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Withholding Tax on Foreign Remittances under Section 195 of Income Tax Act. Content. Importance of Section 195. More and More Cross Border Payments Increased revenue’s attention like form 15CA and 15CB Professional Diligence for CA’s Default consequences for payer:
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- form No. 15C in case of banking company
- form No. 15D in any other cases
Section 195(6) introduced by Finance Act 2008 (w.e.f. 1/4/2008)
Furnishing of information - Rule 37BB (w.e.f. 1 July 2009)
Applicable w.e.f 1/07/2012 Notwithstanding anything contained in sub-section (1) and sub-section(2), the board may, by notification in the Official Gazettee, specify a class of persons or cases, where the person responsible for paying to a non-resident, not being a company, or to a foreign company, any sum whether or not chargeable under the provisions of this Act, shall make an application to the Assessing Officer to determine, by general or special order, the appropriate proportion of sum chargeable, and upon such determination, tax shall be deducted under sub-section(1) on that proportion of the sum which is so chargeable.
1) The scope of withholding tax obligation on payment of income to non-resident expressly extended to all persons including non-residents irrespective of them having a residence or place of business or business connection or any other presence in India
2) Effective 1 July 2012, payment to non-residents by specified persons or in specified cases (to be notified) to require an application to be made to the Tax Officer for determination of withholding tax, irrespective of whether such payment is taxable in India or not
Obligation to withhold the tax will be applied
regardless of absence of any territorial nexus.
Income by way of Royalty/ FTS shall be deemed to accrue or arise in India if payable by
Business/ Profession outside India
Business/ Profession in India
Source of income outside India
Source of income in India
Finance Act, 2012
Income deemed to be accruing or arising to non-residents directly or indirectly through the transfer of a capital asset situated in India is to be taxed in India with retrospective effect from 1 April 1962
1) Payment for software-whether Royalty or not ?
2) Acquiring Controlling interest in Indian Company.
3) Payment made by Branch to HO/ other branch is subject to TDS.
4) Payment For Fees For technical services
5) Payment for Repair
Withholding at the time of credit or payment whichever is earlier
Payment of Royalty under DTAA - tax deductible on payment?
Point of Tax Withholding
Tax to be withheld even when no remittance on adjustment of dues
Tax withholding in cases where RBI approval required
* Not applicable in case of payments referred to in S.192(1A) - Non monetary perquisites taxable as salary
Printout of the undertaking form (15CA) is signed
Obtains certificate of Accountant (Form 15CB)
Submit the signed paper undertaking form to the RBI/ Authorized Dealer along with certificate of an Accountant in duplicate
Electronically upload the remittance details in Form 15CA on www.tin-nsdl.com
RBI/ Authorized Dealer remits the Amount
Take printout of filled undertaking form (15CA) with system generated acknowledgement number
A copy of undertaking (15CA) & Certificate of Accountant (15CB) by RBI / Authorized Dealer forwarded to theAO
Held Yes in 113 ITD 85 (issues: where ITAT order there for earlier period?; where AO/TPO order in payee case is there for earlier period? Etc)
Cost to cost reimbursement doesnotrequiresTDS
Reimbursement of cost allocation
Reimbursement of expenses along with FTS
The contract is cancelled after partial execution and no remittance is made to the non-resident for the non-executed part.