Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “C” BENCH: KOLKATA
Per Shri A.T.Varkey, JM
This appeal preferred by the assessee is against the order of the Ld. CIT(A)-22, Kolkata dated 22.12.2015 for AY 2011-12.
Ground nos. 1 and 2 of the assessee is against the action of Ld. CIT(A) in upholding the action of the AO in applying the provisions of sec. 206AA of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) and determined the tax deductible at source at 20%.
Briefly stated facts as noted by the Ld. CIT(A) are as under: “The facts of the case are that the appellant filed TDS return for Qtr 1, Qtr 2 and Qtr 3 for AY 2011-12 which was processed by the AO u/s. 200A. The AO raised a total demand of Rs.3,10,890/- which was bifurcated as Rs. 28,610 for Qtr 1, Rs. 1,17,340/- for Qtr 2 and Rs.1,64,940/- for Qtr 3 respectively for A.Y. 2011-12. The appellant had made payment to non-residents as follows and deducted the TDS @ 10% in all the cases. The A.O calculated the shortfall by applying TDS rate of 20% in respect of payments of interest made to Samancor AG of Switzerland, Deutsche Bank of France and Citi Bank N.A of USA and payment of legal fees to Kim and Chang as follows:
2 ITA No. 517/Kol/2016 Maithan Alloys Ltd., AY 2011-12 F.Y. 2010-11 (3rd Quarter) Party’s Name Amount Credited Short Deduction amount Samancor AG 4,10,797/- 41,080/- Deutsche Bank 11,00,710/- 1,06,770/- Total 15,11,507/- 1,47,850/- F.Y. 2010-11 (2nd Quarter) Party’s Name Amount Credited Short Deduction amount Samancor AG 3,89,703/- 38,970/- Samancor AG 4,79,800/- 47,980/- Samancor AG 1,52,214/- 15,220/- Total 10,21,717/- 1,02,170/- F.Y. 2010-11 (1st Quarter) Party’s Name Amount Credited Short Deduction amount Kim &Chang 1,19,076/- 11,550/- Citi Bank, N.A. 1,33,830/- 12,490/- Total 2,52,906/- 24,040/- Aggrieved by the AO's action of deducting TDS at the rate of 20% instead of 10% as deducted by the appellant, it has filed the appeal."
Aggrieved by the action of the AO, the assessee preferred an appeal before the Ld. CIT(A) who was pleased to dismiss the same. Aggrieved, assessee is before us.
We have heard both the parties and perused the material available on record. We note that according to Ld. Counsel for the assessee, the payments in question were made to the non-resident banks situated at USA (Citi Bank NA, USA), France (Deutsche Bank, France) and Switzerland (samancor AG, Switzerland). According to Ld. AR, the provisions of the DTAA are squarely applicable and, therefore, the rate of deduction of tax cannot exceed @ 10% which has been duly complied with by the assessee. Assailing the actions of the AO/Ld. CIT(A) in finding fault with the assessee for not deducting 20% tax as per sec. 206AA of the Act for failure to provide PAN details of the three Banks, the Ld. AR brought to our notice that the issue before us is no longer res integra after the decision of the Special Bench of the Tribunal in the case of Nagarjuna Fertilizers & Chemicals Ltd. Vs. ACIT, Circle-1(5) (2017) 78 Taxman.com 264 (Hyd. Tribunal (SB) wherein on identical facts the Special Bench after considering all the reasons/contentions of Ld. CIT(A) as well as that of the Ld. DR before us has held as under:[Relevant paras only extracted]
“Since section 206AA falls in Chapter XVII-B dealing with tax deduction at source, it follows that the treaty provisions which override even the charging provisions of the Domestic Law by
3 ITA No. 517/Kol/2016 Maithan Alloys Ltd., AY 2011-12 virtue of section 90(2) would also override the machinery provisions of section 206AA irrespective of non obstante clause contained therein and the same is required to be restricted to that extent and read down to give effect to the relevant provisions of DTAAs, which are overriding being beneficial to the assessee. [para 30] As explained by CBDT while inserting the provision of section 206AA vide Circular No. 5 of 2010, the intention of the said provision is mainly to strengthen PAN mechanism and keeping in view this limited function and purpose, non obstante clause contained in the machinery provision of section 206AA is required to be assigned a restrictive meaning and the same cannot be read so as to override even the relevant beneficial provisions of the Treaties, which override even the charging provisions of the Income tax Act by virtue of section 90(2). It, therefore, cannot be said that the provisions of section 206AA, despite the non obstante clause contained therein, would not override the provisions of DTAA to the extent they are more beneficial to the assessee and it is the beneficial provision of treaty that will override the machinery provisions of section 206AA. [Para 31] Provisions of section 206AA will not have an overriding effect for all other provisions of the Act and the provisions of the Treaty to the extent they are beneficial to the assessee will override section 206AA by virtue of section 90(2). The assessee could not be held liable to deduct tax at higher of the rates prescribed in section 206AA in case of payments made to non-resident persons having taxable income in India in spite of their failure to furnish the Permanent Account Numbers. [Para 33]”
It is also brought to our notice that the aforesaid issue came up before the Hon’ble Delhi High Court in WP(C) No. 5908/2015 Danisco India Private Limited Vs. Union of India & Ors dated 05.12.2018 wherein the facts of that petitioner’s case was that the Indian assessee in the normal course of business remitted payments to M/s. Du Pont Singapore, a non-resident company located at Singapore. Since M/s. Du Pont is not a tax assessee in India and the tax relationship between the two countries are regulated in terms of Indo- Singapore Double Tax Avoidance Agreement wherein it mandates a cap of 10% upon the recovery of amounts in respect of tax incidence that occurred in the concerned host country, consequently, the assessee deducted only 10% of the tax on the amount disbursed to the non-resident company at Singapore. However, the case of the Revenue was that as per sec. 206AA of the Act in the absence of PAN details of the non-resident company, 20% of the tax need to have been deducted at source by the Indian assessee. The Hon’ble High Court taking note of the principle of law enunciated in Azadi Bachao Andolan by the Hon’ble Supreme Court reported in 263 ITR 706 (SC) held that DTAA acquires primacy and, therefore, the provision of sec. 206 AA has to be read down to mean that where the deductee i.e. the overseas resident business concern conducts its operation from a territory, whose government has entered into a DTAA with India, the rate of tax would be as governed by
4 ITA No. 517/Kol/2016 Maithan Alloys Ltd., AY 2011-12 the provision of the Treaty. We note that the Hon’ble Delhi High Court in the aforesaid order has agreed with the view of the Tribunal in Dy. DIT Vs. Serum Institute of India Ltd. (ITA No. 792/PN/2013, decided on 30.03.2015) wherein the Tribunal vide para 7 of its order has held as under:
“7. In this context, the ITAT in Serum Institute of India (Supra) discussed this very issue in some detail and stated, as follows: “............The case of the Revenue is that in the absence of furnishing of PAN, assessee was under an obligation to deduct tax @ 20% following the provisions of section 206AA of the Act. However, assessee had deducted the tax at source at the rates prescribed in the respective DTAAs between India and the relevant country of the non-residents; and, such rate of tax being lower than the rate of 20% mandated by section 206AA of the Act. The CIT(A) has found that the provisions of section 90(2) come to the rescue of the assessee. Section 90(2) provides that the provisions of the DTAAs would override the provisions of the domestic Act in cases where the provisions of DTAAs are more beneficial to the assessee. There cannot be any doubt to the proposition that in case of non-residents, tax liability in India is liable to be determined in accordance with the provisions of the Act or the DTAA between India and the relevant country, whichever is more beneficial to the assessee, having regard to the provisions of sectio0n 90(2) of the Act. In this context, the CIT(A) has correctly observed that the Hon’ble Supreme Court in the case of Azadi Bachao Andolan and Others vs. UOI, MANU/SC/1219/2003: (2003) 263 ITR 706 (SC) has upheld the proposition that the provisions made in the DTAAs will prevail over the general provisions contained in the Act to the extent they are beneficial to the assessee. In this context, it would be worthwhile to observe that the DTAAs entered into between India and the other relevant countries in the present context provide for scope of taxation and/or a rate of taxation which was different from the scope/rate prescribed under the Act. For the said reason, assessee deducted the tax at source having regard to the provisions of the respective DTAAs which provided for a beneficial rate of taxation. It would also be relevant to observe that even the charging section 4 as well as section 5 of the Act which deals with the principle of ascertainment of total income under the Act are also subordinate to the principle enshrined in section 90(2) as held by the Hon'ble Supreme Court in the case of Azadi Bachao Andolan and Others (supra). Thus, in so far as the applicability of the scope/rate of taxation with respect to the impugned payments make to the non-residents is concerned, no fault can be found with the rate of taxation invoked by the assessee based on the DTAAs, which prescribed for a beneficial rate of taxation. However, the case of the Revenue is that the tax deduction at source was required to be made at 20% in the absence of furnishing of PAN by the recipient non-residents, having regard to section 206AA of the Act. In our considered opinion, it would be quite incorrect to say that though the charging section 4 of the Act and section 5 of the Act dealing with ascertainment of total income are subordinate to the principle enshrined in section 90(2) of the Act but the provisions of Chapter XVII-B governing tax deduction at source are not subordinate to section 90(2) of the Act. Notably, section 206AA of the Act which is the centre of controversy before us is not a charging section but is a part of a procedural provisions dealing with collection and deduction of tax at source. The provisions of section 195 of the Act which casts a duty on the assessee to deduct tax at source on payments to a non-resident cannot be looked upon as a charging provision. In-fact, in the context of section 195 of the Act also, the Hon'ble Supreme Court in the case of CIT v. Eli Lily & Co., MANU/SC/0487/2009 : (2009) 312 ITR 225 (SC) observed that the provisions of tax withholding i.e. section 195 of the Act would apply only to sums which are otherwise chargeable to tax under the Act. The Hon'ble Supreme Court in the case of GE India Technology Centre Pvt. Ltd. v.
5 ITA No. 517/Kol/2016 Maithan Alloys Ltd., AY 2011-12 CIT,MANU/SC/0688/2010 : (2010) 327 ITR 456 (SC) held that the provisions of DTAAs along with the sections 4, 5, 9, 90 & 91 of the Act are relevant while applying the provisions of tax deduction at source. Therefore, in view of the aforesaid schematic interpretation of the Act, section 206AA of the Act cannot be understood to override the charging sections 4 and 5 of the Act. Thus, where section 90(2) of the Act provides that DTAAs override domestic law in cases where the provisions of DTAAs are more beneficial to the assessee and the same also overrides the charging sections 4 and 5 of the Act which, in turn, override the DTAAs provisions especially section 206AA of the Act which is the controversy before us. Therefore, in our view, where the tax has been deducted on the strength of the beneficial provisions of section DTAAs, the provisions of section 206AA of the Act cannot be invoked by the Assessing Officer to insist on the tax deduction @ 20%, having regard to the overriding nature of the provisions of section 90(2) of the Act. The CIT(A), in our view, correctly inferred that section 206AA of the Act does not override the provisions of section 90(2) of the Act and that in the impugned cases of payments made to non-residents, assessee correctly applied the rate of tax prescribed under the DTAAs and not as per section 206AA of the Act because the provisions of the DTAAs was more beneficial. Thus, we hereby affirm the ultimate conclusion of the CIT(A) in deleting the tax demand relatable to difference between 20% and the actual tax W.P.(C) 5908/2015 Page 11 of 11 rate on which tax was deducted by the assessee in terms of the relevant DTAAs. As a consequence, Revenue fails in its appeals.” 6. We note that the issue raised before us is no longer res integra as held by the Hon’ble Delhi High Court in Danisco India Private Limited (supra) and the Special bench decision of this Tribunal in Nagarjuna Fertilizers & Chemicals Ltd (supra). Therefore, as per the ratio laid down by the judicial precedents, Section 206AA has to be read down when DTAA is applicable and, therefore, the appeal of the assessee succeeds. In this case, therefore, the actions of the AO/Ld. CIT(A) cannot be sustained and, therefore, we delete the addition made in consequence of the order impugned before us. Therefore, the appeal of the assessee is allowed.
In the result, the appeal of assessee is allowed.
Order is pronounced in the open court on 10/08/2018
Sd/- Sd/- (M. Balaganesh) (A. T. Varkey) Accountant Member Judicial Member
Dated: 10th August, 2018
Jd.(Sr.P.S.)
6 ITA No. 517/Kol/2016 Maithan Alloys Ltd., AY 2011-12 Copy of the order forwarded to: 1 Appellant – M/s. Maithan Alloys Ltd., 9, A. J. C. Bose Road, Ideal Centre, 4th floor, Kolkata-700 017. 2 Respondent – ITO (International Taxation), Ward-2(1), Kolkata. 3 CIT(A)-22, Kolkata. (sent through e-mail) CIT , Kolkata 4 DR, Kolkata Benches, Kolkata (sent through e-mail) 5
/True Copy, By order,
Sr. Pvt. Secretary