Taxmann's Analysis | CBDT's New Compounding Guidelines for Offences – Everything You Need to Know

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CBDT's New Compounding Guidelines for Offences

Everything You Need to Know

CBDT's New Compounding Guidelines for Offences

Everything You Need to Know

In line with the Hon'ble Finance Minister's budget announcement on simplifying and rationalising the compounding procedure, the Central Board of Direct Taxes (CBDT) issued new Guidelines1 for Compounding of Offences under the Income-tax Act, 1961 (the Act).

These guidelines have been issued in supersession of all previously issued guidelines for the compounding of offences, which are as follows:

a) Guidelines issued via letter dated 16.05.2008.

b) Guidelines issued via letter dated 23.12.2014.

c) Guidelines issued via letter dated 14.06.2019.

d) Guidelines issued via letter dated 16.09.2022.

The new guidelines have been simplified by, among other changes, eliminating the categorisation of offences, removing the restriction on the number of applications, allowing fresh applications upon rectifying defects (which was previously not allowed), permitting the compounding of offences under sections 275A and 276B of the Act, and removing the 36-month time limit for filing applications from the date of the complaint.

Additionally, the new guidelines permit companies and HUFs to file applications without the main accused. Both the main and co-accused can now have their offences compounded upon payment of the relevant charges by either party.

Moreover, compounding charges have been rationalised by abolishing interest on delayed payments and reducing the rates for offences, such as TDS defaults, to a uniform rate of 1.5% per month. The calculation of compounding charges for nonfiling of returns has been simplified, and separate compounding fees for co-accused have been removed.

This article explains the provisions of the new guidelines in the form of Frequently Asked Questions (FAQs). 1.

FAQ 1. What is compounding of offences under the Income-tax Act, 1961?

Compounding of offences is a process by which a person can avoid prosecution for certain offences under the Income-tax Act by paying a compounding fee & charge. It allows taxpayers to settle the dispute by paying the charges instead of undergoing criminal proceedings.

FAQ 2. What are the new guidelines for compounding offences under the Income-tax Act, 1961?

The CBDT issued revised guidelines on 17th October 2024, simplifying the compounding process. These guidelines replace all earlier versions and apply to both pending and new applications.

FAQ 3. Who is eligible to apply under the new guidelines?

Any taxpayer, company, or person deemed guilty of an offence under the Income Tax Act can apply for compounding, provided he meets the necessary conditions prescribed under the guidelines.

The new guidelines will apply to all applications submitted after their issuance date, 17-102024, and to applications submitted earlier that have not yet been disposed of.

FAQ 4. What offences can be compounded under these guidelines?

All offences listed under Chapter XXII of the Income-tax Act, 1961 are eligible for compounding, including:

 Non-payment of TDS/TCS;

 Failure to file returns;

 Willful tax evasion;

 Filing false statements, etc.

FAQ 5. What is the deadline for filing a compounding of offence application?

The compounding application can be filed suo-moto at any time after the offences occur, regardless of whether it has come to the Department’s notice. It may also be submitted after prosecution proceedings have commenced.

FAQ 6. Who is the Competent Authority to compound an offence?

The Pr. CCIT/CCIT/Pr. DGIT/DGIT is the Competent Authority for compounding offences. If a person commits an offence under sections 276B/276BB of the Act for non-payment of TDS/TCS for both resident and non-resident payees, jurisdiction may lie with multiple authorities. Here, the Competent Authority will be the one where the compounding application is filed.

However, if applications are filed in multiple jurisdictions, the authority with the higher TDS default amount will be the Competent Authority and other applications will be transferred accordingly. Similarly, if an applicant files a compounding application for offences under sections 276B/276BB related to multiple TANs in different jurisdictions, the authority with the higher TDS default will be the Competent Authority and other applications will be transferred.

In case of a dispute over jurisdiction, the Pr. CCIT with PAN jurisdiction will determine the Competent Authority within 30 days of receiving the reference.

FAQ 7. What are the conditions for compounding of offences under the new guidelines?

An offence may be considered for compounding if all the following conditions are satisfied:

(a) Filing of compounding application

An application for compounding must be submitted to the jurisdictional Pr. CCIT/CCIT/ Pr. DGIT/DGIT, using the prescribed format (Annexure-1) as an affidavit on Rs. 100 stamp paper.

The application can be filed for offences related to a single financial year (for taxpayers) or quarter (for tax deductors), as well as for multiple years/quarters, referred to as a ‘Consolidated Compounding Application.’ If there are multiple rejected applications

under the previous guidelines, a single Consolidated Compounding Application may be submitted for all of them.

(b) Payment of compounding fee

The applicant must pay a non-refundable Compounding Application Fee as follows:

 Single Compounding application: Rs. 25,000 (per application)

 Consolidated Compounding application: Rs. 50,000 (per application)

This fee is non-refundable but can be adjusted against the total compounding charges determined by the Competent Authority. The fee is also applicable for applications submitted before the issuance of the new guidelines that were rejected and are now being revived under the new guidelines. However, the fee is not required for pending applications filed under the earlier guidelines.

(c) Payment of taxes along with interest and other sums

All outstanding tax, interest (including interest under section 220), penalties, and any other sums due related to the offences for the relevant years and/or quarters must be paid before submitting the Compounding Application.

If the Department identifies any outstanding demands upon verification, the applicant must pay these, including interest under section 220, within 30 days of intimation or within a period not exceeding 3 months as permitted by the Competent Authority. The compounding application will be deemed valid only after all demands related to the offences for the respective years/quarters have been paid.

(d) Submission of undertaking

The applicant shall undertake to pay the Compounding charges. determined in accordance with these guidelines by the Pr. CClT/CUT/Pr. DGIT’/DGIT concerned, within the stipulated timeframe.

Further, the applicant must undertake to withdraw any appeals related to the offences being compounded. If an appeal includes mixed grounds, he should provide an undertaking to withdraw only those grounds related to the offences in question.

(e) Consolidation of offences

Any application for compounding an offence under sections 276B/276BB of the Act for a specific TAN must include all defaults related to that TAN for the relevant period. To assess the quantum of TDS defaults, the total non-payment of TDS/TCS for a quarter will be calculated by aggregating the defaults from all statements filed by the TDS deductor for that quarter.

FAQ 8. What happens if an applicant fails to meet the conditions outlined in FAQ 7?

Applications that do not meet the criteria specified in FAQ 7 or have curable defects will be treated as defective and will not proceed. However, they can be revived without an additional fee if the defects are corrected within one month from the date of intimation of such defect. If the defect is not corrected within the allowed time, the defective application will be returned to the applicant.

FAQ 9. Are there any offences that require higher approval?

The following offences shall be compounded by the Competent Authority only after taking approval of the chairman of CBDT:

(a) If the applicant has been convicted of an offence with imprisonment of two years or more, with or without a fine.

(b) If the offence is related to another offence under any other law, where the applicant has been convicted with imprisonment of two years or more, with or without a fine.

(c) If the applicant is involved in anti-national or terrorist activities, as determined by a Central or State Agency. In such cases, the Authority will consult the relevant Agency for inputs before seeking approval.

(d) If the applicant, though not the main accused, facilitated tax evasion through activities like money laundering, issuing bogus invoices, or providing accommodation entries, as per section 277A of the Act;

(e) If the offence is directly related to offences under the following Acts:

• The Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015;

• The Prohibition of Benami Property Transactions Act, 1988;

(f) For offences under sections 275A and/or 275B of the Act.

FAQ 10.

Can the competent authority deny admitting compounding applications even if the applicant meets the prescribed conditions?

Yes, compounding is not a matter of right. The Competent Authority may deny the application in exceptional cases, with written reasons such as the applicant being a habitual offender or the seriousness of the offence based on its facts and circumstances.

Further, prosecution instituted under the Indian Penal Code (IPC) or Bhartiya Nyaya Sanhita, 2023, cannot be compounded under the new Guidelines. If a prosecution complaint is filed under both the Income-tax Act and the IPC/BNS 2023 based on the same facts, and the offences under the Income-tax Act have been compounded, the complaint under IPC/ BNS 2023 will be withdrawn by the Competent Authority as per section 321 of the Criminal Procedure Code, 1973, and/or section 360 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

FAQ 11. If a person’s application was rejected under the previous guidelines, can he reapply under the new guidelines?

A person may refile an application under the new guidelines if his previous application was rejected due to curable defects, such as:

(a) Non-payment of outstanding tax, interest, penalty, or related sums,

(b) Filing the application in the incorrect format,

(c) Mentioning the wrong assessment year/financial year or section under which the offence has been committed,

(d) Non-payment or short payment of compounding charges,

(e) Failure to submit an undertaking regarding the withdrawal of appeals, etc.

However, applications rejected on merits by the Competent Authority in the past will not be reconsidered under the new guidelines.

FAQ 12. What are the compounding charges for prosecution initiated under various sections?

The following compounding charges shall be paid by the person for compounding offences under various sections:

275A Contravention of authority’s order to not deal with the goods that could not be seized

275B Failure to provide access to books of account and other documents to the authorized officer during the search and seizure

276 Removing, concealing, transferring or delivering property to thwart tax recovery

276A2 If a liquidator:

(a) does not intimate the tax authorities about his appointment;

(b) parts with the assets of the company without prior approval or without setting aside the amount of tax demand

(Prior to 01.04.2023)

276AA Failure to comply with the provisions of section 269AB or section 269I

(Prior to 01.10.1986)

276AB Failure to comply with the provisions of sections 269UC, 269UE and 269UL

(Prior to 01.04.2022)

10% of the highest of total income declared or assessed, in the last 7 financial years including year of search, subject to a minimum of Rs. 5 crore.

10% of the highest of total income declared or assessed, in the last 7 financial years including year of search, subject to a minimum of Rs. 5 crore.

75% of the outstanding tax or the recovery amount sought to be thwarted through the removal/concealment/ transfer/delivery of property, whichever is lower.

Rs. 10,000 for each such offence.

However, the Competent Authority may determine compounding charge having regard to the nature and magnitude of the offence, loss of revenue directly or indirectly attributable to such offence, subject to levy of minimum compounding charges.

2 The Finance Act, 2023 has inserted sunset clause under section 276A. No proceedings shall be initiated under this provision on or after 01-04-2023.

Section Offence

276B Failure to pay tax deducted at source (TDS) or failure to pay dividend distribution tax or failure to pay or ensure payment of tax on winning in kind under Section 194B or failure to ensure payment of tax on winnings from online games in kind under Section 194BA or failure to ensure payment of tax on benefit or perquisite provided in kind under Section 194R or failure to ensure payment of tax under Section 194S where the consideration for transfer of VDA is in kind3

Compounding Charge

1.5 % per month or part of a month of the amount of tax in default for the default period.

Note:

(a) The period of default shall be calculated from the date of deduction to the date of deposit of TDS, as is done in respect of calculating interest under section 201(1A)(ii).

(b) The compounding charge shall not exceed the TDS amount in default.

276BB Failure to pay the tax collected at source (TCS)

276C(1) Wilful attempt to evade any tax, penalty or interest chargeable or imposable under this Act or under-reporting of income

1.5 % per month or part of a month of the amount of tax in default for the default period.

Note:

(a) The period of default shall be calculated from the date of collection to the date of deposit of TCS, as is done in respect of calculating interest under section 206C(7).

(b) The compounding charge shall not exceed the TCS amount in default.

125% of tax amount sought to be evaded or tax on under-reported income, as the case may be.

3 Where the income under Sections 194B, 194BA, 194R and 194S is in kind or partly in cash and kind but the part in cash is not sufficient to meet the liability of tax deduction, the deductor is required to ensure that tax has been paid in respect of such income. The Finance Act, 2023 has amended Section 276B to provide for the prosecution on failure to ensure payment of tax in such cases. The amendment will come into effect from 01-04-2023 for Sections 194B, 194R, and 194S, and from 01-07-2023 for Section 194BA.

Section Offence

276C(2) Wilful attempt to evade payment of any tax, penalty or interest chargeable or imposable under this Act

Compounding Charge

1.5% per month or part of the month of the amount of tax, interest and penalty, the payment of which was sought to be evaded for the period of default.

Notes:

(a) The period of default is calculated from the day after the due date of payment until the actual payment date.

(b) Any period where a stay on demand is granted by the Income Tax Authority, Appellate Tribunal, or Court shall be excluded when calculating the default period.

(c) The compounding charge shall not exceed the amount of tax, interest, and penalty that was attempted to be evaded.

(d) For compounding under sections 276C(1) and 276C(2) for the same issue and year, only the charges under section 276C(1) will apply.

276CC Failure to furnish the return of income either under Section 139(1) or in pursuance to a notice issued by the Income-tax authorities

In case of default in filing of return pursuant to search or survey action:

• 30% of the amount of tax sought to be evaded or the amount of tax on under-reported income, as the case may be, subject to a minimum of Rs. 10 lakh.

In other cases

• 15% of the amount of tax sought to be evaded or the amount of tax on under-reported income subject to a minimum of Rs. 5 lakh.

Note: For compounding under sections 276C(1) and 276CC for the same issue and year, only the charges under section 276C(1) will apply.

276CCC

Failure to furnish return of total income in response to a notice issued by assessing officer in search or requisition cases as per Section 158BC

30% of the amount of tax sought to be evaded or the amount of tax on underreported income, as the case may be, subject to a minimum of Rs. 10 lakh.

Note: For compounding under sections 276C(1) and 276CCC for the same issue and year, only the charges under section 276C(1) will apply.

276D Failure to produce books of accounts or documents before the assessing officer or fails to get his accounts audited or inventory valued under Section 142(2A)

276DD Failure to comply with the provisions of section 269SS

(Prior to 01.10.1989)

276E Failure to comply with the provisions of section 269T

(Prior to 01.10.1989)

277 Making a false statement in any verification or delivers an account or statement which is false

277A Making or causing to make a false statement or entry in books of account or document

278 Abets or induces another person to make and deliver an account or a statement which he believes to be false or to evade any tax or interest or penalty chargeable or imposable under the act

10% of returned income or assessed income of the assessment year pertaining to the offence, whichever is higher, subject to a minimum of Rs. 5 lakh.

10% of the amount of any loan or deposit in contravention of the provisions of Section 269SS.

10% of the amount of deposit repaid in contravention of the provisions of Section 269T.

50% of the amount of tax, which would have been evaded due to offence committed

100% of the amount of tax or interest or penalty evaded on account of such false entry or statement

50% of the amount of tax, which would have been evaded or which is willfully attempted to be evaded, due to offence committed

Notes:

(a) If same set of facts and circumstances attract prosecution u/s 277 as well as section 278, the compounding charge shall only be calculated by treating them as single offence.

(b) If same set of facts and circumstances attract prosecution u/s 277 or 278, in addition to another offence, no separate compounding charge shall be charged for offence u/s 277 or 278 .`

Notes:

1) To calculate compounding charges, ‘tax’ means to the tax amount, including surcharge and cess, as applicable. However, interest is excluded from the ‘tax’ when computing the Compounding Charge.

2) The Compounding charges shall be increased by 50% of sum computed if the application is made beyond 12 months from the end of the month in which the prosecution complaint is filed.

FAQ 13. Will the compounding charges remain the same if a person submits a compounding application for the second time?

The compounding charges mentioned in FAQ 12 apply to the ‘first’ compounding application or a consolidated application for each offence disclosed by a person. Compounding applications filed under previous guidelines, whether pending, rejected, or compounded, will be treated as the “first” compounding application under the new guidelines.

Any subsequent applications will be considered as second, third, fourth, etc. If new offences are included in subsequent applications, charges will follow as specified in FAQ 12. However, for repeat offences in the subsequent application, compounding charges will be as follows:

Note: The Compounding charges shall be increased by 50% of sum computed if the application is made beyond 12 months from the end of the month in which the prosecution complaint is filed.

FAQ 14. What happens if compounding charges were determined on an application filed under previous guidelines?

For applications pending as of 17-10-2024, if compounding charges have already been determined and communicated but remain unpaid in full, the charges shall be recalculated if they are lower under the new Guidelines. However, no refunds or adjustments against other dues will be provided if the higher charges determined under the previous Guidelines have already been paid.

FAQ 15. How to pay compounding charges?

Compounding charges must be paid online by logging into the e-filing portal and selecting:

“e-Pay Tax > New Payment > Income Tax > Minor head > Other Receipt (500) > Compounding Charges”

FAQ 16. Who is required to file a compounding application if a Company or HUF commits an offence?

In cases of offences by a Company or HUF under sections 278B or 278C, a compounding application may be filed separately or jointly by the main accused (Company or HUF) and/ or any person deemed guilty (“Co-accused”).

The Competent Authority will decide on the application based on the payment of compounding charges as per the guidelines. Co-accused may deposit compounding charges using his PAN for the relevant financial year related to the offence for which compounding is sought.

Once the compounding charges are paid, the Competent Authority will compound the offences for both the main accused and co-accused by issuing an order under section 279(2).

Note: If a company’s liability for an offence ceases due to provisions of Section 32A of the Insolvency Bankruptcy Code (IBC), prosecution of co-accused may still continue. In such cases, the co-accused and/or the main accused company may file the compounding application and pay the compounding charges.

FAQ 17. What is the procedure of compounding?

The following are the procedures to be followed by the Competent Authority to compound an offence:

(a) Upon receiving the compounding application, the Competent Authority will request a report from the relevant Assessing Officer or Assistant/Deputy Director. This report, along with a completed checklist (Annexure-2), must be submitted promptly through the proper channel.

(b) If the application is deemed unacceptable, the Competent Authority will issue a speaking order in the suggested format (Annexure-3 - Part-II) within two months of the end of the month in which the application was received.

(c) If the application is accepted, the Competent Authority will notify the applicant of the acceptance, including the compounding charges and any outstanding liabilities. This intimation may be issued within two months from the end of the month in which the application was received.

(d) The Competent Authority will inform the applicant of the compounding charges, which must be paid within one month from the end of the month of receipt. If the applicant requests an extension for payment, the Competent Authority may grant up to 6 months under exceptional circumstances. Any further extension shall be granted with the approval of the following authority: Duration of Extension Approval

Beyond 6 months, up to 12 months Prior written approval from the Pr. Chief Commissioner of Income Tax for the region

Beyond 12 months, up to 24 months Approval from the Chairman of the CBDT or an authorised Member

Beyond 24 months

No extensions allowed

(e) If the compounding charge is not paid within the allowed time, the application will be rejected, and prosecution will be initiated if it hasn’t already begun.

(f) The complainant shall serve a copy of the prosecution complaint to each accused within 15 days of filing the complaint to allow prompt filing of the compounding application.

(g) The court must be informed immediately of the acceptance or rejection of the compounding application by the prosecution counsel in all cases where prosecution proceedings are pending before the Court.

(h) If penalty proceedings for the offence being compounded are pending when the application is filed, they should be resolved quickly, and any penalty demands must be settled before the compounding order is issued.

(i) If compounding charges have been paid, the Competent Authority shall issue the compounding order in the prescribed format (Annexure-3 - Part-1) within one month from the end of the month in which the total compounding charges are paid.

FAQ 18. Does opting for compounding imply admitting to offences?

Taxpayers, especially NRIs, often refrain from compounding due to the misconception that it implies an admission of offences, potentially impacting their reporting obligations at various statutory and international forums. To clarify this misconception and encourage taxpayers to pursue compounding, the Competent Authority is directed to include the following paragraph in the compounding order issued under section 279(2) of the Act:

“This compounding order is intended to resolve the offence under section 279(2) of the Act and should not be construed as an admission of the offences by the applicant.”

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