09 February 2013
I find the applicability of Service Tax / TDS bit contentious on the following issues for services rendered in foreign country:
1. Agency Commission for Sales Promotion to agent in foreign country against exports.
2. In case of warranty extension (say from 1 year to 3 years) payable to foreign supplier for capital goods / machinery imported from them in to India.
Often, it is an issue that the banks raise to be authenticated by an auditor and it is very contentious to prove the applicability of TDS / Service Tax.
Notwithstanding my personal opinion, please help with the law and its relevant chapter / section about the scope of TDS for the above payments to be made in foreign currency (through Form A-2).
Advertisement is Taxable Service. If you receive from outside the country than you should have to pay service tax liability by under the rule of reverse calculation and also discharged your TDS Liability @ 20 % under section 195.
Further if you provide the service than it will also taxable .
Thank you for your reply. We are not talking about advertisement. My query is specific to agency commission to foreign agents of Indian exporters operating outside India.
As far as my knowledge is concerned, they are not liable to tax under Sec 195 for commission paid by Indian exporters.Even the the Hon’ble Supreme Court held that when a non-resident, with no operation of business in India, rendered services outside India to an Indian concern, then provisions of Section 9 of the I.T Act 1961 are not attracted. (CIT v Toshoku Ltd (125 ITR 525, SC).
With the withdrawal of Circulars 23 of 1969 and 786 of 2000 by CBDT Circular No. 7 / 2009 dated 22-10-2009, it is unlikely that Section 9(1)(i), 9(1)(vi) and 9(1)(vii)) specifically can be imposed. Under the circumstances, income of foreign agents from commission payments made by the Indian company is not deemed to accrue or arise in India; hence is not taxable in India under the Indian Income Tax Act, 1961.
The question however is, does the same logic apply for payment in foreign currency to foreign supplier for warranty extension on goods purchased from them??
Different people, including banks seem to have contrasting opinions... and I am looking for clarity
Thank you for your reply. We are not talking about advertisement. My query is specific to agency commission to foreign agents of Indian exporters operating outside India.
As far as my knowledge is concerned, they are not liable to tax under Sec 195 for commission paid by Indian exporters.Even the the Hon’ble Supreme Court held that when a non-resident, with no operation of business in India, rendered services outside India to an Indian concern, then provisions of Section 9 of the I.T Act 1961 are not attracted. (CIT v Toshoku Ltd (125 ITR 525, SC).
With the withdrawal of Circulars 23 of 1969 and 786 of 2000 by CBDT Circular No. 7 / 2009 dated 22-10-2009, it is unlikely that Section 9(1)(i), 9(1)(vi) and 9(1)(vii)) specifically can be imposed. Under the circumstances, income of foreign agents from commission payments made by the Indian company is not deemed to accrue or arise in India; hence is not taxable in India under the Indian Income Tax Act, 1961.
The question however is, does the same logic apply for payment in foreign currency to foreign supplier for warranty extension on goods purchased from them??
Different people, including banks seem to have contrasting opinions... and I am looking for clarity
CAclubindia
