Querry:TDS ON LISTING FEES
P.D.RUNGTA
Querry:TDS ON LISTING FEES
Can anyone guide me whether TDS is deductible on listing fees paid to
stock exchanges?
Thanks & Regards,
Sneha Agarwal
Corporate Internal Audit
ITC Ltd.
+91 9330102069
Reply:1
TDS is not required to deduct on
listing fees paid to stock exchange.
TDS provisions are specific. There are no residual provisions for TDS meaning
unless specifically covered every payment is not subjected to TDS. ITAT Mumbai
Bench A in the case of Kotak Securities Ltd Vs Addl. CIT opined inter alia,
that there can not be any legal obligation by ay of abundant caution. The
liability to tax either exists are does not exist. In the light of above,
LIsting Fees paid to stock exchange are seemingly not covered by any provisions
of TDS. The agreement between a Company and a Stock Exchange cannot be
construed to say that it is a contract to do any work, nor to receive any
professional or technical service. Mere the fact that the fees are subjected to
service tax, one should not get carried away that the fees are in the nature of
fees for professional or technical services. It is pertinent to note that the
Madras High Court has observed in the case of Skycell Communications Ltd 251
ITR 53 that " Technical service referred in
section 9(1)(vii) contemplates rendering of a “service” to the payer of the
fee. Mere collection of a “fee” for use of a standard facility provides to all
those willing to pay for it does not amount to the fee having been received for
technical services." Taking clue from this the Honourable Bench in the
above referred case of Kotak Securities Ltd observed that stock exchanges
merely provide facility for its members to purchase and sell shares, securities
etc by providing a place where the members meet and trasact business. It
further observed that the stock exchanges do not render any managerial service
nor do they render any technical consultancy service. The transaction fee is
not paid in consideration of any service provided by the stock exchange. It is
a payment for use of facilities provided by the stock exchange. In the result
it concluded the payment of transaction fee to the stock exchange is not
attracted by TDS provisions (u/s 194J).
The same anology can be extended to the listing fee as well. And basing on the
above, I opine that Tax need not be deducted from the payment of listing fee to
a stock exchange.
Regards:
Navin Gopalika
9830339933
Reply:2
No.
It is neither of a contractual nature nor professional or brokerage.
Regards,
Pankaj Jhawar
Reply:3
TDS IS NOT DEDUCTIBLE ON LISTING FEES
Reply:4
In my view noTDS shall lie on such payments.Reference in this connection may be made to the decision of the Mumbai Tribunal in Kotak securities VsACIT(25 SOT 440).Although this decision was not on the payment of listing fees based on the principle laid down by the Bench it can be concluded that no TDS shall lie.In this case the Bench held that transaction fees paid to stock exchange are not in the nature of technical services provided by the Exchange.Stock Exchanges donot render any managerial services nor do they render any technical consultancy services.Hence Section 194J shall have no application.
regards
Ramaswami Kalidas
Senior VP and Company Secretary
Ambuja Realty Group
Reply:5
Based on the following provisions of the Income Tax Act 1961, no TDS applies
to the payments made to Stock Exchanges which fall in the category under sl no
(iii) of the section reproduced.
Interest or dividend or other sums payable to Government, Reserve Bank or certain
corporations.
196. Notwithstanding anything contained in the foregoing provisions of this Chapter,
no deduction of tax shall be made by any person from any sums payable to
(i) the Government, or
(ii) the Reserve Bank of India, or
(iii) a corporation established by or under a Central Act which is, under any
law for the time being in force, exempt from income-tax on its income, or
(iv) a Mutual Fund specified under clause (23D) of section 10,
where such sum is payable to it by way of interest or dividend in respect of any securities or shares owned by it or in
which it has full beneficial interest, or any other income accruing or arising
to it.]
Regards
CA Sajjan Kumar Kedia (Cell 9831563168 and 9836067797)
Reply:6
As far me the stock exchage has gotten an exemption from deduction of
TDS on
the payment made to him
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Nitin Jain
Date 10.03.2010
Dear Sir
On of my client has submitted his 12 monthly bills of contract for 2007-08 to the awarder in well within time except 3 bill relating to Jan08 – mar 08 which was submitted in April 2008.
The awarder has accounted the 9 bills in years 2007-08 & Showing the date of payment / Credit not after 31.03.2008.
But in case of last three bills the awarder shown the date of payment / Credit after 31.03.2008.
Now while preparing the ITR - 4 for 2007-08 for my Client. I faced problem in claiming the TDS of last three months as the TDS –TCS sheet in excel utility of ITR - 4 does not accept TDS which is pertaining to credit or payment after 31.03.2008.
While as per accounting bills of Jan 08 to Mar 08 also part of sale of FY 2007-08.
Please guide me how can I overcome such problem.
Can I change the date of Credit / Payment as 31.03.2008 in TDS-TCS sheet so that TDS entry for last three bill be possible.
With thanks & Regards
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samit jena
Dear, Kindly give me the contents of the following case: [2009] 124 TTJ 970: Mythri Transport Corporation Vs ACIT ( Visakhapatnam - ITAT) Applicability of Provisions of section 194C(2) and 40(a)(ia) Thanking You CA,Samit Jena 09433373765 |
Nitin Jain
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Is there any decision of ICAI central Council regd cancellation of membership of any member who is full time engaged in Coaching industry . If there is any decision pls provide me detail of such decision.
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navin gopalika
| Whether the vehicles hired by the assessee in execution of the transport contract can be termed as a "Sub-contract†and consequently the assessee is liable to deduct tax from the payment made for such vehicles u/s 194C(2) of the Act-the assessee is not liable to deduct tax at source, as per the provisions of section 194C(2), on the payments made to the lorry owners for lorry hire. Consequently, the provisions of section 40(a)(ia) shall not apply to such payments --- On Thu, 11/3/10, samit jena <jena_...@yahoo.co.in> wrote: |
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miraj D Shah
Mythri Transport Corporation. vs Assistant Commissioner Of Income-Tax. | ||
TTJ Citation | : | 124 TTJ 970 |
Decision Dates(s) | : | 9/1/2009 |
Assessment Year | : | 2005-06 |
Section(s) Referred | : | s. 40(a)(ia) , s. 194C, Income Tax Act, 1961 |
Member(s) | : | D. MANMOHAN., B. R. BASKARAN. |
Bench | : | ITAT VISAKHAPATNAM Bench |
Keyword(s) | : | Business Expenditure |
Referred Case(s) | : | |
ORDER-D. MANMOHAN, VICE PRESIDENT:
5.1 Learned CIT(A), by placing his reliance on the decision of Hon'ble Supreme Court in the case of CIT vs. British Paints India Ltd. (1991) 91 CTR (SC) 108 : (1991) 188 ITR 44 (SC), held that it is the duty of the AO to consider whether or not the books of account disclose true state of accounts and correct income. In the instant case, since the assessee has not routed through the P&L a/c, the entire freight receipts as well as the payment made for vehicles hired, the AO is justified in recasting the P&L a/c of the assessee by crediting the entire contract receipts and correspondingly debiting the payments made to vehicle owners from whom vehicles were hired.
5.2 The assessee also contended before learned CIT(A) that the provisions of s. 40 would be attracted only if an expenditure is debited to the P&L a/c and in the instant case, the payments made for hired lorries have since not been debited to the P&L a/c, s. 40 would not apply. Learned CIT(A) rejected this contention of the assessee by placing reliance on the decision of Hon'ble apex Court in the case of Chowringhee Sales Bureau (P) Ltd. vs. CIT 1973 CTR (SC) 44 : (1973) 87 ITR 542 (SC), wherein it was held that the mode of book entries cannot change the nature of a receipt. Accordingly learned CIT(A) rejected this contention of the assessee.
5.3 The assessee also contended before learned CIT(A) that under s. 199(1) only the income is required to be disclosed and not the gross receipts and since it has disclosed the income component, viz., commission income; from out of the contract receipts received on lorries hired, there is no contravention of any of the provisions of the Act. This contention was also rejected by learned CIT(A) on the ground that the TDS under s. 194C has to be deducted on the sub-contract payments.
5A The assessee also contended before learned CIT(A) that the provisions of s. 40(a)(ia) would be attracted only to those amounts which remain "payable" at the year end and therefore the amount already paid is outside the scope of s. 40(a)(ia). This was also rejected by learned CIT(A) on the ground that s. 40(a)(ia) has to be read along with s. 194C of the Act.
5.5 The last contention of the assessee before learned CIT(A) was that the payments made for hired lorries cannot be said to be contractual payments and hence s. 194C will not apply to such payments. It was also rejected by learned CIT(A). While arriving at the decision, learned CIT(A) noticed the decision of Hon'ble Himachal Pradesh High Court in the case of ITO vs. Rama Nand & Co. (1987) 59 CTR (HP) 146 : (1987) 163 ITR 702 (HP) wherein Hon'ble High Court has understood the meaning of the words 'sub-contractor' as under:
"A 'sub-contractor' would mean any person who enters into a contract with the contractor for carrying out or for the supply of labour for carrying out the whole or part of the work undertaken by the contractor under a contract with any of the authorities named above or for the supply in terms of his contract with any of the aforesaid authorities."
Finally learned CIT(A) dismissed the appeal of the assessee with following observations:
"Against the above background if the appellant's case is examined, it is noticed that no doubt the appellant participated in the tender process and negotiated in order to get the transportation contracts from different contractees. However, for executing the said contract works within the stipulated time-limits the appellant didn't have adequate numbers of tank lorries. Consequently, the appellant approached some of the other tank lorry owners for hiring their tank lorries for the purposes of the execution of the contract. The tank lorries taken on hire were utilized for the purposes of the business of the execution of the contract during the entire contract period. The tank lorry owners from whom they were hired were paid the amounts after the receipt of the bills from the contractees by the appellant after retaining his share of profit which is termed as commission. Therefore, these tank lorry owners enabled the appellant to execute the contract work. Hence, the same is clearly in the nature of a sub-contract within the meaning of the said work as stated earlier and any payment made to such tank lorry owners comes within the purview of s. 194C. By not deducting tax on such payments made to the tank lorry owners the appellant violated the provisions contained in s. 40(a)(ia)."
6. The learned counsel for the assessee advanced his arguments before us on the following lines, viz.:
(a) The tanker lorries used for the purpose of transportation of bitumen are specially designed lorries with heating arrangements. The assessee is under obligation to deploy sufficient number of lorries to ensure uninterrupted supply. Hence it has to engage lorries on hire to meet its requirements.
(b) The provisions of s. 194C(2) are attracted only if any payment is made to a sub-contractor in pursuance of a contract with him for carrying out the whole or any part of the work undertaken by the contractor. In the instant case, the assessee has only hired the vehicles from other persons who have simply left the vehicles at the disposal of the assessee. The assessee alone has carried out the entire contract work. None of the vehicle owners have involved themselves in execution of the contract and in any case, the assessee has not entered into any contract with them to carry out any part of the contract work undertaken by it. Reliance was placed in this connection upon the decision of Pune Bench of Hon'ble Tribunal in the case of Datta Digamber Sahakari Kamgar Sanstha Ltd. vs. Asstt. CIT (2002) 77 TTJ (Pune) 540 : (2002) 83 ITD 148 (Pune). In that case, the tanker owners had entrusted their tankers to the assessee-society and it was the assessee-society which undertook all the work relating to the execution of the transport contract. On consideration of these facts, the Hon'ble Tribunal held that there was no sub-contract between the assessee-society and the tanker owners.
(c) Insofar as the lorries hired by the assessee are concerned, the assessee has acted only as an agent. Hence the freight receipts pertaining to these lorries cannot be taken as the income of the assessee, as it is a case of diversion of income by overriding title. The assessee is entitled to a commission from the lorry owners and such commission income has been duly accounted for. In view of the above, there is no liability to deduct tax on the payments made for hired lorries. Also there is no necessity that the receipts pertaining to these hired lorries have to be routed through the P&L a/c. Reliance was placed on the following decisions:
(i) Paras Transport Co. vs. ITO (2005) 92 TTJ (Agra) 607;
(ii) ITO vs. Bindra Ban Bansi Lal (2004) 90 TTJ (Asr) 747 : (2001) 78 ITD 228 (Asr).
(d) Sec. 40(a)(ia) uses the word "payable" in contrast to the words "credited or paid" which were originally available in the relevant Finance Bill. Hence s. 40(a)(ia), if applicable, is attracted only to that amount which remains payable at the year end. In the instant case, the outstanding amount at the year end is only Rs. 16.63 lakhs. The dictionary meaning of the word "payable" is 'must be paid'. The Hon'ble Bombay High Court in the case of Abdulgafar A. Nadiadwala vs. Asstt. CIT (2004) 188 CTR (Bom) 232 : (2004) 267 ITR 488 (Bom) has held that in the absence of there being anything contrary to the context, the language of a statute should be interpreted according to the plain dictionary meaning of the terms used therein. While interpreting the taxing statutes, there is no scope for importing into the statute words which are not there as held by Hon'ble apex Court in the case of Smt. Tarulata Shyam & Ors. vs. CIT 1977 CTR (SC) 275 : (1977) 108 ITR 345 (SC). In any case, it is a well-settled principle that if two alternative views are possible, the view in favour of the assessee has to be adopted.
(e) All the vehicle owners, except one, have already filed their respective IT returns. The Hon'ble Supreme Court in the case of Hindustan Coca Cola Beverage (P) Ltd. vs. CIT (2007) 211 CTR (SC) 545 : (2007) 293 ITR 226 (SC) has held that if the tax has already been paid by recipient of income, the tax could not be recovered once again from the deductor-assessee. The Department has not initiated any proceeding under s. 201 or 221 of the Act in the hands of the assessee.
(f) TDS is only one mode of recovery of the tax due. According to s. 191 of the Act, if in any case income-tax has not been deducted in accordance with the provisions of Chapter XVII, income-tax shall be payable by the assessee direct.
(g) According to CBDT Circular No. 715, dt. 8th Aug., 1995 [(1995) 127 CTR (St) 13], each 'goods receipt' has to be treated as a separate contract. Applicability of this instruction has not been considered during assessment proceedings.
7. The submissions of learned Departmental Representative are that:
(a) Most of the lorries engaged by the assessee on hire are owned by the family members of the partners of the firm and substantial amount was diverted to these persons.
(b) The principal company has deducted TDS on the gross contract amount paid to the assessee, i.e., including the amount pertaining to the hired lorries. Hence the payment made for hired lorries can partake the character of sub-contract payment only and hence such payments are liable for deduction of tax at source under s. 194C(2).
(c) There is no agreement to suggest that the assessee has hired the lorries on commission basis. There is no consistent rate with regard to the commission retained by the assessee. The commission on the lorries hired from outsiders works out to 29 per cent, whereas the commission retained from the vehicles pertaining to the family members of the partners is very less, which only suggests that the authority to decide the percentage of commission vests with the assessee. Hence it is a case of application of income and not diversion of income by overriding title as claimed by the assessee.
(d) In order to bypass the provisions of TDS, the assessee has not routed the receipts pertaining to the hired lorries and the corresponding payments through the P&L a/c.
(e) The usage of word 'payable' in the section does not make any difference since the word is akin to the word 'credited' which was available in the Finance Bill. There is no basis to assume that the word 'payable' would mean the amount outstanding at the year end.
(f) If the payments made for hired lorries cannot be taken as sub-contract payments, such payments are liable for TDS under s. 194-I of the Act.
8. We have heard the rival contentions and perused the record. The issue before us may be decided if we answer following question:
"Whether the vehicles hired by the assessee in execution of the transport contract can be termed as a 'sub-contract' and consequently the assessee is liable to deduct tax from the payment made for such vehicles under s. 194C(2) of the Act?"
In the instant case, the AO has invoked the provisions of s. 40 (a)(ia) to disallow the payments made for hired lorries as according to him, such payments represent payment to 'sub-contractors' liable for TDS under s. 194C(2) of the Act and the assessee has failed to deduct TDS under s. 194C(2). Sec. 194C(2) of the Act, which is relevant in this context, reads as under:
"Any person (being a contractor and not being an individual or an HUF) responsible for paying any sum to any resident (hereafter in the section referred to as the sub-contractor) in pursuance of a contract with the sub-contractor for carrying out, or for the supply of labour for carrying out, the whole or any part of the work undertaken by the contractor or for supplying whether wholly or partly any labour which the contractor has undertaken to supply shall, at the time of credit of such sum to the account of the sub-contractor or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to one per cent of such sum as income-tax on income comprised therein."
8.1 According to our understanding, s. 194C(2) is attracted if all the following conditions are satisfied:
(a) The assessee should be a contractor.
(b) The assessee, in his capacity as a contractor, should enter into a contract with a sub-contractor for carrying out the whole or any part of the work undertaken by the contractor.
(c) The sub-contractor should carry out the whole or any part of the work undertaken by the contractor.
(d) Payment should be made for carrying out the whole or any part of the work.
8.2 As stated earlier, the assessee herein is a transport contractor and has entered into an agreement with parties whereby the assessee undertook to transport bitumen to various points as per their directions. According to the assessee, the lorries used for the said purpose are specially designed with proper heating arrangements. The claim of the assessee is that since it did not have required number of lorries, it had to hire lorries from others who simply placed the vehicles at the disposal of the assessee. The assessee alone, under its control and supervision, has executed whole of the contract. According to the assessee, the individual lorry owners have not carried out any part of the work undertaken by the assessee.
8.3 (I) The following are the basis of the AO to come to the conclusion that the payment made for hired lorries is a sub-contract payment, liable for TDS under s. 194C(2) of the Act:
(a) The assessee has entered into a contract with the parties and all payments are made to the assessee only.
(b) The assessee is claiming the total TDS credit for the gross receipt where TDS was deducted.
(c) The lorry owners are in no way connected with the party who gives work to the assessee. As the assessee could not manage the work with its own lorries, it took on hire lorries belonging to others on sub-contract, to carry out its contract work, for which payment is made by the assessee. There is no contact or relationship of any kind between the client (principal company) and the sub-contractor.
(II) Learned CIT(A) has confirmed the order of the AO with following reasonings:
(a) The tanker lorries taken on hire were utilized for the purposes of the business of the execution of the contract during the entire contract period.
(b) The tanker lorry owners were paid only after receipt of the bills from the contractees, after retaining the commission.
(c) The tanker lorry owners enabled the appellant to execute the contract work.
8.4 The assessee has placed a copy of work order dt. 12th Feb., 2005 issued by a company named "RBM-Pati Joint Venture". We have gone through the said work order and notice the following points:
(a) The scope of work includes loading of Bitumen 60/70 at Vizag, transportation and delivering at RBMP camp site at 56 kms. and 35 kms. on NH-6. As such three types of work are included in the scope of work.
(b) Tanker lorry shall have proper heating arrangement. The company reserves the right to arrange any other means of transportation in case of non-placement/delay in placement of lorry. Any extra payment made for execution of such work will be recovered from the assessee.
(c) The assessee shall not engage and/or allow its personnel in any fraudulent activity in performing the work order. The company is at liberty to deduct any reasonable amount, if any fraud or cheating is discovered.
(d) The assessee, in any circumstance, should not divulge or make public, in any way, any of the business transactions to other parties.
(e) In the event of any unreasonable delay or if the consignment is not delivered, the company shall be entitled to deduct any sum and/or the value of consignment from the outstanding bills of the assessee. No claim whatsoever due to idling of labour, equipment, vehicles and any others shall be entertained by the company under any circumstance.
(f) The assessee shall comply with all existing acts, rules, regulations etc. relating to labour, traffic and transport. In case of any liability arising to the company as principal employer due to failure, negligence or/and accident by transporter, the same shall be recoverable from the assessee.
The above stringent clauses suggest that the assessee is solely responsible for all the acts and defaults committed by the assessee and/or its employees.
8.5 It is not established by the Revenue that other lorry owners, from whom the vehicles were hired, have also been fastened with any of the abovesaid liabilities. In a sub-contract, a prudent contractor would include all the liability clauses in the agreement entered into by him with the sub-contractor. The assessee has also claimed before the tax authorities that the responsibility in the whole process lies with it only. Though the passing of liability is not the only criteria to decide about the existence of sub-contract, yet this contention of the assessee read with the liability clauses of the work order, cited above, supports its submission that the individual vehicle owners are simple hirers of the vehicles.
8.6 As per the provisions of s. 194C(2), as explained in para 8.1 supra, the sub-contractor should carry out the whole or any part of the work undertaken by the assessee. The dictionary meaning of the words "carry out" is to 'carry into practice'; 'to execute'; 'to accomplish'. It signifies a positive involvement in the execution of the whole or any part of the main work by spending his time, money, energy, etc. and further taking the risks in carrying on the said activity. In the instant case, there is no material to suggest that the other lorry owners involved themselves in carrying out any part of the work undertaken by the assessee by spending their time, energy and by taking the risks associated with the main contract work. In the absence of the abovesaid characteristics attached to a sub-contract in the instant case, the payment made to the lorry owners stands at par with the payments made towards salaries, rent, etc. Hence the reasoning of the tax authorities, which is stated in para 8.3 supra, to hold that the payment made for hired vehicles is a sub-contract payment, in our opinion, is not correct and not based on relevant considerations. Hence, in our considered opinion, it cannot be said that the payments made for hired vehicles would fall in the category of payment towards a sub-contract with the lorry owners. In that case the assessee is not liable to deduct tax at source, as per the provisions of s. 194C(2), on the payments made to the lorry owners for lorry hire. Consequently, the provisions of s. 40(a)(ia) shall not apply to such payments.
8.7 As we have decided the issue in favour of the assessee for the reasons stated above, in our opinion, consideration of other contentions of the assessee as well as the Revenue is not necessary.
9. In the result, the appeal of the assessee is allowed.
Miraj D Shah
D J Shah & Co
Tax Management Consultants
2 Elgin Road
Kolkata 700020
91-33-22871487 / 22870767 / 40034672
Prem CSP
Mr. .........
Are really serious in asking this . If so why
Membership cannot be and should not be canncelled. At the maximum certificate of Practice may be given. In my opinion even that cannot be done by the institute.
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From: Prem CSP <pre...@yahoo.com>
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Sent: Thu, 11 March, 2010 10:38:02 PM
samit jena
Dear Sir, Any views/comments on INCOME TAX matters related to EXIM TRADE. |
Thanking You CA,Samit Jena 09433373765 |