Section 172 l Shipping Business of Non-residents
Circular No. 723 was issued by the Central Board of Direct Taxes on 19 September 1995. Its subject is Section 172 l Shipping Business of Non-residents.
Settles that where section 172 applies to a voyage, sections 194C and 195 do not. Section 172 is a self-contained code for the levy and recovery of tax, ship by ship and voyage by voyage, on a ship belonging to or chartered by a non-resident that carries passengers, livestock, mail or goods shipped at an Indian port, with a return to be filed within thirty days of the ship's departure, and it applies notwithstanding anything else in the Act. Section 194C reaches only payments to a resident contractor, so there is no overlap with section 172, which operates on the profits of a non-resident's shipping business. Where payment is made to the shipping agent of a non-resident owner or charterer for carriage shipped at an Indian port, the agent steps into the shoes of his principal, so section 172 applies and sections 194C and 195 do not.
Representations had been received on the scope of sections 172, 194C and 195 in connection with deduction of tax at source from payments to foreign shipping companies or their agents.
SECTION 172 l SHIPPING BUSINESS OF NON-RESIDENTS
913. Tax deduction at source from payment made to foreign shipping companies
1. Representations have been received regarding the scope of sections 172, 194C and 195 of the Income-tax Act, 1961, in connection with tax deduction at source from payments made to the foreign shipping companies or their agents.
2. Section 172 deals with shipping business of non-residents. Section 172(1) provides the mode of the levy and recovery of tax in the case of any ship, belonging to or chartered by a non-resident, which carries passengers, livestock, mail or goods shipped at a port in India. An analysis of the provisions of section 172 would show that these provisions have to be applied to every journey a ship, belonging to or chartered by a non-resident, undertakes from any port in India. Section 172 is a self-contained code for the levy and recovery of the tax, ship-wise, and journeywise, and requires the filing of the return within a maximum time of thirty days from the date of departure of the ship.
3. The provisions of section 172 are to apply, notwithstanding anything contained in other provisions of the Act. Therefore, in such cases, the provisions of sections 194C and 195 relating to tax deduction at source are not applicable. The recovery of tax is to be regulated, for a voyage undertaken from any port in India by a ship under the provisions of section 172.
4. Section 194C deals with work contracts including carriage of goods and passengers by any mode of transport other than railways. This section applies to payments made by a person referred to in clauses (a ) to (j) of sub-section (1) to any "resident" (termed as contractor). It is clear from the section that the area of operation of TDS is confined to payments made to any "resident". On the other hand, section 172 operates in the area of computation of profits from shipping business of non-residents. Thus, there is no overlapping in the areas of operation of these sections.
5. There would, however, be cases where payments are made to shipping agents of non-resident ship-owners or charterers for carriage of passengers etc., shipped at a port in India. Since, the agent acts on behalf of the non-resident ship-owner or charterer, he steps into the shoes of the principal. Accordingly, provisions of section 172 shall apply and those of sections 194C and 195 will not apply.
Circular: No. 723, dated 19-9-1995.
In a section 201 proceeding for not deducting on ocean freight paid to a foreign line or its Indian agent.
Source: the Income Tax Department’s own published text — its page for this instrument.