INCOME TAX ON VOYAGE CHARTER FREIGHT

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MAKARAND DAMLE (Querist)
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12 May 2009 MY CLIENT WILL BE RUNNING VESSEL OWNED BY FOREIGN COMPANY ON COASTAL TRADE IN INDIA. FREIGHT IS PAYABLE BASED ON CARGO LOADED AND RATE FIXED AS PER CHARTER PARTY AGREEMENT BETWEEN MY CLIENT AND FOREIGN OWNER.
AFTER EACH VOYAGE THIS PARTCULAR FREIGHT HAS TO BE REMITTED TO FOREIGN OWNER.
MY QUERY IS WHETHER WHILE REMITTING ANY TAX HAS TO BE DEDUCTED AND UNDER WHAT SECTION

Jitendra

Jitendra (Expert)
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12 May 2009 Please check whether following circular satisfy your query. However to safeguard yourself demand certificate from Income Tax authorities for nil deduction of TDS under this circular

Circular No: 723

Date of Issue: 19/9/1995
Section(s) Referred: 172 , 195 , 194C
Statute: Income-Tax Act
Subject : Tax deduction at source from payment made to foreign shipping companies.
Representations have been received regarding the scope of sections 172, 194C and 195 of the Income-tax Act, 1961, in connection with tax deduction at source from payments made to foreign shipping companies or their agents.
2. Section 172 deals with shipping business of non-residents. Section 172(1) provides the mode of levy and recovery of tax in the case of any ship, belonging to or chartered by a non-resident, which carries passengers, live-stock, mail or goods shipped at a port in India. An analysis of the provisions of section 172 would show that these provisions have to be applied to every journey a ship, belonging to or chartered by a non-resident, undertakes from any port in India. Section 172 is a self-contained code for the levy and recovery of the tax, ship-wise and journey-wise, and requires the filing of the return within a maximum time of thirty days from the date of departure of the ship.
3. The provisions of section 172 are to apply, notwithstanding anything contained in the other provisions of the Act. Therefore, in such cases, the provisions of sections 194C and 195 relating to tax deduction at source are not applicable. The recovery of tax is to be regulated, for a voyage undertaken from any port in India by a ship, under the provisions of section 172.
4. Section 194C deals with works contracts including carriage of goods and passengers by any mode of transport other than the Railways. This section applies to payments made by a person referred to in clauses (a) to (j) of sub-section (1) to any "resident" (termed as contractor). It is clear from the section that the area of operation of TDS is confined to payments made to any "resident". On the other hand, section 172 operates in the area of computation of profits from shipping business of non-residents. Thus, there is no overlapping in the areas of operation of these sections.
5. There would, however, be cases where payments are made to shipping agents of non-resident ship-owners or charterers for carriage of passengers, etc., shipped at a port in India. Since the agent acts on behalf of the non-resident ship-owner or charterer, he steps into the shoes of the principal. Accordingly, the provisions of section 172 shall apply and those of sections 194C and 195 will not apply.
(Sd.) Dr. D. P. Semwal,
Officer on Special Duty to the Government of India