“withholding tax”

TDS / TCSSection 195Section 195663 judgments

The decision most relied on for withholding tax is Engineering Analysis Centre of Excellence (P) Ltd. v. CIT (432 ITR 471), cited in 914 judgments on BharatTax.

Leading authorities on withholding tax

Engineering Analysis Centre of Excellence (P) Ltd. v. CIT

432 ITR 471 · 2021 · Supreme Court

914

citing judgments

Payments for the supply or use of computer software, where there is no transfer of copyright but only a right to use the copyrighted product, are generally considered business profits and not 'royalty' or 'fees for technical services' under the Income Tax Act, 1961 or relevant DTAAs. This principle also applies to transponder fees, which are not taxable as royalty.

GE India Technology Centre Pvt. Ltd. v. CIT

327 ITR 456 · 2010 · Supreme Court

663

citing judgments

Tax must be deducted at source from payments made to a non-resident under Section 195 only if such payment is chargeable to tax in India. The Assessing Officer bears the onus to establish that the payments made are indeed chargeable to tax under the Income Tax Act.

CIT v. De Beers India Minerals (P.) Ltd.

346 ITR 467 · 2012 · High Court

371

citing judgments

For fees for technical or consultancy services to 'make available' technical knowledge or know-how under a DTAA, the service must transmit such knowledge, allowing the recipient to derive an enduring benefit and utilize it independently in the future.

Asia Satellite Telecommunications Co. Ltd. v. DIT

332 ITR 340 · 2011 · High Court

359

citing judgments

Payments for the use of equipment, such as satellite transponders, do not constitute 'royalty' under Section 9(1)(vi) of the Income-tax Act, 1961, or under applicable tax treaties, especially when there is no transfer of the right to use a process or underlying technology.

DIT v. New Skies Satellite BV

382 ITR 114 · 2016 · High Court

325

citing judgments

An amendment to the Income Tax Act, such as the Finance Act, 2012 amendment to Section 9(1)(vi) defining royalty, does not automatically override or alter the definition of 'royalty' as provided in a Double Taxation Avoidance Agreement (DTAA) unless the DTAA itself is bilaterally amended. The definition of royalty in a DTAA remains unaffected by unilateral changes to domestic law.

CIT v. Siemens Aktiongesellschaft

310 ITR 320 · 2009 · High Court

259

citing judgments

Reimbursements of actual expenses without any profit element are not taxable income. Additionally, mere amendments to the Income-tax Act do not override the provisions of Double Taxation Avoidance Agreements (DTAAs).

Transmission Corporation of Andhra Pradesh v. CIT

239 ITR 587 · 1999 · Supreme Court

243

citing judgments

The Supreme Court lays down principles for deducting tax at source (TDS) under Section 195 on payments to non-residents, including aspects of income deemed taxable in India and the application of Double Taxation Avoidance Agreements (DTAAs) under Section 90.

CIT v. Eli Lily & Co.

312 ITR 225 · 2009 · Supreme Court

221

citing judgments

Section 195 of the Income Tax Act, which mandates tax withholding on payments to non-residents, applies only to sums that are otherwise chargeable to tax under the Act. Tax withholding provisions are not charging provisions.

Judgments citing withholding tax

M/S Praxair India Private Limited, Bangalore vs. Assistant Commissioner of Income Tax Circle-2, Bangalore

In the result, both the appeals of the assessee in IT(TP)A No

ITA 3336/BANG/2018[2014-15]Status: DisposedITAT Bangalore22 Nov 2022AY 2014-15

Bench: Shri Chandra Poojari & Smt. Beena Pillai

For Appellant: Shri T. Suryanarayana, Senior A.RFor Respondent: Shri K. Sankar Ganesh, D.R

Section 143Section 143(3)Section 92C

BITC belongs to second group of aforementioned rules; it recharacterizes certain interest payments into dividends both for corporate tax purposes of debtor and for withholding tax purposes, while curiously it does not recharacterize debt into equity (neither for corporate tax, nor for capital duty purposes). In certain circumstances, the Belgian

M/S United Breweries Ltd, Bangalore vs. Deputy Commissioner of Income Tax Circle-7(1)(1), Bangalore

In the result, the appeal filed by the assessee is partly allowed

ITA 481/BANG/2018[2012-13]Status: DisposedITAT Bangalore11 Nov 2022AY 2012-13

Bench: Shri George George K, Jm & Ms.Padmavathy S, Am

For Appellant: Sri.K.R.Vasudevan, AdvocateFor Respondent: Sri.K.Sankar Ganesh, JCIT –DR

Section 115JSection 143(2)Section 143(3)Section 14ASection 40Section 43B

showing these amounts in the turnover, the assessee has claimed expenditure whereas no such expenses has been claimed. 5. Grounds relating to addition towards withholding tax 5.1 The learned CIT{A) has erred in confirming the action of the AO in making addition of the withholding taxes deducted by foreign ... actual consideration were received 5.2 The learned CIT{A) has erred in confirming the action of the AO in making addition of the withholding taxes deducted by foreign enterprises, disregarding the submission that even if income has to be recognized on gross amount basis, the amounts deducted

The ACIT CC-1, Thane vs. M/S. Renaissance Infrastructure, Mumbai

The appeal of the Revenue is dismissed

ITA 76/MUM/2021[2012-13]Status: DisposedITAT Mumbai31 Oct 2022AY 2012-13

Bench: Shri Vikas Awasthy & Shri Amarjit Singh आअसं. 75/मुं/2021 ("न.व. 2011-12) आअसं. 76/मुं/2021 ("न.व. 2012-13) Ita No.76/Mum/2021(A.Y.2012-13) The Acit Cc-1, Thane, Room No.40, A-Wing, 6Th Floor, Ashar I.T.Park, Road No.16-Z, Wagle Industrial Estate, Thane (West) 400 604 ..... अपीलाथ" /Appellant बनाम Vs. M/S. Renaissance Infrastructure, 501, Neelyog Square, Opp.Railway Station, Ghatkopar (East), Mumbai 400 077 Pan:Aajfr-8593-C ..... ""तवाद"/Respondent C.O. No.98 & 99/Mum/2022 (Arising Out Of Ita No.76& 75/Mum/2021,A.Y. 2012-13 & 2011-12) M/S. Renaissance Infrastructure, 501, Neelyog Square, Opp.Railway Station, Ghatkopar (East), Mumbai 400 077 Pan:Aajfr-8593-C ..... Cross Objector बनाम Vs. The Acit Cc-1, Thane, Room No.40, A-Wing, 6Th Floor, Ashar I.T.Park, Road No.16-Z, Wagle Industrial Estate, Thane (West) 400 604 ... Appellant In Appeal

For Appellant: Shri Gautam ThackerFor Respondent: Ms. Mahita Nair

Section 139Section 194JSection 201(1)Section 40

services provided by M/s. Magus Consulting Pvt. Ltd. without deducting tax at source. The assessee was under obligation to deduct withholding tax under section 194J of the Act. Since, the assessee failed to comply with statutory provisions, the Assessing Officer rightly made disallowance under section

The ACIT CC-1, Thane vs. M/S Renaissance Infrastructure, Mumbai

The appeal of the Revenue is dismissed

ITA 75/MUM/2021[2011-12]Status: DisposedITAT Mumbai31 Oct 2022AY 2011-12

For Appellant: Shri Gautam ThackerFor Respondent: Ms. Mahita Nair

Section 139Section 194JSection 201(1)Section 40

M/S Honeywell Technology Solutions Lab Private Limited, Bangalore vs. Joint Commissioner of Income Tax Special Range-3, Bangalore

ITA 2891/BANG/2018[2013-14]Status: DisposedITAT Bangalore31 Oct 2022AY 2013-14

Bench: Shri Beena Pillai & Shri Laxmi Prasad Sahuassessment Year : 2013-14

For Appellant: Smt. Shreya Loyalaka, AdvocateFor Respondent: Shri Dilip Jr. Standing Counsel for Dept. (DR)

Section 192Section 195Section 40Section 80JSection 9(1)(vii)

within the meaning of 'royalty'! 'royalties' under the applicable Double Taxation Avoidance Agreement ("DTAA") and hence, the Appellant was not under the obligation to withhold taxes. 19. The learned CIT(A) has erred, in law and in facts, in mentioning that AMC expenses on which taxes have not been withheld ... made by the Appellant towards AMC expenses is not taxable under the applicable DTAA and hence, the Appellant was not under the obligation to withhold taxes. 20. The learned CIT(A) has erred in law in mentioning that software expenditure needs to be disallowed as prior period expenditure

Man Industries (India) Limited, Mumbai vs. DCIT, Central Range -7 (2), Mumbai

In the result, all the three appeals filed by the assessee are allowed

ITA 1490/MUM/2021[2014-15]Status: DisposedITAT Mumbai28 Oct 2022AY 2014-15

Section 195A

common order, for the sake of convenience. 2. The solitary issue urged in these appeals relates to disallowance of claim of depreciation on the withholding tax (TDS liability) borne by the assessee, which has been capitalised. 3. The facts relating to the issue are stated in brief. The assessee company ... crores. The assessee was required to deduct TDS @ 10% from the above said payment. The assessee borne the TDS liability (also called as “withholding tax”). Accordingly the total premium paid by the assessee worked out to Rs. 124.45 crores, out of which the assessee claimed a sum of Rs.100.78 crores

Kismet Exports & Investments Pvt Ltd, Mumbai vs. DCIT 12(3)(1), Mumbai

In the result, the appeal of the assesseeITA No

ITA 7320/MUM/2019[2013-14]Status: DisposedITAT Mumbai27 Oct 2022AY 2013-14

Bench: Shri Pramod Kumar & Sh. Anikesh Banerjee

Section 143(3)Section 195Section 250(6)Section 37Section 37(1)Section 40Section 57

I.T.A. No. 7320/Mum/2019 14 “6.13. Therefore, the amount payable by the assessee company would be taxable in India and assessee company is required to withhold tax on the proposed remittance of the proceeds. The assessee has not brought anything on record to show that withholding tax has been deducted ... payment made to Non- Resident Indian. In view of the failure on the part of the assessee to deduct withholding tax, an amount of Rs.15,34,68,000/- paid to Shri Dileep Nath is taxed in the hands of the assessee company as per the provisions of section

M/S. United Breweries Limited, Bangalore vs. Deputy Commissioner of Income Tax, Circle- 12(5), Bangalore

In the result, both the appeals of the assessee are partly allowed

ITA 126/BANG/2020[2011-12]Status: DisposedITAT Bangalore20 Oct 2022AY 2011-12

Bench: Shri George George K. & Ms. Padmavathy S

For Appellant: Shri, K.R. Vasudevan, AdvocateFor Respondent: Shri Sankar K. Ganeshan, CIT(DR)(ITAT), Bengaluru

Section 143(2)Section 14ASection 36(1)(vii)Section 40Section 43B

Tribunal, we hold that depreciation on goodwill is not allowable. Accordingly these grounds are dismissed. Foreign royalty 8. Ground No.4 read as follows:- “4. Withholding tax amount of Rs.8,47,948 on foreign royalty 4.1 The learned CIT(Appeals) erred in confirming the action of the AO in making addition ... withholding taxes deducted by foreign enterprises, disregarding the fact that neither TDS certificates nor actual consideration were received 4.2 The learned CIT(Appeals) erred in confirming the action of the AO in making addition of the withholding taxes deducted by foreign enterprises, disregarding the submission made on the nuances

M/S. United Breweries Limited, Bangalore vs. Additional Commissioner of Income Tax, Range- 12, Bangalore

In the result, both the appeals of the assessee are partly allowed

ITA 125/BANG/2020[2010-11]Status: DisposedITAT Bangalore20 Oct 2022AY 2010-11

Bench: Shri George George K. & Ms. Padmavathy S

For Appellant: Shri, K.R. Vasudevan, AdvocateFor Respondent: Shri Sankar K. Ganeshan, CIT(DR)(ITAT), Bengaluru

Section 143(2)Section 14ASection 36(1)(vii)Section 40Section 43B

Novell Inc, America vs. DCIT (It) Range 3(3)(1), Mumbai

The appeal is partly allowed

ITA 7280/MUM/2018[2014-15]Status: DisposedITAT Mumbai10 Oct 2022AY 2014-15

Bench: Us.

For Appellant: Shri Ninad PatadeFor Respondent: Shri Soumendu Kumar Dash

Section 143(3)Section 144C(13)Section 144C(5)Section 195Section 234ASection 234BSection 92C

income/ revenues of the Appellant from Novell Software Products was not taxable as per the provisions of DTAA but was still subjected to the withholding tax under Section 195 Assessment Year 2014-15 of the Act and consequently the Appellant was not legally liable to pay advance tax under

Hewlett Packard (India) Software Operation Private Limited, Bangalore vs. The Deputy Commissioner of Income Tax, Circle-3(1)(1), Bangalore

In the result, the appeal filed by the assessee is partly allowed for statistical purposes

ITA 413/BANG/2022[2017-18]Status: DisposedITAT Bangalore03 Oct 2022AY 2017-18

Bench: Shri N.V. Vasudevan & Shri Chandra Poojariit(Tp)A No.413/Bang/2022 Assessment Year: 2017-18

For Appellant: Shri Padam Chand Khincha, A.RFor Respondent: Shri Sumer Singh Meena, D.R

Section 192Section 195Section 37Section 40Section 92C

section 195 of the Act 1.9. The NFAC has erred in law and on facts by disregarding that the ESOP expenditure is liable to withholding tax under section 192 of the Act as ‘perquisite’ in the hands of the employees, and appropriate taxes were deducted and remitted by the Appellant ... submissions furnished by the Appellant. . 1.9 The NFAC has erred in law and on facts by disregarding that the ESOP expenditure is liable to withholding tax under section 192 of the Act as ‘perquisite’ in the hands of the employees, and appropriate taxes were deducted and remitted by the Appellant

The Asstt Commissioner of Income Tax, Central Circle-5(4), Mumbai vs. Wadhwa Construction and Infrastructure Ltd, Mumbai

In the result, all the appeals of the assessee as well as learned Assessing Officer are dismissed

ITA 851/MUM/2022[2014-15]Status: DisposedITAT Mumbai21 Sept 2022AY 2014-15

Bench: Shri Prashant Maharishi, Am & Shri Sandeep Singh Karhail, Jm

For Appellant: Shri Jitendra Jain, ARFor Respondent: Shri Ajay Singh, DR

Section 132Section 153ASection 194ISection 2Section 40Section 69C

earlier shall deduct an amount equal to 1% of such sum as income tax thereon. According to this provision, there is no requirement of withholding tax if the impugned transferred property is an agricultural land. According to explanation (a) agricultural land is defined as agricultural Wadhwa Construction & Infrastructure

ACIT Central Cir 5(4), Mumbai vs. M/S. Wadhwa Construction & Infrastructure Pvt. Ltd, Mumbai

In the result, all the appeals of the assessee as well as learned Assessing Officer are dismissed

ITA 631/MUM/2022[2015-16]Status: DisposedITAT Mumbai21 Sept 2022AY 2015-16

Bench: Shri Prashant Maharishi, Am & Shri Sandeep Singh Karhail, Jm

For Appellant: Shri Jitendra Jain, ARFor Respondent: Shri Ajay Singh, DR

Section 132Section 153ASection 194ISection 2Section 40Section 69C

M/S Wadhwa Construction and Infrastructure Pvt Ltd, Mumbai vs. DCIT Central Circle 5(4), Mumbai

In the result, all the appeals of the assessee as well as learned Assessing Officer are dismissed

ITA 585/MUM/2022[2016-17]Status: DisposedITAT Mumbai21 Sept 2022AY 2016-17

Bench: Shri Prashant Maharishi, Am & Shri Sandeep Singh Karhail, Jm

For Appellant: Shri Jitendra Jain, ARFor Respondent: Shri Ajay Singh, DR

Section 132Section 153ASection 194ISection 2Section 40Section 69C

M/S Wadhwa Construction and Infrastruction Pvt Ltd, Mumbai vs. DCIT, Central Circle 5(4), Mumbai

In the result, all the appeals of the assessee as well as learned Assessing Officer are dismissed

ITA 584/MUM/2022[2015-16]Status: DisposedITAT Mumbai21 Sept 2022AY 2015-16

Bench: Shri Prashant Maharishi, Am & Shri Sandeep Singh Karhail, Jm

For Appellant: Shri Jitendra Jain, ARFor Respondent: Shri Ajay Singh, DR

Section 132Section 153ASection 194ISection 2Section 40Section 69C

ACIT Cent. Cir 5(4), Mumbai vs. M/S. Wadhwa Construction & Infrastructure Pvt. Ltd, Mumbai

In the result, all the appeals of the assessee as well as learned Assessing Officer are dismissed

ITA 227/MUM/2022[2016-17]Status: DisposedITAT Mumbai21 Sept 2022AY 2016-17

Bench: Shri Prashant Maharishi, Am & Shri Sandeep Singh Karhail, Jm

For Appellant: Shri Jitendra Jain, ARFor Respondent: Shri Ajay Singh, DR

Section 132Section 153ASection 194ISection 2Section 40Section 69C

Sulzer Pumps India Pvt Ltd., Mumbai vs. Dy CIT Circle-15 (3)(2), Mumbai

Accordingly, appeal of assessee is partly allowed

ITA 7318/MUM/2019[2015-16]Status: DisposedITAT Mumbai16 Sept 2022AY 2015-16

Bench: Shri Prashant Maharishi, Am & Shri Sandeep Singh Karhail, Jm The Dy. Commissioner Of Sulzer Pumps India Pvt Ltd. Income Tax, Circle 15(3)(2), Plot No.9, Midc, Digha, Room No. 451, Aayakar Thane- Belapur Road, Navi Vs. Bhavan, Maharshi Karve Mumbai-400 708 Road, Mumbai-400 020 (Respondent) (Appellant) Pan No. Aaack2238F Assessee By : Shri V. Shridharan & Ms. Manasi C, Ar Revenue By : Shri C T Mathew, Dr Date Of Hearing: 17.06.2022 Date Of Pronouncement : 16.09.2022

For Appellant: Shri V. Shridharan &For Respondent: Shri C T Mathew, DR

Section 143(3)Section 9(1)(vii)Section 92C

business outside India or earning income from a source outside India, the expenditure of fees for technical services for that, cannot be subjected to withholding tax u/s 195 of the income tax act. 022. The learned departmental representative heavily relied on the orders of the lower authorities submitting that provision

M/S Conduent Business Services India LLP, Bangalore vs. Assistant Commissioner of Income Tax Circle-4(2)(1), Bangalore

In the result, ground No.1 to 3 is allowed for statistical purposes

ITA 3346/BANG/2018[2014-15]Status: DisposedITAT Bangalore13 Sept 2022AY 2014-15

Bench: Shri N.V. Vasudevan & Shri Laxmi Prasad Sahu

For Appellant: Shri Nageswar Rao, AdvocateFor Respondent: Shri Praveen Karanth, CIT (DR)

Section 133(6)Section 143(3)Section 920

additions made in the final order of assessment. 3. The learned AO/DRP erred, in law and in facts, in not providing the claim of withholding tax credit as per the revised return of income in case of the Appellant. B. Grounds of appeal relating to transfer pricing matters common ... Appellant. 10. In relation to ground of appeal no. 3, it is submitted that as per revised return of income filed, Appellant claimed withholding tax credit of INR 3,91.16,490, however credit of only INR 3,90.77.420 was allowed by Ld. AO. While considering these objections, Dispute Resolution Panel

DCIT-3(2)(2), Mumbai vs. Karvat Cover More Assist Pvt Ltd., Mumbai

In the result, appeal by the Revenue is dismissed

ITA 4288/MUM/2019[2015-16]Status: DisposedITAT Mumbai12 Sept 2022AY 2015-16

Bench: Shri S. Rifaur Rahman & Shri Sandeep Singh Karhail

For Appellant: Shri Reepal TralshawalaFor Respondent: Shri Milind Chavan

Section 143(3)Section 195Section 195(2)Section 250Section 40

whatsoever from Cover-More Inter Company or any other Group Company situated abroad. The assessee also placed reliance upon the provisional certificate of the withholding taxes at nil issued under section 195(2) for the subsequent year based on the agreement between the assessee and the group company in Singapore ... issued by CBDT held that the AO was under obligation to follow the certificate issued under section 195(2) of the Act, determining the withholding taxes at Nil in the case of aforesaid Australian group entity and the assessee. The learned CIT(A) also noted that such certificate was neither

M/S Honeywell Technology Solutions Lab Private Limited, Bangalore vs. Joint Commissioner of Income Tax Special Range-3, Bangalore

ITA 2889/BANG/2018[2012-13]Status: DisposedITAT Bangalore26 Aug 2022AY 2012-13

Bench: Shri N.V. Vasudevan & Shri Laxmi Prasad Sahuassessment Year : 2012-13

For Appellant: Smt. Shreya Loyalaka, AdvocateFor Respondent: Shri Sumer Singh Meena, CIT (DR)

Section 201(1)Section 40Section 80J

within the meaning of 'royalty'! 'royalties' under the applicable Double Taxation Avoidance Agreement ("DTAA") and hence, the Appellant was not under the obligation to withhold taxes. 13. The learned CIT(A) has erred, in law and in facts, in mentioning that AMC expenses on which taxes have not been withheld ... made by the Appellant towards AMC expenses is not taxable under the applicable DTAA and hence, the Appellant was not under the obligation to withhold taxes. 14. Notwithstanding and without prejudice to Ground No. 12 and 13, the learned CIT(A) has erred in law in not considering that