Bangalore ITAT, while dealing with assessee’s
liability to deduct tax at source (‘TDS’) on provisions, had hitched IT giant
IBM India Private Ltd [TS-305-ITAT-2015(Bang)] with liability to pay interest
u/s 201(1A). ITAT held IBM liable to
deduct TDS on quarterly expense provisions entries made through credit in
suspense account as per global group accounting policy
A recent decision of the Hon’ble Bangalore
Income Tax Tribunal on the TDS provisions has generated lot of debate, mainly
due to the practical difficulty it can create in complying with the TDS
provisions and also due
to the fact that it is at variance to the existing
decisions in the matter.
The issue was whether the assessee should be
treated as ‘assessee in default’ under section 201(1) for not deducting tax at
source on the year-end provision and whether the provisions of section 201(1A)
are attracted.
In the said decision, it was held that interest
under section 201(1A) of the Act is leviable in such cases.
Brief Facts
The taxpayer company (IBM India Private Ltd.),
is a wholly owned subsidiary of a U.S. based company. The taxpayer made
provision for commission expenses, professional charges, contractor charges,
foreign payments etc. following mercantile system of accounting. In respect of
expenses for which invoices have been submitted or payments had become due, the
same were accounted and tax was deducted at source thereon. However, in respect
of expenses, for which only service / work had been provided/ performed by the
vendors,
but invoices had not been furnished or in
respect of which payments had not fallen due for payment to vendors, provision
for expenses were made in the books of accounts, by recognizing the liability
incurred.
The expenses were debited to profit and loss
account and credited to provision account and not to the vendor account. In the
Return of income, the taxpayer had added back the provision for expenses under
section 40(a)(ia) / 40(a)(i) of the Act. In the subsequent years, these
expenses were reversed and on receipt of invoices, the expenses were booked
after deducting tax at source.
The tribunal held that since the taxpayer has itself
made the disallowance under Sections 40(a)(i) & 40(a)(ia) of the Act in the
return of income filed, it has accepted its obligation to deduct TDS and hence
cannot plead that it is not “assessee in default” and therefore held the
taxpayer is liable for tax deduction at source and for payment of interest on
default thereof.While rendering the decision, the Tribunal had made several
findings/ observations:
i) Since the taxpayer has deducted tax at source
on these amounts in the subsequent year as and when the amount were paid by it,
no demand shall be raised under section 201(1) of the Act. In view thereof, the
Tribunal held that the taxpayer shall not constitute ‘assessee in default’.
ii) It cannot be said that there is no accrual
of expenditure as per mercantile system of accounting since the payee is not
identified.
iii) Even though there
is disallowance under section 40(a)(ia) / 40(a)(i), it does not mean that provisions
of section 201were not attracted.
iv) The argument that
provisions operate on income and not on payment is erroneous.
Sections 194C,194J and
195 does not use the expression “income” but use “sum” and tax deduction has to
be on “the sum paid”. Also, these sections do not use the expression
“chargeable to tax”
The two issues that seems to have influenced the
decision of the tribunal appear to be the following:
i) Whether the TDS provisions operate on income
or on “payment”
ii) Whether the expression “income” in the
various TDS provisions relate to the income of the payee or payer
TDS provisions operate on income or on “payment
The Hon’ble Tribunal has proceeded on the
premise that TDS provisions operate on “sum paid” in respect of Sections like
194C, 194J 195 etc.
The scheme of TDS contains 31 provisions,
wherein TDS is ordained on various types of payments. Some provisions are
related to TDS on payments which are “income” simplicitor, like interest, rent
etc., whereas some other provisions are related to TDS on “sums paid”, in which
there may be income element. The Tribunal has observed that the TDS obligation
is on the “sum so paid” and therefore it is erroneous to say that TDS
provisions operate on income.
A careful reading of the TDS provisions will
show that the concept of “income” has been embedded even in those sections,
which ordain tax deduction on “sums paid”. For instance, Section 194 reads as
under:
Any person responsible for paying any sum
…….Shall at the time of credit of such sum to the account of the contractor Shall
deduct an amount equal to ……One/ two percent of such sum as income tax on income comprised
therein
This phrase “such sum as income tax on income
comprised therein” is invariably used in all the sections wherein TDS is
ordained on “sums so paid”. The significance of this phrase “income tax on
income comprised therein” should not be lost sight of. A harmonious
construction of the said TDS provision lead to the inevitable conclusion that
even though the tax deduction is on “sums so paid”, the amount of deduction is
“on income comprised” in the “sum so paid”. Therefore, even in Sections like
194C, where TDS is to be made on “sums so paid” the TDS is on the income
comprised in the “sums so paid”.
The above reasoning gets strengthened if the
terminology used in the TDS provisions related to payments constituting income
(like rent, interest) is compared with the language used in those related to
payment of “sums”. The phrase “income comprised therein” is used only in those
sections where TDS is ordained on “sums so paid”. This phrase is not necessary
in those sections where the entire payment constitute “income” and therefore
this phrase is not used in those sections.
This leads to an inevitable conclusion that TDS
provisions, even if made on “sums paid” is always on the income comprised in
the “sums paid”.
Income in TDS provisions relate to payee or
payer
Another issue that has influenced the Tribunal’s
decision is the fact that the tax payer has disallowed the amounts u/s 40(a)(i)
of the Act. The Tribunal has held that since the tax payer has itself made the disallowance,
it has accepted the liability to deduct tax and having so accepted the
liability, cannot plead that it is not “assessee in default” for non-deduction.
It is a sine quo non for a vicarious tax
deduction liability that there has to be a principal tax liability in respect
of the relevant income first, because the tax is on the income and in the hands
of the person who earns that income. It is settled principle, upheld in several
decisions that the income referred to in the TDS provisions relates to the
income of the recipient. That is what is meant by the term “income comprised
therein”.
Earlier decisions
The impugned order of the the Bangalore Tribunal
has not considered the Mumbai Tribunal decision in the case of Pfizer Ltd. v.
ITO (2013) 55 SOT 277 (Mum.) (Trib.), wherein it has been held that there is no
obligation to deduct TDS in case of general credit entry and even if TDS is
applicable, if the taxpayer had disallowed such amount under section 40(a)(i) /
40(a)(ia) of the Act, the Assessing officer cannot consider the same amounts as
covered by section 194C to 194J so as to raise a TDS demand again under section
201 and levy interest under section 201(1A).
Therefore, the same argument has been advanced
by two different tribunals to arrive at diametrically opposite conclusions.
One can only say that the last word in the
matter has not been said and one needs to await the decision of a Special Bench
or a High court to give clarity and end the uncertainty.
Source: TaxSutra
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