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No TDS on Service Tax on Professional or Technical fees

Here is an important judgement of the Hon’ble Rajasthan High Court, in the case of Commissioner of Income Tax (TDS), Jaipur Vs. M/s. Rajasthan Urban Infrastructure [2013 (8) TMI 12 – RAJASTHAN HIGH COURT] on following issue:

Issue:

Whether TDS is to be deducted on the amount of Service Tax charged on professional/ technical fees under Section 194J of the Income Tax Act, 1961?

Facts & Background:

M/s Rajasthan Urban Infrastructure Development Project (“the Respondent”or “the RUIDP”or “the assessee”) is a project of Government of Rajasthan for the Infrastructure Development and Civic Amenities in the specified areas/ cities in the state of Rajasthan. The RUIDP appoints the technical and project consultants and deducts income tax at source from the amount of fee payable as per the agreement and deposit the same as per the relevant provisions of the Income Tax Act, 1961 (“the Income Tax Act”) and subsequently files the return for the same within due time.

The Assessing Officer, vide its order dated 30.01.2009 raised a demand of Rs. 1,70,881/- along with interest thereon amounting to Rs. 44,776/-, on account of TDS on the amount paid as Service Tax pertaining to Financial Year 2005-06. The assessee preferred an appeal before the Commissioner of Income Tax (Appeals), Jaipur which was allowed. Being aggrieved with the same, the Revenue filed an appeal before the Income Tax Appellate Tribunal, Jaipur but the same was dismissed. Hence the revenue preferred an appeal before the Hon’ble Rajasthan High Court.

Held:

It was held by the Hon’ble Rajasthan High Court that if Service tax is payable in addition to professional/ technical fees under the contract, the withholding tax will be restricted to the professional fees. Hence, examination of contract terms is imperative.

The Hon’ble Rajasthan High Court held that the words “any sum paid” used in Section 194J of the Income Tax Act, relate to “fees for professional services or fees for technical services”. In terms of the agreement, the amount of Service Tax was to be paid separately and was not included in the fees. Hence the orders passed by Appellate Authority as well as the Appellate Tribunal are in accordance with the provisions of Section 194J of the Income Tax Act.

Points to note:

The Central Board of Direct Tax (“the CBDT”) vide its Circular No. 4/2008, dated 28.04.2008 held that TDS under Section 194I of the Income Tax Act would be required to be made on the amount of rent paid/payable without including the Service Tax. However, the CBDT vide its Circular No. 275/73/2007-IT(B), dated 30.06.2008 decided not to extend the scope of Circular No. 4/2008 to payment made under Section 194J of the Income Tax Act since it covers any sum paid.

Therefore, it remains to be seen that whether the Revenue files another appeal before the Hon’ble Supreme Court or accepts the above judgment of the Hon’ble Rajasthan High Court and gives relief to assessees.

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Deductor not responsible for non-mention PAN of Deductee in TDS Certificate

As per Income Tax rulings regarding issuing of Form-16 or 16A, deductors are not responsible for non-mention of payee’s PAN in it. In the other words we can say if the TDS Deductee or Taxpayee not provided his PAN before issuing Form-16 or 16A, there is no penalty on deductor for non-mention payee’s PAN in there.

The following points will clarify the same:

• If payee doesn’t furnish his PAN to deductor as required by section 139A(5A), deductor can’t be penalized under section 139A(5B) read with section 223B(1) for not mentioning payee’s PAN in TDS certificate issued to payee in Form 16A.

• Where there is nothing on record to show that contractors to whom certain amounts were paid by asssessee after deducting TDS under section 194C/194J had intimated their PANs to assessee (deductor) as required by section 139A(5A), penalty can’t be imposed on assessee (deductor) under section 272B(1) for non-mention of the PANs of the contractors(payees) in Form 16A TDS certificates issued to them.

• Default by contractors (payees) in furnishing their PANs to assessee (deductor) as per the requirements of section 139A(5A) is “sufficient cause” within the meaning of section 273B for deductor’s contravention of section 139A(5B) (failing to mention PANs of payee-contractors on their TDS certificates in Form 16A issued to payee-contractors). In view of this sufficient cause, no penalty imposable.

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Reasons for the delay in tax refunds

Mismatch of Tax Credit (Form 26AS): One of the most common reasons of tax refund delays is mismatching of the taxes paid by you with the Government’s online record (Form 26AS).

Incorrect bank or personal account details: While filing tax return one should ensure that mailing address, bank details, Permanent Account Number (PAN) and all other required details (name, assessment year etc) should be filled accurately.

Treaty claim in the tax return: In case of cross border employees claiming the tax relief, Centralized Processing Centre (CPC) may re-direct the returns to the respective ward to verify the claim and process the tax refunds. The additional procedure results in delay in issuing refunds.

Non submission of ITR-V within the prescribed timelines: ITR-V generated upon filing of the tax return has to be signed, printed and delivered to the CPC Bangalore within the prescribed time limit of 120 days from the date of filing tax return, else tax return is considered not filed.

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