Taxontips
No Result
View All Result
Friday, May 16, 2025
Login/ Register
  • Home
  • Income Tax
    • Income Tax Return
    • Tax Notice/ Personal consultation
    • Compliance Notice
    • Faceless Assessment
  • GST
    • GST Registration
    • GST Consultation
  • News
    • Income Tax News
    • GST news
    • Budget News
    • Business & Other News
  • Q & A
  • About us
  • Contact us
Talk to an Expert
  • Home
  • Income Tax
    • Income Tax Return
    • Tax Notice/ Personal consultation
    • Compliance Notice
    • Faceless Assessment
  • GST
    • GST Registration
    • GST Consultation
  • News
    • Income Tax News
    • GST news
    • Budget News
    • Business & Other News
  • Q & A
  • About us
  • Contact us
No Result
View All Result
Taxontips
No Result
View All Result

Equalization levy 1.0 not applicable if person running advertisement is outside India and income not accruing in India [Read order]

Income tax Expert by Income tax Expert
November 21, 2022
in Case Laws, Income Tax News
1
Income tax Appellate Tribunal (ITAT) to not function from 17.03.2020 to 27.03.2020
102
SHARES
1.3k
VIEWS
image_pdfPDFimage_printPrint

This judgement has been passed by ITAT bench of Jaipur and can be considered one of the first few judgements which have been passed in relation to equalisation levy, as not many judgements are available on this topic.

 

The judgement has been passed in case of Deputy Commissioner of Income Tax, Circle -1, Jaipur V. Prakash Chandra Mishra Dt. 20.09.2022.

 

Facts of the case:

The Assessee (Individual) tax resident of India engage in the business of providing support services of  online  advertisement,  digital  marketing  and  web designing  and receives consultancy charges for such services rendered.

Assessee made a payment outside India being Online Advertisement Expenditure to Google Asia Pacific Pte ltd (Google) located in Singapore.

Google is a Non Resident having No Permanent establishment in India.

No Equalisation Levy had been deducted by the assessee while making payment to Google through digital mode.

 

Revenue’s contention:

A.O. contended that the payment made by the assessee to Non–resident for advertisement purpose will fall in the ambit of Equalisation Levy as per the provisions of Finance Act, 2016.

As No Equalisation levy had been deducted by the assessee while making payment to the Google the expenses claimed by the assessee is to be disallowed as per the provisions of Sec. 40(a)(ib) of the Act.

Further, A.O. contended that the transaction between the assessee and Google Singapore is not covered under the exceptions provided under the section 165(2) of the Finance Act, 2016.

 

Assessee’s Contention:

Assessee contended that the assessee is mere a agent of Google Singapore. Assessee have granted access to it’s clients for the purpose of running advertisement on Google. Ultimate beneficiary of such online ads were the clients of the assessee.

Clients of the assessee were all located outside India and they themselves decides  the  geographical  location  where  the online  ad  will be run, who  would be the target audience and for how much time the online ad will run. Assessee has no control over the relevant decision making.

Assessee also contended that section 40(a)(ib) could not be invoked on the assessee as Equalisation levy could not be applicable when services recipient is outside India and the target customer of the advertisement are also outside India. Thus, the clients of assessee have no connection to India in respect of business carried out or services rendered.

Google does not have a PE in India and hence no tax will be applicable on income earned by it.

 

Synopsis of Legal provisions discussed in the case:

Section 40(a)(ib) of Income Tax Act, 1961 –

Any consideration paid or payable to a non-resident for a specified service on which equalisation levy is deductible under the provisions of Chapter VIII of the Finance Act, 2016, and such levy has not been deducted or after deduction, has not been paid on or before the due date specified in sub-section (1) of section 139 :

Provided that where in respect of any such consideration, the equalisation levy has been deducted in any subsequent year or has been deducted during the previous year but paid after the due date specified in sub-section (1) of section 139, such sum shall be allowed as a deduction in computing the income of the previous year in which such levy has been paid;

 

Section 165 of Finance Act, 2016–

(1) On and from the date of commencement of this Chapter, there shall be charged an equalisation levy at the rate of six per cent of the amount of consideration for any specified service received or receivable by a person, being a non-resident from—

(i) a person resident in India and carrying on business or profession; or

(ii) a non-resident having a permanent establishment in India.

(2) The equalisation levy under sub-section (1) shall not be charged, where—

(a) the non-resident providing the specified service has a permanent establishment in India and the specified service is effectively connected with such permanent establishment;

(b) the aggregate amount of consideration for specified service received or receivable in a previous year by the non-resident from a person resident in India and carrying on business or profession, or from a non-resident having a permanent establishment in India, does not exceed one lakh rupees; or

(c) where the payment for the specified service by the person resident in India, or the permanent establishment in India is not for the purposes of carrying out business or profession.

 

Ruling:

It is pointed out that equalization levy is not part of income-tax and therefore, any payment on which equalization levy is applicable will not fall within the provisions of Double Tax Avoidance Agreement (DTAA) and the tax payer will have to pay equalization levy regardless of the provisions of the DTAA and the country the recipient belongs to.

It was stated that the as per the provisions of Equalisation levy, consideration  should  be  received/receivable  by  the Non-Resident   from   Resident   and   such   Resident should be carrying on business in India.  However, in the present case  ultimate  recipient  of the  services  of  Google  Singapore  is  not  the  assessee but his clients who were located outside India and the advertisement services provided is not in relation to the business of the assessee.

Further, in the given case, it is clear that No specific exception had been provided for the services where the target customer of the  advertisement are outside India under section 165 of Finance Act, 2016.

However, Finance Minister in his  speech,  while  introducing  the  Finance Bill, 2016,  for the  purpose of law on Equalization Levy stated  as follows:-

“…151. In order to tap tax on income accruing to foreign e-commerce companies from India it is proposed that a person making payment to a non-resident, who does   not have a permanent establishment, exceeding in aggregate Rs. 1 lakh in a year, as consideration for online advertisement, with withhold tax at  6%  of  gross  amount  paid,  as  EL.  The  levy  will  only  apply  to B2B transactions…”

vFurther, reference is also drawn to Section 165A of the Finance  Act, 2020 which clearly  specified  that  the services  shall  be  taxable  in  India,  only  if  they  are  provided or facilitated to a person resident in India or to a person who buys such goods or services or both using Internet Protocol Address located  in  India.

Thus, considering the speech of Finance minister and Section 165A it can be stated  that the intention  of  the  statute is to bring within the purview of Equalization Levy, only those transactions which have some connection with India.

Also, under the tax laws only those transactions can be covered which have territorial nexus with India. Therefore, only such part of the income as is attributable to the operations carried out in India can be taxed in India. In the current case the service of online ads were received by clients of assessee location outside India.

Considering the above, it can be stated that for applicability of Equalization  Levy it is to be seen that whether the business for which, advertisement has been carried out, has earned any income from India or not.

In present case as the targeted customer is outside India, client of assessee who was controlling the advertisement for his business carried out business outside  India, the advertiser (Google) ultimately running the advertisement was also located outside India and the Indian jurisdiction was only used for  channelizing the funds.

 

Conclusion:

It was held that the role of the assessee is that of an agent of Google Singapore whereby the assessee is granted access for the purpose of advertisement to be made on Google. On approaching the assessee, such person gets login credentials, generated by the assessee on the website of google through such credentials, the person on its own runs advertisement on google.

Further, it was concluded that when the intention of levy is related to the targeted audience and party paying the online advertisement has no relation in India, Equalisation levy is not attracted based on facts and circumstances.

 

To Download the order CLICK ME.

 

You can book phone consultation/ assistance online with expert as mentioned below:

To book ITR filing with experts CLICK ME.

To book phone consultation with experts for any Income tax related matters CLICK ME.

To book consultation for Faceless Assessment with experts CLICK ME.

To book phone consultation with experts for GST related matters CLICK ME.

To book general phone consultation with expert CLICK ME.

 

Connect with us on: LinkedIn, Telegram, Instagram, Facebook, Twitter and Youtube for regular Updates.

image_pdfPDFimage_printPrint
Tags: case lawsequalization levyincome tax case lawincome tax judgementIncome tax updatesITAT judgementlatest income tax case lawlatest income tax judgementtaxontips
Previous Post

Government withdraws export duty on Steel

Next Post

Tax | Global Employer Services | Manager | Expat Tax | Gurgaon | Big4 jobs | CAjobs

Related Posts

Tatva Chintan Pharma Chem Limited IPO details and capital gain tax on selling IPO allotment | Capital gain on IPO
Case Laws

ITAT Mumbai: Capital Gains on Indian Mutual Funds Not Taxable in India for Non-Residents under DTAA [Case law]

May 2, 2025
Guidelines for manual selection of returns for Complete Scrutiny during the financial-year 2019-20-
Income Tax News

No relief under section 87A for capital gain even after date extended to file revised return for AY 2024-25?

April 1, 2025
Received mail from GSTN “Aggregate turnover being more than Rs. 5 Cr during FY 2019-20” What does this mean?
Income Tax News

Assessee receiving message for 80GGC donation for AY 2022-23 from Income tax department

January 29, 2025
Guidelines for manual selection of returns for Complete Scrutiny during the financial-year 2019-20-
Income Tax News

Guidance note 2 issued for Vivad se vishwas Scheme, 2024 [Read circular]

January 1, 2025
Guidelines for manual selection of returns for Complete Scrutiny during the financial-year 2019-20-
Income Tax News

Due date extended for filing belated, revised return and Vivad se vishwas declaration

December 31, 2024
Due date for Tax audit for A.Y. 2019-20 extended from 30th September to 31st October
Income Tax News

Extension of due date for furnishing return of income from 30.11.2024 to 15.12.2024

November 30, 2024
Next Post
PwC is currently hiring across all locations energetic CA Freshers | CAjobs | Job vacancy for CA

Tax | Global Employer Services | Manager | Expat Tax | Gurgaon | Big4 jobs | CAjobs

Comments 1

  1. CA Divya Jain says:
    2 years ago

    Income Tax Notice issued by Income tax department in India and you can check all the income tax notice online on the website, visit now.

    Reply

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Google Custom search

Recent Posts

  • Statutory Compliance Calendar for May 2025 | Income tax, GST and various other laws
  • ITAT Mumbai: Capital Gains on Indian Mutual Funds Not Taxable in India for Non-Residents under DTAA [Case law]
  • Statutory Compliance Calendar for April 2025 | Income tax, GST and various other laws
  • No relief under section 87A for capital gain even after date extended to file revised return for AY 2024-25?
  • Statutory Audit of Cash and Cash Equivalents in Indian Companies [Company Law]

Recent Comments

  • k.salam on Statutory Compliance Calendar for May 2025 | Income tax, GST and various other laws
  • Brendan Gleeson on Clarification for the purposes of Section 269ST of the I.T. Act in respect of dealership/distributorship contract in case of Co-operative Societies
  • Kovac Ryker on Clarification for the purposes of Section 269ST of the I.T. Act in respect of dealership/distributorship contract in case of Co-operative Societies
  • Hailey Bradwell on Clarification for the purposes of Section 269ST of the I.T. Act in respect of dealership/distributorship contract in case of Co-operative Societies
  • ADMIN on Submit response to confirm/ revise the refund claim – Why are you getting this mail and how to get refund

Categories

  • Budget News
  • Business & Other News
  • Case Laws
  • GST news
  • Income Tax News
  • News

Browse Topics by Date

May 2025
M T W T F S S
 1234
567891011
12131415161718
19202122232425
262728293031  
« Apr    
  • GSTR 9/ 9C extended : AGAIN

    GSTR 9/ 9C due date to be extended to 31.10.2020 | E-invoicing will be voluntary in the beginning

    6537 shares
    Share 2615 Tweet 1634
  • How to pay Membership and COP fees of ICAI for 2020-21 |

    6444 shares
    Share 2578 Tweet 1611
  • Code/ Nature of payment 6CR updated by NSDL in challan 281 for paying TCS on sale of goods

    5897 shares
    Share 2359 Tweet 1474
  • Are all the due dates of tax audit and Income tax return for FY 2019-20 extended to 31.03.2021 by the bill presented in Lok sabha Dt. 18.09.2020

    4855 shares
    Share 1942 Tweet 1214
  • SFT transaction mentioned in Form 26AS | What does it mean? | Who reports it? | SFT codes transaction type

    4082 shares
    Share 1633 Tweet 1021

Recent Notification

Compliance due dates for June, 2020 | Compliance calendar for June, 2020 | 20+ compliances

Statutory Compliance Calendar for May 2025 | Income tax, GST and various other laws

May 8, 2025
Tatva Chintan Pharma Chem Limited IPO details and capital gain tax on selling IPO allotment | Capital gain on IPO

ITAT Mumbai: Capital Gains on Indian Mutual Funds Not Taxable in India for Non-Residents under DTAA [Case law]

May 2, 2025

RSS Taxontips

  • Statutory Compliance Calendar for May 2025 | Income tax, GST and various other laws
  • ITAT Mumbai: Capital Gains on Indian Mutual Funds Not Taxable in India for Non-Residents under DTAA [Case law]
  • Statutory Compliance Calendar for April 2025 | Income tax, GST and various other laws
  • No relief under section 87A for capital gain even after date extended to file revised return for AY 2024-25?
  • Statutory Audit of Cash and Cash Equivalents in Indian Companies [Company Law]
  • Statutory Audit of Trade Receivables in Indian Companies [Company law]
  • Statutory Compliance Calendar for February 2025 | Income tax, GST and various other laws
  • Budget 2025 updates | Income tax and GST updates
  • Assessee receiving message for 80GGC donation for AY 2022-23 from Income tax department
  • Statutory Audit of Inventories for Indian Companies [Company Law]

Categories

  • Budget News
  • Business & Other News
  • Case Laws
  • GST news
  • Income Tax News
  • News

Site menu

  • Home
  • Income Tax
    • Income Tax Return
    • Tax Notice/ Personal consultation
    • Compliance Notice
    • Faceless Assessment
  • GST
    • GST Registration
    • GST Consultation
  • News
    • Income Tax News
    • GST news
    • Budget News
    • Business & Other News
  • Q & A
  • About us
  • Contact us
Taxontips

TaxOnTips provides you all tax related solutions in easy way and update you with its regular updates & notifications Visit us for details.
We are based in Jaipur, India

© 2019-2023 Taxontips.com - Tax assistance at your Fingertips

No Result
View All Result
  • Login/Signup
  • Income Tax
    • Income Tax Return
    • Tax Notice/ Personal consultation
    • Compliance Notice
    • Faceless Assessment
  • GST
    • GST registration
    • GST Consultation
  • News
    • Income Tax News
    • GST news
    • Budget News
    • Business & Other News
  • About us
  • Contact us
  • Ask an expert/ Talk to an expert
  • Q & A
  • Privacy Policy
  • Terms of use

© 2019-2023 Taxontips.com - Tax assistance at your Fingertips

Book Phone consultation with expert

Sitting home or at your office and don't have time to visit CA's office or don't know where to consult CA. Book your consultation with an expert practicing Chartered Accountant and get your query solved.

Book a phone consultation for 30 minutes with our expert at a very basic cost.

Book consultation

No thanks, I'm not interested!