Saturday, 1 March 2014

~~ An Overview to TDS Provisions ~~

Finaly my article-ship is near about to complete and before going on leave for CA final 2nd group exams my principal appointed me to take seminar on Tax deduction at source [TDS] with rest of my office colleagues. Due to this task i have prepared a worth full content which helps you to take air-look on the important provisions of TDS & its consequences. Have a look at it, Enjoy !! Comments & defaults noticed are most invited.

This is the link of soft copy of below article written by me:
TDS SEMINAR SOFT COPY



                              Summary of TDS Provisions

1). What is TDS?

TDS is not tax it is just a mode of collecting income tax. In Foreign nations it is known as withheld tax.
2). Why TDS started?
First reason is income of the P.Y. is taxable in A.Y. assesse enjoys income one year & second due to shortage of funds during the year with government.

3). When would assessee be treated as “assessee in default”?
If payer does not deduct TDS and payee has not paid tax directly. (Section-201)
4). any remedy?
 First proviso to section 201(1) gives remedy to assessee in default if it had been failed to deduct TDS on sum paid to RESIDENT (Non residents are not covered). Following conditions are to be satisfied by such resident:
a) has furnished return u/s 139
b) has taken such sum in its COI.
c) Has paid the tax dues.
d) Furnishes a certificate from CA in form 26A.
[Above proviso is inserted in light of amendment of Hindustan coca cola judgment according to which burden of proof is on department to proof that deductee has not paid tax, so to shift this burden dept. introduces this proviso]
5). What if deductor does not deposit the amount to Govt.?
As per Section-205 no recovery can be done from the payee to the extent of TDS even if the deductor does not deposit the amount to government.
6). what provisions says?
Deductor has to obtain TAN & deduct TDS at Proper RATE, on proper AMOUNT, in proper TIME. Further as per section 200 TDS should be deposited in proper AMOUNT, at proper TIME, in proper MANNER.

7). Due Dates regarding TDS?
Due date of Deposit: 7th of Next month & in case of March it is 30th April.
Filing of Return: To be filed Quarterly statement on 15th of following month of quarter ended, i.e. for quarter ending 30th June due date would be 15th July. Form 24Q for salaried employee & Form 26Q for non salaried.
8). TDS obligations in hands of payee?
TDS deducted would be deemed to be the income of assessee as per section 198. Further as per section 199 credit of TDS shall be allowed to the payee.
9). who is liable to deduct TDS?
In case of Salary Any person & in other case “any person other than individual or HUF having turnover exceed tax audit limit in immediately preceding P.Y.”


9) CONSEQUENCES OF NON COMPLIANCE WITH TDS PROVISIONS.
1)      As per section 40(a) if TDS is not deducted than such expenditure would be disallows. (Except salary)
a).  Expense would be allowed if tax deposit before the due date of income tax return.
b). Expenses would be allowed in actual year of deposit.
2)      Deductor may be deemed to be “assessee in default” and recovery can be done against him.
3)      Interest: AS per Section 201(1A)
IF TDS NOT deducted: Interest @ 1%p.m. or part from the date when TDS was deductible up to
                                         date till assessee is treated in default
IF TDS deducted, but NOT deposited: Interest @ 1.5%p.m. from the date TDS was deducted.
 [ In case payee file Form 26A than interest would be levied @ 1%p.m to payer up to due date of filing return]      
How is interest to be calculated?
1.       Interest is to be calculated for every month or part of a month comprised in a period,
2.       Any fraction of a month shall be deemed to be a full month
3.       The amount of tax, penalty or other sum in respect of which such interest is to be calculated shall be rounded off to the nearest multiple of one hundred rupees and
4.       For this purpose any fraction of one hundred rupees shall be ignored and the amount so rounded off shall be deemed to be the amount in respect of which the interest is to be calculated.
Example:
Date Of Payment
Date of Deduction
Due Date
Date of Deposit
Delayed Deposit
Delayed Deduction
Months
 Rate
Months
 Rate
05/04/2013
05/04/2013
07/05/2013
09/05/2013
2
1%
-
-
10/04/2013
10/04/2013
07/05/2013
09/05/2013
1
1%
-
-
02/07/2013
04/08/2013
07/09/2013
07/09/2013
-
-
1
1.5%
02/07/2013
04/08/2013
07/09/2013
15/09/2013
2
1.50%
2
1%


4)      Fee u/s 234E: This fees is levied for delayed filing of quarterly statements i.e. Rs.200 per day subject to maximum amount of TDS deductible. Fees should be paid before filing of quarterly statement.                     
5)      Penalty: (No penalty if there is Reasonable Cause)
Section
Default/Failure
Quantum
271C
Failure to deduct TDS
Equal amount of tax deductible but not deducted.
272BB
Failure to apply for TAN No. u/s 203A
Rs.10000
272B
Failure to mention PAN of the deductee in the TDS statements and certificates
Rs. 10000 (As per recent case law this penalty is levied for one return not for per deductee in default return)
221(1)
Failure to deposit whole or part of TDS.
Maximum: Amount of Tax Arrears
271H

Non Filing of TDS Return
Minimum: Rs.10000 Maximum: Rs.100000
No Penalty if following conditions are satisfied:
i) Deductor have deposited TDS along with interest.
ii) Deductor has paid fee u/s 234E
iii) Deductor has filed quarterly statement within 1 year from the due date.
iv) Quarterly statement was to be filed on or after 01.07.2012.
272(A)(g)
Failure to issue TDS certificate u/s 203
Rs. 100 every day during which the failure continues subject to maximum of TDS amount.

6)      Prosecution:
Section
Default/Failure
Quantum
276B
Failure to deposit TDS
Rigorous imprisonment for a term for a minimum of 3 months which may extend to 7 years and with fine.

TDS Rates, Section & there controversial issues.
Ø    Section 192 & 195 are only section in which TDS is not deducted at Flat rate, this are required to be deducted along with S.C./E.cess/SHEC.
Ø  As per Section 206AA if payee does not provide PAN than TDS shall be deducted at Rate specified in relevant section or 20% whichever Higher is.
[In Recent Judgment of A. Kaushalya Bai (2012)(Kar.) this section held invalid to the extent it requires a person whose income is below basic exemption limit to obtain PAN and quote it]
                                            

SECTION-192 SALARY

ü  TDS is to be deducted on any sum chargeable under salaries head @ Average rate of Income Tax.
ü  Following items to be ignore while calculating GTI during calculating TDS:
a). Estimated loss from any source except “House Property”.
b). If net effect of any other income and its TDS reduces TDS u/s 192 than such TDS & income shall be ignored.
ü  All the deductions of Chapter VIA would be allowed subject to evidences submitted by employee to employer.
ü  In this section TDS is deducted at the time of Payment. (not on due basis)
ü  It is at the option of employer to deduct TDS on non monetary perquisites.
ü  In case of Simultaneous employment selected employer will have to consider such details and deduct TDS.
ü  In case of Change of Employment present employer will have to consider such details and deduct TDS.
Issue 1: In case firm pays salary to partner section 192 is not attracted as it is taxable under B/p Head.
Issue 2: Employer is not required to collect evidence regarding declarations filed by employees. (CIT vs L&T(2009)(SC)


Section-194A Interest

                                                                                       
Nature of Payment
Any Interest (defined u/s 2(28A)
Deductee
Any Resident
Rate
10%
Time
Payment or Credit Whichever earlier           
Limit
Rs.10000 Where payer is Bank
Rs.5000 other Payers









Issue 1: Bill Discounting charges is not interest u/s 2(28A) [SHL]. (CIT vs Cargil global trading co. (2012) 
Issue 2: If Firm pays interest to partner than no TDS would be deducted.
Issue 3: Exemption limit of Rs.10000 is Branch Wise. (Bank audit)
Issue 4: In case of Banking Co. if TDS is not deducted for time deposits where interest does not exceed Rs.10000 in a FY payer have to file quarterly statement of them.(Bank audit)
Issue 5: In case of time deposit are in joint name, TDS of higher interest income payee would be deducted.(Bank Audit)

Section-194C Payment to Contractor
Nature of Payment
Any payment for “carrying out any work”.
Deductee
Any Resident
Rate
Payee is Individual/HUF: 1% of such Sum
Others: 2% of such sum
Time
Payment or Credit Whichever earlier
Limit
If single payment to a person Rs. 30000
If aggregate of payment to such person Rs.75000.










Remark:  There is no need to deduct TDS up to the amount of Rs.30000. No TDS to be deduct of Transporters on furnishing of PAN.
Issue 1: Supply of Labour is also covered under this section. (SHL)
Issue 2:
Composite contracts which involve sale of goods and element of service than it would also fall under this section.
Issue 3: Mobilization advance if it would be adjusted against the upcoming bill than TDS is to be deducted but if it would not get adjust & money would be return to the contractee than no TDS is to be deducted.
Issue 4:
No liability to deduct TDS on payment to transporter if they furnish PAN.
Issue 5:
No TDS on Repairs & maint. Unless separate labour portion is showed in Bill.
Issue 6:
In most of the time vehicles are hired with driver and control of the vehicle remain with the owner of the vehicle through driver so whenever the control of vehicle remains with the owner of the vehicle then it generally means that vehicle is specific job and not hired as such ,so deduction should be under 194C. Similarly in case of Staff Transportation Vehicle is booked for specific purpose and has not been hired. [Circular : No. 558, dated 28-3-1990.]
Issue 7: contracts for rendering of professional services by lawyers, physicians, surgeons, engineers, accountants, architects, consultants, etc., could not be regarded as contracts ‘for carrying out any work" and, accordingly, no deduction of income-tax need to be made from payments  relating to such contracts. [circular No 86 dated 29.5.72 ]
Issue 8: The carriage of documents, letters etc., is in the nature of carriage of goods and, therefore, provisions of section 194C would be attracted in respect of payments made to the couriers.[SHL]
Issue 9: Whether payment to a recruitment agency can be covered by section 194C?
Provisions of 194C apply to a contract for carrying out any work including supply of labour for carrying out any work. Payments to recruitment agency are in the nature of payments for services rendered accordingly provisions of 194J applies instead of 194C.[SHL]
Issue 10: Annual Maintenance Contracts- Routine normal maintenance contracts which include supply of spares will be covered under section 194C. However, where technical services are rendered the provision of 194J will apply.
Issue 11: Deputation of Employees is not liable for TDS. [Bhagyangar Gas Ltd. 90Hyderabad ITAT]
Controversial aspect:  1). As per definition of “work” given in explanation to section 194C it is clearly written that “It INCLUDE manufacturing or supplying a product according to the requirement or specification of a customer by using material purchased from such customer,  but does  NOT INCLUDE manufacturing or supplying a product according to the requirement or specification of a customer by using material purchased from a person, other than person” so if assessee appoints a contractee to make furniture for his office by using the material by contractee himself Eg: A ltd. does a contract with carpenter to made 5 Chairs and 2 table for office at Rs.2lakhs with condition that material & labour whole would be bear by carpenter himself, so weather TDS would be deductible or not?  In case of Construction contracts also than we would not required to deduct TDS?
2). whether services provided by a hotelier would fall within the scope of deduction under this section. For an example if one of the company books the 30 Rooms of hotel for delegates visiting for sales promotion at company?
3). If assessee files the TDS return without mentioning the PAN of transporter, later on during audit mistake is discovered now assessee revised and filed details with correction return, now what are the reporting requirements in given case?
 
Section-194H Commission/Brokerage

Nature of Payment
Commission/Brokerage
Deductee
Any Resident
Rate
10%
Time
Payment or Credit Whichever earlier
Limit
Rs.5000






Issue 1: CIT vs Ahmedabad stamp vendors Ass[2012][SC]- Stamp vendors take the stamps from court at lower value and give it to assessee at the value engraved in the stamp, margin amount is not their commission, but was a discount given to them by court; no tds liability.
Issue 2:   1). Most of the assessee book there tickets from Agent weather in such case TDS would be deducted or not? If yes than in 194C or194H?
Para 6 of CBDT circular dated 8.8.1995 read as: The payments made to a travel agent or an airline for purchase of a ticket for travel would not be subjected to tax deduction at source as the privity of the contract is between the individual passenger and the airline/travel agent, notwithstanding the fact that the payment is made by an entity mentioned in section 194C(1). The provision of section 194C shall, however, apply when a plane or a bus or any other mode of transport is chartered by one of the entities mentioned in section 194C of the Act. As regards payments made to clearing and forwarding agent for carriage of goods, the same shall be subjected to tax deduction at source under section 194C of the Act.

Section-194I Rent

Nature of Payment
Rent
Deductee
Any Resident
Rate
Rent of Plant & Machinery: 2%
Other Assets: 10%
Time
Payment or Credit Whichever earlier
Limit
Rs.180000 in a F.Y. to a person







Remarks: 1). Limit is Rs.1.80 Lakhs aggregate of rents to a person. For Eg: Rent on Building is Rs. 100000 & Rent of Plant is Rs.80000 than TDS should be deducted.
2). Ownership is not necessary condition.

Issue-1: In case of Joint Owners Rs.1.8 lakhs limit operate separately.
Issue-2:
TDS shall be deducted on “non refundable deposit” & “deposits adjustable against future rent”, however TDS shall not be deducted on refundable deposits, which cannot be adjusted against future rents.
Issue-3: No TDS is to be deducted on hoarding Display over premises.

Section-194J Professional or Technical Services

Nature of Payment
Fees for Professional Services
Royalty
Fees for technical services
Non Compete Fees u/s 28(va)
Remuneration/Fees/Commission to director
Deductee
Any Resident
Rate
10%
Time
Payment or Credit Whichever earlier
Limit
Rs.30000 (limit is separately for each type of payment as opposite of 194I)













Remark: 1). If director is not in employment, section 194J will apply.
 2). In case of Remuneration/Fees etc to director there is no threshold limit of Rs.30000, even single Rs. Payment would attract TDS.

Issue 1:
Transaction Fees to stock exchange covered under 194J for using BOLT software. [SHL]
Controversial aspect: 1). TDS on Leased Line Expenses.

Section-195 Payment to Non Residents

Nature of Payment
Interest
any other sum chargeable under this Act {Except Salary}
Deductee
Foreign Company or Non-resident
Rate
At Rates in force by Finance Act
Time
Payment or Credit Whichever earlier









Section-194LA Purchase of immovable property
Nature of Payment
Transfer of immovable property (other than rural agriculture land)
Deductee
Any
Rate
1%
Time
Payment
Limit
Rs.50 lakhs








Recent Circulars & Case laws:
1).
No TDS on Service Tax amount previously it was on only Rent[194I] [Circular no. 1/2014]
2). In case of many assessee Fees under 234E is levied and notices are issue by income tax department, however as per case discussed it has been held that it is constitutionally invalid on basis of following reasons:
a). Provisions of Sec. 234E has been made applicable w.e.f. 1st July, 2012. It states that “ Amount of late fee shall be paid before delivering a TDS statement”, It means that any late fee should have been deposited just at the time of delivering TDS statement and not later than this. The authorized TIN- NSDL  centre which accepted the TDS statement also accepted these without late fee, as well as the software utility of the TDS department itself accepted these without late fee. Once the TDS statement has been accepted without late fee, then such late fee cannot be recovered later on.
     b). section 204 specifically says that “for the purposes of Sec. 190 to Sec. 203 and for Sec. 285 of the act the following persons would be responsible” , so it is clear that for the purpose of Sec. 234E none of the person has been made responsible, therefore if any late fee is due and not deposited alongwith the tds statement none can be held responsible to deposit it. law has not made any person responsible, to deposit late fee, in case of default in depositing late fee alongwith tds statement.
3). In one of the case law Merylien Shipping it was held that word used in section 40(a)(ia) is “Payable” instead of “paid” hence if TDS not deducted on assessee than only expense upto the outstanding balance as on that would be disallowed, now this judgment has been reversed by recent circular no. 10/2013 . The CBDT has expressed the view that the disallowance u/s 40(a)(ia) would apply even to the amounts that have already been paid during the year.


Audit Point of View:
a). Check the list of transporters and there PAN.
b). Invoice Date & Date of Entry in books to be checked it can create liability for late deduction of TDS because law says TDS is to be deduct on Credit or Payment whichever is earlier.
c). Make List of Following items for 3CD reporting:
    i) TDS Late deducted.
   ii) TDS Short deducted.
  iii) TDS not deducted.

d). While auditing the Bills see PAN no. of party and judge the category of person by seeing the letter of PAN that weather it is individual or firm.
e). Whole Ledger Scrutiny to be done of ledger to check late deduction/short deduction.
f).  If at any time debit balance goes in ledger of party than liability to deduct would arises.

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