42 points on TDS-TCS provisions you must know:Analysis by CA MANISH BORAD

Nowadays TDS/TCS are the main tool for collecting taxes by the Government. It is a way to collect taxes, like a bee which collects honey w...

Nowadays TDS/TCS are the main tool for collecting taxes by the Government. It is a way to collect taxes, like a bee which collects honey without causing pain to the flower. It is similar to “pay as you earn” scheme, known as withholding tax in many countries like USA. Government has made possible fastest issue of refunds through ECS, so now persons from whose income TDS is deducted are now not uncertain over the 

fate of their refund arising out of TDS . However persons who are deducting TDS has to be much regular so that correct and timely credit is reflected in deductees form 26AS. Some of the TDS/TCS provisions which are of routine use are analyzed as under:

1. TCS ON Bullion & jewellery [Sec.206C(1D)]:- Tax shall be collected at source @ 1% on saleconsideration, by seller, if he receives any amount in cash: -

• (i) on sale of bullions if such sale consideration exceeds Rs.2 Lakh, and
• (ii) on jewellery (if such sale consideration Exceeds Rs.5 Lakh).

e.g. if sale consideration is 6 lakh and only a sum of Rs.100 has been received in cash from customer, then

seller will have to collect TCS on whole Rs.6 Lakh @ 1%.

2. Disallowance under section 40a(ia) is not applicable to any TCS provisions because 40a(ia) is not

applicable to receipt or revenue items, 40a(ia) is applicable to payments or expenditure items.

3. If an assessee (seller) has committed default u/s.206C(1D) by not collecting TCS on gold and even if the buyer has included this purchase consideration in his return of income, even though the seller will be treated having committed default u/s.206C(6A).

4. Age limit for 15G/15H:- Form no.15G is applicable for the age below 60 years & 15H for the persons who completes the age of 60 years at any time during the financial year.

5. Income limit for furnishing 15G :- A person (other than a senior citizen) including resident individual (other than a company or firm) can furnish form No.15G if :-

• (i) His income from interest does not exceed the maximum amount which is not chargeable to income tax and,
• (ii) Tax on his estimated total income will be nil for that assessment year

6. Income limit for furnishing 15H:- A senior citizen can furnish form No.15H if tax on his estimated total

income will be nil for that assessment year.

7. When & where to submit 15G/H/27C: - Form 15G/H must be obtained before or at the first moment, when the interest crosses the limit of Rs.5000(other than bank)/10000/- (in case of banks) during the financial year, it should not be taken after crediting or paying the interest. After obtaining, one copy of it must be submitted by the payer to the Commissioner/TDS-AO on or before 7th day of next following month in which the form is furnished to him. One copy of form 27C (in case of nil TCS) has to be submitted to the Chief Commissioner/Commissioner/TDS-AO to whom the Assessing Officer having jurisdiction to assess the

seller is subordinate. 

8. 15G by charitable trusts & institutions:- In view of the rule 28AB a charitable or religious trust or institution who claims exemption u/s.11 or 12 or educational institutions/hospital/university etc required to file return u/s.139(4C) cannot furnish form no.15G if their interest income exceeds the basic exemption limit i.e. Rs.2 Lakh for A.Y. 2013-14, but it will have to apply in form No.13 for nil deduction. 

9. No TDS from income of notified institutions: - By insertion of sec.197A(1F) Finance Act 2012 has made a provision that no deduction of tax shall be made from such specified payment to such institution, association or body or class of institutions, associations or bodies as may be notified by the Central Govt. in the official Gazette in this behalf.

10. Certificate of lower rate : - Assessee can apply in form No.13 for lower rate or nil TDS. Form No.13 has been amended w.e.f. 1st April 2011 in which information relating to 3 years assessed income, 3 years income tax returns alongwith enclosures, existing income tax dues, pending income tax and TDS returns, Gross turnover, gross profit, net profit, copies of P&L A/c, balance sheet, audit report, details of exempt income, has to be given. 

In case of charitable trusts and institutions it is necessary that all returns upto date have been filed. Lower rate certificate will be issued on a plain paper generated through computer system having serial number, its one copy will be sent directly to the payer and one copy to the payee. Trust and institutions will have to furnish to the assessing officer, half yearly details of income rece4ived without deducting tax on the basis of nil certificate issued to it.

11. Furnish PAN in all TDS/TCS correspondence: - It is necessary to quote PAN of the deductee and the deductor in all correspondence, bills, vouchers exchanged between them.

12. Include Zero TDS items also in TDS return: - If TDS is not deducted on payments because of certificate issued by assessing officer u/s.197, or declaration received in form No.15G or 15 H or 27C, even though amount paid or credited, PAN, name, has to be furnished in quarterly TDS returns.

13. Credit of TDS to other person (Sec.199 & rule 37BA):- When whole or any part of the income on which tax has been deducted at source is assessable in the hands of a person other than the deductee e.g. in view of Sec.64 relating to clubbing of income, then credit of whole or part of that TDS shall be given to that other person and not to the deductee. For this, deductee will have to file a declaration with the deductor specifying name, address, pan of the person to whom credit of TDS is to be given alongwith reasons for giving credit to that other person, then deductor will have to file return accordingly.

14. Credit of TDS to which year (Sec.199 & rule 37BA):- Credit to TDS shall be given for that assessment year for which the income is assessable. Where income is assessable over a number of years, credit for TDS shall be allowed across those years in the same proportion in which the income is assessable to tax. Credit for TDS shall be on the basis of TDS return and claim made by the claimant in his income tax return and subject to verification.

15. Disallowance u/s.40(a)(ia) w.e.f. 1st April, 2012 (A.Y. 2013-14):- Sec. 40a(ia) is applicable in case of payments covered u/s.193, 194A, 194C, 194H, 194I, 194J.

Update :Disallowance u/s 40(a)(ia) has been extended to all TDS sections .However disallowance has been reduced to 30% from earlier 100% wef fy 2014-15

Provision of Sec.40a(ia) is applicable when the assessee has failed to deduct or deposit TDS, but if the assessee has deducted TDS at a rate other than specified e.g. 1% in place of 10% then no disallowance u/s.40a(ia) is attracted. The same view has been held in the case of CIT v. S.K. Tekriwal (2013) 260 CTR 73 (Cal) (HC), Cinetek Telefilms P.Ltd. V. ACIT (2013) TIOL – 641 – (Mum.)(Trib). 

Presently if specified payments are made without deduction of TDS then whole of the expenses are disallowed u/s.40(a)(ia), now it is proposed that if the payee has discharged tax liability and filed his return of income u/s.139 hence payer will not be deemed to be in default u/s.201(1) then he will also not be deemed to be in default u/s.40(a)(ia) hence such expenses will be allowed and it will be deemed that the payer has dedeucted tax timely. Date of filing of the return of income by the payee will be treated as date of payment of TDS by the payer. If the payee has filed his return of income after 30 Sept. then such expenses will be disallowed u/s.40A(ia) in the hands of payer (deductor)and will be allowed in the following Assessment year. If the receipient had filed his return of income before 31st Oct. 2013 (extended due date for tax audit returns for A.Y. 2013-14), [or if date would not have been extended then, receipient should have filed his return of income till 30th Sept.2013] then as per first proviso to Secd.201(1) and first and second proviso to sec. 40a(ia) of the act, the date of filing of the return by the payee will be treated as date of payment of TDS. 

First proviso of Sec.40a(ia) says that

 “if TDS has been deposited after the due date specified in Sec.139(1),then such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid.”

Second proviso to Secd.40a(ia) says that 

“it shall be deemed that the assessee has deducted and paid the tax on such sum on the date of furnishing of return of income by the resident payee.”

The said provisions is procedural and clarificatory in nature hence retrospective and will be applicable to

pending cases also. As held in the case of ACIT V. Pratibha Exim Ltd. (2013) 22 ITJ 285 (Trib. Indore) and ITAT Rajkot Bench in the case of Bharti Auto Products Vs. CIT (2013) 37 Taxmann.com 37 (Rajkot Trib) SB., 27 ITR (Trib.)611 

Disallowance u/s.40a(ia) is applicable to “payable” items only as held in case of Merilyn Shipping and Transport Ltd. Vs. Add. CIT (2012) 136 ITD 23 (Vishakhapatanam) (SB), but it was distinquished in the case of CIT Vs. Crescent Export Syndicate (2013) 33 Taxmann.com 250 (Cal) (HC) and held that view expressed in Merilyn Shipping is not acceptable. Allahabad High Court in the case of CIT V. Vector Shipping Service P.Ltd.(All)(HC) ITA No.122 of 2013 without dealing with the decisions upheld the decision of Merilyn Shipping and in the case of Rishti Stock and shares P.Ltd. V. ACIT ITAQ No.112 of 2012 Mum. Tribunal held that in case of conflicting views of the high courts, view in favour of the assessee should be taken, hence allowed in favour of the assessee.

16. How to calculate interest on late payment of TDS:

• (a) If a person liable to deduct TDS fails to deduct whole or part of TDS then he will be liable to pay u/s.201(1A) simple interest @ 1% 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,
• (b) if TDS is deducted but not paid then @ 1.5% for every month or part of 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.

For example a person has deducted TDS Rs.12500/- on 25 April, 2012 then he is liable to deposit TDS on 7 May 2012 but if he pay TDS on 18 May 2013 then here delay is 13 months so interest will be 19.5%, if TDS is deposited on 24 May 2013 even though delay is 13 months, but if TDS is deposited on 26 May, 2013 then delay is 14 months, i.e. whole month is reckoned from the date of de4duction and to the date of deposit of TDS. 

In earlier year Income Tax Department was also calculating interest on the aforesaid basis but presently TDSCPC is calculating interest treating month or part of a month as a m,onth, without considering date of deduction or date of deposit. Since the order u/s.201 and 200A are appealable hence appeal can be filed against such excessive and unreasonable interest calculation or a rectification application can be filed u/s.154.

17. Late fees for TDS/TCS returns u/s.234E :- W.e.f. 1st July, 2012 if TDS return is filed late, then u/s.234E late fees of Rs.200/- per day will have to be deposited before filing TDS/TCS return, however it is specified that late fees should not exceed TDS/TCS deductible/correctible for that quarter. In addition to this, if TDS and late fee and interest due thereon as well as TDS return is not deposited within one year from the due date then penalty u/s.271H ranging from 10 thousand to 1 lakh may be imposed. 

Provisions of sec.234E has been made applicable w.e.f. 1st July, 2012. It states that “Amount of late fee @

Rs.200/- per day 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.

Once the TDS statement has been accepted without late fee, then such late fee cannot be recovered later on.

However this late fee cannot be waived later on even for any reasonable cause, because it is not a penalty but a late fee.

As per provisions of sec.234E(4) late fee is applicable for 

“TDS statement which is to be delivered or caused to be delivered for tax deducted at source or tax collected at source, as the case may be, on or after 1st day of July, 2012”.

Late fee cannot be recovered for TDS statements which were due for F.Y. 2011-12 as well as TDS statement late fee cannot be recovered for F.Y. 2012-13 or till today, if not collected at the time of delivering TDS statement by the NSDL (Income tax department).

If a person has filed to deduct TDS or failed to collect TCS then also late fee is not applicable for such period of failure, because late fee under section 234E is imposable only in cases of default where the assessee has failed to deposit TDS return (statement) for tax deducted or collected at source. So it does not cover cases where assessee has failed to deduct TDS or failed to collect TCS. 

e.g. a person Mr. A has paid interest of Rs.55000/- to Mr. B on 10th May 2013, and deducted TDS of Rs.5500/- on 10th May 2013 then this TDS is deposited on or before 7th June, 2013 and TDS return for this period becomes due on 15th July, 2013. Here, if the TDS return (statement) is filed on 5th Nov., 2013 then there is a delay of 112 days, but if this TDS was failed to be deducted on 10th May 2013 and later on deducted on 12th August, 2013, then this TDS has to be deposited on or before 7th Sept., 2013 and TDS return for this (second) quarter has to be deposited on or before 15th Oct., 2013. 

So the TDS return has to be filed for the quarter during which TDS was deducted and not for the quarter during which TDS was deductible i.e. even if Rs.55000 has been paid on 10th May in first quarter (1 April to 30th June), but since TDS was not deducted in the first quarter and tds of Rs.,5500/- was deducted in the second quarter i.e. on 12th August 2013 then this sum will be included in the 2nd quarter and not in the first quarter so that delayed filing of tds return for second quarter will be counted only from 15th Oct.2013 (due date of tds return for second quarter) to 5th Nov., 2013 (date of filing of tds return) i.e. delay  of only 20 days.

Section 200(3) of the act also says that tds statement shall be filed after paying the tax deducted and rule 31A which talks about filing of tds returns where deduction is made under section 192 to section 196D, so it does not impose liability to file tds statement for tax deductible but not deducted.

On the other hand it is also pertinent to note that the law has not made any person responsible, to deposit late fee, in case of default in depositing late fee alongwith tds statement, which can be inferred from the provisions of sec.204 of the act, which states as under: -

“Sec.204 of the act has made persons responsible for sec.190 to sec.203AA and section 285 this phrase does not cover section 234E, it means no one is responsible for default u/s.234E.

Therefore if any late fee is due and not deposited alongwith the tds statement none can be held responsible to

deposit it.

Demand of late fee cannot be faised also by way of processing of TDS statement, because sec.200A(1) of the act talks about tds returns by a person deducting any tds, so it does not cover cases of tax deductible but

not deducted at all, the provisions of sec.,200A of the act also does not permit processing of tds statement for default in payment of late fee, except any arithmetical error, or incorrect claim, or default in payment of interest, any tds payable or refundable ect. section 200A also does not cover processing in cases of tax collection or collectible at source (TCS). 

An assessee cannot be treated in default also u/s.201(1) or 206C (6A) due to non payment of late fee. And even the TDS return(statement) is also not treated as defective, like non payment of tax and interest treats an income tax return as defective u/s.139(9) of the act. If a person has not paid late fee then, even though it shall not be charge on all assets because sec.201(2) & 206C(8) does not cover late fee. Sec.234E also doesn’t say that in case of default in depositing late fee, the defaulting persons will be deeme4d an assessee in default.

In view of the above late fee cannot be recovered later on, by way of any notice, neither notice of demand

u/s.156 can be issued for this. If any notice is issued by way of processing tds statement u/s.200A, then apply for rectification of mistake u/s.154 of the act or directly file an appeal before Commissioner of Income tax (Appeals).

18. Interest in case of Deemed date of payment of Tax :- As per section 201 if the payee has furnished his return of income and paid tax on such income and payer furnishes a certificate from Chartered Accountant to this effect in Annexure A and submit form No.26A to DGIT(Systems), then date on which return is furnished by the payee will be treated as date of payment of TDS ande not the date of actual date of payment of tax by the payee, i.e. payer will be required to pay interest u/s.201(IA)(i) till date of filing of return u/s.139 by the payee.

Similar provisions are made applicable u/s.206C [except in case of sec.206C(1D)] if the buyer has discharged the tax liability and form no.27BA is furnished to DGIT (Systems). In this case no penalty u/s.221

shall be imposed if sufficient reasons are produced.

19. No interest u/s.220(2) :- When interest is charged u/s.201(1A) on the amount specified in the intimation u/s.200A(1), then no interest will be charged for the same amount for the same period u/s.220(2). Benefit of similar provisions are not made applicable to TCS i.e. to Sec.206C(7).

20. Adjust excess or short deduction of TDS on interest u/s.194A or TDS on salary:- The deductor can increase or reduce the amount of TDS u/s.194A arising out of excess or short deduction or failure to deduct during the financial year. In such a case e.g. if the deductor deducts tds later on in any month because of short or non deduction in earlier month then, in my opinion the deductor will not be liable to pay interest on earlier short or no deduction, u/s.201(1A), because sec.201(1A) of the act does not start with the words

“notwithstanding anything contained in any other provisions of this chapter”. In case of TDS on salary same

provision are applicable that at the time of deduction, increase or reduce TDS for adjusting any excess or

deficiency or failure to deduct during the financial year.

21. TDS on rent U/s.194:-

• (i) TDS on rent is applicable in case of land, building (incl. factory building), machinery, plant, equipment,furniture, fittings. 
• (ii) If there are more than one payee/co-owners, each having definite and ascertainable share then limit of Rs.1.80 Lakh is applicable to each co-owner.

22. TDS ON PURCHASE OF IMMOVABLE PROPERTY U/s.194 IA w.e.f. 1st June, 2013 if any person purchases any immovable property other than rural agricultural land from a resident transferor and the

consideration is Rs.50 Lakh or more then he has to deduct tds @ 1% at the time of payment or credit whichever is earlier. TDS has to be deducted on transaction value and not on the stamp duty value e.g. if a property has been purchased for Rs.48 Lakh and its stamp duty value is Rs.52 Lakh, then there is no liability

TDS, because transaction value is less than Rs.50 Lakh.

23. TDS on service tax component :- TDS is deductible on the entire consideration including service tax but in the case of TDS on rent, TDS will not be deducted on service tax component included in rent.

Update :No TDS on service tax as per circular 01/2014 dated 13.01.2014

24 TDS on payment to transporter : - In view of Sec.194C(6) no tds is required to be deducted on payment to transport contractor during the course of plying, hiring or leasing goods carriage, if transporter furnishes his PAN, however such information i.e. name of transporter, amount paid or credited, his PAN will have to be submitted in quarterly e-filing of tds return even in case of nil TDS. TDS @ 20% will have to be deducted if the transporter does not furnish his PAN.

25 Due date of depositing TDS:- TDS deducted on income credited or paid on any day in the month of March can be deposited upto 30th April, and in any other month within 7 days from the end of the month.

26. Challan Correction : - If there has been mistake in depositing tax challans, it can be corrected through

challans correction mechanism. Or through an application to concerned TDS-AO.

27. Refund of excess TDS deposited : - Upto 31st March, 2010 Excess TDS deposited can be adjusted in next quarter in the same financial year, otherwise application for refund can be made to Assessing Officer(TDS) within 2 years from the end of financial year in which TDS made. However w.e.f. 1st April 2010 Sec.200A itself prescribes that refund should be granted through processing of returns. Sub-rule 3A of rule 31A prescribes that application for refund of excess tds deposited shall be in form No.26B electronically

under digital signature.

28. 20% TDS for wrong PAN:- If deductee’s PAN is not available or invalid then it will be assumed that

deductee has not furnished his PAN to the deductor and then 20% TDS will be deductible.

29. TDS on compensation :- U/s.194LA there is TDS of 10% on compensation for compulsory acquisition

under any law, of immovable property (other than agricultural land), for payment exceeding 1 lakh now w.e.f. 1st July 2012 this limit is increased to 2 Lakh.

30. Penalty for wrong information: - On furnishing incorrect information (e.g. wrong PAN & amount) in TDS return, w.e.f. 1st July, 2012 penalty ranging from 10 thousand to 1 lakh may be imposed u/s.271H(1)(b).

31. Issue of TDS/TCS Certificate : - Form No.16A/27D are to be issued within 15 days from the due date of filing of quarterly TDS/TCS returns:-

• (i) i.e. in case of all deductors except Govt. deductors:- upto 30 July, 30 Oct. 30 Jan, 30 May,
• (ii) i.e. in case of Government deductors:- upto 15 Aug., 15 Nov., 15 Feb., 30 May;& form No.16 (Salary) is to be issued on or before 31st May.

32. Due date of Deposit in case of TDS by Govt:-

• (i) without production of income tax challans, TDS/TCS has to be deposited on the same day,
• (ii) in case of payment through challans within 7 days from the end of the month in which tax is deducted/collected.

33. Form No.24G by Govt. Deptt., - In case of TDS/TCS without production of income tax challans deductor will report TDS to PAO (Pay & A/c officer) or DDO, the PAO/DDO will submit form No.24G to NSDL within 10 days from the end of the month. BIN(Book Id.No.) will be generated for each deductor.

34. Due date of depositing TCS :- All sums collected in accordance with the provisions of Sec.206C(1) or 206C(1C)) by TCS collectors (who collects TCS) other than Govt., shall be paid within one week from the last day of the month in which the collection is made. Due to drafting error Rule 37CA does not prescribe any due date for payment of TCS in case bullion or jewellery Sec. 206C (1D). However it may be assumed that it will also be deposited within 7 days from the end of the month.

35. Person responsible for paying : - Person responsible for paying was not clear in case of Central or

State Govt. Deptt., now it stated w.e.f. 1st July 2012 that Drawing and Disbursing Officer or any other

persons (by whatever name called) responsible for making payment shall be responsible for paying

U/s.204 for the purpose of Sec.190 to 203AA & sec.285.

In case of TCS person responsible for collecting and depositing has not been defined, because sec.204

talks only about TDS, not TCS.

36. Form for TDS returns: - Form 24Q applicable for TDS on salary, 26Q in case of other TDS, 27Q for

payment to non-resident, 27EQ for TCS.

37. Rectification and appeal against intimation of TDS:- Earlier intimation of TDS processing (issued U/s.200A) could not be subject of rectification u/s.154 of the act or appeal, only notice u/s.156 could only be rectified or appealed, therefore now w.e.f. 1st July 2012 it is stated that intimation of TDS processing can also be subject to rectification u/s.154, appealable u/s.246A and deemed to be notice of demand u/s.156.

38. Order U/s.201 against TDS statement filed/not filed: - If a person has failed to deduct whole or any

part of TDS and filed the TDS statement then order against it can be passed:

• (i) within 2 years from the end of the financial year in which the TDS statement is filed for tax deducted,and
• (ii) in six years from the end of the financial year in which the gross payment (without TDS) is made or

credited and no TDS statement has been filed. This time limit of 6 years is extended from 4 years w.e.f. from 1st April 2010.

39. Furnishing of form No.16A/27D:- For TDS deducted on or after 1.4.2011 by companies including banking companies and cooperative banks, form No.16A is to be issued dfirectly downloaded from the tin website (www.tin-nsdl.com) and this provision is applicable to all deductors issuing form No.16A for tax deductible on or after 1.4.2012, and all such deductors will have to verify and authenticate the

correctness of this form.

40. Sec.195:

• (a) Any person liable to pay to a non-resident any interest or other sum (other than salary) chargeable under the provisions of this Act shall be liable to TDS (withholding tax rate) or at the rates specified in ADT agreement, whichever is lower.
• (b) If the payment is not chargeable to tax in India then no TDS is required.
• (c) if the payer considers that whole of such sum is not chargeable under this act, but any portion of this is only chargeable then he may apply to the assessing officer u/s.195(2) for lower rate [no form is prescribed if the payer applies to ITO(TDS)].
• (d) If recipient wants the payment without deduction of tax (not lower rate) u/s.195(3) then he will have to apply in form No.13 and if the recipient is foreign banking company then in form No.15C and if the recipient is a branch and other than foreign bank then in form No.15D.
• (e) In case of payment to non-resident certificate has to be obtained from a chartered accountant in form No.15CB and information of such proposed remittance has to be uploaded in form no.15CA on www.tinnsdl. com and then it has to be submitted to the bank before remittance.

41. PENALTIES:

• (i) Sec.271C/271CA: - If a person fails to deduct/collect whole or any part of tax, then such persons shall be liable to penalty equal to the amount of tax, which such person failed to deduct or collect. By insertion of first proviso to Sec.201(1)/206C(6A) of the act if the recipient/buyer except in case of gold 7 jewellery,has included the sum in his return of income then the deductor/person responsible to collect, will not be held defaulter. It does not cover cases where assessee failed to pay tds/tcs.
• (ii) Sec.271H:- w.e.f. 1st July 2012 penalty ranging from 10000 to Rs.1 Lakh may be imposed on failure to submit tds return or on furnishing incorrect TDS/TCS return. Penalty on failure to submit tds return shall not be levied if the person has after paying tds/tcs along with fee and interest, filed the tds return before the expiry of period of one year from the due date of tds return.
• (iii) Sec.272A(2): - Penalty of Rs.100/- per day on failure to furnish TDS/TCS returns [U/s.200(3)/206C(3)/], or failure to furnish any statement referred u/s.206A(1), or failure to deliver in due time form No.15G/15H/27C, or failure to furnish form No.16/16A/12BA/27D. Penalty should not exceed the tax deductible or collectible. Penalty for delay in filing TDS/TCS returns (Sec.200(3)/206C(3) will not be  applicable w.e.f. 1.7.2012 because it is replaced by sec.234E.
• (iv) Sec.272BB(1)/(1A)/BBB:- If a persons fails to apply for TAN or to quote TAN number in returns or certificates then penalty of Rs.10000/- may be imposed. 
• (v) Sec.273B provides that if the assessee proves that there was reasonable cause for delay or default then penalty cannot be imposed under aforesaid sections.

42. Prosecution Sec.276B-TDS/276BB-TCS: If a person fails to deposit TDS/TCS then he shall be punishable with rigorous imprisonment for a term which shall not be less than three months but which may extend to seven years and with fine. Failure to deduct or collect tax is not an offence but failure to deposit TDS/TCS is an offence u/s.276B/BB. In view of Sec.278AA no person shall be punishable for any failure referred to in Sec.276B i.e. default in payment of tds, (this immunity is not available in case Sec.276BB TCS), if he proves that there was reasonabale cause for such failure. Offences u/s.276B/BB can be compounded by the Chief Commissioner or Director General. As per Sec.279A offence u/s.276B (not 276BB) is a non-cognizable (in which no FIR or arrest can be done without specific permission of the court.).

In view of the above analysis of tds provisions it can be summarized that an assessee has to take great care in discharging duties towards tds/tcs dues and deductibility, otherwise any person may have to face penal and prosecution consequences in discharge of duties which does have nothing to do with his own business, because in the case of tds/tcs the `a’ is only acting as an agent of Government without any remuneration or rewards.

CA MANISH BORAD 

Regional Council Member

Email :manishborad at hotmail.com

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