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Section 115a of Income Tax Act

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June 5, 2021

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6 mins read

Section 115a of Income Tax Act deals with taxation of Income from royalty or fees for technical services (other than those covered u/s 44DA) received by non-resident/foreign company from the following shall be chargeable to tax @ 10% : –

  • Government under an agreement ;
  • Indian concern, in pursuance of agreement  , which is either approved by Government , or If the matter in relation to which such income is received, relates to   a matter of industrial policy and is as per industrial policy, no separate approval of the Government is required.

Notes

  1. Where is the non-resident assessee earning income under Section 115a of Income Tax Act, also has other income, such income  will be chargeable to tax at normal rates applicable to the assessee.
  2. The rate of tax discuss above under Section 115a is subject to any beneficial rate / no taxability provisions, prescribed under DTAA ;
  3. No deduction for expenditure or allowance shall be allowed to the assessee under Sections 28 to 44C and Section 57 in computing the above income. Any current /brought forward unabsorbed depreciation of any business, cannot be set off against the income referred to in section 115A, since the set off and carry forward of depreciation is governed by section 32 .
  4. Deduction under Chapter VI-A is not available on the income chargeable to tax under Section 115a of Income Tax Act
  5. Rate of tax under Section 115a of Income Tax Act is not applicable on royalty or Fees for technical services paid to non-resident, which is connected with its Permanent Establishment in India . Such payment would be treated as business profits and taxable at 40% under the provisions of Section 44DA.
  6. Definitions of Royalty and Fees for technical services , for the purpose of Section 115a of Income Tax Act are given under Section 9(1)(vi) and Section 9(1)(vii), respectively.

International Taxation Services

Section 115a of Income Tax Act – Example 1 : –

ICO makes payment of Rs. 5 lakhs for consultancy services taken from UK firm. Payment is made in accordance with industrial policy of the Government. Compute the tax liability ( Excluding applicable surcharge and education cess) on such payment as per Section 115A ?

Solution –

Consulting income of UK firm would be taxable at 10% under Section 115A. Thus, tax liability would be Rs 50,000.

Section 115a of Income Tax Act – Example 2 : –

In Example 1, assume that such payment is exempt from tax under India-UK DTAA, what would be the rate of tax ?

Solution –

Non-residents can compute their tax liability as per –

  1. The tax rates prescribed under the Income-tax Act ; or
  2. at the rates prescribed under the DTAAs,

whichever are more beneficial.

In this case, such payment is exempt from tax under India-UK DTAA. Thus, UK firm will avail benefit of DTAA and claim exemption on such income. The rate of tax on such income could be Nil.

Section 115a of Income Tax Act – Example 3 : –

UK firm has Permanent Establishment (PE) in India. Such PE is engaged in the business of manufacturing of software, and has ownership rights to such software. ICO makes payment of royalty of Rs. 5 lakhs to UK firm for usage of such software. Payment is made in accordance with industrial policy of the Government. Compute the tax liability on such payment as per Section 115A ?

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Arinjay Jain

Bio of author

Arinjay is a Chartered Accountant with more than 20 years of post-qualification experience. He worked as Director, in the M&A Tax Division at KPMG in India. Presently, he is advising several MNCs in UAE on Economic Substance Regulations and impact of the UAE Corporate Tax Law on their business and clients across globe on International Tax issues . He is a well recognised Trainer of International Tax and UAE Corporate Tax. The areas of service include the following : - Advise and Compliance relating to International Tax Issues; Advise relating to UAE Corporate Tax Issues; Advise and Compliance relating to UAE Economic Substance Regulations; Advise and Compliance relating to Indian Income Tax Issues; Other connected matters from a Regulatory perspective.

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