2002 (6) TMI 5 - HC - Income Tax

TDS non deduction - Assessee contended that there was no chargeable income at all which resulted to the non-resident and that there was no payment of any sum by the assessee to the non-resident and as such there was no liability to deduct tax at source u/s 195 - Revenue was of the view that the income from charter hire has accrued, arisen and also been received in India in terms of 85 per cent. of the catch of fish and, therefore, the assessee was obliged to deduct tax at source Held that Tribunal is correct in law in holding that payment is made to the non-resident by the assessee in India - Tribunal is correct in law in holding that the receipt in the form of 85 per cent. of the catch of fish by the non-resident was in India since all the formalities are completed in India - Tribunal is correct in law in holding that the assessee is liable to deduct tax at source u/s 195 on the alleged payment made to the non-resident towards hire charges even though the alleged payment is not in cash - Tribunal is correct in law in holding that the assessee was in default u/s 201, for the failure to deduct tax u/s 195

Issues:
1. Whether payment is made to the non-resident by the assessee in India?
2. Whether the receipt in the form of 85% of the catch of fish by the non-resident was in India?
3. Whether the claim of no payment to the non-resident but only a receipt of 15% of the value of fish catch is justified?
4. Whether the assessee is liable to deduct tax at source under section 195 of the Act on the alleged payment made to the non-resident towards hire charges?
5. Whether the assessee was in default under section 201 of the Income-tax Act for failure to deduct tax under section 195?

Analysis:

Issue 1:
The case involved whether the payment made by the assessee to the non-resident was in India. The tribunal held that the payment was made in India, and the court agreed with this view, stating that the liability to deduct tax at source arises when the sum paid is chargeable to tax.

Issue 2:
Regarding the receipt of 85% of the catch of fish by the non-resident, the tribunal found that since all formalities were completed in India, the receipt was considered to be in India. The court upheld this decision, emphasizing that the entire catch of fish belonged to the assessee and that 85% of the catch was adjusted towards hire charges, making it a receipt in the hands of the non-resident.

Issue 3:
The claim that there was no payment to the non-resident but only a receipt of 15% of the value of fish catch was rejected by the tribunal. The court agreed with this rejection, stating that the payment made by giving 85% of the fish catch to the non-resident amounted to payment as contemplated under section 195 of the Act.

Issue 4:
The question of whether the assessee was liable to deduct tax at source under section 195 on the alleged payment towards hire charges was raised. The tribunal held that the assessee was indeed liable to deduct tax, and the court concurred, emphasizing that the liability to deduct tax arises either at the time of payment or at the time of credit to the payee's account.

Issue 5:
Lastly, the issue of the assessee being in default under section 201 for failure to deduct tax under section 195 was discussed. The tribunal found the assessee to be a defaulter, and the court upheld this decision, requiring the assessee to pay interest for the failure to deduct tax at source.

In conclusion, the court ruled in favor of the Revenue on all the issues raised in the reference, affirming the decisions made by the tribunal and holding the assessee liable for the deductions and payments as per the provisions of the Income-tax Act.

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