Tuesday, November 12

FAQs on TDS u/s 192

Section 192 of The Income Tax act 1962 is one of the most complicated section of TDS in term of mechanism of calculation of TDS. Team CAhelpers has tried to simplify it by using simple question format which arose during practical experience among professionals.

Manner Of TDS Deduction

Q-1: Whether TDS is to be deducted from the beginning of the financial year? Or, can it be deducted during the last few months of the FY?
Ans: TDS from salary income should be deducted uniformly throughout the year starting from the month of April based on the projected salary for the whole year and considering the savings declaration (no specified format) given by the employee. In subsequent months, adjustments can be done for any changes in salary or tax savings plan of employees.

Q-2: Can I request my employer to deduct TDS on my other income also?
Ans: Yes, if you submit the particulars of your any other income (including loss on house property) in plain paper [Earlier Form 12C was prescribed but since 2003 it is not required], employer is bound to deduct TDS on it. Anyhow, the particulars to be mentioned on the declaration are exactly in the same format as earlier Form 12C.

Please note that in case of loss from house property, detailed computation has to be enclosed. Further for claiming tax benefits on home loan [interest u/s 24(b) & principal repayment u/s 80C], a certificate from the lender specifying the amount of interest paid / payable during the financial year also needs to be furnished.

Q-3: Whether TDS is also to be deducted on the non-cash benefits provided to the employees?
Ans: Yes, from the current financial year (FY 2009-10) tax burden on fringe benefits / perks has again been shifted back to the employees (the FBT stands abolished). So all the non-cash benefits provided by the employer (e.g. official car, ESOPs, company owned or leased accommodation, gift vouchers, interest free or concessional loans, club membership etc) will have to be taken into account for the purpose of tax deduction at source from salary. The valuation of these perquisites will be as per the CBDT notification issued in December 2009.

Q-4: What if due to an error the employer deducts TDS in excess?
Ans: According to section 192(3) of the IT Act, any excess or shortfall can be adjusted subsequently but within the same financial year. In other words, excess / shortfall TDS of one financial year can’t be carried forward for adjustment in subsequent financial year.

The other point worth noting is that there is no bar on inter-employee adjustment i.e., if there’s a excess deduction on account of one employee and short deduction from the salary of other employee, those can be adjusted.

Exemptions and Deductions

Q-5: What if my employer doesn’t allow HRA exemption while calculating TDS on salaries?
Ans: If in fact you are residing in a rented accommodation and paying rent, I don’t think any employer will refuse deduction on account of HRA. Only in a very exceptional case, employer will refuse HRA deduction against rent paid by you. In such an eventuality, you can always claim it while filing your return of income and receive tax refund.

Q-6: Can an employer allow both the tax concessions: HRA as well as Home loan tax benefits while calculating TDS from salary?
Ans: Yes, indeed! As long as you’re eligible for both, employer should not have any objection in allowing both: HRA exemption u/s 10 (13A) as well as tax benefit on a/c of repayment of housing loan [interest u/s 24(b) and principal repayment u/s 80 of the IT Act 1961].

There are many possible scenarios where you can claim HRA along with housing loan tax benefits.

Q-7: Whether employer can insist on travel proof for allowing LTC exemption while calculating TDS on salary?
Ans: Yes, of course employer can insist on production of documentary evidence to satisfy regarding the genuineness of the LTA claim. Mere submission of a declaration for the purpose of claiming LTA / LTC exemption u/s 10(5) of the IT Act, 1961 is not enough.

Though in a judgement delivered in 2009, the Supreme Court exempted the employers from collecting travel bills to allow LTA / LTC exemption to employees while calculating TDS on salaries; however, most employers still demand it.

Q-8: Whether employer can allow 80G deduction while calculating TDS from salary income?
Ans: Employer is  allowed to take into account section 80G deduction in respect of donations made for charitable purposes while calculating TDS on salaries.

Q-9: Section 80DD allows a fixed deduction Rs 50,000 / Rs 75,000 irrespective of the amount of expenditure incurred on the medical treatment of handicapped dependent. However, my employer doesn’t agree and he is only allowing the actual expenditure incurred by me?
Ans: Law is law no matter how illogical or absurd it is. Logic dictates that either there should be allowed a fixed deduction without any stipulation as to the actual incurring of the expenditure and in case it is made dependent on actual incurring of expenditure then the expense actually incurred should be allowed subject to a maximum limit.

It doesn’t make sense to make the deduction / exemption conditional on incurring of the expenditure but allowing a fixed amount irrespective of the actual expenditure incurred. In simple words, it is highly illogical to allow a fixed tax deduction of, say, Rs 75,000 irrespective of whether you spend Rs 100 or Rs 60,000 but disallow it if you don’t incur any expenditure.

But understand that law is not what it should be but what it is. So, your employer shouldn’t have any objection in allowing you the fixed deduction of Rs 50,000 / Rs 75,000 (as applicable) allowed u/s section 80DD so long as you’re incurring any expenditure on account of medical treatment of your handicapped dependent (even Rs 1 will do).

Q-10: What are the various investments allowed for the purpose of tax savings?

Ans: For complete list of various tax savings investments and expenses allowed under section 80C, For mediclaim / health insurance premium and other expenses allowed while calculating taxable income u/s 80D.

Q-11: Do we have to submit the original proofs for claiming exemptions and deductions?

Ans: No, you can submit self-attested photocopies of all the documentary evidence / proofs (e.g., rent receipts, ELSS account statement, life insurance premium receipt, school fee receipt etc) required by the employer for the purpose of allowing you various deductions and exemptions.
However, for the purpose of verification your employer might ask you to show the originals also. But remember original can be required only for verification and not for submission, so don’t forget to get them back and file in your tax file for future reference and any query from tax authorities.

Change of Employment: Form 12B 

Q-12: For an employee joining in the middle of a FY, is it the responsibility of employer to ask for salary details of previous employment? In other words, is it mandatory for the current employer to deduct TDS on salary income received from previous employer? Can the employer force the employee to submit the information for TDS purpose? Or, is it at the total discretion of the employee? Can the current employer adjust if there any shortfall or excess TDS deducted by previous employer?
Ans: According to section 192, it is the option / discretion of the employee whether or not to file Form No 12B. The current employer can’t insist on filing of Form No 12B. If the employee chooses not to file, then employers’ obligation is limited to compute TDS on salary payable by him.

If Form 12B is filed, then current employer can deduct the TDS on salary paid by previous employer (in case no TDS was deducted by previous employer). And if the TDS was deducted by previous employer, any excess or shortfall can also be adjusted.

It is always in the interest of an employee to furnish such details because otherwise there can be duplication of exemptions and deductions and there can be a shortfall in tax deduction and as a result the employee would become liable to deposit advance tax.

Q-13: Who’s responsible for filling up the Form 12B: My previous employer or me?

Ans: It is the responsibility of the employee to fill the declaration in Form No 12B and also attach Form 16, if any, issued by your previous employer. It is required to be filled up even if there was no TDS deducted by your previous employer due to the salary being less than the basic exemption limit. It is quite possible that after combining your current and previous salary, your total salary income exceeds the maximum amount not chargeable to tax.

Q-14: How to fill Form No. 12B for giving it to my current employer so that income (and tax already deducted thereon, if any) from my previous employment can be considered for the purpose of TDS from my current salary income?

Ans: Fill up Form 12B based on the Form 16 (if TDS deducted) or on the basis of salary certificate (if no TDS deducted or pending issuance of form 16) issued by your previous employer. You can also take the help of your salary slips. In case of any difficulty, you can take guidance from your previous or current employer.

Q-15: Can my current employer still refuse to deduct TDS on my previous salary once I submit Form 12B?

Ans: No, once you submit Form 12B, it becomes the obligation of the employer to deduct TDS on your consolidated salary after accounting for TDS deducted (if any) by your previous employer.

Issue of Form 16 

Q-16: What is Form 16? What’s the difference between Form 16 & Form 16A?
Ans: Form 16 is the Tax Deduction Certificate issued by an employer to his employee against the income tax deducted from his salary. On the other hand Form 16A is issued by organizations against TDS deduction from certain payments made to contractors, service providers, professionals and certain other payments like rentals, interest etc. For example, bank issues you Form 16A against TDS deducted on FD interest.

Q-17: What if my employer or previous employer doesn’t issue me a TDS certificate?

Ans: Now a days you don’t need to submit any documents with your IT return as these are annexure-less. But, although Form 16 is not required to be attached with return of income but still it is the duty of employer to furnish it to the employee. It is required because

a. It shows your salary income (various components are shown separately). In its absence it might not be possible for you to calculate tax on your salary income (particularly if no salary slips are issued at the time of payment of salaries)

b. It shows the details of TDS deducted by your employer which is also required to be mentioned in the Tax Return.

c. You’ve to show it to the income tax authorities if asked for at the time of assessment.

As per section 203, TDS certificate in form no 16 is required to be furnished by the employer to the employee within one month of the close of the financial year. But you don’t have any remedy against your employer if he refuses to issue you the TDS certificate although he is accountable to the tax authorities.

Therefore, the only option left to you if the employer doesn’t issue the certificate is to register yourself on http://www.tin-nsdl.com/ and get the TDS status as shown in Consolidated Tax Credit Statement (Form no 26AS) from that site. Based on this online statement, you can file your return.

Q-18: Is it compulsory to issue TDS certificates even in case of an employee where no TDS is deducted due to the total income falling below the maximum exemption limit on account of various deductions allowed u/s 80C?Ans: No, it’s not! There is no obligation on the employer to issue Form 16 in case tax is not deducted by virtue of claims of exemptions and deductions.

Q-19: Is the TDS amount shown in my Form-16 final figure of my tax liability?

Ans: No, the tax shown by your employer on the form 16 is not the final figure of your tax liability. Your actual tax liability may differ on account of following reasons:

i). You might have other income (loss) from other sources of income: Income from house property (rental income), business income, capital gains (e.g., profit / loss on sale of shares or mutual fund units) other income (interest on your savings bank account or FDs).

ii). Your employer might have made excess / short deduction of tax at source from your salary income by not considering any, exemption / deduction or inadvertently allowing any deduction in excess.

It’s your responsibility to show the actual tax on your total income while filing your tax return which might differ from the TDS figure shown in Form 16.

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