Consultancy charges paid to non resident for project outside India not deemed to accrue or arise in India

IN THE ITAT CHENNAI BENCH ‘A’

Ajappa Integrated Project Management Consultants (P.) Ltd.

V/s.

Assistant Commissioner of Income-tax, Company Circle-I (2), Chennai

IT Appeal Nos. 349 & 578 (Mds.) of 2012

[Assessment Year 2008-09]

JUNE 25, 2012

ORDER

N.S. Saini, Accountant Member

These are cross appeals filed by the assessee and Revenue against the order of the CIT(A)-III, Chennai, dated 21.12.2011, passed in assessment year 2008-09.

2. In the assessee’s appeal, the assessee has taken the following grounds of appeal:

“1.  The order of the CIT(A) is contrary to the law, facts and circumstances of the case in so far as the same is decided against the assessee.

 2.  The CIT(A) erred in confirming the disallowance of Rs. 61,19,632/- under Sec.40(a)(i) towards consultancy charges/ fee for technical service paid to a non-resident individuals of Indian origin working in off shore oil and gas exploration projects in India.

 3.  The CIT(A) erred in holding that the proportionate disallowance is called for as the rate of TDS applied was only 11.33 % instead of 33.99% on payments made to non-residents for services rendered in India.

 4.  The CIT(A) failed to note that Sec.44BB of the Act is attracted to the facts of the case and so the appropriate rate of tax would be only 3.399% whereas the appellant has deducted more tax at the rate of 11.33% which in anyway does not warrant any proportionate disallowance in the manner done by the Assessing officer.

 5.  The CIT(A)ought to have appreciated that the appellant had engaged the services of nine NRI’s who are not liable to tax in India and the only issue relates to the rate of TDS to be applied.

 6.  The CIT(A) has not given due to weightage to the various arguments advanced by the assessee with regard to the scope of Sec. 44BB as applicable to business or profession.

 7.  The appellant craves leave to adduce additional grounds of appeal at the time of hearing.”

3. The sole issue involved in the above grounds of appeal relates to disallowance of Rs. 61,19,632/- u/s 40(a)(i) towards consultancy charges/fee for technical services paid to non-resident individuals of Indian origin working in off-shore oil and gas exploration projects in India.

4. The Assessing Officer, while making the disallowance, has held as under:

3.1 In respect of payments made to non-residents for services rendered in India that the assessee ought to have deducted taxes @ 33.99% as applicable for non-resident individuals Since the assessee had deducted taxes only @ 11.33%, proportionate disallowance has to be made for the short deduction of tax.

 Accordingly, an amount of Rs. 61,19,632 is disallowed u/s 40(a)(i) and added back to the total income returned.

3.2 The same issue came up for consideration in the previous AY 2007-08 and the disallowance made has been sustained by the CIT(A), Chennai, as per 1.T.A.No.527/09-10/A.III dt 28.9.2010.”

5. On appeal before the CIT(A), the assessee contended that provisions of section 44BB are applicable in the hands of the nonresident payees. According to that section, the actual rate of tax will be worked out on a sum equal to 10% of the aggregate of the amounts specified in sub-section (2) of section 44BB and on it the rate of tax, if applied, would be only 3.399%. However, the assessee has deducted tax @ 11.33% u/s 194J which exceeds the rate of tax prescribed u/s 44BB and hence, there is question of invoking the proportionate disallowance u/s 40(a)(i). The assessee further stated that the 9 persons to whom the impugned payments were made are non-residents and are also not employees of the assessee. They are professionally qualified in the field of extraction or production of mineral oils etc in off-shore areas in international waters. Some of them have also done professional services outside India. The assessee further stated that the word ‘business’ is one of wide import and it means an activity carried on continuously and systematically by a person with a view to earn an income. All the non-residents to whom payments were made are engaged in the business of providing services whose income are chargeable to tax under the head ‘profits and gains of business or profession’. The assessee further submitted that if the provisions of section 44BB are considered as inapplicable, then in absence of any exclusion of the categories of persons stated above, a beneficial interpretation of section 44BB was called for, since it is open to those non-resident to contend that they should be fastened with the rate of taxation which is lower than those falling in any of the provisions of Act, such as section 194J or 195. In view of this, provisions of section 40(a)(i) cannot be invoked to make any proportionate disallowance of the expenses incurred by assessee for there is no guidelines given either in section 40(a)(i) or u/s 44BB or in Chapter XVIIB. The concept of proportionate disallowance is extraneous to the scheme of Income-tax Act, for, the Hon’ble Supreme Court has time and again stated that the provisions of TDS are not in the nature of an assessment proceedings but it is in the nature of collection and recovery as assessee acts only as an agent/trustee for the Government to collect the tax and remit it to the account of the Central Government. It was further argued that it is not the case of assessee that those nine NRIs are not liable to income tax in India. The only question relates to the rate of tax for the purpose of TDS, in the impugned year in question. It was therefore, submitted that there was no violation of any of the provisions contained in Chapter XVIIB of the Income-tax Act warranting any disallowance much less a proportionate disallowance in the manner indicated by the Assessing Officer in the impugned order in question.

6. The CIT(A), after considering the submissions of the assessee, confirmed the action of the Assessing Officer on the ground that in assessment year 2007-08 in assessee’s own case, the CIT(A) had confirmed the addition and dismissed the ground of appeal of the assessee.

7. The A.R of the assessee filed a copy of the order of the Chennai Bench of the Tribunal in assessee’s own case for assessment year 2007-08 in I.T.A.No.2169/Mds/2010 and C.O.No.29/Mds/2011, dated 22.6.2011. He submitted that in that year, the assessee had not pressed this ground of appeal before the Tribunal and hence, the ground came to be dismissed for want of prosecution. He submitted that in this year, he is arguing the grounds of appeal for decision of the Tribunal in respect of the issue on merits and relied on the submissions made before the CIT(A).

8. The DR, on the other hand, relied on the decision of Hon’ble Supreme Court in the case of GE India Technology Cen. (P.) Ltd. v. CIT [2010] 327 ITR 456 and submitted that section 195 imposes statutory obligation on every payer to deduct tax at source whenever payment or credit of any amount chargeable under the Act is made in favour of the non-residents and section 195(1) consists of the words ‘chargeable under the provisions of the Act’ and section 195(2) is based on the ‘principle of proportionality’. In other words, the 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. Hence, he supported the order of the Assessing Officer in making proportionate disallowance of expenditure for short deduction of tax at source by the assessee.

9. We have heard the rival submissions and perused the orders of the lower authorities and materials available on record. The issue before us is whether deduction of tax at source @ 11.33% in case of payments made to nine non-residents engaged in rendering services in connection with oil exploration business which are taxable under the Income-tax Act as per the provisions of section 44BB, is sufficient compliance of section 40(a)(i) of the Act or any disallowance out of such payment is warranted u/s 40(a)(i) of the Act. We find that the issue is decided by this Tribunal in the case of Frontier Offshore Exploration (India) Ltd. v. Dy. CIT [2011] 10 taxmann.com 250 (Chennai) wherein the Tribunal, after taking into consideration the decision of the Hon’ble Supreme Court in the case of GE India Technology Cen. (P.) Ltd (supra) relied upon by the DR before us, has held as under:

“6. ……………. Section 44BB is a special provision as it is mentioned in the cause title to the said provision itself. As per the provisions of section 44BB(1) a sum equal to 10 per cent of the aggregate of the amount specified in sub-section (2) is deemed to be the profits and gains of such business chargeable to tax under the head “profits and gains of business or profession”. It is because the provision of section 44BB has quantified the deemed income of the non-resident assessee at 10 per cent, it has opened with the clause “Notwithstanding anything to the contrary” contained in sections 28 to 41 and sections 43 and 43A. The aggregate amounts are quantified in sub-section (2) of section 44BB to be the amount paid or payable, received or deemed to be received etc. As per the sub-section (3) of section 44BB the non-resident can claim a lower profit. It is for the purpose of claiming lower profits that the non-resident must file a return and prove the same with support of his regular books of account and other documents and by complying with other conditions specified therein. If no return is filed, section 44BB(1) deems that the profits and gains of the business of the non-resident at 10 per cent of the gross receipts. A perusal of the decision of the Hon’ble Supreme Court in the case of GE India Technology Centre (P.) Ltd., (supra) clearly shows that the Hon’ble Supreme Court has categorically held that the obligation to deduct TDS is limited to the appropriate portion of income chargeable under the Act forming part of the gross sums of money payable to the nonresident. The Hon’ble Supreme Court while deciding the issue had categorically recognized that as per the provisions of section 195 the words used were “any other sums chargeable under the provisions of this Act” as against the term “any sum” used in the other provisions falling in Chapter XVII of the Income-tax Act, 1961. Obviously, what the Assessing Officer is demanding is that TDS is liable to be made under the provisions of section 195 of the Act. If the provisions of section 195 are to be invoked, it is only such sum which is chargeable to tax under the Income-tax Act, 1961 on which TDS can be made. A question now arises as to how much of the amounts paid by the assessee to the non-resident is the income chargeable to tax under the Income-tax Act, 1961 for the purpose of section 195. It is true that the assessee cannot quantify the income of the non-resident. This is where the special provision of section 44BB comes into play. Where the statute has provided a special provision for dealing with a special type of income such a provision would exclude a general provision dealing with the income accruing or arising out of any business connection. This view of ours finds support from the decision of the Hon’ble jurisdictional High Court in the case of Copes Vulcan Inc., referred to supra. Section 44BB is a special provision to the exclusion of all the contrary provisions provided in sections 28 to 41 and 43 and 43A of the Act. Once the provisions of sections 28 to 41 and sections 43 & 43A stand excluded, the method of computing the business income of the non-resident on the basis of the books of account goes out of the picture. Then it is only the provisions of section 44AD, 44AE & 44AF which could be applied and the same obviously do not apply to the income of the non-resident companies. The Hon’ble Supreme Court while dealing with its own decision in the case of Transmission Corpn. of A.P. Ltd., (supra) has categorically explained that the tax was liable to be deducted by the payer of the gross amount if such payment included in it an amount which was exigible to tax in India. This is not so in the present case. Here on account of the special provisions of section 44BB, 10 per cent of the gross amount payable to the non-residents deemed as the income chargeable to tax in India. In the present case it is noticed that the assessee has deducted tax at the specified rate on the 10 per cent of the Bare Boat charges paid to the Norway company who is the non-resident, computed as per the provisions of section 44BB. In the circumstances, we are of the view that there is no violation of the provisions of section 195 in the assessee’s case which calls for a disallowance by invoking the provisions of section 40(a)( i) of the Act. In the circumstances, the finding of the learned CIT(A) and that of the Assessing Officer stands reversed.”

10. We find that the CIT(A) has not taken into consideration the above decision of the Tribunal for deciding the issue. We, therefore, set aside the orders of the lower authorities and restore the matter back to the file of the CIT(A) for deciding the issue afresh after taking into consideration the above cited decision of the Chennai Bench of the Tribunal and after allowing reasonable opportunity of hearing to both the parties. Thus, the grounds of appeal of the assessee are allowed for statistical purposes.

11. In the Revenue’s appeal, the Revenue has taken the following grounds of appeal:

“1. The order of the learned CIT(A) is contrary to law and facts and circumstances of the case.

2.1 The learned CIT(A) erred in deleting the disallowance u/s 40(a)(i) it respect of consultancy charges/fees for technical services paid to not residence working in overseas off shore oil and gas exploration projects it Nigeria.

2.2 It is submitted that the decision of the ITAT, in ITA No.2169/Mds/2010 dated 22.6.2011. in the assessee’s own case for the A.Y.2007-08 has no been accepted by the Department and an appeal before the Hon’ble High Court is pending.

2.3. The CIT(A) ought to have appreciate that the assessee did not have any branch or PE outside India and cannot, in strict sense of the term, be said to be having the business outside India. In the circumstances, it is not open for the assessee to conclude suo-moto that the provisions of section 9(1)(vii)(b) would be applicable to payments made to non-residents and the proper course for the assessee would be to make an application u/s 195(2) to the concerned Assessing Officer, in the absence of which the assessee ought to have deducted tax at 33.99%.

3. For these and other grounds that may be adduced at the time of hearing, it is prayed that the order of the learned CIT(A) may be set aside and that of the Assessing Officer restored.”

12. The sole issue involved in the above grounds of appeal of the Revenue is that the CIT(A) erred in deleting the disallowance of Rs. 4,76,58,976/- u/s 40(a)(i) of the Act for non-deduction of tax on consultancy charges/fee for technical services paid to non-residents working in overseas off shore oil and gas exploration projects in Nigeria.

13. The brief facts of the case, as observed by the Assessing Officer, are that an amount of Rs. 10,22,97,112/- was claimed as consultancy fees paid by the assessee both to residents and to nonresidents. He also found that the taxes were not deducted for certain payments made to non-residents to the extent of Rs. 4,76,58,976/-. The Assessing Officer also observed that provisions of section 9(1)(vii)(b) exclude only the fees paid in respect of services utilized in a business carried on by the assessee outside India and did not have any branch outside India and therefore, income would be deemed to accrue in India. The Assessing Officer further observed that the Hon’ble Supreme Court in the case of GE India Technology Cen. (P.) Ltd (supra) has not categorically decided the issue but had only remitted back the matter to High Court for de novo consideration on merits. He also referred to the provisions of section 195 and disallowed Rs. 4,76,58,976/- u/s 40(a)(i) of the Act.

14. On appeal, before the CIT(A), the assessee strongly argued against the above disallowance made by the Assessing Officer u/s 40(a)(i). The assessee filed written submissions and contended that addition on similar issue was deleted by the CIT(A) in assessee’s own case for assessment year 2007-08 and on further appeal by the Department, the Tribunal dismissed the ground of appeal of the Revenue.

15. The CIT(A), following the order of the Tribunal in assessee’s own case for assessment year 2007-08, in I.T.A.No. 2169/Mds/2010, order dated 22.6.2011, allowed this ground of appeal of the assessee.

16. The DR fairly conceded before us that this issue is covered by the order of the Tribunal against the Revenue in assessment year 2007-08 in I.T.A. No. 2169/Mds/2010 and C.O.No.29/Mds/2011, order dated 22.6.2011.

17. On the other hand, the A.R of the assessee relied on the order of the Tribunal in assessee’s own case for assessment year 2007-08.

18. After considering the rival submissions and perusing the orders of the lower authorities and materials available on record, we find that the assessee is engaged in the business of rendering technical consultancy services for oil and exploration industries in India and abroad. During the year under consideration, the assessee received consultancy fees of Rs. 12,33,75,833/- against which it claimed to have paid consultancy fees of Rs. 10,22,97,112/-. From the details filed by the assessee, the Assessing Officer found that for the following non-residents, TDS had not been deducted, claiming that the services of the consultants have been utilized by the resident company in a business located outside India. According to the Assessing Officer, the assessee-company ought to have deducted TDS @ 33.99% on the following amounts paid:

19. The Assessing Officer observed that same issue had come up for consideration in assessment year 2007-08 and on appeal by the assessee in I.T.A. No. 527/09-10/A.III, Chennai, vide his order dated 28.9.2010, deleted the addition. He also observed that the CIT(A) placed reliance on the decision of Hon’ble Supreme Court in the case of GE India Technology Cen. (P.) Ltd. (supra) and observed that section 195(2) springs into action only when the payment to the recipient contains an element of income chargeable to tax in India. Since the sum is not chargeable to tax in India, the provisions of section 195(2) are not attracted and disallowance u/s 40(a)(i) would not arise. The Assessing Officer observed that objecting to the order of the CIT(A)-III, Chennai dated 28.9.2010 for assessment year 2007-08, the Department approached the Tribunal by way of an appeal and the issue has not attained finality. Therefore, he disallowed the payment of consultancy fees of Rs. 4,76,58,976/- by invoking the provisions of section 40(a)(i) of the Act.

20. On appeal, the CIT(A) allowed the appeal of the assessee following the order of the Tribunal in assessee’s own case for assessment year 2007-08 in I.T.A. No. 2169/Mds/2010, dated 22.6.2011.

21. The DR has fairly conceded that this issue is covered against the Revenue and in favour of the assessee by the said order of the Tribunal. We find that the Tribunal, while deciding the issue in assessment year 2007-08, has held as under:

“11. Vide its ground No.3, Revenue is again aggrieved regarding deletion of disallowance made under Section 40(a)(i) of the Act by the Assessing Officer. But, here, the payments made by the assessee to non-residents were in respect of projects in Nigeria.

12. Short facts apropos are that assessee had paid consultancy fees to one Shri Sashi Kant and Shri Umamaheshwar for consultancy services rendered in Nigeria. When put on notice regarding non-deduction of tax at source, reply of the assessee was that the said consultants were used in the business of the assessee in Nigeria and therefore, sub-clause (b) of clause (vii) of sub-section (1) of Section 9 would apply. Assessee submitted before the A.O. that the payments were for services rendered by the consultants on account of its business abroad and hence, the income of such nonresidents could not be deemed to accrue or arise in India. However, the A.O. was not impressed. He, following the directions of ACIT under Section 144A of the Act, held that assessee was not carrying any separate business outside India and it did not have any branches outside India. Therefore, according to A.O., assessee was not liable for tax in Nigeria and the payments constituted income in India of the concerned non-residents. He, therefore, considered the amounts as income of the non-residents accruing in India and for non-deduction of tax at source, disallowance of Rs. 60,95,311/- was made relying on Section 40(a)(i) of the Act.

13. In its appeal before ld. CIT(Appeals), argument of the assessee was that the payments were not chargeable to tax in india and Section 195(1) of the Act would make it obligatory to deduct tax at source only from the income chargeable to tax as per the provisions of the Act in India, in the hands of the concerned non-residents. Ld. CIT(Appeals) deleting the disallowance held as under:-

“5.2.1 As per sec. 9(1)(vii)(b) income by way of fees for technical services payable by a resident shall be deemed to accrue or arise in India except where the fees are payable in respect of services utilized in a business or profession carried on by such person outside India or for the purposes of making or earning any income from any sources outside India. As rightly observed by the Addl. CIT if the resident assessee utilizes the services of non-resident, in its business outside India, it is covered under the exception given in the section itself and the payment received by the non-resident cannot be deemed to accrue or arise in India. Having held so, he could not have pressed into service the mischief of section 40(a)(i) because the appellant did not make application u/s 195(2). For this he has relied on the decision of the Karnataka High Court in the case of Samsung Electronics (supra). However, the Hon’ble Supreme Court in its recent ruling in GE India Technology Centre Pvt. Ltd. v. CIT & Others in Civil Appeal Nos. 7541-4542 of 2010 dated 09.09.2010 held as under:

“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.”

Further it held

“In our view, Section 195(2) is based on the ‘principle of proportionality’. The said sub-section gets attracted in cases where the payment made is composite payment in which certain portion of the payment has an element of ‘income’ chargeable to tax in India.”

It also stated

“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 Act, i.e. chargeable under sections 4, 5 and 9 of the Income-tax Act, 1961.”

It is absolutely clear from the above ruling of the Apex Court that section 195(2) springs into action only when the payment to the recipient contains an element of income chargeable to tax in India. It has already been discussed above that the payments made to the non-residents for services rendered outside India would not amount to income accrued or arising in India. Since the sum is not chargeable to tax in India, provisions of sec. 195(2) are not attracted. Hence, the disallowance u/s 40(a)(i) would also not arise. Accordingly the AO is directed to delete the addition. This ground is accordingly allowed.”

14. Now before us, learned D.R., strongly assailing the order of ld. CIT(Appeals), submitted that the assessee could not be given freedom to decide whether tax is to be deducted at source or not. According to him, the assessee-company had made payments directly from India and not from Nigeria and whether Section 9(1)(vii)(b) of the Act would apply or not was not clear.

15. Per contra, learned D.R. supported the order of ld. CIT(Appeals).

16. We have perused the orders and heard the rival contentions. This issue is slightly different from the issue raised by the Revenue in its ground No.2. Here, the payments made by the assessee were to non-residents Indian who were working abroad. Assessee had made no deduction of tax at source whatsoever. As per the assessee, they were working for its business carried on in Nigeria and hence, by virtue of Section 9(1)(vii)(b) of the Act, the fees payable to such non-residents could not be considered as income accruing or arising to them in India. We find that that the ACIT in his directions under Section 144A of the Act, had stated as under:-

“S 9(1)(vii)(b) itself provides the exception. If the Resident-assessee utilizes the services of the Non-resident, in its business outside India, it is covered under the exception given in the section itself and the payment received by the non-resident cannot be deemed to accrue or arise in India. Here, the assessee company, utilized the services of two nonresident in its business outside India, i.e. in Nigeria.

Therefore, though assessee company has shown that the payments are directly related to the Nigerian project, the fact that the payments were made from India and not from Nigeria leaves some ambiguity in determining whether the exception provided to the non-resident on utilization of services outside India would directly apply to the said nonresident consultants and whether the income accrue to them in India or abroad, as section 9(1)(vii)(b) is a deeming provision.” [Emphasis supplied]”.

17. It is clear from the above that the payments made by the assessee to non-resident consultants, were directly related to the Nigerian projects of the assessee. Assessee being engaged in consultancy business, the fees paid to such consultants on its projects abroad has to be considered as fees paid for services utilized in the business of the assessee outside India. Therefore, clearly Section 9(1)(vii)(b) of the Act applied and the income earned by such non-residents cannot be deemed to accrue or arising in India. Therefore, assessee had every reason to hold a bonafide belief that no part of the payment had any element of income which was chargeable to tax in India. When the assessee held such a bonafide belief, it is clearly covered by the decision of Hon’ble Apex Court in GE India Technology Centre Pvt. Ltd. (supra) and decision of Special Bench of this Tribunal in Prasad Productions Ltd. (supra). This being so, assessee could not be put in a position where it can be visited with the rigours associated with non-deduction of tax at source. It cannot be fastened with any liability associated with non-deduction of tax at source on such payments. In these circumstances, application of Section 40(a)(i) of the Act was not called for. Ld. CIT(Appeals) was right in deleting the addition. No interference is called for. Ground No.3 raised by the Revenue is dismissed.”

22. The facts being identical, respectfully following the order of the Tribunal for assessment year 2007-08 in assessee’s own case, we dismiss the grounds of appeal of the Revenue.

23. In the result, the appeal of the assessee is allowed for statistical purposes and that of the Revenue is dismissed.