2024 (8) TMI 1573 - HC - Income Tax

Section 44BB presumptive taxation rates apply for foreign remittances, TDS disallowances under Section 40(a)(i) require certainty

M/s. Frontier Offshore Exploration (India) Limited, (Formerly known as Frontier Aban Drilling (India) Limited) Versus The Deputy CIT, Company Circle II (1), Chennai And Commissioner of Income Tax-I, Chennai Versus M/s. Frontier Offshore Exploration (India) Limited, (Formerly known as Frontier Aban Drilling (India) Limited)

Madras HC ruled in favor of the assessee regarding TDS disallowances under Section 40(a)(i) for remittances to foreign entities. The court held that the ... TDS u/s 195 - disallowances u/s 40(a)(i) - non-deduction of tax at source in respect of remittances made to two foreign entities - defence of the petitioner was that the non-residents were liable to tax only in terms of Section 44BB of the Act, which provides for a presumptive assessment on the incomes earned by them in India and hence there would be no necessity for deduction of tax in respect of those remittances over and above the tax deducted by it in terms of Section 44BB HELD THAT:- Section 40(a)(i) provides that if an assessee has made a remittance without deduction of the appropriate amount representing tax on remittance, then a disallowance would be made of an equal amount from the income of that assessee. Being a disallowance, there has to be certainty and exactitude in regard to the exact amount to be deducted, based upon which the disallowance is made. In the present case, the Department has not taken any steps to determine what the income of the non-residents will be such that a corresponding disallowance may be made u/s 40(a)(i) of the Act. While the Assessee states that the non-residents will be liable to presumptive taxation, Revenue would, contend that the rate applicable will be that for business income. We are of the considered view that an assessment of an entity cannot be made on an oral statement of the assessing officer and such assessment has to be based on relevant materials proper procedure and applicable provisions of law. If at all the Revenue was of the view that the receipts by the non-residents are taxable as business income, necessary steps should have been taken to initiate an assessment, analyse the records and frame an assessment in accordance with law. This has not been done. In such circumstances, we find nothing untoward in the deduction of tax at the rate applicable to Section 44BB by the Assessee, particularly since the transaction, prima facie fits into the contours of Section 44BB on all parameters. This is not a case where the Assessee has not made a deduction at all, but one where it has consciously and cautiously analysed the transaction, the applicable provisions and then come to a decision that the tax liability would be at presumptive rates under Section 44BB. The efforts put in by the Assessee to determine the tax liability of the non-residents are far more than what the revenue has and the onerous burden cast by Section 40(a)(i) cannot visit the Assessee in such circumstances. In Chennai Petroleum Corporation Limited [2021 (3) TMI 1476 - MADRAS HIGH COURT] involving a similar question as in the present matter, the assessments have been remitted for fresh decision after verification of the records, leaving the substantial questions of law open. Since the records have been produced before the authorities and also before us, and there is no dispute on any of the factual aspects, we do not see any reason to remand these matters, particularly at this distance of time. Revenue counsel was not in a position to either dislodge the application of Section 44BB to the facts of the subject transaction or to support the assumption that the receipts of the non-residents constitute business income in its hands. Decided in favour of assessee. 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered by the Court in relation to the assessment years 2003-04 and 2004-05 are as follows:(i) Whether payments made to non-resident entities should be disallowed under Section 40(a)(i) of the Income Tax Act, 1961, for failure to deduct tax at source, despite tax being deducted on income computed under the presumptive taxation scheme of Section 44BB.(ii) Whether the gross payment amount or only the income computed under Section 44BB should be considered for tax deduction at source, given the non-obstante clause and deeming provisions in Section 44BB.(iii) Whether failure to apply to the assessing authority under Section 195(2) for determining the sum chargeable to tax results in the entire payment being subject to tax deduction at source.(iv) Whether the expression 'the whole or any part of the tax' in Section 201 applies to disallowance under Section 40(a)(i).(v) Whether the Income Tax Appellate Tribunal (ITAT) was justified in holding that the Assessing Officer was not justified in making a disallowance under Section 40(a)(i) for non-deduction of tax on payments by way of bareboat charges and expatriate crew payments to non-resident companies.(vi) Whether the assessee was justified in not deducting tax at source on such payments by relying on the decision of the Supreme Court in G.E. India Technology Centre Ltd v. CIT.2. ISSUE-WISE DETAILED ANALYSISIssue (i) and (ii): Applicability of Section 40(a)(i) disallowance and the quantum of payment for TDS deductionThe legal framework revolves around Sections 40(a)(i), 44BB, 195, and 201 of the Income Tax Act. Section 40(a)(i) mandates disallowance of any sum chargeable to tax paid without deduction of tax at source. Section 44BB provides a presumptive taxation scheme for foreign companies engaged in specified businesses, deeming 10% of the amount paid or payable as taxable income. Section 195 requires deduction of tax at source on sums chargeable to tax paid to non-residents. Section 201 deems a person an assessee in default for failure to deduct tax.The Court noted that the assessee had deducted tax at the presumptive rate under Section 44BB on payments made to the non-residents. The Revenue contended that the entire gross payment should be considered for deduction under Section 195 and disallowance under Section 40(a)(i), arguing that the non-residents were not 'eligible assessees' under Section 44BB and that the receipts constituted business income taxable at higher rates.The Tribunal had earlier held that Section 44BB was applicable to the non-residents, thereby negating the need for further deduction. The Court observed that the term 'assessee' in Section 44BB does not exclude non-residents, and since tax was deducted and paid under Section 44BB, the non-residents qualify as assessees.The Court emphasized that the nature of the transaction and the documentation, including agreements, supported the application of Section 44BB's presumptive taxation. The authorities had full material to examine this but no assessment had been made on the non-residents by the Revenue.On the question of whether the gross payment or only the presumptive income should be considered for tax deduction, the Court referred to Circulars No. 2/2014 and No. 3/2015 issued by the CBDT. These Circulars clarify that where no application is made under Section 195(2) for determining the sum chargeable to tax, the Assessing Officer must determine the appropriate portion chargeable to tax based on facts and circumstances. The disallowance under Section 40(a)(i) should be based on this determined sum, not the gross payment.The Court held that in the absence of any determination of the taxable income component by the Revenue and given that the assessee had deducted tax at the presumptive rate under Section 44BB, there was no justification for disallowance under Section 40(a)(i). The Court further noted that an assessment cannot be made on an oral statement without proper procedure and material.Issue (iii): Effect of non-application under Section 195(2)The Court analyzed whether failure to apply to the assessing authority under Section 195(2) for determining the sum chargeable to tax results in the entire payment being subject to tax deduction at source. The CBDT Circulars clarify that in such cases, the Assessing Officer must determine the appropriate proportion chargeable to tax based on the facts and circumstances, and the disallowance under Section 40(a)(i) must be based on that proportion.The Court found that the Revenue had not undertaken such determination and therefore could not hold the entire sum liable for deduction or disallowance. This interpretation aligns with the principle that disallowance must be based on certainty and exactitude.Issue (iv): Applicability of Section 201's expression 'the whole or any part of the tax' to Section 40(a)(i)The Court considered whether the expression 'the whole or any part of the tax' used in Section 201 applies to disallowance under Section 40(a)(i). The CBDT Circular No. 3/2015 clarified that the disallowance under Section 40(a)(i) is interlinked with the sum chargeable under Section 195 for tax deduction purposes. Therefore, the disallowance should correspond to the proportion of the sum chargeable to tax as determined under Section 195.The Court concurred with this interpretation, holding that disallowance under Section 40(a)(i) must be confined to the sum chargeable to tax and cannot be arbitrarily applied to the entire gross payment.Issue (v) and (vi): Justification for non-deduction of tax based on G.E. India Technology Centre Ltd decisionThe Supreme Court decision in G.E. India Technology Centre Ltd clarified that the obligation to deduct tax at source arises only where there is a liability to tax on the remittance. If the assessee believes no taxable income component exists in the remittance, it may choose not to deduct tax, albeit at the risk of penalty and disallowance if found erroneous.The assessee relied on this decision to justify deduction of tax at the presumptive rate under Section 44BB and not on the gross payment. The Court found that the assessee had made a conscious and cautious decision based on the nature of the transaction and applicable law, and had deducted tax accordingly. The Revenue failed to establish that the receipts constituted business income taxable at higher rates or to dislodge the application of Section 44BB.Hence, the Court held that the assessee was justified in not deducting tax at source beyond the presumptive rate and that the disallowance under Section 40(a)(i) was not warranted.3. SIGNIFICANT HOLDINGSThe Court's significant legal conclusions include the following:'The term 'assessee' in Section 44BB does not exclude non-resident entities, and where tax has been deducted at source and paid under Section 44BB, the non-residents qualify as assessees for the purposes of the Act.''In cases where no application is made under Section 195(2) for determination of the sum chargeable to tax, the Assessing Officer is required to determine the appropriate portion of the sum chargeable to tax based on facts and circumstances, and the disallowance under Section 40(a)(i) must be confined to that determined sum and not the entire gross payment.''An assessment or determination of taxable income cannot be made on the basis of oral statements or without following due procedure and examining relevant materials.''Where an assessee has deducted tax at source on the basis of a reasonable interpretation of the law and facts, such as applying the presumptive taxation scheme under Section 44BB, the onerous consequences of disallowance under Section 40(a)(i) should not be visited upon the assessee in the absence of contrary material.''The obligation to deduct tax at source under Section 195 arises only when there is a liability to tax on the remittance; if the assessee's view that no taxable income component exists is erroneous, penalties and disallowances may follow, but where the assessee's decision is justified, no disallowance is warranted.'Accordingly, the Court answered the substantial questions of law in favour of the assessee, allowing the appeal for AY 2003-04 and dismissing the appeal for AY 2004-05, thereby upholding the Tribunal's decision that the provisions of Section 44BB applied and that the disallowance under Section 40(a)(i) was not justified.