Hi Ajay,
Unfortunately, there isn't any circular or case law on this (not asfar as I know). First let's understand what this L/C business isabout. When a bank opens a Letter of Credit for a customer, what thebank does is give a guarantee to the third party regarding thecreditworthiness of the buyer. The bank would normally insist on asecurity deposit of an appropriate amount before it issues the L/C.The L/C is usually irrevocable (a revocable one won't be acceptableto the supplier). If the customer fails to keep up his paymentcommitments, the L/C will devolve on the bank, which will then stepin and meet the liability utilizing the L/C margin money.Banks being large institutions are in the business of issuing L/Csbecause of their established creditworthiness. When a buyer has anL/C, the bank's credit substitutes his own credit. With anirrevocable L/C on his table, the seller can ship out the goodswithout bothering about the realization of payment.Now the question is: Can the charges paid to the bank for this L/Copening service rendered by it amount to Commission or Brokerage asdefined in Explanation below Section 194H?In my opinion, the answer is No. I don't think in issuing an L/C thebank is "acting on behalf of another person" in the same manner asit's been envisaged in Section 194H. It merely stands as a guarantorfor the buyer's monetary commitments. One may argue that a principal-agent relationship does exist between the bank and the customer,because in the event of the customer's failure to keep up hispromise, doesn't the bank, like an agent, step into the shoes of itsprincipal, the customer, and clear the supplier's dues?It is to be noted that it is more the superior reputation of thebank that earns it the "commission" on L/C opening, performance orfinancial guarantees and other such services it offers than anyreal "service" rendered by it. The bank does not stand to loseanything; it's already got sufficient margin with it to clear whatthe customer owes the supplier. So I don't think a principal-agentrelationship as seems to have been spoken about in the Explanationto Section 194H prevails here.Wherever we see the nomenclature "Commission or Brokerage" our earsprick up; we can hear Section 194H yelling at us begging to becomplied with. But "Commission or Brokerage" as mentioned in Section194H does not cover every kind of commission or brokerage under thesun. When an institution lets you make use of its superiorreputation in return for a fee, that institution is not in the sameleague as a commission agent or a broker who gets you orders orhelps you sell an item of real estate or something like that.Thanks,CA Sanjeev Bedi--- In http://finance.groups.yahoo.com/group/ICAI_CIRC_MEERUT_CA/post?postID=NHkIiV-CydVs-V1v1YMOtB54bvhPwCskMwfZKl5wwIcJeTXYxYqEysghiv0K3Rfvu_1JoNc3VAzTSpaYNQ-NqSKZkiwdF0q_O37seg, ajay rajput wrote:>> Thanks Deepak Ji,>> You are supporting the view, but wheather it can be supported byany Circular or Case laws available since i could not come acrosswith the same...!!>> As per circular no.715>> In respect of payment of commission to external parties forprocuring orders for the company's products, rendering of suchservices is not covered under section 194C, but may involve paymentof fees for professional or technical services, in which case taxmay be deductible under section 194J.>>> So i think if the bank is availing services of external partiesthan it would be covered under section 194J...but in case bank ischarging the same for its own account than no TDS may be warranted...>> plz Confirm me..!!!>>> Deepak Gadgil wrote:> Dear Mr Rajput>> In my opinion implications of 194H will not come into picturehere as the primary relationsip between the bank & the personopening an LC will always be that of a Service Provider & a Customer.>> As has been rightly pointed out by u the essence of Principal nBroker relationship is missing here.>> Agreed that the bank terms the charges earned by it as comissionor brokerage in many cases but since this principal agent relationship is missing in this transaction, I dont think it will getcovered u/s 194H.>> As a counter poser may I ask whether the loan processing chargespaid will get covered u/s 194J?>> Regards>> CA Deepak GAdgil> Solapur, Maharashtra>> ajay rajput wrote:> Dear Sir (s),>> Please let me know :>> Wheather under section 194 H of IT Act TDS is to be deductedon the LC opening charges being levied by a Bank. I would like toadd that as per the explanation given below of the said section.>> As per the explanation given in the section 194H, commissionand brokerage means "> commission or brokerage includes any payment received orreceivable, directly or indirectly, by a person acting on behalf ofanother person for services rendered (not being professionalservices) or for any services in the course of buying or selling ofgoods or in relation to any transaction relating to any asset,valuable article or thing, not being securities;" I understand thatit means if a person offering services as acting on behalf of otherperson will comes under the purview of 194H, it is also clear thatfor the provision of this section require principal, agent andcustomer relationship in entire transaction.>> wheather the bank can be treated acting as principal or agnetfor customer on who's behalf they are issuing bank guarantee orletter of credit and whatever name called.>> wheater they are charging customer against the services offeredby us. And nature of Charges is "FEE">>> wheather customer should not deduct the TDS on the fee ofservices offered.>> I would request for your kind advise/action on the aboveclarifications on section 194 H of IT act.>
Thank you,>>>
With Regards>>
CA AJAY RAJPUT
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