BASICS UPDATES & ISSUES

T D S BASICS UPDATES & ISSUES CA D R Venkatesh, B.COM, LLB, FCA, Partner, MSSV & Co., Chartered Accountants Bangalore

BASICS Status of Deductor/Payer Any Person ……. Tax Payer Agriculturist Charitable/ Educational Institutions

BASICS Individual / HUF Whose total sales, gross receipts or turnover Exceed the monetary limits specified under clause (a) or clause (b) of Section 44AB During the financial year immediately preceding financial year

Status of Recipient/Payee Rate of Deduction Government Applicability of surcharge BASICS

BASICS Residential status of Recipient/Payee Resident Non-resident

BASICS Nature of expenditure In the hands of the deductor – payment / Debit may be towards Capital Expenditure Revenue Expenditure Reimbursement of Expenses

BASICS When to deduct Payment Credit

BASICS When to Remit During the year payment (Other than March) – on or before 7 days from the end of the month in which deduction is made. Other cases – On or before 30th day of April where the income or amount is credited or paid in the month of March.

BASICS Rate of Deduction Tax rate - Under the respective sections - Part II to First Schedule - Part III to First Schedule – Salary - Part II to First Schedule – u/s 195 - No Surcharge & No Education Cess

UPDATES • A.Y. 2013-14 • A.Y. 2014-15

DISALLOWANCE 40(a)(ia) – Amount not deductible. • Finance (No.2) Act, 2004 • A.Y.2005-06 onwards MSSV & CO, Bangalore

DISALLOWANCE Finance Act, 2008 w.r.e.f 01.04.2005 Has not been paid- • In a case where the tax was deductible and was so deducted during the last month of the previous year, on or before the due date specified in sec 139(1); or • In any other case, on or before the end of the previous year

DISALLOWANCE • Finance Act, 2010 w.e.f AY 2010-11 Has not been paid, - • On or before the due date specified in sec 139(1) Amendment by Finance Act, 2010 is retrospective effect from AY 2005-06 • As held in KunubaiRamjibai v/s ITO (2010) 49 DTR 70 (Mumbai Trib.) • This amendment is clarificatory in nature

Finance Act, 2012 • Provisio inserted to Sec 40 (a)(ia) w.e.f. 1st April, 2013. • Provisio – Provided further that where an assessee fails to deduct the whole or any part of the tax in accordance with the provisions of Chapter XVII-B on any such sum but is not to deemed to be an assessee in default under the provisio to sub section (1) of section 201, then, for the purpose of this sub clause, it shall be deemed that the assessee has deducted and paid tax on such sum on the date of furnishing of the return of income by the resident payee referred to in the said provisio.

Finance Act, 2012 • Insertion of Proviso to Sec 201 w.e.f 1st July,2012 • Proviso to Sec 201(1) Provided that any person, including the principal officer of a company, who fails to deduct the whole or any part of the tax in accordance with the provisions of this chapter on the sum paid to a resident or on the sum credited to the account of a resident shall not be deemed to be an assessee in default in respect of such tax, if such resident-

has furnished his return of income u/s 139 (ii) has taken into account such sum for computing income in such return of income, and (iii) has paid the tax due on the income declared by him in such return of income. And the person furnishes a certificate to this effect from an accountant in such form as may be prescribed- Form No.26A

Form No. 26A [See Rule 31ACB] Form for furnishing accountant certificate under first proviso of sub-section (1) of section 201 of the Income-tax Act, 1961 • Details to be furnished by the Deductor • Name of the Deductor • PAN,TAN and address of the Deductor • Name of the Deductee • Amount Paid without deduction of whole or any part of tax .

Certificate from an accountant certifying that the deductee has fulfilled all the conditions mentioned in first proviso of section 201(1) of Income Tax Act is enclosed as Annexure – A. • Details of Interest paid, if any • Details of Payment – BSR Code, Challan Serial Number and Date of Deposit of Challan • Designation of the person who signs this Form.

Annexure ACertificate of Accountant under first proviso section 201(1) certifying the furnishing of return of income, payment of tax by the deductee. • Certifying with regard to- • Name of the Accountant • Name and Address of the Deductee • PAN of the Deductee • Payer has paid or credited – a sum to the account of the payee without deduction of whole or any part of tax. • Details of Payment- Nature of Payment, Date of Payment, Section under tax was deductible, Amount paid or credited, Amount of tax deductible, Date of Deduction, if any.

Details of the Return of Income filed by the resident payee for the relevant Assessment year- Receipt on tax has not been deducted, Head of Income under which receipt is accounted for, Acknowledgement Number of the Return filed, If paper return details of Assessing Officer, Amount of Total Taxable Income as per Return filed, Tax due on the income declared in the return, Details of tax paid.

Payee has taken to account sum paid by the payer for computing his taxable income in the Return of Income filed. • Receipt on which Tax has not been deducted • Head of Income under which the receipt is accounted for • Gross receipt under the head of income under which the receipt is accounted for • Amount of taxable income under the head of income under which the receipt is accounted for

It has been ensured that the information furnished is true and correct in all respects and no relevant information has been concealed or withheld • Declaration with regard to neither the accountant nor any of his partners, is a director, partner, or an employee of the entity or its associated concerns • Declaration with regard to that if the details provided in the certificate is proved incorrect or false, will render him/them liable for any penal or other consequences as may be prescribed in law or is otherwise warranted.

Issues • When to obtain this certificate from Accountant • Deductor assures that he will obtain the certificate from the accountant of the deductee. • Form No. 3CD - clause 17(f).

Provisio to Sec 201 (1A) w.e.f 1st July 2012. Provided that in case any person, including the principal officer of a company fails to deduct the whole or any part of the tax in accordance with the provisions of this chapter on the sum paid to a resident or on the sum credited to the account of a resident but is not deemed to be an assessee in default under the first provisio of sub section (1), the interest under clause (i) shall be payable from the date on which such tax was deductible to the date of furnishing of return of income by such resident.

Issues • Interest to be calculated irrespective of the tax liability of the deductee. • When to compute this interest? • Rate of Interest is 1%.

PENALTY • Finance Act, 2012 • New Section 271H, w.e.f 1st July, 2012. • Penalty for failure to furnish the statements or false statements. • 271H – Fails to comply the provisions of Sec 200 (3) or 206 C (3), the penalty shall not be less than Rs 10,000 but may extend up to Rs 1,00,000.

Fees • Finance Act, 2012 • New Section 234E, w.e.f 1st July, 2012. • Fees for default in furnishing statements • 234E (1) – without prejudice to the provisions of the Act, where a person fails to deliver or causes to be delivered a statement within the time prescribed in sub section (3) of section 200 or provision to sub section (3) of section 206 C, he shall be a liable to pay, by way fee, a sum of Rs 200 for everyday during which the failure continues.

Finance Act, 2012 • Insertion of clause (1D), w.e.f 1st July, 2012. • 206C (1D) Every person being a seller, who receives any amount in cash as consideration for sale of bullion (excluding any coin or any other article weighing 10gm or less)* or jewellery, shall, at the time of receipt of such amount in cash , collect from the buyer, a sum equal to 1% of sale consideration as income tax, if the sale consideration, (i) For bullion, exceeds Rs 2,00,000 or (ii) For Jewellery, exceeds Rs 5,00,000. * Deleted from 1st June 2013.

Finance Act, 2013 • Insertion of Section 194-IA.(1), w.e.f 1stJune, 2013 • 194-IA (1) Any Person, being a transferee, responsible for paying(other than the person referred to in section 194LA) to a resident transferor any sum by way of consideration for transfer of any immovable property (other than agricultural land), shall, at the time of credit of such sum to the account of the transferor or at the time of payment of such sum in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to one percent of such sum as income-tax thereon.

194-IA (2) No deduction under sub-section (1) shall be made where the consideration for the transfer of an immovable property is less than fifty lakh rupees. • Explanation – For the purposes of this section- • “agricultural land” means agricultural land in India, not being a land situate in any area referred to in items (a) and (b) of sub-clause (iii) of clause (14) of section 2; • “immovable property” means any land (other than agricultural land) or any building or part of a building.

Issues • Whether this provision is applicable to agreements executed before 1st June, 2013 but consideration is paid later. • Section 203A is not applicable to this provision, how seller will get a credit for the TDS made. • Whether this provision is applicable to Joint Development Agreements where amount received is less than Rs. 50 Lakhs but the Land Owner gets in kind i.e 50% of the area constructed where the value is more than Rs. 50 Lakhs.

ISSUES

Defaults Non Deduction Short deduction Non remittance Short remittance Delay in remittance Non / Delay in filing statements Non / Delay in issuing certificates

Consequences Interest Amount not deductible (Disallowance) Penalty Fees Prosecution

FINANCE ACT, 2010 Interest u /s 201 – w.e.f: 01.07.2010 • At 1% for every month or part of a month on the amount of such tax from the date on which such tax was deductible to the date on which such tax is deducted; and • At 1.5% for every month or part of a month on the amount of such tax from the date on which such tax was deducted to the date on which such tax is actually paid MSSV & CO, Bangalore

ISSUES: M/s.ABC co. passed the following entries in the books of accounts. Internal Audit fee A/c Dr Rs.1,00,000 To M/s. Smart Associates. Rs.1,00,000 (Being the internal audit fee payable for the month of January 2013.) MSSV & CO, Bangalore

M/s.ABC co. passed the following entries in the books of accounts. Internal Audit fee A/c Dr Rs.1,00,000 To M/s. Smart Associates A/c. Rs.90,000 To TDS Payable A/c Rs.10,000 (Being the internal audit fee payable for the month of January 2013 and TDS payable provided for.) MSSV & CO, Bangalore

ISSUES: • M/s X Co Ltd deducted tax of Rs 1 lakh on professional charges of Rs 10 lakh on 07.03.2013. The Company remitted the above tax on 04.05.2013. Calculate the interest liability.

Rule 119A, Income Tax Rules, 1962 Procedure to be followed in calculating interest. In calculating the interest payable by the assessee or the interest payable by the Central Government to the assessee under any provision of the Act,— (a) where interest is to be calculated on annual basis, the period for which such interest is to be calculated shall be rounded off to a whole month or months and for this purpose any fraction of a month shall be ignored; and the period so rounded off shall be deemed to be the period in respect of which the interest is to be calculated;

(b) where the interest is to be calculated for every month or part of a month comprised in a period, any fraction of a month shall be deemed to be a full month and the interest shall be so calculated; (c) 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 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.]

ISSUES: • Threshold limit computation– whether to include Service Tax? u / s194Ju / s 194I Fee Rs. 27,500 Rent Rs. 1,65,000 ST Rs. 2,833 ST Rs. 16,995 Rs. 30,333 Rs. 1,81,995 MSSV & CO, Bangalore

Issues M/s X Private Limited paid statutory audit fee of Rs.1,00,000/- in cash during the accounting year 2012– 2013 with out deduction of tax at source. For Assessment year 2013–14, Examine the disallowance u/s 40(a)(ia) and u/s 40A(3) ?

Mr.X a practicing CA who is subject to Tax Audit u/s 44AB for the year ending 31.03.2012 having the following transactions during the financial year 2012 - 2013: 1. Constructed a house for self occupation & he is making payment to contractor Rs.10,00,000/- 2. Borrowed funds from friends Rs.10,00,000/- on which he wants to pay interest Examine the applicability of TDS Issues

Issues u/s 206 AA Furnishing of PAN Furnished after Previous Year is ended Furnished within the Financial Year after 3 Quarters TDS Credit Wrong PAN furnished by the Deductee

Issues Disallowance under Sec 40(a)(ia) Service Tax element on fees/payment Fees – Rs 10 lacs ST - Rs 1.24 lacs Whether Disallowance u/s 40(a)(ia) Rs 10 lacs ??? Or Rs 11.24 lacs ???

Issues • Commission Or Brokerage • Discount/Rebate/Incentive • Commission paid to partners on percentage of export sales MSSV & Co.

Issues • Rent • Advance Rent of Rs. 8 Lakhs paid for next 5 during the financial years 2012-13 • Rent of Rs. 8.75 lakhs paid to 5 co-owners • Warehousing Charges • Cooling Charges paid to cold storage owners MSSV & Co.

Issues • Rent paid to owner as a percentage of sales. • Tenants in a commercial complex following payments are made to the owner:- - Rent - Maintenance charges - Power & Water charges re-imbursements. MSSV & Co.

Issues • Incentive paid to a Contractor • Contract Amount Rs 100 lacs • Incentive 10 percent – Rs 10 lacs • TOTAL Payment Rs 110 lacs • Liquidated damages recovered from contractor • Contract Amount Rs 100 lacs • Liquidator Damages 10 percent – Rs 10 lacs • Net Payment Rs 90 lacs MSSV & Co.

Issues • M/s co-operative Bank received form 15G and From 15H the depositors for non-deduction of tax at source. The Co-operative Bank did not file copy of these forms before the jurisdictional Commissioner. The AO proposed to disallow u/s 40(a)(ia) the interest payment to these depositors for not filing the forms. DISCUSS…

BASICS UPDATES & ISSUES