Income Tax Act 1961/ Article / VibrantFinserv -

Income Tax Act 1961

Section 195 of the Income Tax Act, 1961 is a crucial provision for the taxation of non-residents in India. It focuses on the tax implications of payments made to non-residents, ensuring that taxes are deduct at source (TDS) on specific types of income earn by non-residents from an Indian source. This section plays an important role in cross-border transactions and the taxation of foreign entities or individuals who have income originating from India.

Key Highlights of Section 195

Objective:
- The primary aim of Section 195 is to ensure that the Indian government collects taxes on any income that non-residents earn from India. It prevents tax evasion by requiring tax to be deducted at source on payments made to non-residents.
Who is Covered?:
- Section 195 applies to any person (resident or non-resident) responsible for making payments to non-residents, provide the payments are taxable in India. This includes individuals, businesses, partnerships, and other entities that pay income to a non-resident.
Types of Payments Covered:
- Payments subject to tax deduction under Section 195 include:
  - Interest
  - Royalty
  - Fees for technical services
  - Payments relate to business profits, or any other sums chargeable under the Income Tax Act
- Payments made to non-residents for services render or income derive from Indian sources fall under the purview of this section.
TDS on Payments to Non-Residents:
- The person making the payment to a non-resident must deduct tax at the rates specified in the Income Tax Act or relevant Double Taxation Avoidance Agreement (DTAA), whichever is more beneficial.
- If no TDS is deducted, the payer may face penalties or the payments might not be tax-deductible as an expense for the payer.
Rate of Tax Deduction:
- The TDS rates under Section 195 vary depending on the nature of the payment. For example, interest payments may have a different rate compare to royalties or fees for technical services.
- The rates can also vary base on the applicable DTAA between India and the non-resident’s country of residence. DTAAs often provide lower withholding tax rates compare to domestic rates.
Double Taxation Avoidance Agreement (DTAA):
- Non-residents can benefit from the provisions of DTAAs sign between India and other countries. These agreements prevent the double taxation of the same income in both countries and may allow a lower TDS rate or even an exemption from tax on certain income categories.
Certificate for Lower/Nil Deduction:
- A non-resident payee can apply to the Indian tax authorities for a certificate under Section 195(2) or 195(3) for lower or nil TDS if they believe that the actual tax liability is less than the standard rate.
Form 15CA and 15CB:
- To comply with Section 195, the payer is require to file Form 15CA (a declaration of TDS) and in some cases, obtain Form 15CB (a certificate from a Chartered Accountant). These forms help the government track foreign remittances and ensure that the appropriate tax is deducted before the payment leaves India.
Consequences of Non-Compliance:
- Failure to deduct TDS or incorrect deduction can lead to penalties, interest, and disallowance of expenses under Section 40(a)(i). Additionally, the tax authorities may hold the payer responsible for the unpaid tax, along with penalties and interest.

Significance of Section 195

Section 195 plays a vital role in ensuring that India collects its due taxes on payments made to non-residents. It helps in curbing tax evasion in cross-border transactions and ensures that non-residents contribute to India’s tax revenue when they earn income from Indian sources.

Moreover, this section emphasizes the importance of international tax treaties, such as DTAAs, in determining the final tax liability for non-residents. Companies and individuals involved in cross-border dealings must be vigilant in understanding their tax obligations under Section 195, as errors in deduction or non-compliance can result in significant financial consequences.

FAQs:

What is Section 195 of the Income Tax Act, 1961?
Section 195 requires tax deduction at source (TDS) on payments made to non-residents for income taxable in India.
Who is responsible for deducting TDS under Section 195?
Any person, whether resident or non-resident, who makes a payment to a non-resident that is taxable in India.
What types of payments are cover under Section 195?
Payments like interest, royalties, fees for technical services, and business income to non-residents are cover.
Is TDS under Section 195 applicable to all non-resident payments?
No, only payments that are chargeable to tax in India are subject to TDS under Section 195.
Can the TDS rate under Section 195 be reduce?
Yes, the non-resident can apply for a certificate of lower or nil deduction from the tax authorities.
What role does a Double Taxation Avoidance Agreement (DTAA) play in Section 195?
DTAAs may offer lower TDS rates or exemptions on payments to non-residents, depending on the treaty between India and the payee’s country.
What forms are require for TDS compliance under Section 195?
Form 15CA (declaration of payment) and Form 15CB (Chartered Accountant’s certificate) are often require.
What happens if TDS is not deduct under Section 195?
The payer can face penalties, interest, and disallowance of the expense for tax purposes.
Are there different TDS rates for different types of income under Section 195?
Yes, TDS rates vary base on the nature of the income and may be reduce under a DTAA.
Is Section 195 applicable to individual payments or only businesses?
Section 195 applies to both individuals and businesses making payments to non-residents.

To Visit: https://www.incometax.gov.in

What is section 195 of Income Tax Act 1961?