tds & section 40(a)(ia) provisions income tax act, 1961 ca. manish shah shah & bhandari...

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TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

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Page 1: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

TDS & Section 40(a)(ia) provisions

Income Tax Act, 1961

CA. Manish ShahShah & Bhandari

Chartered Accountants

Page 2: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Index

Nature of Payment

Section 192 to 196D

Other Provisions relating to TDS/TCS

Other Amendments

Intimation - Section 200A

Failure to Deduct / Pay- Section 201

CA. Manish Shah

Page 3: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Index

Interest - Section 201(1A)

Penalty – Section 221

Late Fees - Section 234E

Penalty - Section 271H

Provisions of Section 40(a)(ia)

Section 40(a)(ia)-Issues & Amendments

CA. Manish Shah

Page 4: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Nature of Payment

SectionSection Nature of PaymentNature of Payment

192192 SalariesSalaries

193193 Interest on SecuritiesInterest on Securities

194194 DividendDividend

194A194A Interest other than Interest on Securities Interest other than Interest on Securities

194B194B Lottery / Crossword PuzzleLottery / Crossword Puzzle

194BB194BB Winning From Horse RaceWinning From Horse Race

194C(1)194C(1) Payments to Contractors etc.Payments to Contractors etc.

194D194D Insurance CommissionInsurance Commission

194E194E Payments to Non Resident Sportsmen etc.Payments to Non Resident Sportsmen etc.

194EE194EE Payment from NSS etc.Payment from NSS etc.CA. Manish Shah

Page 5: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

SectionSection Nature of PaymentNature of Payment

194F194F Payment from UnitsPayment from Units

194G194G Commission on Lottery Commission on Lottery

194H194H Commission or BrokerageCommission or Brokerage

194I194I RentRent

194J194J Fees for Professional or Technical ServiceFees for Professional or Technical Service

194LA194LA Payment of CompensationPayment of Compensation

194LB 194LB Interest on Infrastructure Debt FundInterest on Infrastructure Debt Fund

194LC194LC Payment of Interest on Infrastructure BondPayment of Interest on Infrastructure Bond

195195 Payments to NRIPayments to NRI

CA. Manish Shah

Contd…

Page 6: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

SectionSection Nature of PaymentNature of Payment

196B196B Income from UnitsIncome from Units

196C 196C Income from Foreign Currency Bond/ShareIncome from Foreign Currency Bond/Share

196D196D Income of FII from SecuritiesIncome of FII from Securities

Contd…

CA. Manish Shah

Page 7: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Salary [Sec.192]

Nature of Payment :Salary to Any PersonExemption Limit :

•` 5,00,000/- Senior Citizen (80+)•` 2,50,000/- Senior Citizen (60-80 Years)•` 2,00,000/ - Any Other Employee

Deduction U/s 16, 80C, 80CCC, 80CCD, 80CCE, 80D, 80DD, 80E, 80G,80GG & Loss under head “House Property”.

Page 8: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd…

Employer is having option not to deduct tax on non-monetary perquisites provided to employee and instead pay tax himself.

Rate of Deduction :As applicable to Individual - Sch-1, Part III of Finance Act,2012 and E. Cess @ 2%, SHE Cess@ 1%.

Page 9: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

Tips recd. by employer and paid to employees is salary income liable for TDS

• ITC Ltd. 338 ITR 598

Unequal deduction of Tax. No interest U/s 201(1A).

• Enron Expat Services 327 ITR 626

CA. Manish Shah

Page 10: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Interest on Securities [Sec.193 ]

Rate of Deduction :

a. Companies : 10%

b. Firms, Co-op. Society : 10%

c. Individual/HUF/AOP/BOI : 10% No threshold limit for non deduction

except specified cases

Page 11: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd…

No Tax to be Deducted : Up to ` 2,500/- on Debentures of widely

held Co. to Individual. (` 5,000/- Wef 01/07/2012 also for HUF, provided payment by A/c Payee Cheque)

Up to ` 10,000/- on 8% RBI Taxable Bonds

Page 12: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd…

Any Security of State/ Central Govt.

Interest Payable to LIC, GIC & other Insurer.

Listed Securities by Cos.

Page 13: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Dividends [Sec.194]

Rate of Deduction : 10%

Exemption Limit : ` 2500/-

No TDS on 115-O Dividend

Page 14: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Interest other than Interest on Securities [Sec.194A ]

Rate of Deduction : Companies, Firms : 10% Individual/HUF/AOP/BOI : 10%

Page 15: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd…

No Tax to be Deducted: Up to ` 10,000/- when payer is a Banking

Co., Co-Op. Soc. (Banking Business), Post Office under notified scheme, Senior Citizen Scheme.

Up to ` 5,000/- in any other case. Listed Securities. Limit qua Branch in Case of Bank & Housing

Finance Cos.

Page 16: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd…

Paid by a firm to its Partners. Paid by Co-op. Society to its Members, Other

Co-op. Society. Paid by Central Govt. under provisions of

Direct Taxes. Paid to Banking Cos., Financial Corp, LIC etc. Interest on compensation awarded under Motor

Vehicles Act up to ` 50,000/-. Zero Coupon Bonds by Infra. Co./Fund. Certain Individual & HUF.

Page 17: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

EMI Loan from Finance Co. • SRL Ranbaxy Ltd. 143 TTJ 265

In case of Motor Vehicle Compensation – Limit Qua Claimant

• National Insurance 238 CTR 201

In case of Motor Vehicle Compensation – Limit per year to be considered

• United India Insurance 56 TDR 407

CA. Manish Shah

Contd…

Page 18: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

Interest given as damages – S. 194A not applicable

• HP Housing Board 340 ITR 388

CA. Manish Shah

Page 19: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Winnings of Lottery/Crossword Puzzles [ Sec.194B]

Includes winnings from – lotteries/ crossword/ puzzles/ card games/ or any other game.

Exemption Limit – ` 10,000/- In case of Cash prize & prize in kind – Tax to

be deducted with reference to aggregate prize. No TDS– in case of bonus or commission

paid to agents or sellers of lottery tickets

Page 20: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd...

Rate of Deduction :Domestic Cos./Firms/Co-op. Soc. : 30%Non Domestic Cos. : 40%

Individual/HUF/AOP/BOI : 30%

Lower Deduction U/s 197 - Not Permissible

Page 21: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Winnings from Horse Races [ Sec. 194BB ]

Exemption Limit : ` 5,000/-

Obligation to deduct TDS applies only where such winnings are paid to a bookmaker or person to whom license has been granted by Govt. under any law for time being in force.

Page 22: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd..

Rate of Deduction :Domestic Cos./Firms/Co-op. Soc. : 30%Non Domestic Cos. : 40%

Individual/HUF/AOP/BOI : 30%

Lower Deduction U/s 197 - Not Permissible

Page 23: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Payment to Contractors [Sec.194C ]

Contractor includes sub-contractor carrying out any Work (including supply of Labour with or without Materials) & Work includes:

Advertising, Broadcasting & Telecasting incl. production of programmes.

Carriage of goods & passengers by mode of transport other than by railway

CateringManufacturing or Supply of Product by using

material purchased from customer

Page 24: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd...

Contractee includes• Town Development Authority• Specified Individual & HUF

Now no bifurcation between payment to Contractor/ Sub Contractor

Not applicable to Manufacturing Contract:• No TDS on value of material if stated in

invoice

Page 25: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd…

Exemption/Limit :` 30,000/- per credit/payment & ` 75,000/-

in aggregate.Payment to Contractor by Individual & HUF

for personal purpose.Payment to Transporter in case of PAN.

Reimbursement of Actual Expenses- Liable to TDS : (Ref. Circular No.715 dtd.08.08.95).

Page 26: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd..

Rate of Deduction : Contractor:

a. Individual, HUF : 1 % b. Others : 2 % Transport Contractor:

a. If PAN is Quoted : Nil b. If no PAN is Quoted : 20%

Page 27: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

References:

CA. Manish Shah

Circular No. Circular Date

86 29/05/1972

93 26/09/1972

558 28/05/1990

681 08/03/1994

714 03/08/1995

715 08/08/1995

723 19/09/1995

13 31/03/2006

Page 28: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd..

CA. Manish Shah

ACC Ltd. 201 ITR 435 SC

Hindustan Coca Cola Beverage 293 ITR 226 SC & Circular No. 275/201/95-IT(b) dated 29/01/1997]

Birla Cement Works Ltd. 248 ITR 216 SC

Page 29: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contract of work vis-à-vis Contract for Sale:• If dominant object is to transfer goods, it

would be contract of sale.• If dominant object is to carry out work, it

would be contract of work • E.g.: • 1.Office Renovation - Contract of work• 2.Uniform of Employees- Contract of

Sale

Contd..

CA. Manish Shah

Page 30: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Transport Contract:The exemption is very wide and it covers that any payment made to contract during course of business of plying, hiring , leasing of good carriage [goods carriage as per Explanation to S. 44AE(7)]

Contd..

CA. Manish Shah

Page 31: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Payment to Couriers -194C Payment to Restaurant, FD Agent – Not 194C Payment to Recruitment Agency – 194 J not

194C

(Ref. Circular No.715 dated 8/8/95) Supply of Printed Material (Ref. Circular No.715 dated 8/8/95- But refer decisions)

Contd..

CA. Manish Shah

Page 32: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Hiring of vehicle for Transportation of employees - S. 194C applicable.

• Accenture Services P. Ltd. 44 SOT 290

Act of commission agent or broker would be outside the purview of S. 194C

• SRF Finance Ltd. 211 ITR 861

Franchise agreement- Sharing of profit. • Career Launcher 139 TTJ 48

Contd..

CA. Manish Shah

Page 33: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Various Services provided by hotel does not involve ‘carrying out any work’- outside the purview of S. 194C

• East India Hotels 320 ITR 526

In case of cable operator, it is not broadcasting but it is telecasting.- S. 194C is applicable.

• Kurukshetra Darpans Pvt. Ltd. 169 Taxman 344

Contd..

CA. Manish Shah

Page 34: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

If property passes to customer on delivery & material is not purchased from customer. Sec. 194C not applicable

• Glenmark Pharmaceuticals Ltd. 324 ITR 199

Labour payment through representative. Payment not exceeding ` 20,000/-. No TDS

• Lakshmi Protein 3 ITR (Trib.) 768

Contd..

CA. Manish Shah

Page 35: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Supply of corrugated boxes with labels• Dabur India Ltd. 283 ITR 197

Sale of Packing material. • Seagram Mfg. Pvt. Ltd. 221 CTR 509• Mother Dairy 40 SOT 9

Manufacturing agreements • Reebok India 306 ITR 124

Contd..

CA. Manish Shah

Page 36: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

Purchase of printed material• Markfed 304 ITR 17

Transportation of material, hiring of dumper- S. 194C applicable. Not S. 194I

• Shree Mahalakshmi Transport Co. 339 ITR 484 • Swayam Shipping Services P. Ltd. 339 ITR 647

Car hiring falls u/s 194C. Not S. 194I• AUDA 13 ITR 73 (Trib).

CA. Manish Shah

Page 37: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Combined transportation contract using truck of firm & partners. Payment by firm to partners.-S. 194C not applicable.

• Grewal Bros. 240 CTR 325

With sale of material, transport charges separately collected. – S. 194C Not applicable.

• Chand Hing Tannery 42 BCAJ March P. 32

Contd..

CA. Manish Shah

Page 38: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

Transporter- Accounts not auditable U/s 44AB – Payment made to him not liable U/s 194C

• Dhirubhai Dajibhai Patel 133 TTJ 1

Making of diaries and catalogues from own materials. S. 194C not applicable.

• Eastern Medikit 135 ITD 461

CA. Manish Shah

Page 39: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Insurance Commission [ Sec.194D ]

Tax to be deducted on payment whether by way of commission or otherwise for procuring Insurance Business including business relating :a. continuanceb. renewal or revival of policies.

Exemption Limit - ` 20,000/- p.a.

Page 40: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd…

Rate of deduction:

For Companies : 10%For Firms, Co-op Soc. : 10%For Individuals/HUF/AOP/BOI : 10%

Page 41: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Non- Resident Sportsmen or Association [ Se.194E ]

Tax to be deducted on payment to a non-resident foreign citizen sportsman (including athlete) & entertainer (Wef 01/07/2012) or non-resident sports association

No threshold limit. Rate of Deduction : 10% (Wef 01/07/2012 -

20%) Lower Deduction U/s 197 - Not Permissible

Page 42: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

Payment to Referee, Umpires is not a payment to sportsman

• Indicom 335 ITR 485

CA. Manish Shah

Page 43: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

National Savings Scheme [Sec.194EE ]

Tax to be deducted on payment referred to in Sec.80CCA(2)(a)

Exemption Limit: ` 2500/- No tax to be deducted if payment made to

the heirs of the deceased assessee i.e.. original depositor

Rate of Deduction : 20% Lower Deduction U/s 197 - Not

Permissible

Page 44: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Repurchase of Units [Sec. 194F]

Tax to be deducted on payment referred to in Sec.80CCB(2)

No threshold limit.Rate of Deduction :

Resident – 20%

Non Resident – 20%Lower Deduction U/s 197 - Not Permissible

Page 45: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Commission on Sale of Lottery Ticket [Sec.194G]

Payment for commission, remuneration or prize on lottery ticket.

Exemption Limit: ` 1,000/-

Rate of Deduction : 10%

Page 46: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

Purchase of lottery ticket at a discount. Sec. 194G not applicable

• M. S. Hameed 249 ITR 186

CA. Manish Shah

Page 47: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Commission or Brokerage [ Sec. 194H ]

Commission or Brokerage includes income earned for services rendered in course of buying/selling of goods or assets, valuable article or thing, not being securities.

Commission or Brokerage does not include any income earned while rendering professional services, insurance service.

Exemption Limit - ` 5,000/- p.a.

Page 48: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd…

No deduction for commission or brokerage payable by BSNL & MTNL to their PCO franchises .(Instruction No. 3/2009)

Rate of deduction:

a.Co, Firms, Co-op Soc. : 10%

b.Individual/HUF/AOP/BOI : 10%

Page 49: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

Airline agent- Difference between ticket price is not Brokerage/ Commission.

• Qatar Airways 332 ITR 253 • ITL Tours & Travels 44 SOT 277

Sim card- prepaid/ recharge coupon - Commission - S. 194H applicable.

• Bharti Cellular 244 CTR 185• Vodafone Essar 141 TTJ 461

CA. Manish Shah

Page 50: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Roaming charges paid by mobile Co. to another mobile Co. - Not commission. S. 194H not applicable.

• Vodafone Essar 9 ITR 182 (Trib).

Incentive and discount to distributor – S. 194H not applicable.

• Jai Drinks 242 CTR 505

Contd…

CA. Manish Shah

Page 51: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

Commission to Stamp Vendors – Discount on sales. Sec. 194H not applicable.

• Ahmedabad Stamp Vendor Asso. 257 ITR 202

Agreement between DD and Advt. agent – Sec. 194H applicable.

• Prasad Bharati Doordarshan 189 Taxman 315

CA. Manish Shah

Page 52: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

Medical Collection Centre-Not Commission - S. 194H not applicable.

• SRL Ranbaxy Ltd. 143 TTJ 265.In this case, it was observed that hospital was not making payment to collection center but collection centers were making payment after deducting their margin.

Bank guarantee commission – S. 194H not applicable.

• Kotak Securities Ltd. 50 SOT 158CA. Manish Shah

Page 53: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Rent [ Sec. 194I ]

Rent includes: Payment made under lease/sub-lease/ tenancy

or any other agreement/ arrangement for use separately or together of :

• Land, Building (incl. Factory building) land appurtenant thereto with Furniture & Fittings,

• Plant & Machinery, Equipment All or Any assets may not be owned by Payee.

Page 54: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd…

Exemption/limit• If payment does not exceed ` 1,80,000/- p.a. • No TDS on Municipal Taxes, Ground Rent

Rate of deduction: Plant, Machinery, Equipment : 2% Land, Building, Furniture : 10%

Page 55: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd…

Limit is per owner in case of joint owners with definite shares.

Applicable, if Hotel accommodation is taken on regular basis. (Ref. Circular No. 715)

On Interest bearing Deposits – Sec.194 A is applicable. (Ref. Circular No. 715)

Film exhibition – Not Rent (Ref. Circular No. 736) Cold Storage Charges- S. 194C is applicable. Not

Sec. 194I (Ref. Circular No. 1/2008) Rent doesn't include Service Tax -‘Rent Income’ (Ref. Circular No. 4/2008)

Page 56: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

Payment to Electricity Board-Transmission of electricity & not for use of wires etc. S. 194I not applicable

• Chhatisgarh State Electricity Board 143 TTJ 151

CA. Manish Shah

Page 57: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Fees for Professional or Technical Services [ Sec. 194J ]

Fees for Professional Services: Legal/ Medical/ Engineering/ Architectural/Accountancy/ Technical/ Interior Decoration/Advertising (i.e.. Models, Artists, Photographers etc.) & any notified profession

Fees for Technical Services - Sec.9(1)(vii)–Expl-2 Remuneration, Fees, Commission to Directors

(other than S.192 Wef 01/07/2012) Royalty - Sec.9(1)(vi)–Expl-2 Non Compete Fees

Page 58: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd…

Exemption Limit : ` 30,000/- (except payment to Director)

Rate of Deduction – 10%

No T.D.S on payment of professional fees for personal purposes by Individual & H.U.F.

TDS to be deducted under one section only i.e.. 194C /194J.

Page 59: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd…

Payments made to :• Hospital for medical service, • Share Registrar, • Commission of Advertisement Agency• Event Manager, Anchors • Sportspersons, Umpires, Coaches, Trainers,

Commentators, Columnists, Physiotherapists, etc.

Page 60: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd…

Reimbursement of Actual Expenses & Service Tax to be included- as 'Any Sum Paid’: (Ref. Circular No.715 & Letter No. F275/73/2007)

No TDS on acquisition of software, where software is acquired in subsequent transfer without modification & tax has been deducted U/194 J or U/s 195 for any previous transfer & certificate is obtained from transferor with PAN (Ref. Notification 21/02012 dated 13/06/2012)

Page 61: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

Transaction Charges of Stock Exchange- Fees for technical services. S. 194J

applicable. • Kotak Securities Ltd. 340 ITR 333

In this case, the court observed that since no claim was made by department in earlier year, no liability arises.

CA. Manish Shah

Page 62: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

Lease line charges- not fees for technical services. S. 194J not applicable.

• Omniscint Securities 15 ITR (Trib.) 82• Angel Broking 3 ITR (Trib.) 294

Payment by TPA to hospitals. S.194J applicable.• Dedicated Healthcare Services 324 ITR 345

(Circular No. 8/2009)

• Vipul Medcorp 202 Taxman 463

CA. Manish Shah

Page 63: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Compensation for Compulsory Acquisition Property [Sec.194LA]

Payment made as Compensation, enhanced compensation, consideration, enhanced consideration on account of compulsory acquisition of any immovable property.

Immovable property does not include Agricultural Land [as per Section 2 (14)].

Page 64: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

Exemption Limit : ` 1,00,000/-

(Wef 01/07/2012 - ` 2,00,000/-)

Rate of Deduction : 10%

No need to prove that land is used for agriculture-

• Special Land Acquisition Officer 46 SOT 458

CA. Manish Shah

Page 65: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Interest by Infra. Debt Fund [Sec.194LB]

Interest to Non Resident & Foreign Co. by Infrastructure Debt Fund as per Section 10(47)

Rate of Deduction : 5%

No threshold Limit

Page 66: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Interest from Indian Cos. [Sec.194LC]

Interest payable to Non Resident & Foreign Co. by Indian Co. for money borrowed 01/07/2012 - 01/07/2015 in foreign currency under loan agreement or Long Term Infra. Bonds

Rate of Deduction : 5%

No threshold Limit

Page 67: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Payment to Non-Residents [Sec.195]

Applicable to Interest and any other payment other than Salary to Non Resident & Foreign Co.

Rate of Deduction : As per D.T.A.A or As per Sch.1, Part II of Finance Act, 2007Whichever is beneficial to the assessee However in case of No PAN @ 20%

Page 68: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

For Lower or Nil TDS - Payee to apply in F.13/15C/15D to A.O. for Certificate in F.15E

Payer may also apply to A.O. to determine income in payment for lower TDS

CA. Manish Shah

Page 69: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Income from Units [196B]

Applicable to Long Term Capital Gain of Offshore Fund.

Units referred to Section 115AB

Rate of Deduction – 10%

Page 70: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Income from FC Bonds [196C]

Applicable to Foreign Currency Bonds & GDR of Indian Companies.

Bonds & GDR referred to Section 115AC

Rate of Deduction – 10%

Page 71: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Income of FII [196 D]

Applicable to Income of FII from Securities not being Dividend, LT & ST Gain.

Securities referred in Section 115AD

Rate of Deduction– 20%

Page 72: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

TDS @ 20 % if the deductee does not provide PAN to deductor.

No Surcharge No Cess to be deducted /collected in case of all assessee  other than NR & Non Domestic Cos. on all income other than salary.

Non Domestic Company surcharge @ 2.5% if income or the

aggregate of such income paid or likely to be paid exceeds ` 1 Crore.

Education Cess @ 2% + SHE Cess @ 1% is deductible at source

in case of Non-Residents and Foreign Cos.

TDS Provisions u/s. 194A, 194C, 194H, 194I & 194J are applicable to Individuals & HUF’s only if they were liable to tax audit in the immediately preceding A.Y

General Points:

CA. Manish Shah

Page 73: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

TDS & TCS Returns

Payment to Resident:

Salary Form 24 Q 15th July, 15th Oct., 15th Jan., 15th May

Other Payments

Form 26 Q 15th July, 15th Oct., 15th Jan., 15th May

TCS Form 27EQ 15th July, 15th Oct., 15th Jan., 15th May

Page 74: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd…

Payment to Non Resident:

All Sections Form 27 Q 15th July, 15th Oct., 15th Jan., 15th May

Page 75: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

TDS, TCS Certificates

Time limit for TDS / TCS Certificates:

Form 16 31st May

Form 16A 30th July, 30th Oct., 30th Jan., 31st May

Form 27D 30th July, 30th Oct., 30th Jan., 31st May

Page 76: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Time Limit for Payment

Deduction of TDS :• Salaries : At the time of Payment• Other Payment : Paid or credited, whichever is earlier Payment Of TDS :• Salaries : Within 1 week from the last day of the month.• Other Payments (except 194B/194BB/194EE/194F):

a. If amount is credited to a/c of the payee in March – By 30th April b. In any other case – within 7 days of end of month in which

deduction is made.

Page 77: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Procedure for Nil/Lower TDS

Interest & Withdrawal from NSS : Individuals other than a Co. or Firm to file F.15H (Senior Citizens) / F.15G-Others

Application U/s. 197/206 C in F.13 to TDS ITO & obtain Certificate. Now these certificates are issued online through ITD System.

Page 78: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Other Amendments

From 01/09/2011, Bank can correct PAN, Year, Section, Type of Payment if requested within 7 days of payment.

New rule for refund of excess TDS.

Wef 01/04/2012 now amount of expenditure on which no TDS has been deducted is to be given.

Page 79: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd…

Wef 01/04/2012, all deductors to issue Form 16A through TIN System with manual or digital sign.

In Form 15G, 15H and all lower TDS application, quoting PAN is must.

Form 15H - Age limit for filing it has been reduced to 60 years.

Page 80: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Contd…

TCS @ 1% on : Wef 01/07/2012• Minerals being Coal, Lignite & Iron ore• Cash Sale of : Bullions (other than coin or article less than 10 gms) >` 2 Lacs Jewellery > ` 5

Lacs

Page 81: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Intimation [200A]

Intimation of demand /refund shall be send to Assessee

TDS return shall be processed & after making adjustments of arithmetical error & incorrect apparent claim,

Interest, if any, shall be computed & demand if any or refund due shall be determined after adjusting TDS due & interest payable U/s 201.

Intimation shall be sent within 1 year from end of F.Y in which TDS return has been filed.

CA. Manish Shah

Page 82: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

Deductor needs to verify the defectsPay demand or file revised return if

needed.Intimate AO of filing revised return or

File an appealThis intimation is now subject to

rectification / appeal also Wef 01/07/2012 & it will be deemed to be notice U/s 156.

CA. Manish Shah

Page 83: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Reasons for Defects

Short Deduction:1. Wrong rate of TDS2. Rounding off to lower rupee3. PAN not matching4. Not mentioning lower rate & wrong payment5. Wrong deductee code6. Wrong Section7. Wrong gender of employee8. Wrong exemption information

CA. Manish Shah

Page 84: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

TDS not paid:1. Actually not paid

2. Wrong challan information

3. Splitting & merging of challan

4. Wrong minor code of challan

CA. Manish Shah

Page 85: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Interest on late payment:1. No interest paid on delay

2. Less interest paid

3. Wrong CIN for interest

4. Cheque realized after due date

5. Challan due date is holiday

Contd…

CA. Manish Shah

Page 86: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Failure to Deduct or Pay [Sec. 201]

If any person does not deduct or doesn’t pay or after so deducting fails to pay whole or part of the tax as required by or under this Act, he or it shall, without prejudice to any other consequences which he or it may incur, be deemed to be an assessee in default in respect of such tax (subject to amendment made Wef 01/07/2012).

Such person shall also be liable to pay interest U/s 201(1A) & Penalty U/s 221.

CA. Manish Shah

Page 87: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Interest U/s 201(1A) shall be paid before filing TDS returns.

No penalty shall be charged U/s 221 unless the Assessing Officer is satisfied that such person has without good and sufficient reasons failed to deduct and pay the tax.

Where tax has not been paid after deduction, the tax + interest shall be charged on all the assets of the assessee.

CA. Manish Shah

Contd…

Page 88: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Interest [Sec. 201(1A)]

Where the assessee after deducting TDS fails to pay the tax as required by or under this Act

Liable to simple interest @ 18% p.a [i.e. 1.5% p.m.] from the date on which the tax was deducted till the date on which the payment is actually made.

Where the assessee fails to deduct TDS and make the payment as required by or under this Act

Liable to simple interest @ 12% p.a [i.e. 1% p.m.] from the date on which the tax was deductible till the date on which the TDS deducted.

Page 89: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

No Order U/s 201 can be made for failure to deduct: • After 2 Years from end of the F.Y in which TDS

return is filed.• After 4 Years from end of the F.Y in which

payment is made or credit is given. This time limit is increased to 6 Years Wef 01/07/2012

Wef 01/07/2012, no interest U/s 220(2) shall be charged if interest is charged U/s 201(1A) on tax payable in the intimation U/s 200A(1) of the Act on the same amount for same period- Section 220(2B)

CA. Manish Shah

Contd…

Page 90: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Amendment to Section 201

Wef 01/07/2012, failure to deduct tax whole or part, the assessee shall not be deemed to be in default provided:

1. Payee has furnished his ROI U/s 139(1) [includes Sec. 139(4) also]

2. Payee has considered such amount in the computing the income in ROI

CA. Manish Shah

Page 91: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

3. Has paid tax due on returned income

4. Furnishes certificate to that effect by a CA in the prescribed form.

However, in all such cases, interest @ 1% would be payable from the date on which TDS was deductible till the date on which ROI is furnished by the payee.

Contd…

CA. Manish Shah

Page 92: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Issues:• Year of income • Non filing of return due loss or below

taxable income.• No tax payable on return income• Still penalty chargeable U/s 221 • Insertion of word “further” why?

Contd…

CA. Manish Shah

Page 93: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

When can assessee be treated as “assessee in default”?

• There must be a reasoned/speaking order passed U/s 201(1)

• Letter/intimation is not an order.• Sec. 246(1)(ha) indicates that the statute contemplates a

written order so that person can file appeal. • Refer :

AM Agencies 239 ITR 136Mettur Chemicals 150 ITR 341

CA. Manish Shah

Page 94: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Penalty U/s 221

When an assessee is in default or deemed to be in default in making payment.

Liable to Maximum penalty @100% of Tax + Arrear of tax + Interest U/s 220 (2) payable

No Penalty if A.O. is satisfied No amendment in this Section in spite of

amendment in Sec. 201 and Sec. 220.

CA. Manish Shah

Page 95: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Levy of Fess [234E ]

Section 234 E Applicable to Returns due after 01/07/2012Non filing & Late filing of TDS, TCS

Returns ` 200/- per day – maximum to the extent

of TDS/TCSTo be paid with returns. Penalty U/s 272A of ` 100/- per day

removed.

CA. Manish Shah

Page 96: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Penalty [271H]

Non Filing or Late of TDS & TCS Returns Incorrect Information in ReturnsApplicable to Returns due after 01/07/2012No penalty if Tax, Interest, Late Fees paid &

returns filed before 1 year from due date. Penalty : Minimum- `10,000/- Maximum- `1,00,000/-

CA. Manish Shah

Page 97: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

PENALTIES - PROSECUTION

Sec.271C/271CA : Tax Failed to be deducted/collected/pay = Amount failed to be deducted/collected/paid.

Sec.272B, BB: Failure to quote/apply for PAN/ – ` 10,000/-

Sec.272A(2) : Failure to Furnish F.15H/15G/16/16A/27D/24Q/26Q/27Q/27EQ – ` 100/- per day or Amount of TDS/TCS whichever is lower (except cases of Sec. 234E Wef 01/07/2012)

Sec. 276B - TDS / 276BB – TCSProsecution from 3 Months to 7 Years and Fine

Page 98: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Penalty Decisions

If no malafide intention- not leviable.• Cadbury India 55 DTR 318

In this case Hon’ble Supreme Court decision in case on Anwar Ali 76 ITR 696 as well as decision of Delhi High Court in case of Woodvard Govemor 253 ITR 745 were followed.

CA. Manish Shah

Page 99: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Section 40(a)(ia)

Introduced wef 01/04/2005 Applicable to computation of “Profits and

Gains of business or profession”. Expenditure covered: • Interest• Commission or Brokerage,• Rent• Royalty• Fees for Professional & Technical Services • Contract incl. Sub Contract payment for Any

WorkCA. Manish Shah

Page 100: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

Such expenditure will not be allowable if the tax is deductible under Chapter XVII-B and such tax has not been deducted or after deduction not paid before due date as per Sec. 139(1) of the Act.

If tax is deduced in subsequent year or deducted in earlier year but after Sec. 139(1) limit, expenditure will allowed in that year.

CA. Manish Shah

Page 101: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

The provision of not disallowing the expenditure if TDS is paid before due date U/s 139(1) has been introduced wef 01/04/2010 by Finance Act 2010.

CA. Manish Shah

Page 102: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Issues:

Whether the amendment made in Sec. 40(a)(ia) by Finance Act, 2010 is retrospective or not?

• Virgin Creations (Calcutta High Court- ITA No. 302/2011 dated 23-11-2011)

This decision is followed by ITAT Ahmedabad in case of Alpha Projects Society Pvt. Ltd. ITA No. 2869/Ahd/2011

• Hon’ble Supreme Courts decisions in case Allied Motors (224 ITR 677), Alom Extrusion (319 ITR 306) RB Jodha Mal (82 ITR570) Followed.

• Decision of the Mumbai Special Bench in Bharti Shipyard Ltd. 132 ITD 53 (SB) Overruled by Virgin Creations

CA. Manish Shah

Page 103: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

• Kanubhai Ramjibhai Makwana 44 SOT 264• Piyush C Mehta 20 Taxmann.com 473• Bansal Parivahan 43 SOT 611• Sanjaykumar Pradhan 14 ITR 150 (Trib) • Kulwantsingh 10 Taxmann.com 25• Raja Mahendri Shipping 51 SOT 242

CA. Manish Shah

Page 104: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

If the payee has paid tax -• DICGC Ltd. 14 ITR (Trib.) 194 (Against)• Skycell Communications 251 ITR 53 • Kotak Securities Ltd. 340 ITR 333 – Non Taxing

Provision.• Reliance Hindustan Coca cola Beverage 293 ITR 226

SC Circular No. 275/201/95-IT(b) dated 29/01/1997

Short Deduction of TDS -• S.K. Tekriwal 48 SOT 515 • Chandabhoy Jassobhoy 49 SOT 448• Beekaylon Synthetics ITA No. 6506/Mum./2008

Contd…

CA. Manish Shah

Page 105: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

TDS default –• Bapusaheb Nanasaheb Dhumal 132 TTJ 694• M. G. Vishwanath Reddy 51 SOT 420• H S Mahindra Traders 132 TTJ 701

Joint Ventures – No Sub Contract – Only money routed through –

• Rishikesh Buildcon 206Taxman 567

Contd…

CA. Manish Shah

Page 106: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Section 40(a)(ia) has been introduced wef 01/04/2005 that Finance Act was brought in force in October, any payment before the same would not be disallowed.

• Golden Stables Lifestyle Center ITA No.5145/Mum/2009

• Shri Jivrajbhai Devjibhai Patel ITA No. 2479/Ahd/2008

Assessee has paid excess tax – hence did not deduct TDS U/s 194C – Not Permissible.

• SCC Pati Joint Venture 46 SOT 263

Contd…

CA. Manish Shah

Page 107: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

If interest paid is as part of purchase price, then no TDS U/s 194A – Section 40(a)(ia) doesn’t apply

• Parag Mansukhlal Shah 46 SOT 302 Ahd.

Retrospective Amendment – impossibility for assessee to deduct tax –

• Sterling Abrasive Ltd. 40 TTJ 68 Ahd.

Contd…

CA. Manish Shah

Page 108: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Late submission of Form 15G – submitted during course of assessment –

• Shyamsundar Kailashchand 141 ITD 126

Cost Sharing with group concerns• Emerson Process Management 47 SOT 157

Interest paid as part of Debt – No TDS• Akber Abdul Ali- 43B BCAJ 25 (March-12)

Contd…

CA. Manish Shah

Page 109: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Commission to Non Resident agents for services outside India -

• Devi’s Laboratory Ltd. 140 TTJ 746 • Eon Technology Pvt. Ltd. 246 CTR 40

Cash payment of labour expense – Sec. 194 C & Sec. 40(a)(ia) - Applicable

• Nalawade C. Maruti 48 SOT 566

Section 40a(ia) – Not ultra vires • Rakesh Kumar & Co. 325 ITR 35

Contd…

CA. Manish Shah

Page 110: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Controversy between - Sec. 194C & 194J• Nalawade C. Maruti 48 SOT 566 • Sanjaykumar 143 TTJ 415

Reimbursement of expenses of C & F Agents like sea freight, CCI charges, steam freight charges, container charges, etc.-

• Minpro Industries 143 TTJ 331 • Karnavati Co-op Bank Ltd 134 ITD 486

Charged separately• Choice Sanitary Ware 9 Taxmann.com 120 (Raj)

Contd…

CA. Manish Shah

Page 111: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Brokerage paid on derivatives – Sec. 194H not applicable –

• Noble Enclave & Towers Pvt. Ltd. 50 SOT 5

Commission to Directors –• Jhangir Biri 126 TTJ 567

Freight Charges-Truck hired for own use - Sec. 194C not applicable -

• Kranti Road Transport Pvt. Ltd. 50 SOT 15

Contd…

CA. Manish Shah

Page 112: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

S. 40(a)(ia) would apply only to expenditure that remain payable at the end of relevant F.Y and cannot be invoked to disallow amounts which have already been paid without TDS

• Merilyne Shipping & Transports 136 ITD 23 (Vishakhapatnam Sp. Bench)

• K. Srinivas Naidu 131 TTJ 17• Teja Construction 129 TTJ 57 • Ashika Stock Broking 139 TTJ 192

Contd…

CA. Manish Shah

Page 113: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

Failure to deduct tax on reimbursement of expenses- Sec. 40(a)(ia) is invoked only when some expense is claimed as deduction & reimbursement of expense is profit neutral, it is not rooted through P & L A/c, it is not an expense and does not attract S. 40(a)(ia) -

• Sharma Kajaria & Co. 145 TTJ 1

Failure to Disallow U/s 40a(ia) – Section 263• Raja & Co. 335 ITR 381

CA. Manish Shah

Page 114: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

In case of Joint Venture formed mainly to get a contract - work is being done by each party separately - no relation of contract & sub- Contract. Hence, no TDS

• ITO v. UAN Raju Constructions 48 SOT 178

Charitable Trust – Income computed U/s 11

• Mahatma Gandhi Seva Mandir 21 Taxmann.com 321

Contd…

CA. Manish Shah

Page 115: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Contd…

Contract for supply of goods and along with the supply of goods, there are services like supply of gas by GAIL. Payment is made for gas as well as transportation. Not liable for TDS –

• Krishak Bharati Co-op Ltd. 10 ITR 527 (Trib.)

Brokerage Paid on sale of Property – No Business – No TDS

• Mrs. Sushila Mallick 142 TTJ 372

CA. Manish Shah

Page 116: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Payments made on account of capital Expenditure. Sec. 40(a)(ia) applicable. No distinction between capital and revenue expenditure -

• Spaco Carburettors (I) Ltd. 3 SOT 798

In case of assessment U/s 145 (3) • Teja Construction 129 TTJ 57

Expenses other than Section 30 to 38• Teja Construction 129 TTJ 57

Contd…

CA. Manish Shah

Page 117: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

Amendment to Section 40a(ia)

2nd Provision inserted Wef 01/04/2013 It provides that if the assessee is “not deemed

to be assessee” in default as per 1st Proviso to Section 201(1) for non deduction of TDS, it shall be deemed that the assessee has deducted & paid tax on the date of filing return & no disallowance shall be made.

Retrospective Effect?

CA. Manish Shah

Page 118: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Questions?

Shah & Bhandari Chartered Accountants

[email protected]

[email protected]

Page 119: TDS & Section 40(a)(ia) provisions Income Tax Act, 1961 CA. Manish Shah Shah & Bhandari Chartered Accountants

CA. Manish Shah

Thank You