Tax Withholding Section 195 and CA certification

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1 Tax Withholding Section 195 and CA certification October 1, 2011 Bijal Desai

2 Presentation Outline Non-resident payments Withholding tax Lower or NIL withholding of tax CA Certification Consequences of non-deduction of tax under Section 195 Summing up Slide 2

3 Non-resident payments Withholding tax Slide 3

4 Most common Payments to Non-residents Import of Goods Services availed (technical, management services, consultancy services, others) Use of Brand Name/ Trademark/ Copyright Cost Allocations by Group entities - Eg. IT Allocations/ Use of Servers / Accounting or Management Fees Interest Payments Slide 4

5 Obligation of Payer Determining whether tax deductible under Section 195 of the Act If yes, appropriate tax withholding Furnishing of CA Certificate or Assessing Officer s ( AO ) order under Sections 195 / 197 of the Act to the Authorised Dealer for remittance purposes Deposition of tax Slide 5

6 Tax Deduction under Section Payee Non Resident / Foreign Company Includes branch of a foreign company Payer Any person responsible for paying Includes individuals and HUFs Nature of Payment Chargeable to tax under the provisions of the Act (other than salaries) Slide 6

7 ...Tax Deduction under Section 195 Mode of Payment Cheque/ Demand Draft/ in kind or any other mode Time of Deduction Payment or credit, whichever is earlier Nature of Payment rates in force Section 2(37A)(iii) - Rates Specified in the Act (Section 115A) - Part II of Schedule I to Finance Act - Relevant Article of the treaty Slide 7

8 Nature of payments covered Any sum chargeable - Chargeability to tax governed by provisions of Act / DTAA Nature of Income Section of the Act* DTAA (OECD model convention) Business / Profession 9(1)(i) Article 5 & A.7 Salary Income 9(1)(ii), S.9(1)(iii) Article 15 Dividend Income 9(1)(iv), S.115A Article 10 Interest Income 9(1)(v), S.115A Article 11 Royalties 9(1)(vi), S.115A Article 12 FTS 9(1)(vii), S.115A Article 12 Capital Gains 9(i)(i) Article 13 *Apart from Section 5, wherever applicable Act/ DTAA, whichever is beneficial prevails Slide 8

9 Key issues Payee Payments made by Branch to its Head Office/ Branch abroad Payments to agents of non-residents held taxable Residential status different under domestic law and treaty Payer Payments made by NR to NR - Section 1(2) provides that Act extends to whole of India whether NR payer is covered within the scope of the Act? - P-13 of 1995 (228 ITR 487) (AAR) - Satellite Television Asian Region Ltd (99 ITD 91) (Mum ITAT) - Vodafone International Holding BV (311 ITR 46) (HC) (Mum.) Clarity awaited from Supreme Court in case of Vodafone Slide 9

10 Key issues Nature of Payment Payments not taxable in India Reimbursements Freight Charges Cost Allocation Mode of Payment Commission agent remitting revenue net of commission to Nonresident Time of Deduction Advance payments Year end provision in books of accounts adhoc/ certain Regulatory approval Slide 10

11 Key issues Rates of Tax Is surcharge or education cess to be added when Treat rates are applied? Subject to Section 206AA payee not having PAN - Rate of 20%, rates in force whichever is higher Section 206AA applicability in case of incomes subject to presumptive taxation Slide 11

12 Net of Tax Payments Section 195A Grossing up of tax in such cases Example:- Amount to be remitted to NR Rs. 100 Tax to be withheld and borne by the payee 10% Grossing up as per Section 195A Rs [Rs. 100/0.9] Section 206AA vis-à-vis Section 195A Slide 12

13 Refund of excess TDS Circular No. 790 dated 20 April 2000 refund of tax to deductor in following cases: - Contract cancelled and no remittance - Remittance made but contract cancelled Circular No. 07 dated 23 October Exemption of amount remitted - Order passed reducing liability of tax deduction - Tax deducted twice by mistake - Incorrect grossing-up - Tax payment at higher rate under Act as compared to tax treaty Slide 13

14 Lower or NIL withholding of tax Slide 14

15 Lower or NIL withholding of tax By Payer Order determining quantum of sum chargeable to tax [Section 195(2)] No prescribed format By Payee Certificate granting to receive sums without TDS [Section 195(3)] Branch of a foreign bank/ NR having branch in India Subject to conditions in Rule 29B Prescribed forms Alternatively, payee may apply under Section 197 Practically Section 195(2) route is followed Slide 15

16 Section 195(2) Order Features - - Applicable to specified Assessment year - May determine quantum of income/ rate of tax - Applicable to the transaction specified therein - Provisional in nature subject to final assessment Order appealable under Section Withholding and payment of tax is a must - Amendment by Finance Act Payee cannot file an appeal Slide 16

17 CA Certification Slide 17

18 Certification by CA (introduced by Finance Act 2008) Section 195(6) - Requires furnishing of information to tax office Furnishing of information New Rule 37BB (w.e.f. 01 July 2009) - Furnishing of information to the tax department Form 15CA - To obtain CA certificate before making payment to Non-Resident Form 15CB Whether CA Certificate substitutes AO s order under Section 195(2)? Slide 18

19 CA Certificate v/s. Order under Section 195(2) of the Act CA Certificate route is usually followed where: - Tax rate is certain and undisputable - Payments not taxable in India (undisputably) - Generally, non-pe scenario Where the taxability of payee is debatable advisable to apply for Section 195(2) order? - Case involving Attribution of profits to PE cases Whether Section 195(2) order mandatory in all cases? - No (held by Supreme Court in GE India Technology Centre Pvt Ltd) Slide 19

20 Key documents to keep on records Agreement Invoice Tax Residency Certificate of payee - If TRC not available i. Treaty benefits may be denied ii. payer may be treated as an assessee in default for inadequate / non-deduction of tax iii. Interest and penal consequences Letter of Representation/ Undertaking - From payer regarding all details of transaction - From payee regarding tax residency status and non-existence of PE Tax Deduction proof Payee s PAN card copy Slide 20

21 Consequences of Non-deduction of tax under Section 195 Slide 21

22 Consequences for non-deduction of tax Disallowance under Section 40(a)(i) of the Act - In case of short deduction of tax whole amount of tax should be disallowed or proportionate amount? Considered as assessee in default as per provisions of Section 201(1) - Interest under Section 201(1A) is also applicable Penalties - Section 221 assessee is in default for non-payment of tax - Section 271C for failure to deduct tax Prosecution as per the provisions of Section 276B In case of appropriate tax deduction as per order under Section 195(2) - Consequences should be minimal CA certificate may or may not immune the payer from interest and penal consequences Slide 22

23 Summing up Slide 23

24 Summing up Payments to Non-residents important to determine taxability CA Certificate vs. Section 195(2) application case to case basis evaluation - In cases involving substantial amount advisable to obtain Section 195(2) order Practical difficulties in Grossing up situations Grave consequences in case of non-compliance with Section 195 Slide 24

25 Thank You Bijal Desai Senior Manager Phone no.: Mobile : bijal.desai@in.pwc.com 2011 PricewaterhouseCoopers Private Ltd. All rights reserved. PwC, a registered trademark, refers to PricewaterhouseCoopers Private Limited (a limited company in India) or, as the context requires, other member firms of PwC International Limited, each of which is a separate and independent legal entity.

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