2014 (3) TMI 100 - AT - Income Tax

Disallowance of TDS on payments to foreign service providers upheld by ITAT

DCIT, Circle 12(1), New Delhi Versus M/s. Hero Management Services Ltd.

DCIT, Circle 12(1), New Delhi Versus M/s. Hero Management Services Ltd. - TMI Issues Involved:1. Deletion of disallowance of Rs.1,56,30,554/- due to failure to deduct TDS on market development expenses.2. Taxability and TDS applicability on payments made to foreign service providers.3. Classification of various expenses and their TDS applicability.4. Interpretation of relevant sections of the Income Tax Act and Double Taxation Avoidance Agreements (DTAA).Detailed Analysis:1. Deletion of Disallowance of Rs.1,56,30,554/-:The Department challenged the deletion of disallowance made by the Assessing Officer (A.O.) on account of failure to deduct TDS on market development expenses. The A.O. had disallowed the market development expenditure of Rs.1,56,30,554/- due to non-deduction of TDS, asserting that the assessee should have deducted tax at source as per law.2. Taxability and TDS Applicability on Payments Made to Foreign Service Providers:The assessee argued that the payments to foreign service providers were for services rendered outside India, and therefore, no tax was deductible at source. The relevant agreements and details of amounts paid to service providers in the USA and UK were furnished. The service providers did not have a business establishment in India, and the payments were received outside India. The assessee contended that no income accrued or arose in India, and thus, no TDS was applicable. The A.O. disagreed, leading to disallowance.3. Classification of Various Expenses and Their TDS Applicability:The assessee provided a breakdown of the market development expenses, including business promotion, entertainment, and advertisement & publicity expenses. It was argued that TDS was not deductible on business promotion and entertainment expenses, while TDS was deducted wherever applicable for advertisement and publicity expenses. The assessee further detailed the remittances made to various service providers, asserting that these did not fall under the definition of 'fee for technical services' as per DTAA.4. Interpretation of Relevant Sections of the Income Tax Act and DTAA:The CIT(A) evaluated the arguments and evidence, concluding that the service providers were foreign sales representatives with no permanent establishment (PE) in India. The services were rendered outside India, and payments were received outside India, meaning no income accrued or arose in India. The CIT(A) referenced Section 5(2) and Section 9 of the Income Tax Act, along with relevant clauses of DTAA, to support this conclusion. The CIT(A) also relied on the Supreme Court decision in GE India Technology Center (P) Ltd. vs. CIT, which emphasized that TDS is not required if the sum is not chargeable to tax in India.Judgment:The CIT(A) agreed with the assessee's contention and deleted the disallowance made by the A.O., holding that the assessee was not liable to deduct tax at source under Section 195 of the Income Tax Act. The CIT(A) cited the decision of the ITAT Delhi Bench in the case of Econ Technology (P) Ltd. and CBDT Circulars No. 23 and 786, which clarified that no tax is deductible on export commission payable to non-residents for services rendered outside India. The jurisdictional High Court of Delhi upheld this view in CIT vs. Econ Technology (P) Ltd.Conclusion:The ITAT, after considering the material on record and precedent decisions, found that the issue was covered in favor of the assessee based on earlier decisions in the assessee's own case and other similar cases. The ITAT upheld the order of the CIT(A) and dismissed the Department's appeal, confirming that the assessee was not liable to deduct TDS on the payments made to foreign service providers as no income accrued or arose in India.Order Pronouncement:The appeal of the Department was dismissed, and the order was pronounced in the open court on 21st February 2014.