AXA FRANCE VIE,DELHI vs. ACIT, CIRCLE INT. TAXATION 1(1)(1), DELHI

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH, ‘D’: NEW DELHI

BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI N. K. CHOUDHRY, JUDICIAL MEMBER

ITA No.439/DEL/2022 [Assessment Year: 2018-19]

AXA France Vie, Assistant Commissioner of Income 5th Floor, Office Tower, Tax, District Centre, Vs Circle Int. Taxation-1(1)(1), Saket, Select City Walk, Plot New Delhi No.A-3, New Delhi-110017 PAN-AAPCA9799J Assessee Revenue

Stay Application No.112/Del/2022 (Arising out of ITA No.439/DEL/2022) [Assessment Year: 2018-19] AXA France Vie, Assistant Commissioner of Income 5th Floor, Office Tower, Tax, District Centre, Vs Circle Int. Taxation-1(1)(1), Saket, Select City Walk, Plot New Delhi No.A-3, New Delhi-110017 PAN-AAPCA9799J Assessee Revenue

Assessee by Sh. Gaurav Jain, Adv. & Sh. Sanket Gupta, CA Revenue by Ms. Meenakshi Singh, CIT-DR

Date of Hearing 09.05.2022 Date of Pronouncement 13.05.2022 ORDER PER SHAMIM YAHYA, AM,

This appeal by the assessee against the order of the Assessing

Officer dated 25.02.2022 pertaining to Assessment Year 2018-19 passed

pursuant to the direction of the DRP (Dispute Resolution Panel) u/s

144C of the Income Tax Act, 1961 (in short ‘the Act’) dated 31.12.2021.

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case of DCIT Vs. United India Insurance Co. Ltd. [ITA 1753,1605 to 1610/Chny/11] which was subsequently reversed by the Hon’ble Madras High Court [Refer : Commissioner of Income-tax Vs. United India Insurance Co. [2019] 111 taxmann.com 217 (Madras). Without Prejudice 7. Under the facts and circumstances of the case, the Id. Assessing Officer on directions of DRP has grossly erred in making disallowance of Rs. 12,13,74.372/- u/s 40(a)(ia) of the Act alleging failure to deduct tax at source u/s 194D of the Act, failing to appreciate that the said commission was not actually paid by the Appellant and was only netted against Appellant’s share of insurance premium received from insurance companies and was, therefore, outside the ambit of provisions of section 194D of the Act. Further without Prejudice 8. Under the facts and circumstances of the case, the Id. Assessing Officer on directions of DRP has grossly erred in making disallowance of Rs. 12,13,74.372/- u/s 40(a)(ia) of the Act, failing to appreciate that the Appellant even otherwise had satisfied conditions contained in the proviso to section 201(1) of the Act, by producing CA certificate of recipients certifying inclusion of impugned amount as part of their taxable income. 9. That the assessing officer erred on facts and in law in charging interest under section 234A/B/C of the Act. 3. Brief facts of the case are that Axa France Vie ('the

assessee'), a company headquartered in France and a tax resident of

France, is engaged in the business of providing insurance and

reinsurance globally. In India, Axa France Vie has obtained license/

approval from the Insurance Regulatory Development Authority of India

('IRDAI'), vide Form R3 issued on 28 July 2017, and has established a

branch office under the Insurance Regulatory Development Authority of

India (Registration and Operations of Branch Offices of Foreign

Reinsurers other than Lloyd's) Regulations, 2015 ('IRDA branch office

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regulations'), in order to undertake reinsurance business in India. Axa

France Vie - India Reinsurance Branch office ('Axa BO') commenced

reinsurance business with effect from 14 September 2017.

made payment of Rs. 40,45,81,243/- under the head Commission and

claimed as deduction in its Profit and Loss account as under-

Name of Party Amount in INR United India Insurance Company 1,52,51,2261- Limited National Insurance Company Limited 15,34,20,689/- New India Assurance Company Limited 23,59,09,327/- Total 40,45,81,243/-

company has claimed a payment of Rs.40,45,81,243/- under the head

commission and claimed as deduction in its Profit & Loss Account. The

AO was of the opinion that the assessee company should have deducted

TDS on the aforesaid payment; he rejected the assessee-company’s

submission in this regard that the commission was in fact only

reimbursement of expenses. He observed that on perusal of agreement

made between assessee-company and insurance company. He further

noted that the assessee company received 70%/20%/60% of 100% of

insurance premium as reinsurance share and balance 30%/80%/40% of

shares are kept by insurance company that the assessee is paying a

commission to the insurance company for such services, but the

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assessee is characterizing it as ceding commission and claiming it in the

nature of reimbursement of expenses incurred by the insurance company

for the share of their costs in the nature of underwriting costs, admin

expenses, etc. The AO was of the opinion that the assessee should have

deducted TDS by referring to provisions of section 194D of the Act. He

held that since the assessee company failed to do so, 30% of the payment

of Rs.40,45,81,243/- (i.e. Rs.12,13,74,372/-) is added u/s 40(a)(ia) of the

Act to the total income of the assessee.

Panel (in short ‘DRP’) against the above draft order of the Assessing

Officer. Before the DRP, the assessee submitted that this issue is covered

in favour of the assessee by several decisions, which are as under:-

i. Hon'ble High Court of Madras in the case of M/s Royal Sundaram Alliance Insurance Company Limited [T.C. (A) No. 41 of 2019], ii. Commissioner of Income-tax vs. United India Insurance Co. [2019] 111 taxmann.com 217 (Madras). iii. Hon'ble IT AT, Mumbai Bench in the case of General Insurance Corp. of India [2009] 28 SOT 453 (Mumbai) iv. Hon'ble ITAT Mumbai Bench in the case of Tata AIG General Insurance co. Ltd. [2011] 43 SOT 215 (Mum.) v. Principal commissioner of Income-tax Vs Tata AIG General Insurance Co. Ltd. [2019] 111 taxmann.com 92 (Bombay). vi. Hon'ble High Court of Rajasthan in the matter of Hindustan Coca Cola Beverages (p.) ltd. Vs Commissioner of Income-tax-Ill, Jaipur [2017] 87 taxmann.com 295 (Rajasthan) vii. Hon'ble Apex Court of India reported as Commissioner of Income-tax Vs Ahmedabad Stamp Vendors Association [2012] 25 taxmann.com 201 (SC)

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viii. Hon'ble Apex Court of India in the matter of Tek Ram vs Commissioner of Income-tax [2014] 44 taxmann.com 367 (SC) ix. Commissioner of Income-tax Vs Virgin Securities and Credits (P.) Ltd.[2012] 20 taxmann.com 681 (Delhi) x. Smt. Prabhavati S. Shah v. CIT [1998] 100 Taxmann 404 (Bom.) xi. ONS Creations Private Limited Vs ITO ITA No. 6250/Del/2013 (ITAT Delhi) 7. The DRP referred to the agreement in this regard. It failed to

consider any of the case laws from Hon’ble High Courts and the ITAT as

referred above and relying upon the decision of ITAT, Chennai Bench

dated 28.8.2018 in the case of DCIT vs. United India Insurance Co. Ltd.

the DRP confirmed the draft order of the AO by rejecting the assessess’s

submissions, which reads as under:-

“4.1.4.4 The Panel takes a note that an insurance broker is an intermediary who sells, solicits, or negotiates insurance on behalf of a client for compensation. Commission on re-insurance ceded /accepted Insurance companies get business through their agents who receive commission based on the amount of business they generate for the company. When a company gets re-insurance business it must pay commission to the Ceding company also.l) The commission paid by are-insurance company to the ceding company to cover administrative costs and acquisition expenses is caller 'commission on re- insurance accepted 'and is shown as an expense in the Income statement of there-insurance company hence for tax purposes its treated as an Allowable expenditure in the books of there-insurance company.

4.1.4.5 Reinsurance is insurance that an insurance company purchases from another insurance company to insulate itself (at least in part) from the risk of a major claims event. With reinsurance, the company passes on ("cedes") some part of its own insurance

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liabilities to the other insurance company. The company that purchases the reinsurance policy is called a "ceding company" or "cedent" or "cedant" under most arrangements. The company issuing the reinsurance policy is referred to as the "reinsurer". In the classic case, reinsurance allows insurance companies to remain solvent after major claims events, such as major disasters like hurricanes and wildfires. In addition to its basic role in risk management, reinsurance is sometimes used to reduce the ceding company's capital requirements, or for tax mitigation or other purposes.

4.1.4.6 The Panel takes a note of the decision made in case of DCIT Corporate Circle 3(2) , ... vs United India Insurance Co. Ltd. , ... on 28 August, 2018 I.T.A.No.1753, 1605 to 1610/Chny/11 I.T.A.Nos.28 to 30 & 764/Chny/14 I.T.A.Nos.905,906,1673,1989, 1688 to 1693,1798 to 1801/Chny/11 C.O.No.150/ this Income Tax Appellate Tribunal, Chennai Bench is of the considered opinion that the Assessing Officer has rightly disallowed the re- insurance premium under Section 40(a)(i) of the Act. Therefore, the CIT(Appeals) is not justified in restricting the claim of the assessee to 15% without any reason. Direction- Considering the discussion at previous paragraphs, the DRP is of the view that no interference needs to be drawn in the assessing officer's order; hence the objection in this regard is rejected.”

The Ld. Counsel for the assessee reiterated the submission that the issue

is squarely covered in favour of the assessee by the decisions of the

Hon’ble Madras High Court in the case of M/s Royal Sundaram Alliance

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Insurance Company Limited (supra) and the decision of the ITAT Mumbai

Bench in the case of Tata AIG General Insurance co. Ltd. (supra). He

further submitted that the aforesaid order of ITAT was confirmed by the

Hon’ble Bombay High Court in the same assessee’s case Principal

commissioner of Income-tax Vs Tata AIG General Insurance Co. Ltd.

[2019] 111 taxmann.com 92 (Bombay). Furthermore, the ld. Counsel for

the assessee pleaded that since it is reimbursement of expenses, the

decision of the Hon’ble Supreme Court in the case of DIT(IT)-1 vs Moller

Maersk (TS-70-SC-2017) supports the assessee plea that no TDS was

required. The ld. Counsel for the assessee referred certain other

Tribunal’s decisions in this regard. The ld. Counsel for the assessee

further submitted that the decision referred by the DRP from ITAT

Chennai is not applicable to the facts of the case. The ld. Counsel for the

assessee further submitted that apart from the above submission,

proviso to section 201(1) also supports the case of the assessee. It

provides that the assessee shall not be deemed to be assessee in default

if the payee has paid the tax due on income declared in the return of

income and the assessee has furnished a certificate in this regard. The

ld. counsel for the assessee submitted that the Chartered Accountant’s

certificate from two of the issuance companies are available and placed

on record in support of the propositions that the payees have paid the

tax due on the income declared. Except for payment of

Rs.23,59,09,327/-to New India Assurance Company Limited others are

accompanied by certificate as above.

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Officer and the direction of DRP. She submitted that the decisions which

are claimed to have been in favour of the assessee are already considered

by the DRP and she supported the DRP’s order in this regard.

provisions of section 194D and provisions of section 40(a)(ia) of the Act,

which reads as under:-

Provisions of section 194D

Any person responsible for paying to a register any income by way of for soliciting or procuring insurance business (including business relating to the continuance, renewal or revival of policies of insurance) shall, at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by issue of a cheaque or draft or by any other mode, whichever is earlier, deduct income-tax thereon at the rates of force:

Provided that no deduction shall be made under this section from any such income credited or paid before the 1st day of June, 1973:]

[Provided further that no deduction shall be made under this section in a case where the amount of such income or, as the case may be, the aggregate of the amounts of such income credited or paid or likely to be credited or paid during the financial year to the account of, or to, the payee, does not exceed [Fifteen thousand rupees.]"

Provisions of section Section 40(a)(ia)

(ia) thirty per cent of any sum payable to a resident, on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted or, after deduction, has not been paid on or before the due date specified in sub-section (1) of section 139:

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Provided that where in respect of any such sum, tax has been deducted in any subsequent year, or has been deducted during the previous year but paid after the due date specified in sub-section (1) of section 139, thirty per cent of such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid:

Provided further that where an assessee fails to deduct the whole or any part of the tax in accordance with the provisions of Chapter XVII-B on any such sum but is not deemed to be an assessee in default under the first proviso to sub-section (1) of section 2 01, then, for the purpose of this sub-clause, it shall be deemed that the assessee has deducted and paid the tax on such sum on the date of furnishing of return of income by the 38[resident] payee referred to in the said proviso."

company is in the business of reinsurance ceded from the insurance

companies in India. The term reinsurance ceded means the portion of

one or more risk that the cedant transfers to the reinsurer with the

object of reducing the cedant’s liability by sharing with reinsurer the

insurance liability, premiums, and losses from the reinsured business in

that proportion. The reinsurance company also bears a proportionate

cost of cedant in this connection which is termed as cednat commission.

During the year under consideration, from the gross premium payable by

the insurance company to the assessee, a sum of Rs.40,45,81,243/- was

deducted on account of reimbursement of expenses for the share of

assessee in the nature of manpower cost, third party administration cost,

administration cost, etc. which are termed as cedant commission. The

Assessing Officer was of the opinion that a reading of provisions of

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section 194D provides that TDS has to be deducted where any sum is

paid for soliciting or procuring insurance business. But as per the facts

of the present case, the cedant commission paid by the assessee to the

insurance company is actually the share of assessee in the nature of

manpower cost, third party administration cost, administration cost, etc.

which are actually reimbursement of expenses in relation to the gross

premium which the assessee company has received in this regard, so

ceading commission cannot be considered to be paid for soliciting or

procuring insurance business. Identical issue was considered by the

Hon’ble Madras High Court in the case of M/s Royal Sundaram Alliance

Insurance Company Limited (supra) wherein it was held as under:-

“4. Commission for receipt of reinsurance: 11. The assessee had succeeded on this issue before the CIT(A) and the finding has been affirmed by the Tribunal. The CIT(A) took note of the decision taken in the assessee’s own case for the assessment year 2009-2010 in which the assessment for the year 2008-2009 was followed and the assessee succeeded before the CIT(A) for the assessment year 2008-2009, wherein the CIT(A) noted that as a matter of industrial practice it was termed as "commission on reinsurance premium received", however, in substance it is discount on re-insurance premium received by an Insurance Company from an other Insurance Company. We find that the Tribunal rightly decided the issue in favour of the assessee and the revenue has not brought out any ground to interfere with the said finding. Accordingly, the appeals filed by the revenue on this ground are dismissed and consequently, the substantial question of law is answered against the revenue.” 13. The said decision was followed by the another Bench of the

Hon’ble Madras High Court in the case of CIT vs United India Insurance

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Co. [2019] 111 taxmann.com 217(Madras). The relevant extract reads as

under:-

“10. So far as the second, third and fourth substantial questions of law are concerned, a Division Bench of this Court in the case of CIT v. Royal Sundaram Alliance Insurance Co. Ltd. [T.C. (A) Nos. 41 of 2019, dated 18-1- 2019], considered these three substantial questions of law by judgment dated 18.01.2019 and the substantial questions of law were decided against the Revenue.” 14. Similarly, the ITAT, Mumbai Bench in the case of General

Insurance Corp. Of India [2009] 28 SOT 453 on identical subject has

held under:- (head note only)

“HELD Section 194D provides for an obligation upon any person responsible for paying to a resident any income by way of remuneration or reward, whether by way of commission or otherwise, for soliciting or procuring insurance business (including business relating to the continuance, renewal or revival of policies of insurance) to deduct income-tax at the rates in force. The section became applicable from 1-6-1973 and did not apply to payments not exceeding Rs. 5,000 per annum. [Para 13] As is evident from the language of section 194D, it applies to all persons, whether individual, HUF company, etc. The deduction is to be made from the income, which is in the nature of remuneration or reward (whether it is called commission or otherwise) for soliciting or procuring insurance business. So, section 194D does not apply to each and every payment made by any person by way of commission or otherwise; but it applies to remuneration or reward paid for soliciting or procuring insurance business. The language of section 194D makes it abundantly clear that if the commission or other payments are made by any assessee not for soliciting or procuring insurance business by way of remuneration or reward, section 194D would not apply. [Para 14] In order to attract section 194D, the commission or any other payment covered under the section should be a

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remuneration or reward for soliciting or procuring the insurance business. The insurance companies did not procure business for the assessee-company nor did the assessee-company pay any commission or other payment for soliciting the business from the insurance companies. The language of section 194D clearly indicates that ordinarily there would be three parties involved in the payment of commission or other payments as remuneration or reward for soliciting or procuring the insurance business. Firstly, there would be an insurance company and the second would be insured. If the insurance company gets business directly from the insured, no payment would be required to be made by the insurance company to the insured by way of commission or otherwise for soliciting or procuring the business for the assessee. If any discount is allowed by the insurance company to the insured, that will not fall within the definition of brokerage or commission paid for soliciting or procuring insurance business. That payment would fall within the category of a discount offered to the insured for giving the business to the insurance company. Even otherwise the payment or deduction would neither be a reward nor remuneration for any service like soliciting or procuring insurance business for the assessee. The assessee-company might be said to have solicited business from the insurance companies in certain cases but the commission credited/paid is not by way of remuneration or reward for soliciting or procuring of insurance business. Remuneration of reward would be related to services rendered in connection with soliciting or procuring business. In the instant case, the payment or discount was made to insurance companies but the payee- companies had not solicited or procured insurance business for the assessee. For the sake of arguments it might be accepted that the assessee-company had solicited or procured insurance business from the insurance companies but the payment was not made to the solicitor or procurer of insurance business but to those from whom business had been solicited or procured. In the instant case payer would be a solicitor or procurer of insurance business but not the payee-companies. For attracting section 194D, the payment has to be made by way of remuneration or reward not for giving business to the assessee but for soliciting or procuring the insurance business. [Para 32] Considering the nature of the payment or deduction made by the assessee-company to the insurance companies by way of commission it could be said that the same did not fall within the category of the payments by way of

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remuneration or reward for soliciting or procuring insurance business from the insurance companies. Therefore, it was a deduction allowed by the assessee-company to the insurance companies from the original gross rate in order to compensate the insurance companies for the brokerage and other costs incurred in procuring the business by the ceding company. However, the cost incurred by the insurance companies by way of brokerage to them would fall within the ambit of section 194D in their hands, but the reimbursement of expenses by the assessee-company to the insurance companies would not fall within the same category. [Para 33] Therefore, in the facts and circumstances of the instant case it was to be held that the commission paid or allowed as deduction from gross rate to the insurance companies did not fall within the category of remuneration or reward for soliciting or procuring insurance business. [Para 34].” 15. The aforesaid decision was duly followed by the ITAT

Mumbai Bench in the case of Tata AIG General Insurance Co. Ltd. [2011]

43 SOT 215(Mum.) and the decision was duly confirmed by the Hon’ble

Bombay High Court in the case of PCIT vs Tata AIG General Insurance

Co. Ltd. [2019] 111 taxmann.com 92 (Bombay). Thus, from the above, it

is amply evident that on identical issue there are decisions of Hon’ble

Madras High Court and Hon’ble Bombay High Court which have held

that on the above ceding commission, no TDS is required to be deducted.

In our considered opinion, the Ld. DRP has erred in not following the

aforesaid Hon’ble High Court’s decisions. It is to be remembered that

there are no contrary High Court’s decisions available in this regard

much less from Hon’ble jurisdictional High Court. The decision of the

ITAT Chennai referred by the Ld. DRP cannot overrule the decision of the

Hon’ble Madras High Court. Moreover, as pointed above by the ld.

counsel for the assessee, the same is on different facts.

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that no TDS is required in as much as it is reimbursement of expenses

and on the touch stone to the decision of the Hon’ble Supreme Court in

the case of of DIT(IT)-1 vs Moller Maersk (TS-70-SC-2017), no TDS was

required to be deducted. Another plea was that on the basis of proviso to

section 201(1) of the Act, since the payees have offered the income to

pay tax, no TDS was required to be deducted. We note that since, we

have already held that the facts are identical and the issue stands

covered in favour of the assessee by the decision of the Hon’ble Madras

High Court and Hon’ble Bombay High Court as above, adjudication, on

these aspect are only of academic interest, hence we are not engaging

into the same.

Stay Application No.112/Del/2022

Stay Application of the assessee become infructuous and the same is

treated as such.

Order pronounced in the open court on 13 .05.2022.

Sd/- Sd/- [N.K.CHOUDHRY] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER Delhi; Dated: 13th May, 2022. f{x~{tÜ? f{x~{tÜ? f{x~{tÜ? f{x~{tÜ?

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