2005 (8) TMI 33 - AAR - Income Tax

MRSC, a non-resident company had entered into a Solution Provider Agreement (SPA) with HBSPL (applicant, an Indian company) for supplying packaged business software solutions held that, in view of the provisions of section 195(1) there exists a legal obligation on the part of HBSPL to withhold taxes while making payment for the software purchased from MRSC

Summary

Issues:
- Whether there exists a legal obligation on the part of HBSPL to withhold taxes whilst making payment for the software purchased from MRSC?

Analysis:
- The application under section 245Q(1) of the Income-tax Act, 1961 was filed by HBSPL seeking an advance ruling from the Authority regarding the legal obligation to withhold taxes while purchasing software from MRSC. The agreement between HBSPL and MRSC involved the supply of packaged business software solutions, with the software being delivered physically and the license key electronically. The applicant questioned the necessity of withholding taxes in this transaction.

- The jurisdictional Commissioner's comments highlighted that the payments made to MRSC would include an element of royalty, making it subject to tax deduction. The Commissioner emphasized that the agreement allowed HBSPL to make copies of the software with MRSC's permission and customize the software for clients, indicating a technical know-how transfer, thus justifying tax withholding.

- The counsel for HBSPL argued that the agreement with MRSC did not involve copyrights, and HBSPL only had the right to provide licensed software to customers without any additional distribution rights. The counsel contended that since copyrights remained with MRSC, there was no obligation to withhold taxes on the payments made for software purchases.

- The Authority, after considering the submissions and legal provisions, ruled that as per section 195(1) of the Income-tax Act, there indeed existed a legal obligation on HBSPL to withhold taxes while making payments to MRSC for the purchased software. The ruling clarified that the obligation to deduct tax applied not only to sums wholly constituting income but also to gross sums that may include elements of income. The decision was based on the clear language of the law and previous judicial interpretations supporting tax deduction in such cases.

- The ruling emphasized that the scope of consideration was limited to the tax withholding obligation and did not extend to determining the nature of income or tax liability in India for MRSC. The decision was grounded in the statutory requirement of deducting tax on sums chargeable under the Act, irrespective of the composition of the sum and whether it constituted pure income or a mix of income and other receipts.

- Therefore, the Authority concluded that HBSPL was legally obligated to withhold taxes while making payments to MRSC for the software purchased, as per the provisions of section 195(1) of the Income-tax Act, 1961.

This detailed analysis of the judgment provides a comprehensive understanding of the legal obligations and considerations involved in the case regarding tax withholding on software purchases from a non-resident company.