2011 (5) TMI 307 - HC - Income Tax

TDS u/s 194E/194J - DTAA - Payments made to the non-resident Umpires or Match Referees come within the purview of Section 115BBA? - Income accrued or arise in India - Fees for technical service - Administrative expenses - HELD THAT The amount in respect of INDCOM was quantified by the Income-tax Officer at Rs.8,95,896.15 as representing the tax which should have been deducted at source in respect of payment made towards team administrative expenses, fees paid to Umpires and Referees and prize money. if a foreign cricket team, by virtue of agreement among the various teams of different cricket-playing countries, participates in a cricket match played in India and an agreed amount is paid to such a team for participating in such a match in the form of prize money, such prize money, whether for wining or for losing the match, will come within the term winnings and hence, should be treated to be income within the meaning of Section 2(24) (ix) of the Act. Therefore, although the payments made to them were income which had accrued in India, yet, those were not taxable under the aforesaid provision and thus, the liability to deduct under Section 194E of the Act never accrued. Further, it appears from the Notification No. S.O. 2085(E) dated August 21, 2008 issued under Section 194J, Explanation (a), that the sports persons and Umpires and Referees are included within the meaning of Section 194J with effect from the date of publication of such notification - Decided in the favour of assessee. Regarding DTAA - there is no provision which excludes the operation of the provisions contained in Sections 115BBA or 194E of the Act and thus, existence of those agreements did not do away with the liability of the appellant to deduct tax at the source in respect of payments of the alleged Prize Money or the Administrative expenses to the foreign teams playing on the soil of India - Appeal is partly allowed.

Summary

Issues Involved:
1. Taxability of payments to Managers of foreign cricket teams for administrative expenses.
2. Taxability of payments to teams of countries with double taxation avoidance agreements.
3. Taxability of fees paid to Umpires and Referees.
4. Taxability of prize money paid to foreign teams and individual foreign players.
5. Applicability of double taxation avoidance agreements to payments made.

Issue-wise Detailed Analysis:

1. Taxability of Payments to Managers of Foreign Cricket Teams for Administrative Expenses:
The Tribunal held that payments to Managers of foreign cricket teams for administrative expenses fell within the purview of Sections 5(2), 9(1)(i), 115BBA, 194E, and 201(1) of the Income Tax Act. The Court agreed, stating that the administrative expenses paid to team managers were part of the prize money and should be treated as income under Section 2(24)(ix) of the Act. The Court noted, "it was the appellant who made a lump sum amount to the team-manager and as indicated in the proviso to Section 115BBA (1) of the Act, no deduction in respect of any expenditure is permissible for calculation of the income under the said provision from the total amount received by the foreign team for such participation."

2. Taxability of Payments to Teams of Countries with Double Taxation Avoidance Agreements:
The Tribunal's decision that payments to teams of countries with double taxation avoidance agreements were liable to tax in India was upheld. The Court found that the agreements did not exempt the operation of the provisions contained in the Act. It stated, "We have gone through the provisions contained in those agreements. Those agreements do not exempt the operation of the provisions contained in the Act if the tax is payable in terms of Sections 115BBA or 194E of the Act."

3. Taxability of Fees Paid to Umpires and Referees:
The Tribunal's decision that fees paid to Umpires and Referees fell within the purview of Sections 5(2), 9(1)(i), 115BBA, and 194E was overturned. The Court held that Umpires and Match Referees are neither sportsmen nor non-resident sports associations or institutions, thus not attracting the provisions of Section 115BBA. The Court stated, "the Umpires and Match Referee can, at the most, be described as professionals or technical persons who render their professional or technical services as Umpire or Match Referee."

4. Taxability of Prize Money Paid to Foreign Teams and Individual Foreign Players:
The Tribunal's decision that prize money paid to foreign teams and individual foreign players was taxable was upheld. The Court clarified that such prize money, whether for winning or losing, is considered "winnings" and thus income under Section 2(24)(ix) of the Act. The Court stated, "if a foreign cricket team, by virtue of agreement among the various teams of different cricket-playing countries, participates in a cricket match played in India and an agreed amount is paid to such a team for participating in such a match in the form of prize money, such prize money...will come within the term 'winnings' and hence, should be treated to be 'income' within the meaning of Section 2(24) (ix) of the Act."

5. Applicability of Double Taxation Avoidance Agreements to Payments Made:
The Tribunal's decision that double taxation avoidance agreements did not exempt the operation of Section 194E was upheld. The Court found no provisions in the agreements that would exclude the application of Sections 115BBA or 194E. The Court stated, "existence of those agreements did not do away with the liability of the appellant to deduct tax at the source in respect of payments of the alleged Prize Money or the Administrative expenses to the foreign teams playing on the soil of India."

Conclusion:
The appeal was allowed in part. The Court modified the Tribunal's order by declaring that the appellant had no duty to deduct tax under Section 194E in respect of payments made to Umpires and Match Referees, directing the Assessing Officer to exclude these amounts from the penalty order. The Court answered the first, second, fifth, and sixth questions in the affirmative and in favor of the Revenue, and the third question in the negative and against the Revenue, rendering the fourth question redundant.