2019 (5) TMI 557 - HC - Income Tax

Court quashes order, directs tax certificate issuance & tax release with interest.

Indostar Capital Versus Asst. Commissioner of Income Tax, (International Taxation) 2 (2) (1) & Ors.

The court quashed the order rejecting the application for a certificate under Section 197 of the Income Tax Act, directing the issuance of a certificate ... Writ against order of department rejecting issuance of certificate u/s 197 - certificate for lower rates or no deduction of income tax (TDS) - petitioner referred to the DTAA between India and Mauritius to argue that as per the provisions contained in the said treaty, the income out of sale of shares cannot be taxed in the hands of the assessee in India - in absence of the certificate issued by the Authority u/s 197 the payer would be under obligation to deduct tax at source in terms of Section 195 - HELD THAT:- Had the AO in the present case sufficient prima facie material to demonstrate that the entire transaction from the inception was sham and colourable device and a bogus transaction to simply avoid tax, it was still open for him to express his opinion accordingly and refuse to grant certificate u/s 197. In the present case, as perusal of the impugned order would convince us that the material at his command fell short of this requirement. We have summarized principle factors which the AO pressed in service. Mere fact that the assessee company has not transacted any other business by itself may not be conclusive. The reference to the assessee unable to produce TRC of the companies which hold shares in the assessee company is erroneous. The petitioner would point out that such certificates were produced before the AO. The observation that mere transfer of money though banking channel would not be conclusive, may be quite correct but the same cannot be a ground against the assessee unless there is adverse material. It is true that the extent of administrative expenditure and the employment structure may be some of the factors which eventually would go to establish whether the transaction was sham and the very existence of the assessee was fraudulent, however by themselves may not be sufficient. All these aspects can and need to be gone into in the assessment proceedings. Provisions contained in Section 197. One of the main benefits for an assessee who obtains a certificate u/s 197 for no deduction of tax at source or for deduction of tax at low rate would be to receive full payment from the payer without exposing the payer to the possibility of being declared as deemed defaulter. Yet another purpose of Section 197 would be to secure the interest of the Revenue. We fully share the anxiety of the Revenue that without adequate protection of recovery, the possible tax component should not be released in favour of the assessee. In view of the discussion above, we propose to quash the impugned order dated 20.6.2018 passed u/s 197 and after balancing the equities, direct the respondents to release the withheld payment subject to adjustment in the assessment. AO shall issue necessary certificate of no requirement of deducting tax at source to the petitioner u/s 197.The tax already deducted by the payer as per the directives of the Assessing officer and deposited in the Government revenue shall be released in favour of the petitioner along with interest if any payable as per law latest by 15.6.2019. Issues Involved:1. Validity of the rejection of the application for a certificate under Section 197 of the Income Tax Act, 1961.2. Applicability of the Double Taxation Avoidance Agreement (DTAA) between India and Mauritius.3. Legitimacy of the transactions and corporate structure of the petitioner.4. Obligations of the payer regarding tax deduction at source under Section 195 of the Act.5. Availability of alternate remedies to the petitioner.Issue-wise Detailed Analysis:1. Validity of the Rejection of the Application for a Certificate under Section 197 of the Income Tax Act, 1961:The petitioner, a Mauritius-based company, challenged the order dated 20.6.2018 passed by the Assistant Commissioner of Income Tax under Section 197 of the Income Tax Act, 1961, which rejected the petitioner's application for a certificate for no deduction of tax at source. The Assistant Commissioner’s reasons for rejection included the petitioner's lack of business transactions other than investments, absence of administrative expenses or employees in Mauritius, and failure to produce Tax Residency Certificates (TRCs) of the companies holding shares in the petitioner. The Assistant Commissioner concluded that the transactions were not genuine and were structured to avoid legitimate tax liability.2. Applicability of the Double Taxation Avoidance Agreement (DTAA) between India and Mauritius:The petitioner argued that under the DTAA between India and Mauritius, the capital gains from the sale of shares were not taxable in India. The petitioner held a TRC issued by the Mauritius Revenue Authority, and it was contended that the Indian Revenue Authorities could not dispute this TRC. The petitioner cited CBDT circulars which state that as long as the TRC is in existence, the Income Tax Authorities cannot deny the tax residency status of the petitioner in Mauritius.3. Legitimacy of the Transactions and Corporate Structure of the Petitioner:The Revenue contended that the transactions were not genuine and that the petitioner was not a bona fide Mauritius-based company. The Assessing Officer applied the principles laid down by the Supreme Court in the Vodafone International Holdings B.V. case to conclude that the transactions were non-genuine. The petitioner countered that all transactions were reported to the statutory authorities, and there was no evidence to establish that the transactions were sham or bogus.4. Obligations of the Payer Regarding Tax Deduction at Source under Section 195 of the Act:The court noted that under Section 195 of the Act, tax must be deducted at source if the income in the hands of the payee is chargeable under the Act. The petitioner argued that in the absence of tax liability in India, deduction of tax at source was not permissible, and hence, the certificate under Section 197 should be granted. The court emphasized that the question of taxability of income would be addressed during the assessment proceedings.5. Availability of Alternate Remedies to the Petitioner:The Revenue argued that the petitioner had alternate remedies, such as challenging the order before the Commissioner under Section 264 of the Act or filing a return of income and claiming a refund if it succeeds in establishing no tax liability. The court acknowledged the availability of alternate remedies but decided to address the correctness of the order passed under Section 197 of the Act.Conclusion:The court quashed the impugned order dated 20.6.2018 and directed the Assessing Officer to issue a certificate of no requirement for deducting tax at source to the petitioner under Section 197 of the Act. The court also ordered the release of tax already deducted along with interest, subject to certain conditions to protect the Revenue's interest, including maintaining a minimum number of shares and filing a return of income. The court clarified that its observations were prima facie and would not prejudice the assessment proceedings.