 31 March 2010. The procedure for refunds for the period from 1 April 2010 is governed by a specific provision in the Indian Tax Laws (ITL) dealing with centralized processing of quarterly TDS statements. The refund for the period after 1 April 2010 will be granted based on data furnished in the statements, subject to rectification of apparent inconsistencies, without the requirement of a separate claim for refund.
If the taxpayer was not required to deduct tax at source and could not be declared assessee in default, the question whether the payment was in the nature of fees for technical services or in the nature of reimbursement for the expenses incurred or whether the Tax Treaty overrides the provisions of the ITA, need not be gone into.
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Payments made to NSICT were for container movement and there were no professional or technical services involved in the movements of containers. The contention was restricted only to the technical services and not towards managerial or consultancy services. AO has not pressed the later part of the Expl. 2, which deals with provision of services of technical or other personnel. The expression other personnel in this provision must fall within the category of services of technical personnel. It cannot be considered as any personnel unrelated to the managerial, technical or consultancy services.NSICT personnel, may not have possessed some technical expertise, and hence cannot be considered as other personnel. • Both the `managerial‟ and `consultancy‟ services are possible with human endeavor, the word technical‟ should also be seen in the same light. • There should be direct and live link between payment and receipt/use of technical services/information
