2019 (4) TMI 1042 - HC - Income Tax

TDS u/s 195 - disallowance u/s 40(a)(ia) - secondment of employees - Fees for Technical Services u/s 9(1)(vii) - Income from salary OR income from contract of services - HELD THAT - The contract between the assessee and the Kuwait based company envisaged payment of deputation charges which were quantified at US 5500 per month. Such amount would be paid to the assessee. Out of such amount the assessee would remunerate the employee. The mode of payment was also specified. In clear terms, thus the concerned employee was in the employment of the assessee and not of the US based company contrary to what the department contends. The test of the extent of control and supervision of a person by the engaging agency are undoubtedly relevant factors while judging the question whether the person was an agent or an employee. However, in a situation where the person employed by one employer is either deputed to another or is sent on loan service, the question of dual control would always arise. In such circumstances, the mere test of on spot control or supervision in order to decide the correct employer may not succeed. It is inevitable that in a case as the present one, the Kuwait based company would enjoy considerable supervising powers and control over the employee as along as the employee is working for it. Neverthless, the assessee company continued to enjoy the employer emplyee relationship with the said person. For example, if the work of such person was found to be wanting or if there was any complaint against him, as per the agreement, it would only be the assessee who could terminate the service. ITAT was correct in giving a finding that the impugned income is income from salary instead of income from contract of services as held in the assessment order.

Summary

Issues Involved:
1. Determination of income source: salary or contract of services
2. Taxability of services rendered after contract execution as Fees for Technical Services under IT Act
3. Deletion of disallowance under section 40(a)(ia) of the IT Act

Analysis:

Issue 1: Determination of income source: salary or contract of services
The case involved a contract between the respondent, a sole proprietor of a company, and a Kuwait-based company for providing manpower services. The Assessing Officer contended that the payments made by the Kuwait company to the respondent should have had tax deducted at source under Section 195 of the Income Tax Act, 1961. The dispute centered around whether the individuals employed were under an employer-employee relationship with the respondent or were only loaned to the Kuwait company. The Commissioner (Appeals) and the Tribunal held that the individuals were employees of the respondent, and therefore, the tax deduction at source was not required. The High Court upheld this view, emphasizing the terms of the contract which clearly indicated that the individuals were employees of the respondent, not the Kuwait company.

Issue 2: Taxability of services rendered after contract execution as Fees for Technical Services
The second issue raised was whether the services rendered after the execution of the contract would be taxable as Fees for Technical Services under section 9(1)(vii) of the IT Act. The Tribunal, affirming the decision of the Commissioner (Appeals), held that since the individuals were employees of the respondent, the payments made for their services did not fall under the category of Fees for Technical Services. The High Court concurred with this interpretation, stating that the individuals were employed by the respondent and not the Kuwait company, thus the payments were in the nature of salary, not technical services.

Issue 3: Deletion of disallowance under section 40(a)(ia) of the IT Act
The final issue pertained to the deletion of disallowance under section 40(a)(ia) of the IT Act by the Tribunal. The Tribunal upheld the decision of the Commissioner (Appeals) in deleting the disallowance. The High Court, after examining the terms of the contract and the nature of the employment relationship, found no error in the Tribunal's decision. The Court concluded that the respondent was the employer of the individuals providing services to the Kuwait company, and therefore, the disallowance under section 40(a)(ia) was not justified.

In summary, the High Court dismissed the appeal filed by the revenue, upholding the decisions of the Commissioner (Appeals) and the Tribunal. The Court determined that the individuals providing services were employees of the respondent, not the Kuwait company, and therefore, the tax deductions and disallowances under the IT Act were not applicable.