2016 (12) TMI 1601 - HC - Income Tax

Limitation in respect of deduction from non-residents - administrative convenience - TDS u/s 195 - reopening of assessment - Assessee in default - Petitioner, a telecommunications service provider, engaged the services of both domestic (resident) and foreign (non-resident) entities for providing interconnections to its users - Held that - The court was conscious of the absence of any limitation period in respect of payments to non-residents, for the purpose of Section 195 read with Section 201. Yet, it was held that proceedings could be initiated within reasonable time. The circular relied on by the revenue, furnishing a rationale for not providing limitation as it may not be administratively possible to recover the tax from the non-resident , was decisively rejected in G.E. Technologies (2010 (9) TMI 7 - SUPREME COURT OF INDIA) Since Vodafone Essar (2016 (8) TMI 509 - DELHI HIGH COURT) considered the entire issue and noted that even recently a reasonable period was read into the Act, in relation to exercise of powers (although in a different context) accepting the petitioner s contention in the present case is based on precedent. Furthermore, the only reason cited by the respondent, i.e. administrative convenience, cannot outweigh the harsh nature of the consequence, which would expose resident payers to the onerous responsibility of maintaining books and documents for an uncertain period of time. Given these considerations, the impugned notices are quashed. The writ petition is allowed in these terms

Issues Involved:
1. Applicability of Section 201 of the Income Tax Act, 1961 to payments made to non-residents.
2. Whether the impugned notices are barred by limitation.

Issue-wise Detailed Analysis:

1. Applicability of Section 201 of the Income Tax Act, 1961 to payments made to non-residents:

The petitioner, a telecommunications service provider, engaged foreign entities for interconnections and made payments without deducting tax under Section 195 of the Act. The respondents issued Show Cause Notices deeming the petitioner as an "assessee in default" under Section 201. The petitioner argued that Section 201 does not expressly mention non-residents and only prescribes a time-limitation for residents. They relied on previous decisions (NHK-Japan Broadcasting Ltd and Hutchison Essar Telecom Ltd) which set a limitation period at four years, reasoning that although the unamended Section 201(3) did not prescribe a period of limitation, recourse to the provision could be made within a reasonable time. The petitioner contended that the amendment in 2010 did not disturb this interpretation, and the income tax authorities could not validly claim jurisdiction to issue Show Cause Notices treating deductors as assessees in default under the Act.

The revenue argued that the absence of any period of limitation for non-resident remitters indicated a conscious distinction by Parliament based on good reasons. They submitted that the true nature of transactions involving non-residents cannot be easily gathered, and Parliament did not prescribe any time limit for such transactions.

2. Whether the impugned notices are barred by limitation:

The petitioner argued that if the court did not accept their construction, the provision itself would be invalidated as it treats domestic and foreign deductees differently, violating Article 14 of the Constitution. They asserted that the distinction between domestic and foreign deductees was invidious and amounted to impermissible classification. They further argued that the reasons for issuing Show Cause Notices within a reasonable time still applied, relying on Section 153(1)(a) of the Income Tax Act, which prescribes a time limit for completing the assessment. The Court in NHK Japan Broadcasting held that four years was a reasonable period for initiating action where no limitation is prescribed.

The revenue relied on Bharat Steel Tubes Ltd. v. State of Haryana, stating that the absence of a limitation period for non-resident remitters was a conscious decision by Parliament. They argued that administrative convenience justified the distinction, as it might not be possible to recover tax from non-residents easily. The revenue also cited the decision in CIT v. Idea Cellular Ltd. to justify the initiation of proceedings against the petitioner.

The court noted that the amendment to Section 201 in 2010 prescribed a limitation only for residents, and the legislative history indicated that payments to residents and non-residents were treated alike. The court found that the rationale for not providing a limitation period for non-residents based on administrative convenience was arbitrary and discriminatory. The court relied on the Supreme Court's decision in GE India Technology Centre, which rejected the argument of administrative convenience.

The court concluded that the absence of a limitation period for non-residents, while prescribing one for residents, was not justified. The court held that proceedings under Section 201 could be initiated within a reasonable time and quashed the impugned notices. The court allowed the writ petition, emphasizing that the harsh consequence of maintaining books and documents for an uncertain period outweighed the administrative convenience argument.

Conclusion:

The court ruled that the impugned notices issued to the petitioner were barred by limitation and quashed them. The writ petition was allowed, and no costs were imposed.

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