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It is an admitted position that the air freight is paid to the agents on the actual basis and that the bills and air freight documents have been directly issued by the foreign airlines. The agents, while accepting payments for air freight components, have acted merely as agents of the respective airlines and have not received the air freight payments in their own right. In copies of airway bills, the name of these agents is shown as ‘Issuing carrier’s agent, further the agent’s code is given as ‘Agent’s IATA code’. There is thus enough material to demonstrate that the persons having received money for the air freight have received the same in their capacity as ‘issuing carrier’s agent’, i.e., agent of the airline concerned. The air freight payment is thus made to the foreign airlines, though through the agents. Therefore, the payments cannot be said to have been made to a resident company. Accordingly, the provisions of section 194C do not come into play.
Explore the ITAT Bangalore judgment on global e-business operations vs. DDCIT. Learn about tax implications and obligations for reimbursement payments.
Section 195 of the Act clearly states that any person responsible for paying to a non resident any interest or any other sum chargeable under the provisions of this Act shall at the time of credit of such income will income tax thereon at the rate inforce at the time of payment or credit. Therefore, the first test to be applied for deduction of TDS is to see whether income in the hands of payee is taxable in India or not.
The applicant’s counsel submitted that an item of income can be said to have been dealt with in an article of the Treaty only if it defines its scope as well as allocates the right to tax such income between the two Contracting States. Mere exclusion of shipping business profits from article 7 does not amount to dealing with that item of income. We find it difficult to accept this contention. Allocation of taxing right to the source State can well be done by such a process of exclusion. There is no particular manner or methodology of achieving that result.
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.
Sec. 194H – Ad agencies are not agent of newspaper; hence TDS is not required to be deducted on commission paid to such agencies. Where tax has not been deducted at source, the short deducted tax cannot be realised from the deductor and the liability to pay such tax shall continue to be with the assessee direct, whose income is to be charged and a person who fails to deduct the tax at source, at best is liable for interest and penalty only. The above issues thus, are decided in favour of the petitioner. Sec. 194H – Ad agencies are not agent of newspaper; hence TDS is not required to be deducted on commission paid to such agencies
Agreement between the assessee and the Non Resident is only for rendering services which cannot be considered as technical services and as there is no PE to the said non resident in India, the amount does not accrue or arise in India and further as there is no need for deducting the amount under section 195, there is no violation of provisions of section 195 and accordingly the same cannot be disallowed under section 40(a)(ia).
Indian Company exercising control and supervision over a seconded employee and bearing the salary cost should be considered as an economic employer and not liable to withhold tax under Section 195 of the Act on the reimbursement of the salary to the foreign company on which tax has been withheld under Section 1923 of the Act. Further the Tribunal held that the payment to IDS USA did not represent ‘Fees for Technical Services’
In this case it is an undisputed fact that the tax on the entire income received by these assessees was required to be deducted at source at the appropriate rates by the respective payers u/s 195 of the Act . The Revenue have not placed before us any material controverting these findings of the ld. CIT(A) nor pointed out any contrary decision so as to enable us to take a different view in the matter.
The assessee is a owner/host of website www.shaadhi.com where individuals can register and exchange the relevant information for matrimonial alliances on payment of appropriate subscription amount. The facility is available to the resident as well as non residents. Vide service order dated 14.6.2004, the assessee availed the service of Rackspace. The said contract was extended and modified on 1.1.2007. The Rackspace offered advanced type of dedicated hosting solution to the assessee. The services provided by Rackspace to the assessee are stated by the Assessing Officer in the order u/s 201(1) and 201(1A) in para 3 as under:
