2016 (9) TMI 1264 - AT - Income Tax

Short deduction of TDS - Payments made to non-residents towards various services - TDS return processed under section 200A - the tax withholding rate was to apply @ 20%, in terms of the provisions of Section 206AA, as the German entity had not obtained the permanent account number (PAN) from the Indian tax authorities - Indo German DTAA - Held that - The provisions of the applicable tax treaty, in the present case, prescribe the tax rate @ 10%. This rate of 10% is applicable on the related income whether or not the assessee has obtained the permanent account number. In effect, therefore, even when a foreign entity does not obtain PAN in India, the applicable tax rate is 10% in this case. Section 206AA, which provides a higher tax burden- i.e. taxability @ 20% in the event of foreign entity not obtaining the permanent account number in India, therefore, cannot be pressed into service, as has been done in the course of processing of return under section 200A. To that extent, short deduction of tax at source demand, raised in the course of processing of TDS return under section 200A, is unsustainable in law. We quash this short deduction of tax at source demand. The grievance of the assessee is indeed justified, merits acceptance and is hereby upheld. - Decided in favour of assessee

Summary

Issues:
Challenge to correctness of order on rectification of mistake under section 154 r.w.s 200A of the Income Tax Act, 1961 for the assessment year 2014-15.

Analysis:
The appellant contested the order passed by the CIT(A) regarding the rectification of mistake under section 154 r.w.s 200A of the Income Tax Act, 1961 for the assessment year 2014-15. The appellant raised grounds challenging the correctness of the action taken by the DCIT, CPC, IDS under section 200A of the Act. The appellant argued that the CIT(A) erred in upholding the action by relying on a press release issued by the CBDT, which required a higher tax deduction rate in transactions without the deductee's PAN after a specific date. The appellant contended that they had deducted tax at a rate of 10% as per the Tax Treaty with Germany, following the provisions of section 90(2) of the Act. The appellant further argued that section 206AA is not a charging section and does not supersede the provisions of Chapter XVII-B governing TDS.

The Tribunal considered the material facts where the assessee made a remittance to a German tax resident, and as per the Indo German Double Taxation Avoidance Agreement, the payment was taxable at 10% on a gross basis. The assessee deducted tax at source at 10% under section 195 and made the remittance accordingly. However, a short deduction demand was raised during the processing of the TDS return under section 200A, stating that tax should have been deducted at 20% under section 206AA due to the non-availability of PAN from the German entity. The CIT(A) upheld this decision based on the CBDT press release. The Tribunal analyzed the provisions of section 90(2) of the Act, which states that tax treaties override the Income Tax Act unless the Act is more beneficial to the assessee. In this case, the tax treaty prescribed a 10% tax rate, irrespective of the PAN status. Therefore, the higher tax burden under section 206AA was not applicable, and the short deduction demand was deemed unsustainable. The Tribunal ruled in favor of the appellant, quashing the short deduction demand.

In conclusion, the Tribunal allowed the appeal, upholding the appellant's grievance and setting aside the short deduction demand. The judgment clarified that the provisions of the tax treaty prevailed over the higher tax rate specified under section 206AA in cases where the foreign entity did not obtain a PAN in India.