1. All India Chartered Accountants’ Society
6th Annual Workshop on Direct Taxes
International Taxation - II
Concept of source rule/ Section 195
Sanjiv Chaudhary/ Nidhi Maheshwari
All India Chartered Accountants’ Society

2. Contents 1. Glossary 2. Setting the context 3. Overview of Section 195
4. Objective of Section 195
5. Recent developments
6. Other interesting issues
7. Refund of taxes withheld u/s 195
8. Consequences of non-compliance
9. Key takeaways

3. Glossary Act Income-tax Act, 1961 AO Assessing Officer CBDT
Central Board of Direct Taxes CG
Central Government
DTAA
Double Taxation Avoidance Agreement
FTS
Fees for Technical Services FY
Financial Year HC
High Court
ITAT
Income-tax Appellate Tribunal NR
Non Resident
PAN
Permanent Account Number SC
Supreme Court
TRC
Tax Residency Certificate
u/s
Under Section
WHT
Withholding Tax

4. Setting the context

5. Chargeability…
Any person responsible for paying to a non resident…any interest or any other sum chargeable under the provisions of this Act shall…deduct income-tax thereon…
Section 195
Applicability: Section 1
The Act applies to the whole of India and became effective from 1 April 1962
Scope of Total Income of NR: Section 5
Income received or deemed to be received in India
Income accrues or arises or deemed to accrue or arise in India
Charging Section: Section 4
Section 4 gives the authority to the government to charge Income-tax

6. Income deemed to accrue or arise Section 9
Chargeability to tax governed by provisions of Act / DTAA
Nature of Income
Act*
DTAA (OECD model)
Business/ Profession
S.9(1)(i)
A.5 and A.7
Salary Income
S.9(1)(ii), S.9(1)(iii)
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
Capital Gains
S.9(i)(i)
A.13
* Apart from S. 5, wherever applicable
Act/ DTAA, whichever is beneficial prevails

7. Royalty/ FTS as per the Act Section 9(1)
Income by way of Royalty/ FTS shall be deemed to accrue or arise in India if payable by
Government
Resident NR
EXCEPT
WHERE
Business/ Profession outside India
Business/ Profession in India OR OR
Source of income outside India
Source of income in India
Finance Act, 2010
Income shall be deemed to accrue or arise irrespective of whether:
NR has residence/ place of business/ business connection in India
NR has rendered services in India

8. Overview of Section 195

9. Overview of Section 195 Section Provisions
195(1)
Scope and conditions for 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 the CBDT to issue Notifications
195(6)
Furnishing of information by payer
195A
Grossing up of tax
Part of Chapter XVII of the Act – A collection and recovery measure

10. Objective of Section 195

11. Objective of Section 195 of the Act
Tax is collected at the earliest point of time
No difficulty in collection of tax at the time of assessment
Avoiding loss of revenue as non residents may have no assets in India for subsequent recovery
Examples of payments covered – royalty/ fees for technical services
Circular No. 152 dt
“the objective is to ensure, as best as possible, that the tax liability on the income element, on the amount paid is got deducted at source itself so that the department is not put to the hassles of recovering it from a non-resident whose connection with India may be transient or whose assets in India may not be sufficient to meet the tax liability.”
XYZ, In Re: P.No.18 of ITR 575

12. Broad analysis of Section 195

13. Withholding tax not conclusive; subject to regular assessment
Section 195(1) Analysis
Scope
Covers all sums
Except salaries, dividends referred in Section 115O
Withholding tax not conclusive; subject to regular assessment
Time
Credit or Payment, whichever is earlier
Section 195
Rate
Rates in force

14. Section 195(1) Scope
Whether payment made by an NR to another NR outside India is covered under the ambit of Section 195? No
Shrikumar Poddar ITD 48 (ITAT Mum)
Yes
Satellite Television Asian Region Ltd. 99 ITD 91 ITAT Mum
Vodafone International Holding BV 221 CTR 617 (SC)*
The Supreme Court had directed the AO to determine the jurisdiction issue who has decided the matter against Vodafone. However, Vodafone has filed a writ in the Bombay High Court which is to hear the appeal on 8 July 2010

15. Payment made by Foreign Company to NR (Expats) seconded
Section 195(1) Scope
Obligation to withhold tax u/s 192 may arise for payments made by NR/ Foreign Company to NR in relation to services rendered in India
Payment made by Foreign Company to NR (Expats) seconded
Eli Lilly and Co. India (P) Ltd ITR 225 (SC)
Babcock Power (Overseas Projects) Ltd ITD 29 (ITAT Del)

16. Section 195(1) Any Sum Chargeable
Any sum chargeable to tax means
Amount paid which wholly bears the character of income; or
Gross amount, the whole of which may or may not represent income or profits
Transmission Corporation of AP Ltd. 239 ITR 587 (SC)
Headstart Business Solutions (P) Ltd. 285 ITR 530 (AAR)

17. Point of Tax Withholding
Section 195(1)
Withholding at the time of credit or payment whichever is earlier
Payment of Royalty under DTAA - tax deductible on payment?
Affirmed by - National Organic TTJ 765 (ITAT Mum)
Contrary View - Flakt (India) Ltd ITR 727 (AAR)
Point of Tax Withholding
Tax to be withheld even when no remittance on adjustment of dues
Raymond Ltd ITD 791 (ITAT Mum)
United Breweries Ltd (211 ITR 256) (Kar)
Pfizer Corporation ITR 391 (Mum)
Tax withholding in cases where RBI approval required

18. Section 195(1) Rates in Force
Section 2(37A)(iii)
Rates of income-tax specified in the Finance Act or DTAA
Circular No. 728 dt. 30 October 1995
Beneficial rates to be applied
Rates prescribed under DTAA: to be increased by surcharge and education cess?

19. Section 195(2) Application by Payer
Application by the Payer to the AO for determining appropriate portion of sum chargeable
Alternate Mechanism: CA certificate*
To be discussed later

20. Section 195(2) Application by Payer
Mandatory to approach AO?
Transmission Corporation of AP Ltd. 239 ITR 587 (SC)
Once income is chargeable to tax, withholding on gross sum unless order obtained from AO
Fact: Gross trading receipt with income element embedded therein
Other Judgments
Yes No
Intel Tech India (P) Ltd TTJ 348 (ITAT Bang)
Frontier Offshore Exploration (India) Ltd. 118 ITD 494 (ITAT Chen)
Indopel Garments ITD 102 (ITAT Mad)
SOL Pharmaceuticals Ltd ITD 72 (ITAT Hyd)
Cheminor Drugs Ltd ITD 37 (ITAT Hyd)
Maharashtra State Electricity Board 90 ITD 793 (ITAT Mum)

21. Section 195(2) Application by Payer – Income not taxable?
Samsung Electronics Co. Ltd CTR 335 (Kar)
Obligation to withhold tax exists if the income is prima facie taxable, unless a ‘nil’ withholding tax certificate is obtained
1999
2009
2010
Transmission Corporation of AP Ltd. 239 ITR 587 (SC)
Once income is chargeable to tax, withholding on gross sum unless order obtained from AO
Liability to withhold tax does not arise where income is not taxable in India
Van Oord ACZ India (P) Ltd; Maharishi Housing Development Finance Corporation Ltd; Prasad Production Ltd.
Post Samsung decisions*
Fact: Gross trading receipt with income element embedded therein

22. Section 195(2) Application by Payer
What lies ahead
Recent favourable decisions likely to provide some relief to assessees
Supreme Court decision in the Samsung case on 18 August 2010 eagerly awaited

23. Section 195(3)/ 195(5) Application by Payee/ Powers of CBDT
Applicable to:
foreign bank branches and
other branches subject to certain conditions
In operation for at least 5 years
Value of fixed assets in India exceed Rs.50 lakhs
Section 195(3): Application by NR payee for NIL tax withholding
NR payee is regularly assessed to tax and should not have defaulted in respect of Indian tax, interest, penalty, fine etc.
CBDT can by notification in the Official Gazette make rules specifying the cases for the grant of certificate u/s 195(3) and the related conditions
Section 195(5): Powers of CBDT

24. Section 195(4) Validity of certificate issued by AO
A certificate granted u/s 195(3) shall remain in force:
for the FY mentioned therein; or
until cancelled by the AO before expiry of FY
Provisional Certificate only

25. Section 195(6) New Rules for Information
Section 195(6) introduced by Finance Act 2008 (w.e.f. 1 April 2008)
Requires the person making payment to NR to furnish the information relating to payment
Furnish information to the tax department - Form 15CA
Obtain CA certificate before making payment to NR - Form 15CB
Furnishing of information - Rule 37BB (w.e.f. 1 July 2009)

26. Procedure Form 15CA and 15CB
Remitter
Printout of the undertaking form (15CA) is signed
Every remittance required to follow procedure even if not chargeable to tax in India
Requires the payer to provide PAN of the non resident
Form 15CB need not be filed with the tax department – information requirement is same as Form 15CA
Obtains certificate of Accountant (Form 15CB)
Submit the signed paper undertaking form to the RBI/ AD along with certificate of an Accountant in duplicate
Electronically upload the remittance details in Form 15CA on
RBI/ AD remits the Amount
Take printout of filled undertaking form (15CA) with system generated acknowledgement number
A copy of undertaking (15CA) & Certificate of Accountant (15CB) forwarded to AO

27. Practical Issues in certification by CA
Whether TRC sufficient evidence to claim Tax Treaty Benefits?
Characterization issues: Royalty, FTS, etc.
No books of accounts in India
Issues
Issuance of certificate in absence of complete information about payee
Amount attributable to PE or not; if yes, then quantum of amount attributable?
Verification of PE in India
Can Nil withholding foreign remittance certificate be issued???

28. Section 195A Grossing up of Tax
Grossing up required in case of net of tax payments*
Amount of tax payable by the NR has to be added to the income remitted to the NR and the tax payable by the NR should be determined with reference to the gross figure arrived at as above
* Not applicable in case of payments referred to in S.192(1A) - Non monetary perquisites taxable as salary

29. Recent developments

30. Section 206AA
Section 206AA* stipulates withholding at higher of following rates in case PAN of payee is not furnished:
Rate specified in the relevant provisions of the Income-tax Act, 1961 (varying rates prescribed for different nature of payments); or
Rates in force (as specified in the Schedule to the Finance Act; relevant tax treaties); or
20 percent.
Further, PAN to be quoted on all correspondence, bills, vouchers, etc. between payer and payee.
* with effect from 1 April 2010

31. Certain issues connected with 206AA
Applicability restricted to transactions where tax is deductible?
Timing for applicability of Section 206AA
Applicability on payments to non residents?
Overriding effect on tax treaties
Grossing up and determination of income liable to tax in payee’s hands in ‘net of tax’ contracts
Levy of surcharge and education cess on maximum rate of 20%
Credit under relevant tax treaty of the non-resident’s home country for higher taxes paid

32. New WHT Rules Some important changes
New WHT provisions applicable w.e.f. FY (Not applicable to FY )
Particulars
Existing
New
Impact
Quarterly WHT statement for Q4
15 June
15 May
Pre-poned by 1 month
WHT deposit for year end provisions
31 May (for 31 March entries)
30 April (for entries in March)

33. Other interesting issues

34. Cost to cost reimbursement Obligation u/s 195
Cost to cost reimbursement requires TDS
Reimbursement of cost allocation
Danfoss ITR 1 (AAR)
Timken India Ltd CTR 610 (AAR)
Reimbursement of expenses along with FTS
Cochin Refineries Ltd ITR 354 (Ker)
Hyder Consulting Ltd ITR 640 (AAR)

35. Cost to cost reimbursement Obligation u/s 195
Cost to cost reimbursement does not require TDS
Decta 237 ITR 190 (AAR)
Clifford Chance UK 82 ITD 106 (ITAT Mum)
HNS India VSAT Inc. 95 ITD 157 (ITAT Del)
Tata Engineering and Locomotive Co. Ltd ITR 823 (Bom)
HCL Infosystems Ltd. 76 TTJ 505 (ITAT Del)
Dolphin Drilling Ltd. 121 TTJ 433 (ITAT Del)
ABB Ltd. 230 CTR 327 (AAR)

36. Payment for Software – whether royalty??
Software Payments
Payment for Software – whether royalty??
Not Royalty
Motorola Inc TTJ 1 (ITAT Del) (SB)
Lucent Technologies International Inc. 28 SOT 98 (ITAT Del)
Infrasoft Limited (Indian Branch Office) 28 SOT 179 (ITAT Del)
Royalty
Airport Authority of India ITR 216 (AAR)
IMT Labs India (P) Ltd ITR 450 (AAR)

37. Payment towards use/ access of computer server is royalty or not
Software Payments
Payment towards use/ access of computer server is royalty or not
Not Royalty
Factset Research Systems, Inc. 317 ITR 169 (AAR)
Wipro Limited ITR 57 (ITAT Bang)
Dun & Bradstreet Espana S.A ITR 99 (AAR)
Royalty
ABC, In re ITR 296 (AAR)
IMT Labs (I) (P) Ltd ITR 450 (AAR)
Cargo Community Network Pte. Ltd. 289 ITR 355 (AAR)

38. Fees for Technical Services
Treaties with USA, UK, Singapore, Australia, Canada etc. have the concept of “make available” in the FTS definition
Raymonds Limited 86 ITD 791 (ITAT Mum)
C.E.S.C. Ltd. 87 ITD 653 (ITAT Cal)
The Boston Consulting Group 94 ITD 31 (ITAT Mum)
Gujarat Ambuja 2 SOT 784 (ITAT Mum)
National Organic 96 TTJ 765 (ITAT Mum)
Make available significantly narrows down the scope of FTS

39. Refund of Tax Withheld Under Section 195

40. Refund of Tax Withheld u/s 195…
Payer is entitled to claim refund in prescribed cases
Circular No. 7/ 2007 dt
Contract is cancelled and no remittance is made to the non-resident
Remittance is made to the non-resident but the contract is cancelled
Contract is cancelled after partial execution
Retrospective amendment in law/ exemption by way of notification making the sum remitted exempt from tax
Order u/s 154/ 248/ 264
Tax deducted twice on the same income by mistake

41. …Refund of Tax Withheld u/s 195
Tax deducted at domestic tax rates; lower rate as per DTAA
Prior Approval of the Chief Commissioner/ Director General
Refund is first to be adjusted against any existing tax liability
Interest u/s. 244A is not payable on such refunds
Undertaking to be given by the payer that TDS certificate has not been issued
Deductee has not filed the return of income and time of filing the return has also been lapsed
Claim should be made within 2 years from the end of the FY in which tax has been deducted

42. Consequences of non compliance

43. Consequences of non compliance…
Applicable section
Nature of default
Consequence
40(a)
Withholding tax not deducted or not deposited within prescribed time
Disallowance of expenses in computation of taxable income of payer; deduction in year of payment
201(1)
Tax not withheld/ deposited appropriately
Recovery of tax not withheld/ deposited or short withheld/ deposited
201(1A)
1% per month or part of he month
221
Tax withheld not paid
Penalty, not exceeding the amount of tax not paid
271C
Tax not withheld or short withheld
Penalty, not exceeding the amount of tax not withheld

44. …Consequences of non compliance
Applicable section
Nature of default
Consequence
272A
Delay in issuing withholding tax certificate/ filing withholding tax statement
Rs 100 per day for period of default, subject to maximum of the tax withheld
276B
Withholding Tax not deposited within prescribed time
Prosecution by way of imprisonment for a term between 3 months to 7 years and with fine
Non compliance results in severe consequences

45. Key takeaways

46. Tax Withholding from cross-border transactions is critical
Concluding Thoughts
Payment to non-residents should be thoroughly examined from tax withholding perspective
Payments can be remitted under the alternate mechanism (with CA Certificate) if the case is strongly supported by judicial precedents
In case of doubt coupled with substantial amount - Advisable to obtain tax withholding order u/s 195
Mitigate grave consequences of non compliance with S.195
Tax Withholding from cross-border transactions is critical

47. Open house
Questions…

48. e-mail: schaudhary@kpmg.com e-mail: nmaheshwari@kpmg.com
Contact details
Sanjiv Chaudhary
KPMG India
Tel (Direct):
Cell:
Nidhi Maheshwari
Tel (Direct): +91 (124)
Cell: