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TDS ON HOTEL BILL (Income Tax)

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This query is : Resolved


( Author )
10 July 2010

RESPECTED EXPERTS,

COMPANY HAD A FUNCTION IN A HOTEL. THE BILL RAISED BY HOTEL @ RS.1500/- PER PLATE FOR 250 PERSONS. ARE WE LIABLE TO DEDUCT TDS ON THIS BILL? IF YES UNDER WHAT SECTION?
PLEASE GIVE ANY CASE LAW/JUDGEMENT IN SUPPORT OF YOUR ANSWER.

THANKS AND REGARDS


Shyam Lal Naik

( Expert )
10 July 2010

I am unable to give a direct answer. Whether it can be treated as a catering contract ? This needs to be examined.

Else no TDS in view of the following judgment.


CASE LAW DETAILS
HIGH COURT OF BOMBAY
The East India Hotels Ltd. v. CBDT
Writ Petition No. 2104 of 1994
Decided on: March 6, 2009


SUMMARY OF CASE LAW

The facilities/amenitie s made available by a hotel to its customers do not constitute “work” within the meaning of section 194C; consequently, the Circular No. 681 dated 8-3-1994 to the extent it holds that the services made available by a hotel to its customers are covered under section 194C must be held to be bad in law

RELEVENT PARAGRAPH

18. The services rendered by a hotel to its customers by making available certain facilities / amenities like providing multilingual staff, 24 hour service for reception, telephones, select restaurants, bank counter, beauty saloon, barber shop, car rental, shopping centre, laundry / valet, health club, business centre services, etc. do not involve carrying out any work which results into production of the desired object and, therefore, would be outside the purview of section 194C of the Act.

19. The fact that the contracts for supply of labour to carry out any work has been specifically brought within the purview of section 194C and the fact that four categories of service contracts have been specifically brought within the purview of section 194C by inserting Explanation III to section 194C, it cannot be inferred that the services rendered by a hotel to its customers are also covered under section 194C of the Act. In other words, as the services rendered by a hotel to its customers by providing certain facilities / amenities do not constitute `work’ within the meaning of section 194C, the impugned circular No.681 issued by the CBDT to the extent it applies to a customer availing the services rendered by the hotel must be held to be contrary to section 194C of the Act.

20. It is true that the word ‘work’ in section 194C is not restricted to ‘works contract’ only as held by the Apex Court in the case of Associated Cement Co. Ltd. (supra). However, as held by the Apex Court in the case of Birla Cement Works (supra) the word ‘work’ in section 194C has to be understood in a limited sense and would extend only to the service contracts specifically included in the said section by way of Explanation III. Therefore, the argument of the revenue that the service contracts between the petitioner No.1 hotel and its customers is covered under section 194C of the Act cannot be accepted because, neither such a contract constitutes ‘work’ within the meaning of section 194C of the Act nor those contracts are covered under service contracts specifically included by way of Explanation III to section 194C of the Act.

21. If the contention of the revenue that the word ‘any work’ in section 194C is very wide enough to include all types of work is accepted, then it would mean that even the hair cutting work done by a barber would be a ‘work’ covered under section 194C and the person making payment to the barber would be covered under section 194C. Such a wider interpretation is uncalled for, especially when the revenue itself had considered since inception that section 194C is restricted to the works done by contractors / sub-contractors. Apart from the above, the CBDT by its circular No.715 dated 8/8/1995 has clarified that the payments made by persons other than individuals and HUF’s for hotel accommodation taken on regular basis will be in the nature of ‘rent’ subject to TDS under section 194I of the Act. Thus, there is inconsistency in the stand of the CBDT as to whether the services rendered by a hotel to its customers is covered under section 194C or under section 194I of the Act.

22. In the present case, we are concerned with the question as to whether the services rendered by the petitioner hotel to its customers is covered under section 194C of the Act ?

23. As noticed above, the facilities / amenities made available by the petitioner No.1 hotel to its customers do not constitute ‘work’ within the meaning of section 194C of the Act. Consequently, the circular No.681 dated 8/3/1994 to the extent it holds that the services made available by a hotel to its customers are covered under section 194C of the Act must be held to be bad in law


CMA. CS. Sanjay Gupta

( Author )
10 July 2010

THANKS SHYAM SIR FOR YOUR IMMEDIATE RESPONSE.
I SHOWED THIS CASE LAW TO OUR AUDITOR BUT HE DOES NOT SEEM CONVINCED.
THE SOLUTION IS STILL NOT QUITE CLEAR.


Akhil Agrawal

( Expert )
11 July 2010

Well i think no TDS should be deducted in this case as its just a contract for the Sale of the FOOD. As per the Amendment in FA 09, u need to distinguish b/w work contract & contract for sale.

However i know that the catering must have included the service also but i this major part constitutes the Sale of Food which is a Backbone of the contract


CMA. CS. Sanjay Gupta

( Author )
05 August 2010

More views required......


Aditya Maheshwari

( Expert )
05 August 2010

Section 194C gets activated the moment you hire someone to perform a piece of work for you. In Birla Cement Works v. CBDT [1997] 95 Taxman 377 (Raj.), the Rajasthan High Court said that the expression "CARRYING OUT ANY WORK" is the soul of Section 194C and whether or not this section gets attracted to a particular payment hinges on the interpretation of this expression. But sometimes it may become hard to tell a works contract apart from a contract for the sale of goods. Suppose a company throws a dinner party at a hotel; the hotel staff organizes all the stuff. The bill comes to Rs 1 lac. Would the company be liable to deduct TDS on it u/s 194C? In my opinion: No.The answer is No because this isn't a Catering Service Contract at all. The waiters, etc all belonged to the hotel. The company officials went there and dined; it is a simple contract for sale of goods. Serving the food to the customers was part and parcel of the duty of the hotel staff in pursuance of the contract for the provision of food.

Still more view required. No case law in above.


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