17 January 2022
A private limited company making a payment to AWS for various services like storage, data transfer etc. If AWS does not have Permanent Establishment in india then whether the company need to deduct TDS on such payment ? And if AWS has permanent establishment in india then TDS to be deducted in which section. Please suggest.
11 July 2024
In India, the tax deduction at source (TDS) provisions apply when certain payments are made to non-residents, including foreign companies like AWS. Here's how it typically works:
1. **Non-Resident Without Permanent Establishment (PE) in India:** - If AWS does **not** have a Permanent Establishment (PE) in India, the payment made by the private limited company to AWS for services like storage, data transfer, etc., is considered a payment to a non-resident. - According to Section 195 of the Income Tax Act, 1961, when a non-resident receives income from Indian sources, TDS is required to be deducted at the applicable rates. The payer (the Indian company) needs to deduct TDS before making the payment to AWS. - The rate of TDS and other specific requirements (like obtaining a Tax Residency Certificate if applicable) should be checked based on the nature of services and provisions of the Double Taxation Avoidance Agreement (DTAA) between India and the country where AWS is based.
2. **Non-Resident With Permanent Establishment (PE) in India:** - If AWS has a Permanent Establishment (PE) in India, the payment would be treated as having a business connection in India, and TDS would be required under Section 194J of the Income Tax Act. - Section 194J pertains to payments for professional or technical services rendered in India, or if the services are utilized in India. The TDS rate applicable under Section 194J is usually 10% (or 2% in the case of fees for technical services).
**Key Points to Consider:** - Determine whether AWS has a Permanent Establishment (PE) in India. PE generally implies a fixed place of business through which the company carries out its business activities in India. - If AWS does not have a PE in India, TDS should be deducted under Section 195. - If AWS has a PE in India, TDS should be deducted under Section 194J.
**Practical Steps:** - Obtain a Tax Residency Certificate (TRC) from AWS if required under the DTAA. - Determine the appropriate TDS rate and ensure compliance with filing TDS returns and issuing TDS certificates (Form 16A).
It's advisable to consult with a tax advisor or chartered accountant who can provide specific guidance based on the latest tax regulations and your company's circumstances.
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