1987 (10) TMI 7 - HC - Income Tax

Summary

Issues:
1. Whether the payment made by the petitioner to a West German company for training services falls under the definition of "Royalty" as per the Income-tax Act.
2. Whether the petitioner, acting as the agent of the non-resident principal, is obligated to deduct tax at source under section 195 of the Income-tax Act.

Detailed Analysis:

Issue 1:
The petitioner, a company, entered into agreements with a West German company for machinery supply and services, including training in West Germany. The Income-tax Officer opined that the payment for training fell under the definition of "Royalty" as per the Income-tax Act, making it taxable. The petitioner contended that no tax was payable as the services were rendered outside India. The court held that the Income-tax Officer's view was unsustainable, as the petitioner had filed returns as the agent of the non-resident principal and had been assessed as such. The obligation to deduct tax at source under section 195 did not apply to the petitioner, acting as the agent. The court clarified that the impugned order had become academic due to subsequent events and that the petitioner would not be treated as a defaulter for not deducting tax at source.

Issue 2:
The court analyzed the provisions of section 195 of the Income-tax Act, which require a person paying to a non-resident to deduct income tax at the time of payment, unless the person is liable to pay tax as an agent. The court emphasized that the obligation under section 195 did not apply to an agent, as evident from the language of the provision. The court further stated that the agent, like the principal, could dispute the liability to tax. In this case, since the petitioner had filed returns as the agent of the non-resident principal and had been assessed as such, the obligation to deduct tax at source did not arise. Therefore, the refusal to issue a "no objection certificate" by the Income-tax Officer was deemed unsustainable in law, and the petitioner was not considered a defaulter for not deducting tax at source.

In conclusion, the court allowed the writ petitions, clarified the petitioner's non-defaulter status, and directed the pending appeals before the Commissioner of Income-tax (Appeals) to be disposed of expeditiously, without awarding any costs.