2010 (12) TMI 916 - AT - Income Tax

Non-resident company exempt from interest under section 234B when income subject to TDS

The Tribunal allowed the appeal of the assessee, holding that interest under section 234B is not leviable on a non-resident company when all its income is ... Advance tax - whether Levy of interest u/s 234B is mandatory or not? - assessee is a non-resident company incorporated under the laws of USA - Held that:- Where all payments made to non-resident are subject to deduction of tax at source under section 195 of the Income-tax Act, the interest under section 234B is not leviable on the non-resident - As per the decision of the High Court of Delhi in the case of DIT v. Jacabs Civil Incorporated/Mitsubishi Corporation [2010 (8) TMI 37 - DELHI HIGH COURT] appeal decided in favour of assessee. Issues Involved:1. Levy of interest under section 234B of the Income-tax Act on a foreign company.2. Taxability of IT support services and cross charges.3. Application of TDS provisions under section 195.4. Applicability of Double Taxation Avoidance Agreement (DTAA).Issue-wise Detailed Analysis:1. Levy of Interest under Section 234B:The primary issue in this case is whether interest under section 234B of the Income-tax Act can be levied on a foreign company when the entire amount of payments made to it is subject to TDS under section 195. The assessee argued that as a non-resident company, all its receipts are subject to TDS, and hence, it is not liable to pay advance tax or interest under section 234B. The CIT(A) upheld the levy of interest, stating that orders under section 195(2) are provisional and do not bind the Assessing Officer in regular assessment proceedings. The Tribunal, however, relying on various judicial precedents including the Special Bench decision in Motorola Inc. and High Court decisions in Halliburton Offshore Services Inc. and Tide Water Marine Intl. Inc., held that where all the non-resident's income is subject to TDS, interest under section 234B is not leviable. The Tribunal concluded that the assessee is not liable for payment of advance tax and hence, interest under section 234B cannot be levied.2. Taxability of IT Support Services and Cross Charges:The assessee received Rs. 46,29,99,611 towards IT support services from its subsidiary in India and declared only 20% of this amount as income accruing in India. The Assessing Officer, after examining the agreement between the assessee and its subsidiary, concluded that 15% of the receipts towards salaries of employees and equipment and maintenance are taxable in India as royalty, not just 20% of the total receipts as claimed by the assessee. The Tribunal noted that the assessee had complied with the tax demand raised by the Assessing Officer without filing an appeal against the same. However, it held that compliance with the tax demand does not imply liability to pay interest under section 234B.3. Application of TDS Provisions under Section 195:The assessee's subsidiary had filed an application under section 195(2) of the Income-tax Act to determine the appropriate sum chargeable to tax in India. The Assessing Officer determined that only 20% of the payments were taxable, and the subsidiary deducted TDS accordingly. The Tribunal observed that the assessee had relied on this determination and hence, was not liable to pay advance tax. The Tribunal emphasized that the entire tax is to be deducted at source to ensure no loss of revenue, as per CBDT Circular No. 152.4. Applicability of Double Taxation Avoidance Agreement (DTAA):The assessee argued that under the DTAA between India and the USA, fees for services included may be taxed in the contracting state in which they arise. The IT support services and cross charges represented reimbursement of actual expenses and were not income in the hands of the assessee. The Tribunal acknowledged this argument but focused on the fact that the assessee had complied with the tax demand without contesting the nature of the expenses. The Tribunal ultimately held that the assessee was not liable to pay advance tax and hence, interest under section 234B was not applicable.Conclusion:The Tribunal allowed the appeal of the assessee, holding that the interest under section 234B is not leviable on a non-resident company where all its income is subject to TDS under section 195. The Tribunal relied on various judicial precedents and emphasized that the assessee had complied with the tax demands based on the determination under section 195(2) and was not liable for advance tax. The decision underscores the principle that where the entire income of a non-resident is subject to TDS, the liability to pay advance tax and interest under section 234B does not arise.