Avoid excess TDS, DTAA errors, and Section 201 litigation
Section 195 TDS governs tax deduction at source on payments made to non-residents and applies only where the income is chargeable to tax in India.
Statutory Scope of Section 195
Section 195 of the Income-tax Act governs deduction of tax at source on payments made to non-residents. The obligation to deduct tax arises only if the payment is chargeable to tax in India. The section does not mandate automatic deduction on every foreign remittance.
The charging provision is Section 4 read with Section 5 and Section 9. Section 195 merely provides the mechanism for collection, not the charge itself.
Common Misconception About Section 195 TDS
A widespread misconception is that every foreign payment attracts TDS. This is legally incorrect. The Supreme Court has clarified that tax is deductible only on the income component of a payment which is chargeable to tax in India.
Blind deduction without examining taxability often leads to:
- Excess withholding
- Cash-flow blockage
- Unnecessary litigation under sections 201 and 40(a)(i)
What section 195 requires
Tax must be deducted only if:
- Payment is chargeable to tax in India
- Income is deemed to accrue or arise in India
Common Mistakes in Applying Section 195 TDS
1. Deducting Tax Without Examining Taxability
Many deductors deduct tax mechanically without analysing whether the payment is chargeable to tax in India under domestic law or DTAA.
2. Ignoring DTAA Provisions
DTAA provisions override the Income-tax Act if more beneficial. Failure to examine PE, FTS, royalty, or business income clauses leads to wrongful deduction.
3. Treating Gross Payment as Taxable
Tax is deductible only on the income element, not on reimbursement or pure cost components.
4. Not Applying for Lower or Nil Deduction
Where taxability is doubtful, deductors should approach the AO under Section 195(2) or 197 instead of over-deducting.
5. Confusing Section 195 With Section 194 Series
Section 195 TDS operates on an entirely different footing from domestic TDS provisions.
Why Section 195 TDS Leads to Maximum Litigation
Section 195 TDS is one of the most litigated provisions in international taxation because it is often applied mechanically without examining taxability. Assessing Officers tend to presume that every foreign remittance is taxable, whereas the law mandates deduction only when income is chargeable to tax in India. Failure to distinguish between business income, fees for technical services, royalty, and reimbursements leads to incorrect TDS demands.
Further, inconsistent interpretation of DTAA provisions, especially relating to Permanent Establishment and “make available” clauses, results in frequent disputes. In many cases, deductors face proceedings under Sections 201 and 201(1A) despite the non-resident having no tax liability in India. A proper Section 195 TDS analysis at the remittance stage is therefore essential to avoid prolonged litigation and cash-flow blockage.
Judicial Position on Section 195 TDS
Courts have consistently held that:
- Section 195 applies only if income is chargeable to tax in India
- Deduction cannot be enforced on sums not chargeable to tax
- DTAA provisions must be examined before deduction
Mechanical deduction defeats the very scheme of the Act.
Practical Safeguards for Deductors
Before making a foreign remittance, a deductor should:
- Identify the nature of payment
- Examine Section 9 deeming provisions
- Apply relevant DTAA articles
- Check PE existence
- Document taxability analysis
- Apply for certificate where required
This prevents exposure under Sections 201, 201(1A), and 40(a)(i).
Frequently Asked Questions (FAQ)
Is TDS mandatory on all foreign payments?
No. TDS under Section 195 is required only if the payment is chargeable to tax in India.
Can DTAA completely eliminate TDS?
Yes. If DTAA conditions are satisfied and income is not taxable, no TDS is required.
What if taxability is doubtful?
The deductor should seek a determination under Section 195(2) or 197.
Conclusion
Section 195 is one of the most misunderstood provisions in international taxation. Mechanical deduction leads to avoidable disputes and litigation. A structured taxability analysis before remittance is not only lawful but essential.
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