2020 (12) TMI 527 - AT - Income Tax

Tribunal Overturns Tax Penalties: Appellant Not at Fault for Non-Deduction of TDS on Pre-Ruling Software Purchases.

M/s Sartorius Stedim India Pvt. Ltd. Versus The Asst. Commissioner of Income Tax, TDS Circle-3 (1), Bengaluru.

The Tribunal ruled in favor of the appellant, setting aside the penalties under section 271C and demands under sections 201(1) and 201(1A) of the Income ... Non deduction of tds u/s 195 - Levy of interest u/s 201(1A) - withholding tax on purchase of software - AO held that the payment made for purchase of license to use a software was “royalty” income in the hands of non-resident accordingly, assessee should have deducted tax at source under section 195 - HELD THAT:- In the instant case, assessee was under bonafide belief that it was not required to deduct tax at source from the payments made for purchase of software as relying on Teekays Interior Solutions P Ltd [2019 (4) TMI 193 - ITAT BANGALORE] and Infineon Technologies India P Ltd [2020 (8) TMI 808 - ITAT BANGALORE]. Subsequently, Hon’ble Karnataka High Court in CIT vs. Samsung Electronics Co. Ltd [2011 (10) TMI 195 - KARNATAKA HIGH COURT] held that the payments made for purchase of software was in the nature of royalty and the said decision came to be pronounced on 15.10.2011. Accordingly, the present facts of case assessee could not be treated as an assessee in default in respect of payments made for purchase of licensed software prior to 15.10.2011, being the date of pronouncement of the decision in the case of Samsung Electronics Co. Ltd (supra). Accordingly, demand raised in the hands of the assessee u/s 201(1) and 201(1A) cannot not be sustained and the demands raised in respect of payments made prior to 15.10.2011 in assessment year 2012-13 deserves to be quashed. We delete penalty levied under section 201 (1) and (1A) Penalty under section 271C for non-deduction of TDS - HELD THAT:- As expressed in the present facts of the case, assessee cannot be held to be in default for non-deduction of TDS. Under such circumstances the penalty levied under section 271C deserves to be quashed and set-aside. ISSUES PRESENTED AND CONSIDERED 1. Whether payments for purchase of licensed computer software made to non-residents prior to the date of pronouncement of the authoritative High Court decision treating such payments as 'royalty' attract obligation to deduct tax at source under section 195 and thereby render the payer an assessee in default under section 201(1). 2. Whether interest under section 201(1A) is payable where the payer is held to be in default for non-deduction of TDS on purchase of software, in the factual matrix of payments made before the High Court decision deeming such payments to be royalty. 3. Whether penalty under section 271C for failure to deduct/ pay TDS can be sustained where the payer had bona fide belief and supporting judicial decisions at the relevant time that no TDS obligation arose on purchase of software licenses. 4. Ancillary question considered: whether reliance on subsequent amendments or later judicial precedents can be invoked retrospectively to impose TDS obligations or penalties for payments made before such pronouncements or amendments (including consideration of reasonable cause and limitation concerns). ISSUE-WISE DETAILED ANALYSIS Issue 1: TDS liability on payments for licensed computer software made prior to the High Court decision treating such payments as royalty (sections 195/201) Legal framework: Section 195 imposes obligation to deduct tax at source on payments to non-residents if such payments are chargeable to tax in India (e.g., royalty). Section 201(1) treats a person as an assessee in default where TDS obligations under the Act are not complied with. Precedent Treatment: Coordinate benches of the Tribunal had earlier taken views that purchases of software licenses were not liable to TDS. Subsequently a High Court decision held that such payments are in the nature of royalty. The Court/Tribunal examined temporal application of the High Court pronouncement. Interpretation and reasoning: The Tribunal emphasized temporal applicability of judicial pronouncements. Where payments were made prior to the date of pronouncement of the High Court decision that characterized software license payments as royalty, the payer could not be treated as an assessee in default for those earlier payments because at the relevant time there existed contrary judicial views and no binding authority in favor of treating such payments as royalty. The Tribunal relied on earlier coordinate-bench decisions following the same reasoning and applied the principle that a retrospective imposition of TDS obligations by later judicial interpretation cannot be visited on transactions completed before that interpretation became binding. Ratio vs. Obiter: Ratio - payments made prior to the date of the authoritative High Court pronouncement treating such payments as royalty do not render the payer an assessee in default under section 201(1) where, at the time of payment, there was a bona fide belief supported by existing judicial views that no TDS obligation arose. Conclusions: Demands under section 201(1) arising from non-deduction of TDS on purchase of licensed software, insofar as they relate to payments made before the High Court decision date, are unsustainable and are to be deleted. Issue 2: Interest under section 201(1A) where TDS was not deducted for payments made before the High Court decision Legal framework: Section 201(1A) prescribes interest for failure to deduct/ pay TDS, contingent upon the person being an assessee in default under section 201(1). Precedent Treatment: The Tribunal followed coordinate-bench decisions which declined to treat taxpayers as in default for pre-pronouncement payments, and accordingly declined related interest demands. Interpretation and reasoning: Because the payer cannot be held to be in default for payments made prior to the High Court decision, the statutory incidence for levy of interest under section 201(1A) does not arise for those payments. The Tribunal applied the logical sequence that interest under section 201(1A) is derivative of default under section 201(1); if the primary default does not exist, interest cannot be sustained. Ratio vs. Obiter: Ratio - interest under section 201(1A) cannot be levied in respect of payments for which the payer is not an assessee in default (here, payments made prior to the High Court pronouncement). Conclusions: Interest levied under section 201(1A) in respect of pre-pronouncement payments is deleted. Issue 3: Penalty under section 271C for non-deduction of TDS where a bona fide belief existed that no TDS was payable Legal framework: Section 271C empowers levy of penalty for failure to deduct or pay TDS. The availability of 'reasonable cause' and the taxpayer's bona fide belief are material in considering whether penalty should be imposed. Precedent Treatment: The Tribunal considered decisions of coordinate benches and relevant High Court authority addressing whether reasonable cause exists where contemporaneous judicial decisions support the taxpayer's view. A decision allowing bona fide reliance on then-existing judicial precedent was applied. Interpretation and reasoning: The Tribunal held that where payments were made before the High Court decision and the payer acted under bona fide belief supported by then-prevailing judicial decisions, the payer cannot be penalized under section 271C for failure to deduct TDS. The Tribunal treated the presence of conflicting judicial views at the relevant time and the absence of binding adverse authority as providing reasonable cause for non-deduction. Consequently, imposing penalty for earlier payments would be unjustifiable. Ratio vs. Obiter: Ratio - penalty under section 271C is not sustainable where the payer had reasonable cause (including bona fide reliance on contemporaneous judicial decisions) for not deducting TDS on payments made prior to the binding pronouncement that duty to deduct arose. Conclusions: Penalty under section 271C is quashed for payments made prior to the High Court pronouncement; accordingly the penalty levied in respect of such payments is set aside. Issue 4 (Ancillary): Limitation, requirement to seek advance determination under section 195(2), and effect of subsequent statutory amendment Legal framework and reasoning: The Tribunal observed that the obligation to deduct TDS, the requirement to seek advance determination under section 195(2), and amendments brought by a later Finance Act cannot be applied retrospectively to create a liability for payments made before the effective dates of those judicial pronouncements or statutory amendments. Where there was no binding obligation at the time of payment, the payer was not required to approach the AO under section 195(2). The Tribunal noted that reliance on later amendments or later case law to penalize earlier conduct is impermissible. Precedent Treatment: The Tribunal followed coordinate-bench authorities holding that section 195(2) applications or statutory amendments enacted later do not retrospectively impose TDS duties for earlier transactions. Ratio vs. Obiter: Ratio - retrospective imposition of TDS obligation or penalty based on subsequent judicial pronouncement or statutory amendment is not appropriate where at the time of payment bona fide reliance on contrary view existed. Conclusions: No separate liability arises from failure to have applied under section 195(2) for payments made before the binding pronouncement; limitation objections and reasonable-cause considerations support deletion of demands and penalties for the relevant period.