2018 (1) TMI 20 - AT - Income Tax

Tribunal upholds classification of payments as technical services fees, affirms interest due for TDS deduction

M/s. Bombardier Transportation India Pvt. Ltd. Versus Dy. Commissioner of Income Tax (TDS)

The Tribunal dismissed all appeals, upholding the classification of payments to M/s. Computer Science Corporation India Pvt. Ltd. as fees for technical ... Short deduction of TDS - TDS u/s 194C OR 194J - information technology outsourcing services in the nature of technical, managerial and consultancy services - Held that:- It is an undisputed fact that this “LSA” has been executed as per the Master Services Agreement “MSA” (supra) between assessee's parent and the very payee. We notice that this MSA is basic foundation which nowhere forms part of the case file. Nor has the assessee placed it on lower authorities’ record. The above following “LSA” aimed to regulate necessary terms of information technology and related services to be rendered by the payee in lieu of assessee’s payments. The assessee is fair enough in not disputing the fact that it has not handled or operated even a fraction of services on its own throughout all these assessment years. It seeks to take refuge under the contractual format on the other hand to come out of rigor of Section 194J of the Act. We are of the opinion that it is not the medium of contract or payment but the nature of services rendered by the payee which is the crucial factor to determine whether or not they amount to technical or professional services. The assessee cannot succeed in treating its payments u/s.194C by taking recourse to a written contract document. More particularly when it has come on record the payee itself had been issuing press release(s) alike the one already extracted hereinabove. The assessee has not made even a single attempt in the course of hearing to rebut the same. We therefore observe that its recipient’s information technology related integrated service activities amount to technical services only. The assessee’s reliance on its itemized billings of the above services in classifying the same as bundled payments/services cannot be accepted in view of the forgoing discussion that it is the recipient only who is wholly responsible for handling / providing all information technology related services. We also deem it appropriate to observe that hon’ble Delhi high court’s judgment DIT vs. Rio Tinto Technical Services [2012 (1) TMI 5 - DELHI HIGH COURT] has held that the above exclusion clause in Section 9(1)(vii) explanation 2 is to be read as a project in the nature of construction, assembly, mining only. We thus reject assessee’s argument seeking to invoke the above exclusion clause u/s.9(1)(vii) explanation 2 of the Act. We find no merit in assessee’s next argument of having acted in bonafide belief as well in deducting TDS @2% only qua its impugned payments as based on judgment Gwalior Rayon Silk Co. Ltd. (1983 (9) TMI 24 - MADHYA PRADESH High Court) case as well as all the abovesaid facts/circumstances discussed leave no doubt much less formation of such relief that the payee “CSCIPL” had in fact rendered technical services only requiring TDS deduction u/s.194J of the Act. We thus affirm both the lower authorities’ findings holding the payee recipient to have rendered technical and professional services. The assessee’s further plea that such technical services are nowhere in the nature of consultancy only is without any substance as there is no such isolated condition provided in the Act wherein all the relevant facts and circumstances have to be appreciated. Issues Involved:1. Classification of payments made to M/s. Computer Science Corporation India Pvt. Ltd. (CSCIPL) under Section 194J versus Section 194C and 194I of the Income Tax Act, 1961.2. Applicability of Section 201(1) and interest under Section 201(1A) of the Income Tax Act, 1961.3. Consideration of assessee's claim of bonafide belief in TDS deduction.4. Revenue's appeal regarding TDS deductions under Section 194C for payments to M/s. Aradhana Indian Engineering Works (AEW) and Commtel Networks Pvt. Ltd. (CNPL).Detailed Analysis:1. Classification of Payments under Section 194J versus Section 194C and 194I:The central issue in all the appeals was whether the payments made by the assessee to CSCIPL should be classified as fees for technical and professional services under Section 194J, which attracts a TDS rate of 10%, or as contractual payments under Section 194C or rental payments under Section 194I, which attract a lower TDS rate of 2%.The assessee argued that the payments were for outsourcing IT-related services and thus should be classified under Section 194C or 194I. They contended that the services provided by CSCIPL were in the nature of maintenance contracts and not technical or professional services.The Assessing Officer (AO) and CIT(A) held that the services provided by CSCIPL were highly technical, involving IT infrastructure, support services, and consultancy, and thus fell under Section 194J. The AO referenced the Master Service Agreement (MSA) and Local Service Agreement (LSA) between the assessee and CSCIPL, which indicated that the services were technical and professional.The Tribunal upheld the lower authorities' findings, stating that the nature of services rendered by CSCIPL, which included desktop, help desk, call center, data center, network, and application management services, were indeed technical services under Section 194J.2. Applicability of Section 201(1) and Interest under Section 201(1A):The assessee argued that the short deduction of TDS was a genuine interpretational error and not a case of complete non-deduction. They cited various judicial precedents to support their claim that they should not be treated as an assessee in default under Section 201(1).The Tribunal rejected this argument, stating that the nature of services provided by CSCIPL clearly fell under technical services, and thus, the assessee was liable to deduct TDS at 10% under Section 194J. Consequently, the interest under Section 201(1A) was also applicable.3. Consideration of Assessee's Claim of Bonafide Belief:The assessee claimed that they had acted in bonafide belief in deducting TDS at 2% based on their interpretation of the agreement with CSCIPL. They cited the case of Gwalior Rayon Silk Co. Ltd. to support their claim.The Tribunal found no merit in this argument, stating that the facts and circumstances of the case clearly indicated that the services were technical in nature, requiring TDS deduction under Section 194J. The Tribunal affirmed the lower authorities' findings, holding the assessee liable for the short deduction of TDS.4. Revenue's Appeal on TDS Deductions for AEW and CNPL:The Revenue appealed against the CIT(A)'s order, which held that the assessee was justified in deducting TDS under Section 194C for payments made to AEW and CNPL.The Tribunal noted that the assessee had succeeded on this issue in the previous assessment year (2012-13) and that the CIT(A)'s findings had attained finality. The Tribunal found no new evidence to warrant a different conclusion and thus dismissed the Revenue's appeal.Conclusion:The Tribunal dismissed all ten appeals filed by the assessee and the sole appeal filed by the Revenue. The Tribunal upheld the classification of payments to CSCIPL as fees for technical services under Section 194J, affirming the applicability of Section 201(1) and interest under Section 201(1A). The Tribunal also upheld the CIT(A)'s decision regarding TDS deductions for payments to AEW and CNPL under Section 194C.