Sfdc Ireland Limited v. Commissioner Of Income Tax & Another

Signature Not Verified IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 17.02.2025 + W.P.(C) 12847/2024 and CM APPL. 53630/2024 SFDC IRELAND LIMITED ..... Petitioner versus COMMISSIONER OF INCOME TAX & ANOTHER ... Respondents Advocates who appeared in this case: For the Petitioner : Mr Ajay Vohra, Senior Advocate with Mr Aniket D Agarwal and Mr Samarth Chaudhari, Advocates. For the Respondent : Mr Sunil Aggarwal, Senior Standing Counsel, Mr Shivansh B Panday, Ms Priya Sarka, Mr Viplav Acharya, JSCs and Mr Utkarsh Tiwari, Advocates. CORAM HON’BLE MR JUSTICE VIBHU BAKHRU HON’BLE MR JUSTICE TUSHAR RAO GEDELA JUDGMENT VIBHU BAKHRU, J. 1.The petitioner has filed the present petition, inter alia, impugning an order dated 09.07.2024 (hereafter the impugned order) passed by respondent no.2 under Section 197 of the Income Tax Act, 1961 (hereafter the Act) in respect of the Financial Year (FY) 2024-25 relevant to the Assessment Year (AY) 2025-26 authorizing the petitioner to receive the payment (estimated at ₹6,33,34,44,669/-) from Signature Not Verified M/s Salesforce.com India Private Limited (hereafter SFDC India) after withholding Tax Deducted at Source (TDS is short) at the rate of 2% (excluding cess and surcharges). 2.The petitioner also impugns the certificate dated 09.07.2024 (hereafter the impugned certificate) issued under Section 197 of the Act authorising SFDC India to make payments on account of the petitioner after deducting withholding tax at the rate of 2%. 3.According to the petitioner, its income resulting from the receipts from SFDC India is not chargeable to tax in India and, therefore, its application to authorise payments without deducting any withholding tax, ought to have been allowed. 4.Thus, the controversy to be addressed is whether the impugned order and the impugned certificate are liable to interfered with in the present proceedings on account of respondent no.2 (hereafter theAO) rejecting the petitioner’s request for allowing SFDC India to make payments at Nil rate of withholding tax. FACTUAL MATRIX 5.The petitioner is a tax resident of the Republic of Ireland within the meaning of Article 4 of the Double Taxation Avoidance Agreement (DTAA) between Ireland and India. The petitioner states that it is engaged in the business of operating Customer Relationship Management (CRM) offerings, applications, and platforms, including sales, service, marketing, commerce, integration, analytics, and related Signature Not Verified products and services (hereafter SFDC Products). The petitioner claims that SFDC Products are standardized and its customers are free to pick any product or combination of products that are best suited for their business requirements. The relevant extract of the petition, which describes SFDC Products, is reproduced below: - FACTUAL MATRIX 5.The petitioner is a tax resident of the Republic of Ireland within the meaning of Article 4 of the Double Taxation Avoidance Agreement (DTAA) between Ireland and India. The petitioner states that it is engaged in the business of operating Customer Relationship Management (CRM) offerings, applications, and platforms, including sales, service, marketing, commerce, integration, analytics, and related Signature Not Verified products and services (hereafter SFDC Products). The petitioner claims that SFDC Products are standardized and its customers are free to pick any product or combination of products that are best suited for their business requirements. The relevant extract of the petition, which describes SFDC Products, is reproduced below: - “3.5 The Petitioner, for the sake of clarity, submits that SFDC product(s) is a software that allows businesses to manage customers and prospect relationships with data. The users can store, track, and analyze customers and prospect information in one central location, including contact and account information, sales opportunities, service cases and marketing campaigns etc. These products are standardized and the customers, at their own behest, are free to pick any or combination of products that are best suited for their business requirements. The supply of SFDC products helps the customers/ clients in generating reports and summaries of the data which is fed into the ‘Salesforce’ software by the client itself. The customers input, store and retrieve their proprietary data through the CRM application software portal. The Petitioner's products provide access for customer's own use to generate reports, basis the information fed in by the customer in the desired format. Lastly, access to the Petitioner's products is for a limited duration and the period for which the subscription fee is paid by the customer. These products are exclusively for resale or provision of trial use to customers in India and excludes the SFDC products provided for reseller’s internal use (which are provided to permit the reseller, in this case, SFDC India, to perform its obligations under the Reseller Agreement, at no extra cost).” 6.The petitioner claims that it does not have any place of business in India; has not engaged any employee; and does not have any sort of presence in India. The petitioner has also annexed a copy of the Tax Resident Certificate to establish that it is a tax resident of Ireland, as well as a declaration in the Form 10F declaring that it does not have any permanent establishment (hereafter PE) in India. 7.On 01.02.2023, the petitioner and SFDC India entered into a “Amended and Restated Reseller Agreement” (hereafter the Reseller Agreement), whereby the petitioner appointed SFDC India as a non-exclusive reseller of SFDC Products. The petitioner claims that in terms of the Reseller Agreement, SFDC India procures the SFDC Products from the petitioner for onward resale to its customers in India. 8.The petitioner estimates that during the FY 2024-25 relevant to AY 2025-26, it would receive a sum of ₹6,33,34,44,669/- from SFDC India in terms of the Reseller Agreement. On 17.04.2024, the petitioner filed an application in the prescribed form (Form 13) under Section 197 of the Act requesting the AO to issue the certificate authorizing the petitioner to receive payments from SFDC India without any withholding tax (TDS). In its application, the petitioner referred to the decision of this court in petitioner’s own case for the prior year, AY 2024-25, rendered on 11.03.2024, captioned SFDC Ireland Limited v. Commissioner of Income Tax & Another[1]. Pursuant to the said decision, the AO had allowed the petitioner’s application under Section 197 of the Act for receiving payments from SFDC India in FY 2023-24 with nil TDS. The petitioner sought a similar certificate for AY 2025-26 as well. 1 Neutral Citation No.: 2024:DHC:1910-DB Signature Not Verified Commissioner of Income Tax & Another[1]. Pursuant to the said decision, the AO had allowed the petitioner’s application under Section 197 of the Act for receiving payments from SFDC India in FY 2023-24 with nil TDS. The petitioner sought a similar certificate for AY 2025-26 as well. 1 Neutral Citation No.: 2024:DHC:1910-DB Signature Not Verified 9.Pursuant to the application, the AO sought various documents and clarifications regarding the business of the petitioner and SDFC India, which the petitioner states were duly furnished to the AO. Thereafter, the AO passed the impugned order and issued the impugned certificate, which are assailed in the present petition. IMPUGNED ORDER 10.The petitioner claimed that its income was not chargeable to tax as fees for technical services or royalty. Its income from sale of SDFC Products was in the nature of Business Profits under Article 7 of the India-Ireland DTAA. Therefore, the same was not taxable under the Act as it did not have a PE in India. However, the AO did not accept the same. The AO reasoned that since the petitioner company had no assessment / scrutiny history, the said stand could not be accepted at that stage. 11.The AO referred to certain sections of the Reseller Agreement, which required the purchase price for the SFDC Products to be calculated at a sum equal to SDFC India’s net revenue excluding costs incurred by SFDC India, less a margin of 2.75%. Additionally, the AO noted that the revenue stream of SFDC India comprised of (a) revenue earned from sale of the SFDC Products; (b) professional services provided to customers of SFDC India under a separate contract; and, (c) training services provided by SFDC India to customers / support services to group companies. 12.The AO observed that the petitioner empowered SFDC India to enter into contract with customers on its behalf within Indian territory. 13.The AO also concluded that SFDC India was involved in price determination process. The said conclusion was drawn on the basis of the petitioner’s statement that pricing relating to the SFDC products is decided based on the quantity, period, etc. and is finalized on the basis of discussion with customers and internal approvals. The AO reasoned that the same also indicated dependency of SFDC India over the petitioner. 14.The AO noted that in FY 2023-24, the receipts were held to be fees for technical services – a conclusion which was rejected by this court. Subsequently, the certificate issued for AY 2024-25 was revised pursuant to the directions issued by this court. However, the AO did not follow the same course and observed that at the stage of proceedings under Section 197 of the Act, the scope of enquiry is limited and therefore, certain facts could not be verified in detail. 15.The AO also observed (a) at that stage it was difficult to establish the level of dependency of SFDC India over the petitioner; and, (b) it was difficult to determine the level of involvement of SFDC India in determination of final product price of the SFDC Products. 16.The AO declined to issue the certificate for Nil withholding tax, as the AO held that “issuance of tax withholding certificate @ 0% at this stage would literally amount to accepting of facts of the case without suitable enquiry which is not considered desirable from the point of view of revenue” Signature Not Verified RIVAL CONTENTIONS 15.The AO also observed (a) at that stage it was difficult to establish the level of dependency of SFDC India over the petitioner; and, (b) it was difficult to determine the level of involvement of SFDC India in determination of final product price of the SFDC Products. 16.The AO declined to issue the certificate for Nil withholding tax, as the AO held that “issuance of tax withholding certificate @ 0% at this stage would literally amount to accepting of facts of the case without suitable enquiry which is not considered desirable from the point of view of revenue” Signature Not Verified RIVAL CONTENTIONS 17.Mr Ajay Vohra, learned counsel appearing for the petitioner submitted that respondent no.2 had failed to appreciate that the SDFC Products provided by the petitioner were standardized and non-customized and akin to off the shelf products. He submitted that SFDC India is a non-exclusive reseller for procuring the SFDC Products from the petitioner and selling the same. He stated that an Indian customer interested in availing the SFDC Products enters into a contract with SDFC India. He further submitted that the SFDC Products can be availed on the internet subject to a lumpsum subscription payment depending on the product in question. He submitted that the facility offered by the petitioner is more akin to an online store, which provides access to a standard automated facility without any human effort. 18.He contended that since the payments received from SFDC India were from sale of the SFDC Products, the same were not chargeable to tax under the Act. 19.Next, he submitted that the respondents have disregarded Rule 28AA of the Income Tax Rules, 1962 (hereafter the Rules), which requires the Assessing Officer to consider and give due regard to the TDS in previous years. He contended that the respondents have grossly erred in disregarding the Nil withholding certificate issued in the earlier years. 20.He also called into question the tentative finding that SFDC India was dependent on the petitioner or that it was involved in the price determination process. 21.Mr. Sunil Aggarwal, learned counsel appearing for the Revenue countered the aforesaid submissions. He contended that the AO had found that the petitioner had a PE in India in the form of SFDC India and that several clauses of the Reseller Agreement prima facie disclose existence of the petitioner’s PE in India. He referred to the recitals ‘A’ and ‘B’ of the Reseller Agreement and countered the submission that the petitioner sells its products to SFDC India for onward sales to customers in India and does not sell its products directly to customers in India. 22.Next, he submitted that Section 5.1 read with Exhibit A of the Reseller Agreement, indicates that the petitioner had paid a commission of 2.75% of the Indian territory revenue to SFDC India for services rendered by SFDC India to the petitioner. He emphasized that the petitioner undertook all the risks and was entitled to all the benefits. SFDC India was merely entitled to commission of 2.75% of the Indian territory revenue with no risk or additional reward. He also referred to Section 3.5 and Section 8 of the Reseller Agreement, which record that the petitioner has a right to inspect books / records of SFDC India and the petitioner has undertaken to fully indemnify SFDC India. He submitted that in the earlier years, the AO had invoked the FTS/Royalty clause, which was found to be inapplicable. However, in FY 2024-25, the AO had invoked the Business Income Clause holding that the Signature Not Verified petitioner had a PE in India. He earnestly contended that each assessment year is a separate unit of assessment and the AO is not precluded from correcting an error or mistake in subsequent years. He also referred to the decision of Joshi Technologies International Inc. v. Union of India and Ors.[2]in support of his contention that the decision of the AO was reasoned and thus was not amenable to challenge in proceedings under Article 226 of the Constitution of India. Signature Not Verified petitioner had a PE in India. He earnestly contended that each assessment year is a separate unit of assessment and the AO is not precluded from correcting an error or mistake in subsequent years. He also referred to the decision of Joshi Technologies International Inc. v. Union of India and Ors.[2]in support of his contention that the decision of the AO was reasoned and thus was not amenable to challenge in proceedings under Article 226 of the Constitution of India. 23.Lastly, he contended that directing a withholding tax at 2% translates to approximately 5% of the income on gross receipts which was very reasonable and therefore, did not warrant any interference by this court. REASONS AND CONCLUSION 24.Section 197(1) of the Act enables an assessee to make application for a certificate requiring the deduction of tax at lower rate or no deduction at all, if the Assessing Officer is satisfied that the total income of the recipient justifies such nil deduction or deduction at a lower rate. It is, thus, incumbent upon the Assessing Officer to consider whether in the given facts, a lower rate or nil rate of withholding tax is justifiable. It is well settled law that at this stage, the Assessing Officer is not required to finally determine the question of taxability or the quantum of tax. Grant of a certificate under Section 197(1) of the Act does not preclude the Assessing Officer from framing an appropriate assessment including determining the taxability of the payments/receipts in the 2 (2015) 7 SCC 728 Signature Not Verified assessment proceedings. Thus, the Assessing Officer is not required to arrive at a definite finding as to the liability of an assessee to tax. However, it is essential for the Assessing Officer to examine the question of taxability in the given facts and be guided by the consideration as set out in Rule 28AA of the Rules. 25.It is apposite to refer to Rule 28AA of the Rules, which is set out below: “28AA. (1) Where the Assessing Officer, on an application made by a person under sub-rule (1) of rule 28 is satisfied that existing and estimated tax liability of a person justifies the deduction of tax at lower rate or no deduction of tax, as the case may be, the Assessing Officer shall issue a certificate in accordance with the provisions of sub-section (1) of section 197 for deduction of tax at such lower rate or no deduction of tax. (2) The existing and estimated liability referred to in sub-rule (1) shall be determined by the Assessing Officer after taking into consideration the following:— (i) tax payable on estimated income of the previous year relevant to the assessment year; year relevant to the assessment year; (ii) tax payable on the assessed or returned or estimated income, as the case may be, of last four previous years; estimated income, as the case may be, of last four previous years; (iii) existing liability under the Income-tax Act, 1961 and Wealth-tax Act, 1957; and Wealth-tax Act, 1957; (iv) advance tax payment, tax deducted at source and tax collected at source for the assessment year relevant to the previous year till the date of making application under sub-rule (1) of rule 28; tax collected at source for the assessment year relevant to the previous year till the date of making application under sub-rule (1) of rule 28; (3) The certificate shall be valid for such period of the previous year as may be specified in the certificate, unless it is cancelled by the Assessing Officer at any time before the expiry of the specified period. (4) The certificate for deduction of tax at any lower rates or no deduction of tax, as the case may be, shall be issued direct to the person responsible for deducting the tax under advice to the person who made an application for issue of such certificate: (iv) advance tax payment, tax deducted at source and tax collected at source for the assessment year relevant to the previous year till the date of making application under sub-rule (1) of rule 28; tax collected at source for the assessment year relevant to the previous year till the date of making application under sub-rule (1) of rule 28; (3) The certificate shall be valid for such period of the previous year as may be specified in the certificate, unless it is cancelled by the Assessing Officer at any time before the expiry of the specified period. (4) The certificate for deduction of tax at any lower rates or no deduction of tax, as the case may be, shall be issued direct to the person responsible for deducting the tax under advice to the person who made an application for issue of such certificate: Provided that where the number of persons responsible for deducting the tax is likely to exceed one hundred and the details of such persons are not available at the time of making application with the person making such application, the certificate for deduction of tax at lower rate may be issued to the person who made an application for issue of such certificate, authorising him to receive income or sum after deduction of tax at lower rate. (5) The certificates referred to in sub-rule (4) shall be valid only with regard to the person responsible for deducting the tax and named therein and certificate referred to in proviso to the sub-rule (4) shall be valid with regard to the person who made an application for issue of such certificate. (6) The Principal Director General of Income-tax (Systems) or the Director General of Income-tax (Systems), as the case may be, shall lay down procedures, formats and standards for issuance of certificates under sub-rule (4) and proviso thereto and the Principal Director General of Income-tax (Systems) or the Director General of Income-tax (Systems) shall also be responsible for evolving and implementing appropriate security, archival and retrieval policies in relation to the issuance of said certificate.” 26.It is clear from the above that the Assessing Officer is also required to examine the tax payable on the assessed, returned or estimated income as the case may be of the last four previous years. Indisputably, the Assessing Officer is required to take a view – even though it may not be a final view – as to the chargeability of the receipt of tax under the Act. Signature Not Verified 27. 27.In GE India Technology Centre Pvt. Ltd. v. Commissioner of Income Tax and Anr.[3], the Supreme Court had considered the provisions of Section 195(1) of the Act, which requires the person responsible for making any payment to a foreign company of any interest (other than interest referred to under Section 194LB; Section 194LC and Section 194 LD of the Act) “or any other sum chargeable under the provisions of this Act to deduct income tax at the rate in force”. The Supreme Court had explained that Section 195 of the Act has to be read in conformity with the charging provisions – Section 4, 5 and 9 of the Act – and the obligation to withhold tax would arise only if the payments made would be chargeable to tax under the Act. It is relevant to refer to the following extract of the said decision: 27. 27.In GE India Technology Centre Pvt. Ltd. v. Commissioner of Income Tax and Anr.[3], the Supreme Court had considered the provisions of Section 195(1) of the Act, which requires the person responsible for making any payment to a foreign company of any interest (other than interest referred to under Section 194LB; Section 194LC and Section 194 LD of the Act) “or any other sum chargeable under the provisions of this Act to deduct income tax at the rate in force”. The Supreme Court had explained that Section 195 of the Act has to be read in conformity with the charging provisions – Section 4, 5 and 9 of the Act – and the obligation to withhold tax would arise only if the payments made would be chargeable to tax under the Act. It is relevant to refer to the following extract of the said decision: “14. One more aspect needs to be highlighted. Section 195 falls in Chapter XVII which deals with collection and recovery Chapter XVII-B deals with deduction at source by the payer. On analysis of various provisions of Chapter XVII, one finds use of different expressions, however, the expression “sum chargeable under the provisions of the Act” is used only in Section 195. For example, Section 194C casts an obligation to deduct TAS in respect of “any sum paid to any resident”. Similarly, Sections 194-EE and194F inter alia provide for deduction of tax in respect of “any amount” referred to in the specified provisions. In none of the provisions we find the expression “sum chargeable under the provisions of the Act”, which as stated above, is an expression used only in Section 195(1). Therefore, this Court is required to give meaning and effect to the said expression. It follows, therefore, that the obligation to deduct TAS arises only when there is a sum chargeable under the Act. 15. Section 195(2) is not merely a provision to provide information to the ITO(TDS). It is a provision requiring tax to information to the ITO(TDS). It is a provision requiring tax to 3 (2010) 327 ITR 456 Signature Not Verified be deducted at source to be paid to the Revenue by the payer who makes payment to a non-resident. Therefore, Section 195 has to be read in conformity with the charging provisions i.e. Sections 4, 5 and 9. This reasoning flows from the words “sum chargeable under the provisions of the Act” in Section 195(1). 16. The fact that the Revenue has not obtained any information per se cannot be a ground to construe Section 195 widely so as to require deduction of TAS even in a case where an amount paid is not chargeable to tax in India at all. We cannot read Section 195, as suggested by the Department, namely, that the moment there is remittance the obligation to deduct TAS arises. If we were to accept such a contention it would mean that on mere payment income would be said to arise or accrue in India. Therefore, as stated earlier, if the contention of the Department was accepted it would mean obliteration of the expression “sum chargeable under the provisions of the Act” from Section 195(1). While interpreting a section one has to give weightage to every word used in that section. While interpreting the provisions of the Income Tax Act one cannot read the charging sections of that Act dehors the machinery sections. The Act is to be read as an integrated code. 17. Section 195 appears in Chapter XVII which deals with collection and recovery As held in the case of CIT v. Eli Lilly and Co. (India) (P.) Ltd. [2009] 312 ITR 225 the provisions for deduction of TAS which is in Chapter XVII dealing with collection of taxes and the charging provisions of the IT Act form one single integral, inseparable code and, therefore, the provisions relating to TDS applies only to those sums which are “chargeable to tax” under the IT Act. It is true that the judgment in Eli Lilly [2009] 312 ITR 225 was confined to Section 192 of the IT Act. However, there is some similarity between the two. If one looks at Section 192 one finds that it imposes statutory obligation on the payer to deduct TAS when he pays any income “chargeable under the head ‘Salaries’”, Similarly, Section 195 imposes a statutory obligation on any person responsible for paying to a non-resident any sum “chargeable under the provisions of the Act”, which expression, as stated above, does not find place in other sections of Chapter XVII. It is in this sense that we hold that Signature Not Verified the IT Act constitutes one single integral inseparable code. Hence, the provisions relating to TDS applies only to those sums which are chargeable to tax under the IT Act. 18. If the contention of the Department that any person making payment to a non-resident is necessarily required to deduct TAS then the consequence would be that the Department would be entitled to appropriate the monies deposited by the payer even if the sum paid is not chargeable to tax because there is no provision in the IT Act by which a payer can obtain refund. Section 237 read with Section 199 implies that only the recipient of the sum i.e. the payee could seek a refund. It must therefore follow, if the Department is right, that the law requires tax to be deducted on all payments. The payer, therefore, has to deduct and pay tax, even if the so-called deduction comes out of his own pocket and he has no remedy whatsoever, even where the sum paid by him is not a sum chargeable under the Act The interpretation of the Department, therefore, not only requires the words “chargeable under the provisions of the Act" to be omitted, it also leads to an absurd consequence, The interpretation placed by the Department would result in a situation where even when the income has no territorial nexus with India or is not chargeable in India, the Government would nonetheless collect tax. In our view, Section 195(2) provides a remedy by which a person may seek a determination of the “appropriate proportion of such sum so chargeable” where a proportion of the sum so chargeable is liable to tax. 19. The entire basis of the Department's contention is based on administrative convenience in support of its interpretation. According to the Department huge seepage of revenue can take place if persons making payments to non-residents are free to deduct TAS or not to deduct TAS. It is the case of the Department that Section 195(2), as interpreted by the High Court, would plug the loophole as the said interpretation requires the payer to make a declaration before the ITO (TDS) of payments made to non-residents. In other words, according to the Department Section 195(2) is a provision by which the payer is required to inform the Department of the remittances he makes to the non-residents by which the Department is able Signature Not Verified to keep track of the remittances being made to non-residents outside India. 20. We find no merit in these contentions. As stated hereinabove, Section 195(1) uses the expression “sum chargeable under the provisions of the Act”. We need to give weightage to those words. Further, Section 195 uses the word “payer” and not the word “assessee”. The payer is not an assessee. The payer becomes an assessee-in-default only when he fails to fulfil the statutory obligation under section 195(1). If the payment does not contain the element of income the payer cannot be made liable. He cannot be declared to be an assessee-in-default. Signature Not Verified to keep track of the remittances being made to non-residents outside India. 20. We find no merit in these contentions. As stated hereinabove, Section 195(1) uses the expression “sum chargeable under the provisions of the Act”. We need to give weightage to those words. Further, Section 195 uses the word “payer” and not the word “assessee”. The payer is not an assessee. The payer becomes an assessee-in-default only when he fails to fulfil the statutory obligation under section 195(1). If the payment does not contain the element of income the payer cannot be made liable. He cannot be declared to be an assessee-in-default. 21. The abovementioned contention of the Department is based on an apprehension which is ill-founded. The payer is also an assessee under the ordinary provisions of the IT Act. When the payer remits an amount to a non-resident out of India, he claims deduction or allowances under the Income Tax Act for the said sum as an “expenditure”. Under Section 40(a)(i), inserted vide the Finance Act, 1988, w.e.f. 1-4-1989, payment in respect of royalty, fees for technical services or other sums chargeable under the Income Tax Act would not get the benefit of deduction if the assessee fails to deduct TAS in respect of payments outside India which are chargeable under the Income Tax Act. This provision ensures effective compliance with Section 195 of the IT Act relating to tax deduction at source in respect of payments outside India in respect of royalties, fees or other sums chargeable under the IT Act. In a given case where the payer is an assessee he will definitely claim deduction under the IT Act for such remittance and on inquiry if the AO finds that the sums remitted outside India come within the definition of royalty or fees for technical service or other sums chargeable under the IT Act then it would be open to the Assessing Officer to disallow such claim for deduction, Similarly, vide the Finance Act, 2008, w.e.f. 1-4-2008, sub-section (6) has been inserted in Section 195 which requires the payer to furnish information relating to payment of any sum in such form and manner as may be prescribed by the Board. This provision is brought into force only from 1-4-2008. It will not apply for the period with which we are concerned in these cases Signature Not Verified before us. Therefore, in our view, there are adequate safeguards in the Act which would prevent revenue leakage.” 28.The aforesaid view was reiterated by the Supreme Court in Engineering Analysis Centre of Excellence Pvt. Ltd. v. Commissioner of Income Tax and Another[4], in the following words: Signature Not Verified before us. Therefore, in our view, there are adequate safeguards in the Act which would prevent revenue leakage.” 28.The aforesaid view was reiterated by the Supreme Court in Engineering Analysis Centre of Excellence Pvt. Ltd. v. Commissioner of Income Tax and Another[4], in the following words: “32. The machinery provision contained in Section 195 of the Income Tax Act is inextricably linked with the charging provision contained in Section 9 read with Section 4 of the Income Tax Act, as a result of which, a person resident in India, responsible for paying a sum of money, “chargeable under the provisions of [the] Act”, to a non-resident, shall at the time of credit of such amount to the account of the payee in any mode, deduct tax at source at the rate in force which, under Section 2(37-A)(iii) of the Income Tax Act, is the rate in force prescribed by the DTAA. Importantly, such deduction is only to be made if the non-resident is liable to pay tax under the charging provision contained in Section 9 read with Section 4 of the Income Tax Act, read with the DTAA. Thus, it is only when the non-resident is liable to pay income tax in India on income deemed to arise in India and no deduction of TDS is made under Section 195(1) of the Income Tax Act, or such person has, after applying Section 195(2) of the Income Tax Act, not deducted such proportion of tax as is required, that the consequences of a failure to deduct and pay, reflected in Section 201 of the Income Tax Act, follow, by virtue of which the resident-payee is deemed an “assessee in default”, and thus, is made liable to pay tax, interest and penalty thereon. This position is also made amply clear by the referral order in the appeals concerned from the High Court of Karnataka, namely, the judgment of this Court in GE Technology [GE (India) Technology Centre (P) Ltd. v. CIT, (2010) 10 SCC 29]. xxxx xxxx xxxx 36. It will be seen that Section 194-E of the Income Tax Act belongs to a set of various provisions which deal with TDS, without any reference to chargeability of tax under the Income 4 [2021] 432 IRT 471 Signature Not Verified Tax Act by the non-resident assessee concerned. This section is similar to Sections 193 and 194 of the Income Tax Act by which deductions have to be made without any reference to the chargeability of a sum received by a non-resident assessee under the Income Tax Act. On the other hand, as has been noted in GE Technology [GE (India) Technology Centre (P) Ltd. v. CIT, (2010) 10 SCC 29], at the heart of Section 195 of the Income Tax Act is the fact that deductions can only be made if the non-resident assessee is liable to pay tax under the provisions of the Income Tax Act in the first place. xxxx xxxx xxxx 66. What is made clear by the judgment in GE Technology [GE (India) Technology Centre (P) Ltd. v. CIT, (2010) 10 SCC 29] is the fact that the “person” spoken of in Section 195(1) of the Income Tax Act is liable to make the necessary deductions only if the non-resident is liable to pay tax as an assessee under the Income Tax Act, and not otherwise. This judgment also -clarifies, after referring to CBDT Circular No. 728 dated 3010-1995, that the tax deduct or must take into consideration the effect of the DTAA provisions. The crucial link, therefore, is -that a deduction is to be made only if tax is payable by the nonresident assessee, which is underscored by this judgment, stating that the charging and machinery provisions contained in Sections 9 and 195 of the Income Tax Act are interlinked.” [emphasis added] 29.The Supreme Court also noted the following observations made in regard to the scope of Section 195 of the Act in the earlier decision in Vodafone International Holdings BV v. Union of India[5]: [emphasis added] 29.The Supreme Court also noted the following observations made in regard to the scope of Section 195 of the Act in the earlier decision in Vodafone International Holdings BV v. Union of India[5]: “171. Section 195 casts an obligation on the payer to deduct tax at source (“TAS”, for short) from payments made to non-residents which payments are chargeable to tax. Such payment(s) must have an element of income embedded in it which is chargeable to tax in India. If the sum paid or credited by the payer is not chargeable to tax then no obligation to 5 (2012) 6 SCC 613 Signature Not Verified deduct the tax would arise. Shareholding in companies incorporated outside India (CGP) is property located outside India. Where such shares become subject-matter of offshore transfer between two non-residents, there is no liability for capital gains tax. In such a case, question of deduction of TAS would not arise. 172. If in law the responsibility for payment is on a non-resident, the fact that the payment was made, under the instructions of the non-resident, to its agent/nominee in India or its PE/Branch Office will not absolve the payer of his liability under Section 195 to deduct TAS. Section 195(1) casts a duty upon the payer of any income specified therein to a non-resident to deduct therefrom TAS unless such payer is himself liable to pay income tax thereon as an agent of the payee. Section 201 says that if such person fails to so deduct TAS he shall be deemed to be an assessee-in-default in respect of the deductible amount of tax (Section 201). 173. Liability to deduct tax is different from “assessment”under the Act. Thus, the person on whom the obligation to deduct TAS is cast is not the person who has earned the income. Assessment has to be done after liability to deduct TAS has arisen. The object of Section 195 is to ensure that tax due from non-resident persons is secured at the earliest point of time so that there is no difficulty in collection of tax subsequently at the time of regular assessment.” [emphasis added] 30.The liability to deduct tax at source is contingent upon whether the payments represent the income of the recipient, which is chargeable to tax under the Act. Clearly, if the payments are not chargeable to tax, the requirement of deduction of tax at source under Section 195 of the Act – which is a part of the machinery provision for collection of tax – is inapplicable. It is, thus, relevant to examine the taxability of the payments in the hands of the payee for the purposes of ascertaining Signature Not Verified whether tax is required to be deducted at source under Section 195 of the Act. 31.In the facts of the present case, the petitioner asserts that its receipts from SFDC India are not chargeable to tax under the Act as it is a tax resident of Ireland and does not have a PE in India. It also claims that the resale agreement with SFDC India is on a principal-to-principal basis where SFDC India is appointed on a non-exclusive basis, as a reseller of the SFDC Products. In the aforesaid context, it would be relevant to refer to the Reseller Agreement, which is stated to be effective from 01.02.2023. The relevant extract of the Reseller Agreement is set out below: “RECITALS A. Vendor and Reseller are part of a network of affiliated companies. companies. Vendor is in the business of marketing and selling SFDC Products in both Europe, Middle East, and Africa (“EMEA”) and Asia Pacific (“APAC”) regions, providing consulting services and support to customers and desires to sell SFDC Products to the Reseller for onward sale to customers in the Territory. Reseller is engaged in the business of inter alia marketing and sales support services and desires to serve as a third-party reseller of SFDC Products for sale to customers in the Territory. B. Vendor does not desire to sell the SFDC Products directly to customers in the Territory. directly to customers in the Territory. “RECITALS A. Vendor and Reseller are part of a network of affiliated companies. companies. Vendor is in the business of marketing and selling SFDC Products in both Europe, Middle East, and Africa (“EMEA”) and Asia Pacific (“APAC”) regions, providing consulting services and support to customers and desires to sell SFDC Products to the Reseller for onward sale to customers in the Territory. Reseller is engaged in the business of inter alia marketing and sales support services and desires to serve as a third-party reseller of SFDC Products for sale to customers in the Territory. B. Vendor does not desire to sell the SFDC Products directly to customers in the Territory. directly to customers in the Territory. C. Vendor therefore wishes to appoint Reseller as its non-exclusive reseller of the SFDC Products in the Territory. exclusive reseller of the SFDC Products in the Territory. Signature Not Verified D. Reseller has represented to Vendor that it has the facilities, personnel and expertise to serve effectively as a reseller of the SFDC Products within the Territory. facilities, personnel and expertise to serve effectively as a reseller of the SFDC Products within the Territory. The parties now agree as follows: Section 1 – Definitions For purposes of this Agreement, the following terms shall have the meanings and definitions set forth below: 1.1 “Additional Resellers” shall mean and include a Person appointed as a non-exclusive sub-reseller by the Reseller of SFDC Products in the Territory. xxxx xxxx xxxx 1.4 “Customer Contracts” shall mean and include Reseller’s contracts with its customers for the SFDC Products. xxxx xxxx xxxx 1.9 “SFDC Products” shall mean and include individually and/or collectively, as the context requires, customer relationship management (“CRM”) offerings, applications, and platforms including sales, service, marketing, commerce, integration, analytics, and related products and services procured by the Reseller from Vendor exclusively for resale or provision of trial use to customers in the Territory, excluding, however, SFDC Products for Reseller’s Internal Use. 1.10 “SFDC Products for Reseller’s Internal Use” shall mean and include individually and/or collectively, as the context requires, all SFDC Products made available by Vendor to Reseller for internal business purposes at no extra cost to permit Reseller to perform its obligations under this Agreement. Such SFDC Products for Reseller’s Internal Use include, without limitation, SFDC Products made available to Reseller and used by Reseller (i) to demonstrate the functionality of the SFDC Products (e.g., in trade shows and exhibitions), (ii) to train its customers and/or employees on the use of SFDC Products, (iii) to administer and manage its own customer accounts, and (iv) all other SFDC Products made available to Reseller and used by Reseller for internal business purposes including any related documentation. The use by Reseller of SFDC Products for Reseller’s Internal Use shall be exclusively governed by the SFDC Products for Reseller’s Internal Use Agreement, a copy of which is attached hereto as Exhibit B. xxxx xxxx xxxx Section 2 - Appointment of Reseller 2.1 Appointment. Subject to the terms and conditions set forth in this Agreement, Vendor hereby appoints Reseller as its non-exclusive reseller of the SFDC Products in the Territory, and Reseller hereby accepts such appointment. Further, Reseller shall have the right to appoint one or more Additional Resellers within the Territory, and to enter into Partner Contracts with partners in the Territory. Nothing in this Agreement shall be construed to limit Vendor’s right to appoint one or more Additional Resellers within the Territory. xxxx xxxx xxxx Section 2 - Appointment of Reseller 2.1 Appointment. Subject to the terms and conditions set forth in this Agreement, Vendor hereby appoints Reseller as its non-exclusive reseller of the SFDC Products in the Territory, and Reseller hereby accepts such appointment. Further, Reseller shall have the right to appoint one or more Additional Resellers within the Territory, and to enter into Partner Contracts with partners in the Territory. Nothing in this Agreement shall be construed to limit Vendor’s right to appoint one or more Additional Resellers within the Territory. 2.2 Relationship between the Parties. The relationship of Vendor and Reseller established by this Agreement is of seller and buyer. The transactions between Vendor and Reseller will be undertaken on principal to principal basis. Vendor and Reseller hereby agree that, in the performance of their respective obligations hereunder, they are and shall remain independent contractors. Nothing in this Agreement shall be construed to constitute either Party as the agent of the other Party for any purpose whatsoever, and neither Party shall have the power to bind the other Party to any contract or the performance of any other obligation, or represent to any third party that it has any right to enter into any binding obligation on the other Party’s behalf. Reseller shall advise its customers that the customers will contract solely with Reseller and the customers will have no contractual relationship with Vendor. 2.3 Reseller’s Appointment of Sub-contractors. Reseller shall have the right to appoint sub-contractors (other than its employees) to provide marketing, resale, and sales support services (including post-sale support services) for the SFDC Products to customers in the Territory, subject to the policies established by Vendor from time to time. Reseller shall Signature Not Verified require sub-contractors appointed by Reseller pursuant to this Section 2.3 to agree in writing to adhere to the same obligations as Vendor has imposed on Reseller under this Agreement for the purpose of protecting Vendor’s Confidential Information and Intellectual Property Rights. Section 3 - Obligations of Reseller xxxx xxxx xxxx 3.3 Personnel and Facilities. Reseller shall occupy and maintain facilities adequate to market and resell the SFDC Products in the Territory and to provide after sale support services to its customers in the Territory. Reseller shall retain and have at its disposal at all times an adequate staff of trained and qualified personnel to perform its obligations under this Agreement. 3.4 Representations and Warranties. Reseller shall not make representations or