CASE STUDIES ON TDS/TCS

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1 Direct Tax (Article) CASE STUDIES ON TDS/TCS The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.

2 Background Taxation is a subject, which needs constant refinement and upgradation. The case laws and the amendments in the Act each year requires a professional to remain updated at all the times. There are also certain issues in interpretation of various sections of Act. In this article, we will cover issues relating to provisions of TDS/TCS. It is a transitory tax & effective tool for collection of tax by government. It also helps in reporting the correct incomes and checking tax evasion. The purpose of this article is to discuss the latest development and case laws relating to TDS/TCS. In all, four case studies are made out to cover certain issues. Case Study I Maxwell Hospital has entered into following type of agreement with certain professional doctors to provide services to its patients:- Agreement I With some doctors, there is a retainership agreement whereby they are paid consolidated retainership fees p.m., they are to abide by the rules, regulations and policies of the hospital, they are to report to the head of the department, they have to raise monthly bills towards their professional fees. Agreement II With some doctors, there is sharing agreement whereby subject to the minimum guarantee amount they share the fees received from the patients, they fixed their OPD timings, they are to abide by the rules, regulations and policies of the hospital. Issue The issue that arises is whether the hospital is required to deduct tax at source on the payment of remuneration to doctors u/s 192 or 194J in each agreement? The answer to the above question would depend upon the fact that whether the agreement is a contract of employment or a contract for employment. If it is a contract of employment, sec. 192 would apply but if it is a contract for employment, sec. 194J would apply. The conditions of Agreement I show that there is an employer-employee relationship between the assessee and the retainer doctor. Therefore, the payment made to the doctors is constituted as salary and hence the assessee is liable for deduction of tax u/s 192 as it is a contract of employment. The recent decision of Escorts Heart Institute & Research Centre Vs. DCIT (2014) 102 DTR 184 (Jpr.) (Trib.) (TM) clarifies this issue. In this case, the assessee hospital was making payment to retainer doctors on fixed monthly basis for anaesthetic services. As per the agreement, retainer doctor is debarred from taking assignment with any other company and he is to abide by the rules, regulations and policies of the assessee company. Also, he is required to report to the Head of the Department in which he is working. These conditions clearly establish that there was employer- employee relationship between the assessee and the retainer doctor. Thus, it was held that the fixed monthly remuneration payable to retainer doctor in this case is constituted as salary and not fees for professional services and therefore, assessee is liable for deduction of tax u/s 192 and not 194J.

3 In Agreement II, the doctors were working in their professional capacity as they were sharing fess received from patients, they fixed their own timings and there was no employer-employee relationship between hospital and professional doctors. Therefore, tax is to be deducted at source u/s 194J as it is a contract for employment. The decision of DCIT Vs. Ivy Health Life Sciences (P.) Ltd. (2014) 146 ITD 486 (Chd.) (Trib.) clarify this issue. In this case, the assessee hospital under an agreement was availing services of doctors who fixed their own OPD hours and were available on call in case of emergency. There was no control of hospital by way of direction to the doctors on treatment of the patients. It was held that the doctors were working in their professional capacity and there was no employer and employee relationship between the hospital and the professional doctors. Therefore, tax was to be deducted at source u/s 194J as professional charges from payments made to the doctors and not u/s 192. Case Study II M/s Milestone Ltd. has entered into lease agreement with RIICO Ltd. for acquisition of leasehold rights of 99 years in an industrial plot of land measuring sq. mt. for construction of a factory. In terms of lease agreement, the assessee is to pay development charges of Rs.500 lakhs of which 25% is to be paid at the time of lease agreement and balance in 19 quarterly instalments over a period of 5 years with 12% p.a. Apart from this, assessee is to pay economic rent of Rs.2,000/- p.a. The ITO (TDS) is of the view that payment of development charges is covered by the definition of rent provided in Explanation to sec.194i and therefore tax is required to be deducted on payment of development charges. Issue The issue is whether the assessee is required to deduct tax at source u/s 194I/194A on the payment of development charges/interest on installment payment of development charges under the lease agreement to the RIICO Ltd? Lease of immovable property is a transfer of right to enjoy such property and not to use such property. For enjoyment of such property, a consideration is paid which is the cost of the property whereas any amount paid for service or any other thing is called the rent. Under the lease agreement lessee will have all the right including transfer of his right in land, subletting of land, mortgage, construction etc. Thus, the allotment of land by RIICO on leasehold basis is nothing but sale of land. Therefore, payment of development charges is not a payment for use of land but towards the cost of the obtaining the limited right of ownership in the said land. Hence, on the amount of development charges, section 194I is not applicable. This is clarified in the following cases: ITO (OSD) Vs. Navi Mumbai SEZ (P.) Ltd. (2014) 147 ITD 261 (Mum.) (Trib.) Lease premium paid by the assessee to CIDCO for acquiring leasehold land for a period of 60 years in order to develop a Special Economic Zone (SEZ) amounted to capital expenditure which did not fall within the meaning of rent u/s 194-I. Therefore, the assessee was not liable to deduct tax at source while making the said payment. ITO Vs. Indian Newspaper Society (2013) 144 ITD 668 (Del.)(Trib.) The assessee was offered certain land on lease for a period of 80 years by the Mumbai Development Authority for a consideration comprising lease premium of a sum. The said premium was paid in two installments. The AO held that assessee was liable to deduct tax at source on the lease premium u/s 194I. CIT(A) having found that such payment was not an advance rent but was a lease payment in nature of capital expenditure, held that such payment did not fall within the ambit of sec. 194I. Further, payment of lease premium was not to be made on periodical basis but it was one-time payment to acquire the land with right to construct a commercial complex thereon. Therefore, section 194I was not applicable.

4 On the installment of development charges assessee has paid the interest. On these amounts, no tax is deductible at source u/s 194I as it is not a payment for use of land but a finance cost for installment payment instead of down payment. These payments are also not liable for deduction of tax at source u/s 194A in view of Notification No. SO 3489 dt issued u/s 194A(3)(iii)(f) which provides for non-deduction of tax at source on payment of interest to any company in which all the shares are held by the Government. All the shares of RIICO are held by the government. Hence, on payment of interest also no tax is required to be deducted at source. Conclusion When an immovable property is taken on lease for a long period of time, say 50 years or 99 years, a premium/development charges is paid for such grant of lease. This premium/ development charges would be regarded as a payment for acquisition of the property for the lease period and not as a payment for the use of the property. Therefore, the provisions of section 194I will not be attracted to such payment of lease premium or development charges. However, if interest is paid to a company in which all the shares are not held by the Government then tax is required to be deducted at source u/s 194A on such interest payment. Case Study III Mangalam Cement Ltd. has entered into a contract with M/s Haryana Roadways Transport Co. for hiring of trailers for shifting of dismantled materials. According to the terms of the contract, the driver and khalasi is to be provided by the contractor. Further, the responsibility of repair and maintenance and other charges are also of the contractor. Issues The issue which arises is that under which section assessee should deduct tax at source while making payment to contractor u/s sec. 194C or sec. 194I? Would it make any difference, if driver is not provided by the contractor and the repair & maintenance and other charges are borne by the assessee? In the first case, along with the trailers, the contractor is also providing the driver and khalasi. Further, the repair and maintenance and other charges are also borne by the contractor. Therefore, the contract is in the nature of carrying out a work for shifting of dismantled material from one place to another in which provision of section 194C would be applicable. For this proposition, we can rely on the decision given by Pune Tribunal Bench in case of Bharat Forge Ltd. Vs. ACIT (2013) 144 ITD 455 and Gujarat High Court in case of CIT (TDS) Vs Shri Mahalaxmi Transport Co. 339 ITR 484. In the second case wherein driver is not provided by the contractor and the repair & maintenance and other charges are borne by the assessee, provisions of section 194I are applicable since the trailers were taken on hire/rent. Case Study IV M/s Bharti is a trader and seller of bras scrap. In FY , it had imported and sold brass scrap amounting to Rs.5 crores without collecting tax at source for the reason that section 206C is not applicable on him as he is a mere trader and that the brass scrap sold him is not generated from manufacture or mechanical working of the material and therefore the scrap sold by him is not scrap within the meaning of Explanation (b) to section 206C.

5 Issues Whether section 206C is attracted only to the scrap generated from the manufacture or mechanical working of materials? Whether sale of scrap by trader of scrap attracts the provision of tax collection at source u/s 206C? Explanation (b) to sec. 206C defines scrap as waste and scrap from the manufacture or mechanical working of materials which is definitely not usable as such because of breakage, cutting up, wear and other reasons. The issue which arises over is here that whether section 206C is also attracted to the scrap which is not generated from the manufacture or mechanical working of materials. The Ahmadabad Tribunal in case of Navine Flourine International Ltd Vs. ACIT 56 DTR 273 held that waste and scrap should have nexus with the manufacturing or mechanical working of material. Items sold which cannot be used for manufacturing or mechanical working of material would not form part of the definition of the scrap. However, the Rajkot Special Bench (Tribunal) in case of Bharti Auto Products Vs. CIT 92 DTR 345 held that the definition of scrap is not limited to scrap from the manufacture or mechanical working of materials alone but extends to cover waste also. While waste covers everything that is unusable or has been discarded as no longer useful as such, scrap covers everything that arises from the manufacture or mechanical working of materials. By its very nature, waste is a term of wider import while scrap is narrower in its scope. Therefore, any waste and scrap from the manufacture or mechanical working of materials which is not useable as such is covered by the scope of TCS. The other issue is that whether TCS is to be collected by manufacturer of scrap only or TCS is applicable on traders of scrap also. The Rajkot Bench of ITAT in case of Nathalal P. Lavti Vs. ITO 65 DTR 133 held that trader is not liable to TCS provisions on sale of scrap. However, the Rajkot Special Bench (Tribunal) in case of Bharti Auto Products Vs. CIT 92 DTR 345 has held that the use of words Profits & gains from business of trading in.scrap etc. in the head note of sec. 206C makes it clear that the applicability of sec. 206C is not restricted to the sale of scrap generated from the business of manufacturing undertaken by the assessee himself but also covers the sale of scrap in the business of trading in scrap. The CBDT in its letter no 275/86/2011-IT(B) dated has also clarified that the term buyer is not restricted to a person who buys the specified goods in an auction or tender and thus includes a buyer in the retail sale of specified goods. Therefore, all sellers of scrap including those trading in scrap are liable to collect tax at source from the buyers of such scrap. Conclusion There may be many situations where the scrap is generated from activities other than the manufacture or mechanical working of materials e.g. the waste arising from the dismantling of constructed buildings and superstructure, empty drums, plastic bags etc. According to the judgement of Rajkot Special Bench the waste arising from the dismantling of constructed buildings and superstructure are covered by definition of scrap being waste, which is not useable as such. However, empty drums/plastic bags which are useable as such are not covered by the definition of scrap even if it is sold as waste since they are useable as such. Also section 206C is applicable on trader of scrap.

6 Udyog has been successful in integrating itax with following ERP SAP E.C.C. 6.0 SAGE Accpac ERP 100 v 5.6 MFG-QAD eb 2.1 ABAS BPCS Adage BAAN FP 7 Oracle Updated and written by, CA P.C. Parwal pparwal@kalanico.com CA Sonal Parwal Sonal22.parwal@gmail.com Consultant to Udyog Software (India) Ltd. Visit Call us on sales@udyogsoftware.com The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.

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