Tds on foreign services

TDS 2063 views 4 replies

The payment is for Independent Personal Service (Consulting) -  From a Pvt Ltd Company in India to a independent personal in Autstralia, Indian but having permanent residence there.

Article 14 of DTAA states

ARTICLE XIV - Independent personal services - 1. Income derived by an individual or a firm of individuals (other than a company) who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless :

(a) the individual or firm has a fixed base regularly available to the individual or firm in the other Contracting State for the purpose of performing the individuals or the firms activities, in which case the income may be taxed in that other State but only so much of it as is attributable to activities exercised from that fixed base; or

(b) the stay by the individual or, in the case of a firm, by one or more members of the firm (alone or together) in the other Contracting State is for a period or periods amounting to or exceeding 183 days in a year of income, in which case only so much of the income as is derived from the activities of the individual, that member or those members, as the case may be, in that other State may be taxed in that other State.

Recent Supreme court judgement - TDS on foreign remittance deductible only if tax is assessable in India

As the independent personal is a permanent resident of Australia, there was no physical visit to india so the income is not chargable in India according to DTAA. As the tax is not assessable in India, no TDS need to be deducted as well.

Is my conclusion correct?

Replies (4)

In my opinion, TDS shall have to be deducted u/s 195, please refer below:

 

195[(1) Any person responsible for paying to a non-resident, not being a company, or to a foreign company, any interest [(not being interest referred to in section 194LB or section 194LC)] [***] or any other sum chargeable under the provisions of this Act (not being income chargeable under the head "Salaries" [***]) shall, at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, deduct income-tax thereon at the rates in force :

 

[Explanation]—For the removal of doubts, it is hereby clarified that the obligation to comply with sub-section (1) and to make deduction thereunder applies and shall be deemed to have always applied and extends and shall be deemed to have always extended to all persons, resident or non-resident, whether or not the non-resident person has— (i) a residence or place of business or business connection in India; or (ii) any other presence in any manner whatsoever in India.] I request the experts to confirm it.

TDS should not be deductable if the following conditions are satisfied:

  1. The Foreign Individual is covered under the article 14 i.e. he is providing the professional services or other activities of similiar nature .
    other independent activities of a similar character

    Read more at: /forum/tds-on-foreign-services-227561.asp#.UKXe6Gd5dIE
    other independent activities of a similar character

    Read more at: /forum/tds-on-foreign-services-227561.asp#.UKXe6Gd5dIE
    other independent activities of a similar character

    Read more at: /forum/tds-on-foreign-services-227561.asp#.UKXe6Gd5dIE
    other independent activities of a similar character

    Read more at: /forum/tds-on-foreign-services-227561.asp#.UKXe6Gd5dIE
  2. The Foreign Individual provides TRC(Tax Residency Certificate ) from his Government.
  3. The Foreign Individual provides a certificate that he doesn't have a fixed base regularly available to him in India and his stay in India for the financial year 2012-13 does not/ is not going to exceed 183 days.

Anuj

femaquery @ gmail.com

Thank you Mr Gupta. Do I need to submit TRC to the goverment or RBI?

Not now, but can be asked by ITO.

 

Anuj


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