2021 (6) TMI 59 - AT - Income Tax

TDS u/s 195 - withholding demands under section 201 - tax liability - assessee pointed out that the very taxability of payments, in respect of which impugned tax withholding demands are raised, have been negated in the hands of the recipient, i.e. Braitrim UK Ltd., by a coordinate bench - as submitted that once the primary liability of the recipient has come to an end, vicarious liability of the payer cannot survive - HELD THAT - The plea of the learned counsel is indeed well taken. A tax withholding liability, particularly under section 195, is a vicarious liability and its survival entirely depends on survival of the primary tax liability of income, embedded in the related payments, in the hands of the recipient. Once that primary liability stands quashed, as in this case, the very foundation of tax withholding demands under section 195 ceases to hold good in law. We, therefore, quash the impugned demands under section 201(1) r.w.s. 195 as well. The assessee gets the relief accordingly.

Summary

Issues Involved:
1. Taxability of payments made by the assessee to Braitrim UK Ltd.
2. Nature of reimbursements under the Cost Reimbursement Agreement (CRA).
3. Determination of arm's length price in transfer pricing proceedings.
4. Vicarious liability of the payer under section 195 of the Income Tax Act, 1961.

Issue-wise Detailed Analysis:

1. Taxability of Payments Made by the Assessee to Braitrim UK Ltd.:
The primary issue revolves around the taxability of payments made by the assessee to Braitrim UK Ltd. The assessee challenged the tax withholding demands under section 201 r.w.s. 195 of the Income Tax Act, 1961, for the assessment years 2005-06 to 2012-13. The assessee's counsel argued that the taxability of these payments was negated in the hands of Braitrim UK Ltd. by a coordinate bench. The Tribunal found that the payments were reimbursements of administration charges and not taxable as 'royalty' or any other form of income.

2. Nature of Reimbursements under the Cost Reimbursement Agreement (CRA):
The Tribunal examined the Cost Reimbursement Agreement (CRA) between the assessee and BIPL. The agreement specified that the payments were reimbursements of administration charges borne by the assessee. The Tribunal noted that there was no mark-up retained by the assessee, and the payments were purely reimbursements of actual expenses incurred. The Tribunal concluded that these reimbursements did not constitute taxable income.

3. Determination of Arm's Length Price in Transfer Pricing Proceedings:
The Tribunal reviewed the transfer pricing proceedings for the assessment year 2007-08, where the TPO had initially questioned the commercial expediency of the administration charges and determined the arm's length price as 'Nil.' However, the DRP and the Tribunal later accepted the reimbursements as genuine and in the nature of cost-sharing. The Tribunal emphasized that the concurrent acceptance by the TPO, DRP, and the Tribunal for the assessment year 2007-08 supported the assessee's claim that the payments were reimbursements.

4. Vicarious Liability of the Payer under Section 195 of the Income Tax Act, 1961:
The Tribunal highlighted that the tax withholding liability under section 195 is a vicarious liability, dependent on the primary tax liability of the recipient. Since the primary tax liability of Braitrim UK Ltd. was quashed, the vicarious liability of the assessee under section 195 could not survive. Consequently, the Tribunal quashed the tax withholding demands under section 201(1) r.w.s. 195.

Conclusion:
The Tribunal allowed the assessee's appeals, quashing the tax withholding demands under section 201(1) r.w.s. 195. The Tribunal concluded that the payments made by the assessee were reimbursements of actual expenses, not taxable in India, and that the vicarious liability under section 195 could not survive once the primary liability was negated. All other issues raised by the assessee were deemed infructuous and dismissed.