Taxmann's 90+ FAQs on Tax Audit under Section 44AB | AY 2023-24

Introduction

Taxpayers are required to maintain books of accounts and get them audited if their gross turnover or receipts during the previous year exceed the prescribed threshold limit. The requirement to keep the books of accounts is specified under Section 44AA, and to get them audited is mentioned in Section 44AB of the Income-tax Act.

The purpose of a tax audit is to ensure that the taxpayer maintains proper books of account and complies with the provisions of the Income-tax Act. The Chartered Accountant conducting the tax audit is required to give his findings, observations, etc., in the form of an audit report. The audit report under Section 44AB shall be furnished electronically at the e-filing portal in Form No. 3CA/3CB3CD.

This article covers the Frequently Asked Questions (FAQs) about the tax audit.

INTRODUCTION & APPLICABILITY OF TAX AUDIT

FAQ 1. What is a tax audit?

A tax audit is a process to verify whether the books of accounts prepared by a taxpayer comply with the generally accepted accounting principles and the provisions of the Income-tax Act. It is intended to ensure that the books of account and other records are properly maintained and correctly compute the taxpayer’s true income. Such an audit also helps in checking fraudulent practices. A tax audit does not give the assessee any immunity from scrutiny assessment or disallowance of expenses1. A tax audit can be conducted only by a Chartered Accountant in practice.

FAQ 2. In which form does the tax audit report have to be obtained?

The tax audit report has to be furnished in the forms prescribed below:

Form No. 3CA/3CB is a format of audit report, whereas Form 3CD is a Statement of particulars required to be furnished under Section 44AB of the Income-tax Act.

If the assessee is required to get his books of accounts audited under any other law, it is sufficient for him to get his accounts audited under that law and furnish a report of such audit and a report in form 3CA and 3CD by a Chartered Accountant by the prescribed due date.

FAQ 3. Who is required to get books of accounts audited?

Section 44AB provides for auditing the books of accounts of an assessee engaged in business or profession. The table below enumerates the requirements to get the books of accounts audited by different taxpayers:

Nature of Business or Profession Category of Taxpayer When is the audit mandatory?

Business

Both payment and receipt in cash do not exceed 5% of the total receipts and payment, respectively.

Either payment or receipt in cash exceeds 5% of the total receipts and payment, respectively.

If total sales, turnover or gross receipt from the business during the previous year exceeds Rs. 10 crores.

If total sales, turnover or gross receipt from the business during the previous year exceeds Rs. 1 crore

Business eligible for presumptive tax scheme under Section 44AD

Business eligible for presumptive tax scheme under Section 44AD

Profession eligible for presumptive tax scheme under Section 44ADA

Business eligible for presumptive tax scheme under Section 44AE

Business eligible for presumptive tax scheme under Section 44BB

Business eligible for presumptive tax scheme under Section 44BBB

Resident Individual or HUF If the assessee’s income exceeds the maximum exemption limit and he has opted for the scheme in any of the last 5 previous years but does not opt for the same in the current year.

Resident Partnership Firm (Excluding LLP)

Resident Individual or partnership firm (Excluding LLP)

Any Assessee engaged in plying, hiring or leasing of goods carriage

Non-resident assessee engaged in the exploration of mineral oil

Foreign Co. engaged in civil construction

The taxpayer has opted for the scheme in any of the last 5 previous years but does not opt for the same in the current year.

The taxpayer claims that profits from the profession are lower than the profits computed under Section 44ADA, and the total income exceeds the maximum exemption limit.

The taxpayer claims that the profits from the business are lower than the profit computed under Section 44AE.

The taxpayer claims that his profits from the business are lower than the profit computed under Section 44BB.

The taxpayer claims that his profits from the business are lower than the profit computed under Section 44BBB.

The provisions for tax audit under Section 44AB are not applicable in the case of an assessee who comes within the purview of Section 44B or Section 44BBA.

FAQ 4. Is a tax audit required if turnover exceeds the specified limit but total income is below the maximum exemption limit?

Yes, the tax audit is mandatory. Section 44AB does not exempt an assessee from the tax audit simply because its total income does not exceed the maximum exemption limit.

The objective of tax audit under section 44AB is to assist the Assessing Officer in computing the total income of an assessee in accordance with different provisions of the Act. Therefore, even if the total income of a person is below the maximum exemption limit, he will get his accounts audited and furnish the audit report if any condition prescribed under Section 44AB is satisfied.

FAQ 5. Whether a non-resident conducting business shall be subject to audit under Section 44AB?

Section 44AB does not differentiate between residents and non-residents. Therefore, a non-resident assessee must also get his accounts audited if his turnover/sales/gross receipts exceed the prescribed limits. This audit, however, would be confined only to the Indian operations carried out by the non-resident assessee.

FAQ 6. How to avail of the benefit of the enhanced limit of Rs. 10 crores for the tax audit?

The increased threshold limit of Rs. 10 crores shall apply only if cash receipts and cash payments during the year do not exceed 5% of the total receipt or payment, respectively. In other words, more than 95% of business transactions should be done through banking channels. It should be noted that any payment or receipt by cheque drawn on a bank or by a bank draft, not being an account payee cheque or draft, should be considered payment or receipt in cash. For example, any payment or receipt by a bearer or crossed cheque (not an account payee cheque) should be considered as payment or receipt in cash.

It may be noted that conditions in respect of ‘amounts received’ and ‘payments made’ should be fulfilled separately. A threshold limit of 5% is prescribed separately for receipts/payments and should be applied accordingly. It means that if one of the conditions is not satisfied, the enhanced turnover limit will not apply.

The onus would be on the assessee to prove that he is eligible for an increased threshold limit for not getting his accounts audited. He needs to ensure that his aggregate cash receipts and payments are within the limit of 5%. If he fails to do so, the consequences would be a penalty under Section 271B for failure to get accounts audited. However, if there is reasonable cause, then in terms of Section 273B, such a penalty may not be imposed.

For example, Mr. A is engaged in the business of trading readymade garments. He has a turnover of less than Rs. 10 crores during the financial year 2022-23. He made the following transactions during the relevant year:

The turnover of Mr. A during the financial year 2022-23 is up to Rs. 10 crores. He shall not be liable for tax audit if his cash receipt and payment during the year do not exceed 5% of the total receipt or payment, as the case may be.

Computation of percentage of cash receipts & payments:

Though the payment made in cash during the year does not exceed 5% of total payments, the percentage of cash receipts exceeds the limit of 5%. Thus, Mr. A is not entitled to the benefit of the increased threshold limit of Rs. 10 crores for the tax audit. Hence, the tax audit is applicable.

FAQ 7. Do the professionals have the enhanced turnover limit of Rs. 10 crore for the tax audit?

Clause (a) of Section 44AB talks about a person carrying on a business, whereas clause (b) talks about a person carrying on a profession. The proviso to Section 44AB providing the enhanced turnover limit of Rs. 10 crores for the tax audit is placed below clause (a) to Section 44AB. Thus, the persons engaged in the profession are not entitled to claim an enhanced turnover limit of Rs. 10 crores for the tax audit.

FAQ 8. Whether a person opting for a presumptive taxation scheme under section 44AD is required to get his accounts audited?

Section 44AB prescribes the conditions under which an assessee is required to get his accounts audited. It excludes a person from getting books of account audited if he opts for a presumptive taxation scheme under Section 44AD, provided the turnover of the business does not exceed Rs. 2 crores.

Clause (e) of Section 44AB states that a person, who has opted for the presumptive taxation scheme under Section 44AD in any of the last 5 previous years but does not opt for the same in the current previous year, shall be liable to get his accounts audited if his total income exceeds the maximum amount not chargeable to tax.

Clause (a) of Section 44AB provides for an audit of books of account if a person is engaged in a business and the turnover of such business exceeds Rs. 1 crore. However, the threshold shall be increased to Rs. 10 crores if the cash receipt and payment do not exceed 5% of the total receipt and payment, respectively.

If an assessee is covered under both the clauses, that is, clause (a) and clause (e) of Section 44AB, will he be liable to get the books of account audited?

For example, if the turnover of an assessee is more than Rs. 1 crore and his cash payment and receipt are less than 5%, is he liable for a tax audit?

Let’s understand this with the help of the table below:

Up to Rs. 1 crore Yes, if income is more than the maximum amount not chargeable to tax [Section 44AB(e)]

Up to Rs. 2 crores

The assessee has opted for Section 44AD in any of the last 5 years but is not opting for the same in the current year.

More than Rs. 2 crores but up to Rs. 10 crores. No [Proviso to Section 44AB(a)]

More than Rs. 10 crores Yes

The assessee has not opted for Section 44AD in any of the last 5 years and is not opting for the same during the current year as well.

Up to Rs. 10 crores No [Proviso to Section 44AB(a)]

More than Rs. 10 crores Yes

* Assuming cash receipts or payments do not exceed 5% of the aggregate amount received or paid during the year.

It should be noted that Clause 8 of Form 3CD requires the auditor to provide the relevant clause under which the tax audit has been conducted.

In case of companies, Tax Audit Quality Review Board has observed that in Clause 8 tax auditors erroneously select the option “Clause 44AB(a) - Total sales/ turnover/ gross receipts in business exceeding specified limits” instead of option “Third Proviso to Section 44AB: Audited under any other law”. So in case of companies, one should select from the dropdown in the e-filing utility the option of “Third Proviso to Section 44AB”-Audited under any other law”.

FAQ 9. Is a salaried employee required to get accounts audited if he is also trading in derivatives (futures and options)?

The gains or losses arising from trading in F&O are always taxable under the head ‘Profits and Gains from Business or Profession’. Income or loss from dealing in F&O shall be deemed as normal business income (nonspeculative business) even though delivery is not affected in such transactions.

To check the applicability of tax audit in such cases, the turnover from trading in derivatives must be computed first (Refer to FAQ 20). The computation of turnover is an essential factor, as the applicability of a tax audit is determined based on turnover. If total sales, turnover, or gross receipt from the business during the previous year exceeds Rs. 1 crore, the tax audit shall be required in such cases. However, the increased threshold limit of Rs. 10 crores shall be applicable if cash receipts and cash payments during the year do not exceed 5% of the total receipt or payment, as the case may be. In other words, more than 95% of business transactions should be done through banking channels.

For example, during the year, Mr. A has earned salary income and incurred losses from trading in futures and options (F&O). The details of his transactions are as follows:

The turnover, in this case, shall be Rs. 2,75,00,000, and the loss from F&O shall be Rs. 55,00,000. The tax audit requirement arises if the business turnover from F&O exceeds Rs. 1 crore. However, the tax audit shall not be required if more than 95% of business transactions are done through banking channels and turnover is less than Rs. 10 crores. Since in F&O transactions, the trading shall be through digital means only, the enhanced limit of Rs. 10 crores shall apply to determine the applicability of tax audit. Thus, the tax audit shall not be required in this case.

FAQ 10.

Analysis of the applicability of tax audit under different scenarios in case of professionals:

profits are less than 50% of total gross receipts, but the total income is less than the maximum exemption limit.

FAQ 11. Do the provisions of tax audit under Section 44AB apply to the business income of Charitable/Religious Trusts registered under Section 12AB?

Sections 11 to 13 are special provisions governing the taxation of charitable or religious institutions. Section 12A provides the conditions to be fulfilled by any trust or institution to claim an exemption under Sections 11

and 12. Registration, maintenance of books of account, audit and filing of return of income are the conditions to be fulfilled to claim the exemption under Sections 11 and 12. Once these conditions are complied with, such an institution’s income shall be computed as per Sections 11 and 12.

The “income,” as referred to in Section 11(1), must be computed following commercial principles and not under the ordinary provisions of the Act. In other words, Section 14 and five heads of income do not apply to organisations registered under Section 12AB. The requirement of audit under section 44AB is under the head ‘Profit & Gain from Business’, and therefore, this audit is required only when the income is computed under the head ‘Profit & Gain from Business’ or there is a specific requirement of Tax audit under Section 44AB.

The Delhi Tribunal, in the case of  United Educational Society v. Jt. CIT [2019] 107 taxmann.com 127, held that Provisions of Chapter IV-D, i.e., Sections 28 to 44D are applicable while computing the income of business or profession. These provisions do not apply in respect of charitable institutions whose income is to be computed under Sections 11 and 12 falling under Chapter III.

The Mumbai Tribunal, in the case of  Asstt. CIT v. India Magnum Fund [2002] 81 ITD 295, held that provisions of Section 44AB cannot and do not apply in relation to incomes enumerated under Chapter III and are expressly excluded from total income. To reiterate, Section 44AB is operational only when profits and gains of business or profession are to be computed for the purpose of computation of total income to meet the requirements of the provisions of Section 4. That being so, any income that is designated as “incomes which do not form part of total income” has nothing to do with and cannot be subjected to the provisions of Section 44AB.

There are specific provisions for the audit of Charitable trusts under Section 12A. In such cases, the audit report has to be filed in Form 10B/10BB. Nothing in the Income-tax Act suggests that tax audit under Section 44AB shall apply to a business under Section 11(4A). Sections 11 to 13 are independent of the five heads of income. As long as the registration under Section 12AB is intact, the income cannot be computed under the five heads of income.

Tax audit is a specific requirement for the assessee having income under the head ‘Business and Profession’. Therefore, there is no obligation on the charitable institutions to get the accounts audited under Section 44AB. However, such institutions are subject to the audit under Section 12A(1)(b) read with Rule 17B, and a report of such audit is to be furnished in Form 10B/10BB.

However, the “Guidance Note on Tax Audit” issued by the ICAI provides that a trust or institution carrying on business may enjoy exemptions under Sections 10(21), 10(23A), 10(23B), 10(23BB), 10(23C) or 11. Such institutions will have to get their accounts audited and furnish such audit reports for purposes of Section 44AB if their turnover in business exceeds the prescribed limit (Rs. 1 crore and Rs. 10 crore in certain specified cases). But an agriculturist who does not have any income under the head “Profits and gains of business or profession” chargeable to tax under the Act need not get his accounts audited for purposes of Section 44AB even though his total sales of agricultural products may exceed the prescribed limit.

FAQ 12. Who is required to maintain books of accounts as per Section 44AA?

Section 44AA provides for the maintenance of books of account by an assessee under the Income-tax Act. The table below demonstrates the requirement for maintaining books of accounts by different taxpayers:

Non-Specified Professions

Presumptive Tax Scheme under Sec. 44AD

Presumptive tax scheme under Section 44ADA

Presumptive Tax Scheme under Sec. 44AE

Presumptive Tax Scheme under Sec. 44BB

Presumptive Tax Scheme under Sec. 44BBB

Resident Individual or HUF

Resident Partnership Firm -

Resident Assessee -

2,50,000

Mandatory in every case except when presumptive taxation scheme under Sec. 44ADA is opted by the assessee.

lakhs in any 3 years immediately preceding the previous year.

25 lakhs in any 3 years immediately preceding the previous year.

10 lakhs in any 3 years immediately preceding the previous year.

Taxpayer opted for the scheme in any of the last 5 previous years but does not opt for it in the current year.

Taxpayer claims that profits from his profession are lower than those computed under Section 44ADA and total income exceeds the maximum exemption limit.

Any Assessee engaged in plying, hiring, or leasing goods carriage -

Non-resident assessee engaged in the exploration of mineral oil -

Foreign Co. engaged in civil construction -

* Meaning of Specified Profession:

(a) Legal

(b) Medical

(c) Engineering

(d) Architectural

(e) Technical Consultancy

(f) Interior decoration

(g) Film artist2

(h) Authorised Representative3

(i) Accountancy Profession

(j) Company Secretary4

(k) Information Technology5

Taxpayer claims that his profits are lower than the deemed profits.

Taxpayer claims that his profits are lower than the deemed profits.

Taxpayer claims that his profits are lower than the deemed profits.

** Where a business or profession has been set up during the previous year, the threshold limit of income or gross receipts of the current year shall be checked. In other words, in the case of a new business or profession, if income or turnover or receipt of the current year, as the case may be, are not likely to exceed the threshold limit, the assessee shall not be required to maintain the books of account.

2 Notification: No. SO 17(E), dated 12-1-1977

Film artist includes actor, cameraman, director, music director, art director, dance director, editor, singer, lyricist, story writer, screen play writer, dialogue writer, and dress designer.

3 Notification: No. SO 17(E), dated 12-1-1977

‘Authorised Representative’ means a person, who represents any other person, in lieu of fee or remuneration, before any Tribunal or statutory authority, but does not include an employee of the person so represented or a person carrying on legal profession or a person carrying on the profession of accountancy.

4 Notification: No. SO 2675, dated 25-9-1992

5 Notification: No. SO 385(E), dated 4-5-2001

The following documents should be maintained by the taxpayers to comply with the requirement of maintenance of books of accounts:

Specified Professions other than company secretary and Information technology

Gross receipt exceeds Rs. 1,50,000 in any of 3 years immediately preceding the previous year

1. Cash-book

2. Journal, if books of accounts are maintained according to the mercantile system of accounting

3. Ledgers

4. Carbon copies of bills and carbon copies or counterfoil of receipts issued by the assessee of value exceeding Rs. 25 (must be machine numbered or serially numbered)

5. Original bills issued to the assessee and receipts in respect of the expenditures incurred by him

6. Signed vouchers, if bills and receipts are not issued, and the amount of expenditure does not exceed Rs. 50, if the cash book does not contain adequate particulars in respect of these expenditures

Medical Professions Gross receipt exceeds Rs. 1,50,000 in any of 3 years immediately preceding the previous year

1. As specified above, for specified professions

2. Daily case register in Form 3C

3. Inventory under broad heads of stock of drugs, medicines, and other consumable accessories used for the purpose of profession, as on the first and last day of the previous year.

Specified Professions In every case, irrespective of gross receipts and Income

Non-Specified Professions Income and turnover do not exceed the threshold limit as specified above

Business Income and turnover do not exceed the threshold limit as specified above

Non-Specified Professions Income and turnover exceed the threshold limit as specified above

Business Income and turnover exceed the threshold limit as specified above

Such books of accounts which may enable the Assessing Officer to compute the taxable income.

Not required to maintain books of accounts

Not required to maintain books of accounts

Such books of accounts which may enable the Assessing Officer to compute the taxable income.

Such books of accounts which may enable the Assessing Officer to compute the taxable income.

What documents should be maintained by the taxpayers to comply with the requirement of maintenance of books of accounts as per Section 44AA?

Clause 11 of Form 3CD requires a list of books maintained and the address at which such books of accounts are kept. If such books of accounts are kept at multiple locations, then the auditor is required to mention the address of all the locations along with the details of books of accounts maintained at each location. In the case of a company assessee, the auditor should verify whether Form AOC-5 has been filed with the Registrar of Companies under the Companies Act to maintain books of accounts at a place other than the registered office.

The auditor’s duties regarding ‘books of account maintained’ are not limited to merely giving a list of books of account against clause 11(b). He is required to examine the books of account maintained. Based on such examination, he is required to state in Form No. 3CB whether books of account kept are ‘proper books of account’.

Mr. A is maintaining books of accounts at more than one location. Is the address of all the locations to be mentioned in the audit report?

COMPUTATION OF GROSS RECEIPTS OR TURNOVER

FAQ 15.

How to calculate the gross receipt or sales turnover for a tax audit?

Applicability of tax audit under Section 44AB depends upon gross receipts, sales, or turnover of an assessee, so the foremost thing is their calculations.

(a) Sales turnover

As per ‘Guidance Note on Terms Used in Financial Statements’ published by the ICAI, the meaning of the term’ sale turnover’ shall be the aggregate of the amount for which sales are affected by an enterprise. The terms gross turnover and net turnover are sometimes used to differentiate the turnover before and after deducting returns and discounts.

An invoice may involve various extra and ancillary charges. Some of these charges may form part of the sale turnover, whereas some may be excluded while determining the value of sales turnover. The treatment thereof is explained in the below table.

To be excluded from sales turnover if it is in the nature of trade discount. If it is in the nature of commission on sales, the same cannot be deducted from the figure of turnover. Commission on sales Not to be excluded from sales turnover.

Sales return

Sale proceeds from the transfer of fixed assets

Sale proceeds of property held as an investment

To be excluded from sales turnover.

To be excluded from sales turnover.

To be excluded from sales turnover.

Sale proceeds from the transfer of securities held as stock-in-trade Not to be excluded from sales turnover.

Scrap

(b) Gross receipt

To be excluded from sales turnover unless the assessee is engaged in the business of dealing in scrap.

The term ‘Gross Receipts’ is not defined in the Income-tax Act. The ‘Guidance Note on Tax Audit’ issued by ICAI provides that in the case of professionals, ‘Gross receipts’ include all receipts arising from carrying on a profession. However, certain receipts may or may not be included in the gross receipts.

The following receipts shall be included in the gross receipts:

(a) Out-of-pocket expenses, recovered by way of consolidated fees, would form part of gross receipts.

(b) Cash assistance (by whatever name called) received or receivable by any person against exports under any scheme of government.

(c) Any duty drawback is payable to any person against exports under specified schemes.

(d) The aggregate gross interest income received by a money lender, commission, brokerage, service, and other incidental charges received in the business of chit funds.

(e) Reimbursement of expenses incurred (i.e., packing, forwarding, freight, insurance, travelling, etc.). However, if the same is credited to a separate account in books, only the net surplus on this account should be added to gross receipts or turnover.

(f) Hire charges of cold storage.

(g) Liquidated damages.

(h) Insurance claims, except those which are linked with fixed assets.

(i) Sale proceeds of scrap, wastage, etc., unless treated as part of sale turnover, whether or not credited to a miscellaneous income account.

(j) Lease rent in the business of operating lease.

(k) Finance income to reimburse and reward the lessor for his investment and services.

(l) Hire charges and installments received in the course of hire purchase.

(m) Advance received and forfeited from customers.

(n) The value of any benefit or perquisite, whether convertible into money or not, arising from business or exercise of a profession.

The following receipts shall be excluded from the gross receipts:

(a) Out-of-pocket expenses recovered separately from the client shall not form part of gross receipts.

(b) Where a professional receives an advance for services that are yet to be rendered, it will not form part of the gross receipts till the services are rendered.

(c) Sale proceeds of fixed assets, including advance forfeited, if any.

(d) Sale proceeds of assets held as investments.

(e) Rental income unless the same is assessable as business income.

(f) Dividends on shares except in the case of an assessee dealing in shares.

(g) Income by way of interest unless assessable as business income.

(h) Reimbursement of customs duty and other charges collected by a clearing agent.

(i) The amount received by travel agents from clients for payment to airlines, railways, etc., is excluded if received by way of reimbursement of expenses incurred on behalf of the client. If, however, the travel agent is conducting a package tour and charges a consolidated sum for transportation, boarding and lodging and other facilities, then the amount received from the members of the group tour should form part of gross receipts.

(j) The amount of advertising charges recovered by an advertising agent from his clients by way of reimbursement shall be excluded. However, if he books the advertisement space in bulk and recovers the charges from different clients, the amount recovered by him will form part of his gross receipts.

(k) Share of profit of a partner in the total income of the firm shall be excluded from the total income of the partner.

(l) Write back amounts payable to creditors or provisions for expenses or taxes no longer required.

In case of sale by a commission agent or by a person on a consignment basis, if the property in goods or all significant risks and rewards of ownership of goods continue to belong to the principal, the relevant sale price shall not be part of the turnover of the commission agent. In this case, the turnover shall be the amount of commission earned by the agent. However, if the property in the goods, significant risk and reward of ownership belong to the commission agent, the sale price received/receivable shall form part of his turnover.

FAQ 16.

Whether the out-of-pocket expenses received by professionals shall form part of gross receipts?

The expression “gross receipts” in the profession would include all receipts arising from carrying on of such profession. Generally, professionals like solicitors, advocates or chartered accountants receive out-of-pocket expenses in advance and credit it in a separate client’s account to utilise them for making payments for stamp duties, registration fees, travelling expenses, etc., on behalf of the clients. These amounts, if collected separately in advance or otherwise, should not form part of the “gross receipts”. If, however, such out-ofpocket expenses are collected by way of a consolidated fee, the whole of the amount so collected shall form part of gross receipts, and no adjustment shall be made in respect of actual expenses paid on behalf of his clients out of the gross fees so collected.

Furthermore, the advance fees received for which services are yet to be rendered will not form part of the receipts, as such advances are the liabilities of the assessee and cannot be treated as his receipts till the services are rendered.

FAQ 17. How to calculate the turnover of the commission agent?

Turnover of a commission agent or a person selling goods on a consignment basis is determined concerning the transfer of significant risk or reward of ownership. Where the property in goods or all significant risks and rewards of ownership of goods continue to belong to the principal, the relevant sale price shall not form part of the turnover of the commission agent. In this case, the turnover shall be the amount of commission earned by the agent. However, if the property in the goods, significant risk, and reward of ownership belong to the commission agent, the sale price received/receivable shall form part of his turnover.

ICDS-IV (Revenue Recognition) also provides that in the case of an agency relationship, the revenue of an agent shall be the amount of commission and not the gross inflow of cash, receivables or other consideration. The CBDT6 has also clarified that while determining the turnover in the case of Kachha Arahtias, the turnover does not include the sales effected on behalf of the principals, and only the gross commission has to be considered. However, in the case of Pucca Arahtias, the total sales/turnover of the business should be taken into consideration.

FAQ 18

How to calculate the turnover of a share broker?

When a share broker purchases securities on behalf of his customers, he does not get them transferred in his name, but they are delivered in the name of the customer. The same is true in the case of sales. The share broker holds the delivery merely on behalf of his customer. The property in securities does not get transferred to the share-brokers. Only brokerage, which is being accounted for in the books of share brokers, should be considered for calculating the turnover. However, in the case of transactions entered into by a share broker on his personal account, the sale value should be considered while calculating the sales turnover. The case of a sub-broker is not different from that of a share broker.

FAQ 19. How to calculate the turnover in case of a speculative transaction?

A ‘speculative transaction’ means a transaction in which a contract for the purchase or sale of any commodity or securities is periodically or ultimately settled otherwise than by the actual delivery or transfer of commodity or scrips. Thus, in speculative transactions, both positive and negative differences can arise from the settlement of contracts. Each transaction, whether resulting in a positive or negative difference, is an independent transaction. In such transactions, though the contract notes are issued for the full value of the purchased or sold asset, the entries in the books of account are made only for the differences. Accordingly, the aggregate of both positive and negative differences is considered as the turnover.

For example, Mr. X is an assessee engaged in speculative business. He derives the following profits or losses while dealing in securities:

While computing the turnover of Mr. X, all the differences, whether positive or negative, shall be aggregated.

FAQ 20. How to calculate the turnover in the case of derivatives?

The Income-tax Act does not contain any provision or guidance for the computation of turnover in F&O trading. However, the Guidance Note on Tax Audit issued by the ICAI prescribes the method of determining turnover, which shall be as follows:

(a) The total of favourable and unfavourable differences is taken as turnover.

(b) Premium received on the sale of options is included in turnover. However, where the premium received is included for determining net profit for transactions, the same should not be included separately.

(c) In respect of any reverse trades, the difference thereon should also form part of the turnover.

All the favourable or unfavourable differences are aggregated to calculate the turnover.

For example, Mr. A enters into the following transaction during the financial year:

In derivative transactions, the aggregate of both favourable and unfavourable differences (i.e., income and loss) is considered as the turnover. Further, the premium received on the sale of options is also included in turnover if the same is not included while determining the net profit or loss from the transaction. Thus, the turnover of Mr A shall be as follows:

* As the amount of premium received is already considered for computing the profit or loss from the transaction, it is not included again while computing the turnover.

FAQ 21. How to calculate turnover in the case of multiple businesses?

Where an assessee is carrying on more than one business, sale turnover or gross receipts from all businesses shall be clubbed together. However, if the assessee is opting for the presumptive taxation scheme, the turnover of such businesses shall be excluded while determining his total sales turnover or gross receipts.

FAQ 22.

How to check the threshold limit if the assessee is carrying on business and profession at the same time?

The ICAI, in the guidance note on tax audit, provides that if an assessee is carrying on a business and a profession, then a tax audit is required if turnover/receipts from either business or profession exceed the prescribed threshold limit.

For example, the professional receipts of an assessee are Rs. 54 lakhs and the total turnover from the business is Rs. 72 lakhs. It will be necessary for him to get the accounts of the profession and business audited because the gross receipts from the profession exceed Rs. 50 Lakhs.

Similarly, if the professional receipts are Rs. 42 lakhs and total turnover from business are Rs. 86 lakh. In this circumstance, as the gross receipt or turnover from a profession or business does not exceed the limits specified in Section 44AB, there is no need to conduct a tax audit.

FAQ 23. Whether GST shall be included while calculating the gross turnover or receipt?

Section 145A provides for the inclusion of taxes, cess, etc., in the value of sale, purchase, and inventory. However, the purpose of this provision is limited to the calculation of income taxable under the head ‘Profits and Gains from Business or Profession’. Whether this provision can be applied to calculate ‘sales turnover’ for Section 44AA, Section 44AB, Section 44AD, and Section 44ADA has always been a matter of disagreement between the revenue and taxpayer.

Where an assessee has opted for the Composition Scheme under the GST Act, the tax is not recovered from the customer and is debited to the statement of profit & loss as an indirect expense. Thus, the amount of GST paid by an assessee does not form part of his gross turnover. In the case of other assessees, as GST is charged from the customer and is recognised separately in the books of accounts, it is not clear whether the amount of GST shall be included in the turnover for calculation of taxable income only (as provided by Section 145A) or for every other provision which has a reference to ‘turnover’. Unless the CBDT clarifies its stand on this matter, it would be appropriate to ignore the amount of GST while calculating the gross turnover or gross receipts for the following reasons:

(a) Section 145A begins with ‘for the purpose of determining the income chargeable under the head Profits and gains of business or profession’, which makes this provision inapplicable for other purposes.

(b) If GST recovered from the customer is credited to Current Liability Accounts (Output CGST, Output IGST, or Output SGST) and payments to the authority are also debited to the said separate account, these should not form part of the turnover shown in profit and loss account. ICAI’s Guidance Note on Tax Audit also confirms that if tax recovered is credited to a separate account, they would not be included in the turnover.

(c) The inclusion of GST in the turnover would have a cascading effect, as presumptive income would be computed on the component of GST, which is never treated as income of the assessee.

(For detailed analysis and illustrations on the valuation of sale, purchase, and inventory, refer to ‘Treatment of Tax paid on Goods (Inclusive v. Exclusive Approach)’)

Any interest, salary, bonus, commission or remuneration due to or received by a partner from the firm is taxable as his business income under Section 28(v) provided such payments were deducted while computing taxable profits of the firm. The Bombay High Court, in the case of Perizad Zorabian Irani v. PCIT [2022] 139 taxmann. com 164 (Bombay), held that if the assessee was only a partner in a partnership firm and was not carrying on any business independently, remuneration received by the assessee from said partnership firm could not be treated as gross receipts of assessee and, accordingly, assessee was justified in not getting the accounts audited under section 44AB with respect to such remuneration.

The Madras High Court, in the case of Anand Kumar v. ACIT [2020] 122 taxmann.com 252 (Madras), also held that remuneration and interest received by the individual assessee from the partnership firm could not be termed to be a turnover of the assessee.

Based on the above case laws, it can be opined that Mr. A is not engaged in independent business activities and is merely a partner in a business conducted by the firm. Consequently, his remuneration from the partnership firm should not be classified as gross receipts or turnover. Hence, he shall not be subject to audit under Section 44AB.

Mr. A, a partner in a firm, has obtained a remuneration of Rs. 12 crores from the firm during the FY 2022-23. Is it mandatory for Mr. A to get the accounts audited since the remuneration received from a firm exceeds the specified limit?

DUE DATE & PROCESS TO FILE TAX AUDIT REPORT

FAQ 25.

What are the due dates for filing the tax audit report?

For the Assessment Year 2023-24, the due date for furnishing of tax audit report would be as under:

FAQ 26. How to furnish the tax audit report to the Income-tax Dept.?

To furnish the report, the assessee has to authorise and appoint the Chartered Accountant from his e-filing account. The Chartered Accountant shall file the audit report in Form 3CA/3CB and particulars in Form 3CD in JSON format at https://www.incometax.gov.in using his digital signature. These forms shall be accompanied by the audited financial statements.

The assessee has to approve these forms from his e-filing account. The date of approval of the report by the taxpayer is considered the date of filing of the Audit Report. If the assessee does not accept/approve, the tax audit report will be considered pending as if it has not been filed.

FAQ 27. How many tax audit reports a Chartered accountant can Sign?

A Chartered Accountant in practice can conduct 60 tax audits relating to an assessment year.

The ICAI had clarified that an audit prescribed under any statute which requires the assessee to furnish an audit report in the form as prescribed under Section 44AB of the Income-tax Act shall not be considered for reckoning the specified number of tax audit assignments if the turnover of the auditee is below the turnover limit specified in Section 44AB of the Income-tax Act. The ICAI modified the guidelines on 23-08-2018 to provide that the audits conducted under Sections 44AD, 44ADA, and 44AE (Presumptive Taxation Schemes) shall not be considered for reckoning the ‘specified number of tax audit assignments.

FAQ 28. If there are 10 partners in a firm of Chartered Accountants, then how many tax audit reports can each partner sign in a financial year?

As per Chapter VI of Council General Guidelines, 2008 (Tax Audit Assignments under Section 44AB of the Income Tax Act, 1961), a chartered accountant, in practice, shall not accept more than the specified number of tax audit assignments in a financial year.

As per the guidelines, if there are 10 partners in a firm of Chartered Accountants in practice, then all the partners of the firm can collectively sign 600 tax audit reports. This maximum limit of 600 tax audit assignments may be distributed between the partners in any manner whatsoever. For instance, 1 partner can individually sign 600 tax audit reports. However, the remaining 9 partners are not eligible to sign any tax audit report.

FAQ 29. M/s ABC, a firm of Chartered Accountants, carries out the statutory audit of XYZ Private Limited. Is it permissible for the same CA firm to conduct the tax audit under Section 44AB, or should XYZ Private Limited engage a different auditor?

Section 44AB stipulates that only Chartered Accountants should perform the tax audit. This section does not stipulate that only the statutory auditor appointed under the Companies Act or other similar Statutes should perform the tax audit. Thus, the tax audit can be conducted by the statutory auditor or any other chartered accountant in full-time practice. Hence, the decision rests with XYZ Private Limited regarding whether to engage M/s ABC or appoint a different auditor to conduct the tax audit.

The Guidance Note on Tax Audit issued by the ICAI suggests that if the statutory auditor of a person is also appointed to undertake a tax audit, it is advisable to carry out both audits concurrently.

Form 3CA report refers to the fact that the statutory audit of the assessee was conducted by a chartered accountant or any other auditor in pursuance of the provisions of the relevant Act. The copy of the audit report, along with the audited profit and loss account and balance sheet and the documents declared by the relevant Act to be part of or annexed to the profit and loss account and balance sheet, are annexed to the report in Form No. 3CA. In a case where the tax auditor carrying out the audit under section 44AB is different from the statutory auditor, a reference should be made to the name of such statutory auditor. In case the statutory auditor is carrying out the audit under section 44AB, the fact that he has carried out the statutory audit under the relevant Act should be stated.

FAQ 30. Does the tax auditor need to generate UDIN for the tax audit report?

Chartered Accountants with a full-time Certificate of Practice can register on the UDIN Portal www.udin.icai. org and generate UDIN by registering the certificates attested/certified by them. UDIN is an 18-digit systemgenerated unique number for every document certified/attested by practising Chartered Accountants. UDIN has been made mandatory on all Corporate/ Non-Corporate Audit, Attest, and Assurance Functions.

While issuing the tax audit report under Section 44AB, the auditor should generate an appropriate UDIN and the same is also required to be updated at the e-filing portal. The Chartered Accountant has to generate and

update the UDIN within 60 calendar days from the date of form submission on the income tax e-filing portal. If not updated within 60 days, the department will treat such audit report/certificate as an invalid submission.

FAQ 31. Whether a tax audit report can be revised?

‘Guidance Note on Tax Audit under Section 44AB’ issued by the ICAI provides that the audit report under Section 44AB should not normally be revised. However, sometimes a member may be required to revise his tax audit report on grounds such as:

(a) Revision of accounts of a company after its adoption in the annual general meeting.

(b) Change of law, e.g., retrospective amendment.

(c) Change in interpretation, e.g., CBDT Circular, Judgments, etc.

Thus, once filed, a tax audit report can be revised on the grounds mentioned above.

Further, the CBDT has notified7 that if there is a payment by a person after furnishing the original report which necessitates a recalculation of disallowance under Section 40 or Section 43B, a revised audit report can be obtained from an accountant and furnished before the end of the relevant assessment year for which the report pertains (also see FAQ 46).

Thus, after issuing the audit report but before the due date for filing the return, the assessee may make payment of TDS or of tax, duty, cess, fee, or other payments referred to in Section 43B and file the revised audit report.

FAQ 32. Is there any penalty for the late filing of the audit report?

As per Section 271B, if any person fails to get his accounts audited or fails to furnish the report of the audit, the Assessing Officer may direct such person to pay a penalty of a sum equal to lower of the following:

a) 0.5% of the total sale, turnover, or gross receipts; or

b) Rs. 1,50,000.

However, no penalty shall be imposed if such failure is due to a reasonable cause.

FAQ 33.

What should be considered as reasonable cause for not levying penalty under Section 271B?

The penalty may be imposed under Section 271B only if the assessee failed to get his accounts audited under Section 44AB without a reasonable cause. The word ‘reasonable cause’ has not been defined under the Income-tax Act. The initial burden is on the assessee to show that reasonable cause existed for the failure referred to in the concerned provision. Thereafter, the officer dealing with the matter has to consider whether the explanation offered by the assessee was on account of reasonable cause.

Reasonable cause can be reasonably said to be a cause which prevents a man of average intelligence and ordinary prudence from acting under normal circumstances, without negligence or inaction or want of bona fides. [Azadi Bachao Andolan v. Union of India [2001] 116 Taxman 249 (Delhi)]

‘Reasonable cause’ as applied to human action is that which would constrain a person of average intelligence and ordinary prudence. It can be described as a probable cause. It means an honest belief founded upon reasonable grounds of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man placed in the position of the person concerned to come to the conclusion that the same was the right thing to do. [Woodward Governors India (P.) Ltd. v. CIT [2001] 118 Taxman 433 (Delhi)]

Some of the instances where penalty under Section 271B was deleted considering it as a “reasonable cause”:

(a) Books of account got damaged due to flood [2017] 85 taxmann.com 274 (Mumbai - Trib.)

(b) The delay in filing the audit report was attributable to the illness of the assessee’s auditor [2013] 35 taxmann. com 235 (Madras)

(c) Bona fide interpretation of the term `turnover’ based on expert advice [2009] 223 CTR 152 (Gujarat)

(d) Non-availability of accounts on account of the seizure by the customs department [2003] 126 Taxman 28 (Rajkot)(MAG)

(e) Turnover of derivative computed as per ICAI Guidance Note does not exceed the threshold limit [2022] 143 taxmann.com 318 (Rajkot - Trib.)

(f) Turnover of future and option computed per ICAI Guidance Note [2023] 147 taxmann.com 221 (Mumbai - Trib.)

(g) There was a delay on the part of the auditor even though the assessee had submitted books on time [CIT v. U.P. Rajya Sahkari Evam Bhoomi Vikas Bank Ltd., (2013) 35 taxmann.com 471 (All)]

FAQ 34. Can a tax auditor be held responsible if he does not complete the audit within the specified date?

The Guidance Note on Tax Audit issued by the ICAI clarifies that the responsibility of the tax auditor will depend on the facts and circumstances of the case. Normally, it is the professional duty of the Chartered Accountant to ensure that the audit accepted by him is completed before the due date. If there is any unreasonable delay on his part, he is answerable to the Institute if the client makes a complaint. However, if the delay in the completion of the audit is attributable to the client, the tax auditor cannot be held responsible. It is, therefore, necessary that no Chartered Accountant should accept audit assignments that he cannot complete within the prescribed time frame.

INCOME COMPUTATION & DISCLOSURE STANDARDS (ICDS)

FAQ 35. Should the reporting in Form 3CD be made as per books of account or after adjustment as per the Income Computation & Disclosure Standards (ICDS)?

The preamble of the ICDS provides that the ICDSs are applicable for computation of income chargeable under the head ‘ profit and gains of business or profession’ or ‘Income from other sources’ and not for maintenance of books of accounts.

Further, the CBDT8 has clarified that the books of account are to be maintained in accordance with the accounting policies applicable to the assessee. Thus, it can be concluded that the reporting in Form 3CD shall be in accordance with the books of account maintained by the assessee. Any adjustment made to profit or loss under the ICDS shall be reported in Clause 13 of Form 3CD.

FAQ 36. Who has to follow ICDS?

In the exercise of the powers conferred by Section 145(2) of the Income-tax Act, 1961, the Central Government has notified9 the Income Computation and Disclosure Standards (also referred to as ICDS). ICDSs have been issued to bring uniformity in the accounting policies governing the computation of income for taxability under the Income-tax Act and to reduce litigations.

Every assessee earning income taxable under the head ‘ profit and gains from business or profession’ or ‘Income from other sources’ or both is required to compute taxable income in accordance with notified ICDS. However, the ICDS shall be followed only if the assessee maintains accounts per the ‘Mercantile system’ of accounting.

There is no threshold limit on the amount of turnover or taxable income for the applicability of ICDS. Thus, every assessee earning business income or residuary income shall be required to follow ICDS for the computation of income. The applicability of ICDS shall be subject to certain exceptions.

The CBDT has clarified10 that the general provisions of ICDS shall apply to all persons, including banks, NBFCs, insurance companies, etc. unless there are sector-specific provisions contained in the ICDS or the Act. For example, ICDS-VIII (Securities) contains specific provisions for banks and certain financial institutions, and Schedule I of the Act contains specific provisions for the insurance business.

Exception 1: Exemption to Individual or HUF not liable for tax audit

An Individual or HUF who is not required to get his books of account audited for the previous year under section 44AB shall not be required to comply with the requirements of ICDS.

A person opting for a presumptive taxation scheme is not required to maintain the books of account and get them audited. In this regard, the CBDT has clarified11 that the relevant provisions of ICDS shall apply to the persons (other than Individuals or HUF) opting for a presumptive taxation scheme. For instance, for computing the presumptive income of a partnership firm under section 44AD of the Act, the provisions of ICDS on construction contracts or revenue recognition shall apply for determining the receipts or turnover, as the case may be.

Exception 2: Exemption for MAT Computation

The CBDT has clarified12 that the provisions of ICDS are applicable for the computation of income under the regular provisions of the Act. As MAT is computed on ‘book profit’, that is, net profit as shown in the Profit and Loss Account prepared under the Companies Act subject to certain specified adjustments, the provisions of ICDS shall not apply to the computation of MAT. However, where the assessee is liable to pay AMT under the provisions of Section 115JC, the provisions of ICDS shall be applicable for the computation of AMT as AMT is computed on adjusted total income, which is derived by making specified adjustments to total income computed as per the regular provisions of the Act.

FAQ 37. Is adjustment required to be made in P&L A/c for ICDS adjustments?

Clause 13(d) requires the tax auditor to state whether any adjustment is required to be made to profits or losses to comply with the provisions of income computation and disclosure standards (ICDS). If the answer to clause 13(d) is affirmative, then such adjustments are required to be stated separately in respect to each ICDS. These adjustments shall be made only for computing the taxable income, and no corresponding adjustments shall be made to the financial statements maintained as per the Accounting Standards or Ind AS.

FAQ 38. How to compute the amount of increase or decrease in profit due to compliance with ICDS-IV?

In Clause 13(e) of Form 3CD, the disclosure shall be made about the profits increased or decreased after applying ICDS. The revised profits, after considering ICDS IV, shall be calculated in the following manner, and the net result of the table shall be reported in the said clause:

Accounting Standards (AS) – Reconciliation

Particulars

Profit before tax as per AS financials

Add: Income taxable (if not credited to P&L account)

1. Dividend income

2. Amount of revenue not recognised in the current year as the assessee followed the service completion method for his books of account

Amount

3. Interest on income-tax refund accrued in the earlier year but received in the current year*

4. Interest on compensation or enhanced compensation taxable in accordance with Section 145A(1)*

Less: Income not taxable (if already credited to P&L account)

1. Excess revenue recognised in the current year as the assessee followed the service completion method for his books of account

2. Interest on income-tax refund accrued in the current year but received in the subsequent year*

3. Interest on compensation or enhanced compensation included in taxable income on an accrual basis*

Indian Accounting Standards (Ind AS) – Reconciliation

Profit before tax as per Ind AS financials

Add: Income taxable (if not credited to P&L account)

1. Dividend income

2. Amount of revenue not recognised in the current year as assessee followed revenue recognition principles as per Ind AS 115

3. Interest on income-tax refund accrued in the previous year but received in the current year*

4. Difference in ICDS and Ind AS revenue due to the time value of money

5. Interest income as per this ICDS

6. Discount on debt securities as per this ICDS

7. Interest on compensation or enhanced compensation taxable in accordance with Section 145A(1)*

Less: Income not taxable (if already credited to P&L account)

1. Excess revenue recognised in the current year as assessee followed revenue recognition principles as per Ind AS 115

2. Interest on income-tax refund accrued in the current year but received in the subsequent year*

3. Interest amount when the payment is deferred for a significant period of time (generally 1 year or more), if any

4. Interest income recognised on the basis of the effective interest rate method

5. Interest on compensation or enhanced compensation included in taxable income on an accrual basis*

The tax auditor needs to enter a consolidated amount by which the profit has been increased or decreased. Such increase or decrease is not required to be bifurcated between the different heads of income.

FAQ 39. Clause 13(d) requires the details regarding the adjustment required for complying with the provisions of ICDS. Should such adjustments be entered separately for income taxable under the head “PGBP” and Income taxable under the head “Other Sources”?

METHOD OF ACCOUNTING, GST & IND AS

FAQ 40.

Where an assessee has multiple GSTINs, which one should be furnished in Form 3CD?

In case the assessee has multiple GSTIN numbers (registered in different states), all the GSTIN numbers allotted to him shall be mentioned in Clause 4 of Form 3CD.

FAQ 41.

Should GST registration no. of the assessee be furnished in Form 3CD if the assessee is liable to pay tax under reverse charge?

The ICAI, vide Implementation Guide dated 22nd August 2018, has clarified that even if liability to pay GST is only under the reverse charge mechanism, the fact of being liable to GST needs to be answered in the affirmative, with the clarification that such liability is only under the reverse charge mechanism.

FAQ 42.

An assessee has changed the method of accounting from mercantile to cash basis. What disclosure is required in Form 3CD?

Clause 13 of Form 3CD requires every assessee to report the method of accounting employed in the previous year. Further, if there was a change in the method of accounting employed in the immediately preceding previous year, then the same is to be reported. The assessee is also required to disclose the effect of a change in the method of accounting on the profit and loss. If it is not possible to quantify the effect of a change in the method of accounting, appropriate disclosure should be made under this clause.

A change in accounting policy will not amount to a change in the method of accounting, and hence, any change in the accounting policies need not be mentioned under clause 13(b).

FAQ 43. How to report if the assessee uses different methods of accounting for different sources of income?

There is no bar on the assessee to opt for different methods of accounting for different sources of income. The Allahabad High Court, in the case of J.K. Bankers v. CIT [1974] 94 ITR 107 (Allahabad), held that an assessee could choose to follow one method of accounting for some sources of income and another method of accounting for other sources of income. The Bombay High Court, in the case of CIT vs Smt. Vimla D. Sonwane [1994] 212 ITR 489 (Bombay), held that the assessee is indeed free to follow different methods of accounting for income from different sources in an appropriate case. The Department cannot compel the assessee to adopt the mercantile system of accounting.

Para 25.1 of the ICAI’s Guidance Note on tax audit also provides that the assessee may adopt the cash system of accounting for one business and the mercantile system of accounting for another business. Once the method of accounting is decided, the assessee must follow it consistently.

Form 3CD does not allow tax auditors to disclose distinct accounting methods for various sources of income. Therefore, it is advisable to declare the accounting method used for the primary income source in Form 3CD. Regarding any alternative accounting method selected for other business activities, this should be documented in the accompanying notes.

FAQ 44.

Could the adoption of Ind AS for the first time be considered a ‘Change in Method of Accounting’ for disclosure in Form 3CD?

Method of Accounting refers to the basic rules and guidelines under which businesses keep their financial records and prepare their financial statements. Two main accounting methods are used for record-keepingthe Cash Basis and the Accrual Basis. In contrast, the Accounting Standards or Ind AS pre-requisite the accrual basis of accounting. Accounting standards are authoritative for financial reporting and are the primary source of generally accepted accounting principles (GAAP).

Method of Accounting should not be confused with GAAP. The method of accounting can be either a cash basis or an accrual basis. The GAAP provides the principles and procedures for calculating and recognising a financial transaction within the framework of the accrual basis of accounting. When an entity switches from Accounting Standards to Ind AS, it does not change its method of accounting. Thus, the transition to Ind AS should not be treated as a change in the method of accounting.

FAQ 45.

In the case of Ind AS financial statements, if

to a change in

of gratuity, which is debited to OCI, can the entity claim the deduction for such additional liability?

The courts have held that if the provision for gratuity is computed scientifically (i.e., actuarial valuation), the deduction thereof shall not be denied. If any liability increases due to a change in the actuarial assumptions, the resultant expense is recognised in OCI by virtue of Ind AS 19 – Employee Benefits. Thus, if the provision for gratuity increases due to changes in the assumptions, such as discount rate, mortality rate, etc., the additional expenses recognised in OCI should be allowed as a deduction while computing the taxable business income. If an increase in provision for gratuity is attributable to such change in actuarial assumption, it shall not be disclosed as disallowable under Clause 21(e).

FAQ 46. Should the deduction of interest charged to Statement of Profit & Loss due to the “effective interest rate method” of Ind AS be allowed under the Income-tax Act?

In view of Ind AS, the processing fees paid to the banks or financial institutions in respect of borrowings have to be amortised over the tenure of the loan. In other words, the amount of borrowing cost recognised during

liability increases due

actuarial assumptions taken to calculate the provision

the year shall be the sum of actual interest paid or payable to the bank and the amortised amount of processing fees.

The deduction for such borrowing cost under the Income-tax Act shall be subject to Section 43B. The deduction for interest and processing fees shall be allowed on a payment basis. Thus, if the processing fee has been paid to the bank, the deduction for the entire fee shall be allowed in the year of payment itself. Irrespective of the amount of borrowing cost recognised in the books of account, the Income-tax Act shall allow a deduction for the entire amount of interest or process fees paid to the bank during the year. The disclosure shall be made in Clause 26.

FAQ 47. Whether details regarding GST have to be reported in Clause 27(a) as a clause in Form 3CD requires details of CENVAT but in schema requires for CENVAT/ITC?

Clause 27(a) applies to all assesses registered under GST/Central Excise. Though no reference of Input Tax Credit (ITC) is notified in Form 3CD, the same is maintained in the e-filing utility format. Hence, all assessees registered under GST/Central Excise should provide the relevant details in Form 3CD.

FAQ 48. Should details to be provided in Clause 27(a) match with the books of accounts?

While providing the details under Clause 27(a) of 3CD, an assessee should ensure that details are reconciled with the books of account vis-à-vis details available on the GST portal. The assessee shall maintain a proper reconciliation with respect to the same. However, an assessee may adopt either the books of account or GST portal to provide the information under this clause, provided the same basis is adopted consistently. The tax auditor should verify the reconciliation between the balance of CENVAT/Input credit in the accounts and relevant excise and GST records. The tax auditor should report the amount of CENVAT/Input availed and utilised under this sub-clause.

FAQ 49. In the case of the first Ind AS financial statements, should the details regarding turnover, gross profit, ratios, etc., for the previous year and the preceding previous year be reported as per Ind AS financial statements?

As per Ind AS 101 – First Time Adoption of Indian Accounting Standards, in case of transition from AS to Ind AS, the opening balances and the comparative figures have to be calculated and presented as per Ind AS.

The Income-tax Act does not provide any mechanism for calculating gross profit, turnover, or ratios for disclosure in Form 3CD. Thus, such disclosures have to be made as per the financial statements prepared in accordance with AS or Ind AS. As the entity has to present the comparative figures in Ind AS financial statements, the same information can be used to disclose the desired information in Form 3CD.

FAQ 50.

Yes, an auditor is required to report the details of demand raised or refund issued to the assessee during the previous year, irrespective of the fact that it was adjusted against any pending demand or refund. Details are to be shown under Clause 41 of Form 3CD.

FAQ 51.

What information is to be reported by the auditor under Clause 44 of Form 3CD?

Clause 44 of Form 3CD seeks details of the total expenditure incurred during the year. The break-up needs to be given for the expenditure in respect of entities registered under GST and relating to entities not registered under GST.

However, the CBDT13 has kept the reporting under clause 30C and clause 44 of the tax audit report in abeyance until 31st March 2022. Therefore, the information is to be furnished in clause 30C and clause 44 for the reports filed on or after 31st March 2022.

FAQ 52. How to report a break-up of the total expenditure under Clause 44?

Clause 44 requires the details in the following format:

(a) Total expenditure incurred during the year;

(b) Expenditure in respect of entities registered under GST:

 Relating to goods or services exempt from GST;

 Relating to entities falling under the composition scheme;

 Relating to other registered entities;

 Total payment to registered entities;

(c) Expenditure relating to entities not registered under GST.

A demand was raised with respect to Customs duties on my client, and the same was adjusted against the refund due in his name. So, no amount was paid by him to the department. As an auditor, do I need to disclose the same in form 3CD?

The Guidance Note issued by ICAI clarifies the following aspects for reporting under this clause:

(a) Whether every head of expenditure is to be reported?

The guidance may be taken from the heading of the table, which starts with the words “Breakup of total expenditure”. Hence, the total expenditure, including purchases as per the above format, may be given. It appears that head-wise/nature-wise expenditure details are not envisaged in this clause.

(b) Reporting of claims

Depreciation under Section 32, a deduction for bad debts under Section 36(1)(vii), etc., which are not expenses, should not be reported under this clause.

(c) Transactions not considered supply

Schedule III to the CGST Act, 2017 lists out activities or transactions that are neither treated as a supply of goods nor a supply of services. Thus, expenditure incurred in respect of such activities need not be reported under this clause.

For example, Para (1) of Schedule III covers “Services by an employee to the employer in the course of or in relation to his employment”. Thus, remuneration to employees need not be reported.

(d) Allowability of expense

Any expenditure incurred, wholly and exclusively, for the business or profession of the assessee qualifies for the deduction under the Act. Registration or otherwise of the payee under the GST Act has no relevance in considering the allowability of expenditure.

(e) Reporting of capital expenditure

In the table under clause 44, the language used is “expenditure in respect of.” Since the word used is ‘expenditure’, it is necessary that the capital expenditure should also be reported in the format prescribed. Separate reporting of capital expenditure will provide ease in reconciliation.

(f) Expenses of branch

This report may be prepared for an entity as a whole or a branch thereof, as it may be audited. Accordingly, the information in these columns may have to be filled up, consolidating the expenditure incurred under various GST registrations.

DISCLOSURES & REPORTING IN FORM 3CD

FAQ 53.

There is a difference in opinion between the tax auditor and the client with respect to the applicability of a TDS provision on a particular payment. How to report such differences in the tax audit report?

If the tax auditor and client have a difference of opinion with respect to the applicability of the TDS/TCS provision, such concern shall be reported in clause (3) of Form 3CA or clause (5) of Form 3CB, as the case may be.

FAQ 54.

Clause 4 of Form No. 3CD asks the tax auditor to disclose whether the assessee is liable to pay indirect taxes. How should the tax auditor ascertain the relevant indirect taxes applicable to the assessee?

Though the Income-tax Act does not define the term “indirect tax”, Clause 4 gives examples of the same as excise duty, service tax, sales tax, GST, and customs duty.

The levy of indirect taxes on various transactions may differ from State to State. Thus, it is recommended that the auditor should obtain from the assessee the list of indirect taxes applicable to him. Once the auditor obtains this management representation, he is required to obtain a copy of the registration certificate clearly mentioning the registration number under that relevant law. When the auditor is of the opinion that any indirect tax laws are applicable to the business or profession of the assessee, but he is not registered under the said law, he should report the same appropriately.

FAQ 55.

What is the difference in reporting under Para 3(a) and Para 5 of Form 3CB?

While reporting in Para 3(a) of Form No. 3CB, the tax auditor should report observations/comments/ discrepancies/inconsistencies that are of a qualificatory nature which affect his reporting about obtaining all the information and explanations that were necessary for the purposes of the audit, about the keeping of proper books of account by the head office and branches of the assessee and about the true and fair view of the financial statements. Further, only such observations/ comments/discrepancies/inconsistencies that are of a qualificatory nature should be mentioned in Para 3(a).

Para 5 of Form No. 3CB requires the auditor to report whether, in his opinion and to the best of his information and according to the explanations given to him, the particulars given in Form No. 3CD are true and correct

subject to observations/qualifications, if any. The auditor may have a difference of opinion about the particulars furnished by the assessee, and he has to bring these differences under various Clauses in Form No. 3CD. Further, the Tax Auditor in Para 5 of Form 3CB should give his observations/comments/adverse remarks/ disclaimers found during their audit on any of the clauses of Form 3CD, wherever required.

Hence, Para 3(a) in Form 3CB pertains to qualification about the true and fair view of the financial statements. In contrast, Para 5 specifically concerns the qualifications on true and correct reporting in any of the Clauses of Form 3CD.

FAQ 56. How to report the conversion of a partnership into a company?

When a partnership firm converts into a company, it is a case of change in the legal identity. The partners must relinquish the firm’s PAN and acquire a new PAN in the company’s name. This situation necessitates the submission of two audit reports: one for the partnership firm covering the period up to the conversion date and another for the company from the conversion date to March 31.

FAQ 57.

Form 3CD?

If shares of members are unknown during the previous year, the auditor needs to disclose this fact in Clause 9(a) of Form 3CD.

FAQ 58. Is it mandatory to disclose the nature of all the businesses carried on by the assessee and any change therein?

Clause 10 of Form 3CD mandates disclosure of the nature of every business or profession carried on by an assessee during the previous year. The codes for all main activities (principal line of each of the business or profession) shall be reported.

Any material change in the nature of business should be precisely disclosed. The change will include a change from manufacturer to trader and a change in the principal line of business. Any addition to or permanent discontinuance of a particular line of business may also amount to change requiring reporting. However, temporary suspension of the business may not amount to change and, therefore, need not be reported.

FAQ 59.

Which address should be reported in Clause 11 if the books of accounts are maintained in a computerised system?

Clause 11(b) requires reporting the address at which the books so maintained are kept. As per the “Guidance Note on Tax Audit” issued by the ICAI, when the books of account are maintained and generated through a computer system, the auditor should obtain from the assessee the details of the address of the place where the server is located or the principal place of business/Head office or registered office by whatever name called and mention the same accordingly in clause 11(b). If the books of account are stored on the cloud or online, a

If shares of members of AOP are unknown during the previous year, is it required to be reported in

unique IP address of the same may be reported. The auditor should also specify which books of account have been maintained in the computer system and which records have been maintained in hard copy form.

The Guidance does not provide any direction on reporting in Clause 11 if the IP Address is not unique but a dynamic IP address. In that situation, the name of the cloud should be mentioned.

FAQ 60. Mr. A has opted for the presumptive scheme under Section 44AD in respect of one of his businesses. Is the auditor required to mention details of such business in the audit report?

In case the profit and loss account of the assessee includes any profit declared under the presumptive scheme (Section 44AD, 44AE, 44AF, 44B, 44BB, 44BBA, 44BBB), then it is mandatory to mention the amount of such profit and the section under which the same is declared in Clause No. 12 of Form 3CD. The tax auditor is not required to indicate if the amount of presumptive income has been correctly computed under the relevant section relating to presumptive taxation. The reporting requirement is satisfied if the amount as per profit and loss account is reported.

FAQ 61.

How to ensure that the profit has been computed correctly if the profit & loss account also includes the profit computed on a presumptive basis?

If the profit and loss account of the assessee also includes the presumptive income, the common business expenditure has to be apportioned to arrive at the correct amount of profit credited to the profit and loss account and assessable on a presumptive basis. The tax auditor, in such a situation, should arrive at a fair and reasonable estimate of such expenditure on the basis of evidence in possession of the assessee or by asking the assessee to prepare such an estimate, which should be checked by him.

It is also necessary to mention the basis of apportionment of common expenditure. However, if the tax auditor is not satisfied with the reasonableness of such apportionment, he should indicate such fact under this clause by a suitable note.

FAQ 62. Is reporting required under Clause 15 for stock-in-trade converted into capital assets?

The conversion by the owner of a capital asset into or treatment of such asset as stock-in-trade of a business carried on by him is treated as a ‘transfer’ within the meaning of Section 2(47). Under Section 45(2), such conversion of capital asset into stock-in-trade will be deemed a transfer of the previous year in which the asset is so converted or treated as stock-in-trade.

However, the capital gains arising from such a transfer will be taxable in the previous year when such converted asset is sold or otherwise transferred. The excess of the sale price over the fair market value as of the date of conversion would be treated as business income and taxed under the head ‘profits and gains of business or profession’.

The particulars in Clause 15 should be furnished with respect to the previous year in which the asset has been converted into stock-in-trade. The Clause does not require details regarding in a vice-versa situation where the stock-in-trade is converted into capital assets. Thus, the conversion of stock-in-trade into capital assets is not reported in the tax audit report. FAQ

What should be reported in item (d) of clause 16 “any other item of income” not credited to the profit and loss account?

Clause 16 of the tax audit report requires reporting of the amount not credited to the profit and loss account.

The disclosure in item (d) of clause 16 is titled “any other item of income”. Whether certain incomes taxable under any other head need not be reported in this column?

One view is that income from house property or other sources (like bank interest, dividends, etc.) should not be reported in clause 16(d). Thus, no addition or adjustment shall be made by the CPC while processing the return under Section 143(1).

The other view is that such other income should be reported. The arguments in favour of such a conclusion are that Section 44AB starts with the expression “every person” carrying on business or profession shall get his accounts of such previous year audited. The audit under Section 44AB is not only for the books of account relating to business or profession but for the taxpayer. Thus, income chargeable to tax under the head house property, capital gains, and other sources are also disclosed in clause 16(d).

If the second view is followed, one may receive the tax demand as a result of adding the amount disclosed in 16(d) to business / professional income without taking note of the fact that those incomes are taxable under other heads.

Disclosure in clause 16 by the tax auditor by taking the view that the tax audit report is meant for the taxpayer and not explicitly limited to business or profession needs to be appreciated in the overall context of tax compliance. Such disclosure provides wholesome information to the department about the taxpayer. However, when such information is captured in the ‘Other Information Schedule’ of ITR, the CPC may compare it with incomes offered under other heads. If they are equivalent to or more than the amount disclosed in clause 16 of Form 3CD, no adjustment may be made under Section 143(1). However, clarity is needed from Dept. in this regard.

Whether the disclosure is required in Form 3CD?

If a claim for a refund of SAD has been admitted as due and accepted during the relevant financial year, it shall be reported under Clause 16. If the claim has been lodged during the previous year but has been admitted as due after the relevant previous year, it need not be reported here. Where such amounts have not been credited in the profit and loss account but netted against the relevant expenditure/income heads, such a fact should be brought out.

FAQ 64.

An assessee has applied for a refund of Special Additional Duty (SAD), but the same was not credited to the profit & loss account.

FAQ 65.

Is reporting required under Clause 17 in case of transfer of property outside India?

Clause 17 requires the reporting of the transfer of any land or building or both during the previous year for a consideration less than the value adopted or assessed or assessable by any authority of a State Government referred to in Section 43CA or Section 50C.

The reporting obligation under Clause 17 arises when the following conditions are satisfied:

(a) There is a transfer of land or building or both by the assessee during the previous year. It does not matter whether such land or building or both is held as a capital asset or stock in trade, as Clause 17 refers to both Section 50C and Section 43CA; and

(b) The transfer is for consideration, and such consideration is less than the stamp duty value.

If all the conditions are satisfied, it becomes necessary for the tax auditor to report the transaction under Clause 17. It is important to note that neither Section 43CA nor Section 50C excludes properties located outside India from their ambit. Consequently, if a property situated outside India is transferred, it must be reported in Clause 17. The Form 3CA-3CB/3CD utility also allows reporting of property details outside India.

FAQ 66. How does the auditor need to report the interest inadmissible under Section 23 of the MSMED Act, 2006?

Clause 22 of Form 3CD seeks the disclosure of the amount of interest inadmissible under Section 23 of the Micro, Small, and Medium Enterprises Development Act, 2006. The tax auditor needs to report the amount of interest inadmissible under Section 23 of the MSMED Act, 2006, irrespective of whether the amount of such interest has been debited to the profit and loss account or not.

The auditor should verify that the client has disclosed the information as required under Section 22 of the MSMED Act, 2006 in the financial. If there is no disclosure in the financial statements, the tax auditor should appropriately qualify his report in Form No. 3CB and also report the fact of non-disclosure in Clause 22 of Form No. 3CD.

FAQ 67. Should an auditor quantify whether the payment to a related person is unreasonable or excessive under Clause 23?

No, the auditor is not required to quantify whether the payment is unreasonable or excessive. Only the Assessing Officer can make the disallowance if, in his opinion, the expenditure is unreasonable.

In case of purchase from the related party, which of the following amounts is required to be reported in Clause 23?

(a) Purchase debited to P&L (Gross purchase, i.e., before deducting the purchase return)

(b) Purchase debited to P&L (net purchase, i.e., after deducting the purchase return)

(c) Actual amount paid to creditors during the current year

Section 40(A)(2) provides that expenditure for which payment has been or is to be made to certain specified persons listed in the section may be disallowed if, in the opinion of the Assessing Officer, such expenditure is excessive or unreasonable. The section enjoins the Assessing Officer’s power to fix the quantum of disallowance.

It may be advisable for the tax auditor to clarify that what has been reported are the actual payments made to specified persons during the previous year. These are not necessarily the amounts claimed in/debited to the profit and loss account.

The tax auditor is only required to give particulars of payments to persons specified under section 40A(2)(b) under this clause. He is not required to give his opinion on the unreasonably/excessiveness of the payments, and that is the Assessing Officer’s prerogative.

FAQ 69.

Does reporting under clause 23 apply to capital expenditure incurred by the assessee?

As the clause requires an auditor to report all the payments made to the specified persons, the payments made for capital purchases should also be considered for reporting under this clause.

FAQ 70.

How can the tax auditor report payments referred to in Section 43B if the same is unpaid as on the date of submission of the tax audit report but paid before the due date of filing of return of income?

Clause 26 of Form 3CD seeks details of liability incurred in respect of any sum referred to in clause (a), (b), (c), (d), (e), or (f) of Section 43B in the previous year and was paid or not paid on or before the due date for furnishing the Return of Income of the previous year.

Since the due date of filing of the tax audit report is one month before the due date of filing of return of income, it is practically not possible for the auditor to report if any payment is made after the filing of the tax audit report but before the due date of return of income.

To address this difficulty, the CBDT has inserted sub-rule (3) in Rule 6G to provide that the tax audit report may be revised by the person by getting a revised report of audit from an accountant, duly signed and verified by such accountant, and furnish it before the end of the relevant assessment year for which the report pertains if there is payment by such person after furnishing of the report which necessitates a recalculation of disallowance under Section 40 or Section 43B.

FAQ 71.

Is disallowance under Section 43B for the interest expense converted into a loan permanent in nature?

Circular No. 7/2006 dated 17th July 2006 clarifies that the unpaid interest, whenever actually paid to the bank or financial institution, will be in the nature of revenue expenditure deserving deduction in the computation of income. Therefore, the converted interest, by whatever name called, in the wake of its conversion into a loan or borrowing or advance, will be eligible for deduction in the computation of income of the previous year in which the converted interest is ‘actually paid’.

In other words, the nomenclature of the sum of converted interest will make no difference as the payment of converted interest will not represent the repayment of the principal. The circular clarifies that the fundamental principle remains that once an amount has been determined as interest payable to the banks or financial institutions, any subsequent change of nomenclature of interest will not affect its allowability, and deduction in terms of Section 43B will have to be allowed on its actual payment. The Assessing Officer, however, can ask for a certificate from the assessee to be obtained from the lender bank or financial institution, etc., as evidence of ‘actual payment’ of interest to banks or financial institutions.

FAQ 72. Is the sum payable to Indian Railways for advertisement at railway stations disallowed under Section 43B?

If the payment is being made by an advertising agency to the railways for putting up hoardings or display panels on railway premises, such payment will amount to the payment for the use of railway assets, as the payment is for the use of space on the premises. However, where an advertiser is making payment to the railways for the display of advertisements on hoardings or displays on railway premises, such a payment is in the nature of payment for the services of advertisement, and not for the use of railway assets.

Any sum payable to Indian Railways for the use of railways assets shall be allowed on a payment basis. Any sum payable to Indian Railways for its services shall be allowed as per the method of accounting regularly employed by the assessee.

FAQ 73.

If

It may be noted that there is a difference between the expenditure of any earlier year debited to the profit and loss account and the expenditure relating to an earlier year, which has crystallised during the relevant year. An expense, though related to previous periods, which has been determined in the current period, would not be considered a prior period item.

In such cases, though the expenditure may relate to the earlier year, it can be considered as arising during the year on the basis that the liability materialised or crystallised during the year, and such cases will not be reported under this clause.

In case of any conflict in the opinion of the statutory auditor and tax auditor, the opinion of the tax auditor shall prevail, and the information thereof shall be reported in Form 3CD.

the statutory auditor does not consider an item as a prior period expense, whereas the tax auditor feels that such item should be considered as a prior period, should that expense be disclosed in Clause 27(b) of Form 3CD?

FAQ 74.

What are the disclosure requirements?

Section 56(2)(ix) of the Income-tax Act provides for taxability of any sum received as an advance in the course of negotiations for the transfer of a capital asset, and such sum was forfeited due to non-transfer of such capital asset. A new Clause 29A to Form 3CD has been inserted to report any advance received from the buyer but forfeited due to the non-materialisation of a deal to the sale of the capital asset.

The auditor is not required to report any such forfeited amount in respect of a personal capital asset or stockin-trade. Any advances received and forfeited towards the sale of stock-in-trade would be taxable under section 28(i), and would not be required to be reported since the amount would be credited to the profit & loss account.

The requirement of reporting arises only on forfeiture of advance. If an advance has been received and has been outstanding for a considerable time, there is no requirement to report such amount unless and until it is forfeited by an act of the assessee.

FAQ 75. Should any consideration for the issue of shares that exceed the fair market value of the shares received by a start-up be reported in clause 29?

Reporting obligation under Clause 29 is triggered if a closely held company issues unquoted shares at a premium. In such case, the excess of the premium over the fair market value of the shares shall be taxable as income from other sources in the hands of the company.

The DPIIT’s recognised start-ups are exempted from the applicability of Section 56(2)(viib) subject to the satisfaction of various conditions prescribed under the notification issued by the DPIIT14. Therefore, Clause 29 shall apply only to closely held companies except DPIIT-recognised start-ups that satisfy the condition for exemption. If the private limited company in question is a DPIIT-recognised start-up eligible for exemption under section 56(2)(viib), the e-mail received from CBDT regarding eligibility for exemption must be verified by the tax auditor, and suitable remarks should be made regarding the applicability of the exemption and the non-applicability of Clause 29.

Section 56(2)(viib) and Notification issued by the DPIIT16 prescribe various conditions for a start-up to claim exemption from payment of tax under this provision. In case of failure to comply with these conditions, the consideration received from the issue of shares, as exceeding the fair market value of such shares, shall be deemed to be the income of the company chargeable to tax for the previous year in which such failure takes place. When the exemption is withdrawn, it shall be deemed that the company has underreported the income in consequence of the misreporting, and consequently, a penalty of an amount equal to 200% of tax payable on the underreported income shall be levied as per Section 270A15

Mr. A, a sole proprietor, agreed to transfer his personal property to Mr. X and received some non-refundable advance against such a deal. The sale could not materialise as Mr. X could not pay the whole amount, and the advance money was forfeited by Mr. A.

How to report

the Impermissible Avoidance Arrangement

entered into by the assessee?

Clause 30C of Form 3CD requires the Tax Auditor to report “Impermissible Avoidance Arrangements” (IAA) entered into by the assessee during the previous year and to quantify the tax benefit arising in the aggregate in the previous year to all the parties to such arrangement.

The tax auditor should examine whether the Principal Commissioner or the Commissioner or the Approving Panel has, in any earlier previous year, declared any arrangement as IAA. If any arrangement has been declared to be an IAA, the tax auditor should further examine whether any transaction pertaining to or in connection with such declared IAA has taken place during the previous year under the audit. If yes, the tax auditor is expected to report this fact in the audit report. The tax auditor should also report tax benefits in the previous year arising from such transactions to all the parties to the arrangement. If he is unable to ascertain the tax benefit arising in the previous year, in the aggregate, to all the parties to the arrangement, he should indicate the same in Form 3CA or Form 3CB, as the case may be.

The auditor should examine if any reference has been made for declaring an arrangement as an impermissible avoidance arrangement in any earlier previous year. If such references have been made, the auditor should report the fact in Form 3CA or Form 3CB, as the case may be.

FAQ 77.

Pricing

Is it required to be reported in Form 3CD?

As per Clause 30A of Form 3CD, if any primary adjustment to the transfer price has been made as per Section 92CE(1), then the following details need to be given in Clause 30A of the form.

a) Clause of Section 92CE(1) in which primary adjustment is made

b) Amount of primary adjustment

c) Is the excess money available with the associated enterprise required to be repatriated to India as per the provisions of Section 92CE(2)?

d) If yes, whether the excess money has been repatriated within the prescribed time.

e) If no, the amount of imputed interest income on such excess money has not been repatriated within the prescribed time.

FAQ 78.

How to calculate the interest on excess money that needs to be repatriated after a primary adjustment?

Rule 10CB provides the rate of interest at which interest has to be calculated on excess money or part thereof that is not repatriated within the time limit. Where the international transaction is denominated in Indian rupees, the rate of interest will be the one-year marginal cost of fund lending rate of the State Bank of India as

ABC Ltd. has rendered services to its Associated Enterprise, resulting in a net profit of 15% on cost. The Transfer

Officer (TPO) calculated the ALP of this transaction at 20% of the cost and accordingly made an adjustment.

of 1st April of the relevant previous year, plus 325 basis points (plus 3.25%). Where the international transaction is denominated in foreign currency, the rate of interest shall be the six-month London Interbank Offered Rate (LIBOR) as of 30th September of the relevant previous year plus 300 basis points (plus 3%).

It is possible that the amount of imputed interest income on the excess money not repatriated to India may relate to more than one year. Having regard to Rule 10CB, the interest liability extends till the date of repatriation. Accordingly, for the relevant year under audit, such liability in respect of imputed interest may extend not only to the primary adjustment but may also relate to the primary adjustment made in the earlier years.

FAQ 79. My client has borrowed money from its foreign holding company, and the interest paid on such a loan was Rs. 1.05 crore during the previous year. Whether this transaction is reportable in Form 3CD?

As per Section 94B, if an Indian company or PE of a foreign company pays interest in excess of Rs. 1 crore to the associated enterprise, the deduction for interest shall be restricted to lower of the following:

a) Total interest paid or payable in excess of 30% of earnings before interest, taxes, depreciation, and amortisation (‘EBITDA’) of the borrower in the previous year; or

b) Interest paid or payable to AEs for that previous year.

The excess interest, which is disallowed, can be carried forward for 8 assessment years following the year of disallowance, to be allowed as a deduction against profits and gains of any business in the subsequent years, to the extent of maximum allowable interest expenditure under this provision.

A new Clause 30B has been inserted in Form 3CD, which requires details of such interest payment with the following disclosures:

a) Amount of expenditure by way of interest or of similar nature incurred.

b) EBITDA during the previous year.

c) Amount of expenditure by way of interest or of similar nature as per (a) above, which exceeds 30% of EBITDA as per (b) above.

d) Details of interest expenditure brought forward as per Section 94B(4).

e) Details of interest expenditure carried forward as per Section 94B(4)

This clause shall not be applicable in the case of a company that is engaged in the business of banking or insurance.

FAQ 80. Whether the figure of EBITDA shall be as per books of account or as per provisions of Income-tax?

While computing the EBITDA, the figures as per the final audited stand-alone accounts of the company should be considered, not the figures adjusted for the income tax computation after various allowances and disallowances.

FAQ 81.

How will the details of loans accepted and repayment thereof be reported in Clause 31 of Form 3CD?

Repayment of Loan or Deposit or advance for transfer of Immovable Property

Repayment of loan or deposit or advance for transfer of Immovable Property (originally accepted other than through cheque)

Repayment of loan or deposit or advance for transfer of Immovable Property (originally accepted through cheque or draft not being A/c payee cheque/draft)

FAQ 82.

31(c)

31(d)

Clause 31(e)

Should advance received from a person for the sale of goods also be disclosed under Clause 31?

Loans or deposits are generally squared off by repayment of the sum to the lender. As in the case of advance for the sale of goods, the party’s ledger is squared off by the delivery of goods or services. Thus, an advance received against the agreement of sale of goods could not be deemed a loan or deposit. Accordingly, details of advances shall not be reported in Clause 31. Further, the ICAI, in the guidance note, has clarified that the advance received against the agreement of sale of goods is not a loan or deposit.

FAQ 83.

Should the interest-free loan be disclosed in Clause 31?

A loan can be with interest or without interest because no condition exists in the law of contract that a loan can be with interest only [Chandrakant H. Shah v. ITO [2009] 28 SOT 315 (Mum. - Trib.)]. Hence, even if the loans are taken free of interest, the information will be reported in Clause 31

FAQ 84.

How can the tax auditor verify whether the loans or advances have been accepted or repaid through an account payee cheque?

Practically, it may not be possible to verify each receipt or repayment, reflected in the bank statement, as to whether the deposits or loans or specified advance has been received or repaid through cheque, bank draft, which is not an account payee cheque or account payee bank draft.

The tax auditor should obtain a suitable certificate from the assessee to the effect that the receipts or repayment referred to in Clause 31 were by the account payee cheque or account payee bank draft. If the reporting has been done based on the certificate of the assessee, the same shall be reported as an observation in clause 3 of Form No. 3CA and clause 5 of Form No.3CB, and the tax auditor should make a suggested comment in his report.

The ICAI Guidance Note on tax audit suggests the following comments in such case:

“It is not possible for me/us to verify whether loans or deposits or specified advance repaid have been taken or accepted otherwise than by an account payee cheque or account payee bank draft or use of electronic clearing system through a bank account, as the necessary evidence is not in the possession of the assessee”.

FAQ 85. Should loans or advances facilitated through transfer entries be disclosed in Clause 31?

The ICAI guidance note provides that the loans and deposits taken or accepted by transfer entries in the books of account constitute acceptance of deposits or loans otherwise than by account payee cheques. Hence, such entries have to be reported under this clause. The entries that relate to transactions with a supplier and customer on account of the purchase or sale of goods/services will not be treated as loans or deposits accepted.

FAQ 86.

Under this clause, the auditor is required to furnish detailed information in case the assessee is liable to pay interest under section 201(1A) or section 206C(7) of the Act. The reporting in clause 34(c) should be in consonance with the reporting under clause 34(a) where the details of non-deduction are required to be reported.

Under Clause 34(c), should the amount of interest payable on 31st March and paid during the current year be reported, or report all interest even if paid in the previous year itself?

Where the assessee is liable to pay interest u/s 201(1A) or 206C(7), the tax auditor should verify such amount from the books of account as of 31st March of the relevant previous year and also from PART G of the statement generated by the Department in Form No. 26AS. In case the assessee had disputed the levy or calculation of interest under TRACES, in Form No. 26AS, the tax auditor may re-calculate the amount of interest under section 201(1A) or section 206C(7) up to the audit report date for reporting under this clause and mention the fact in his observations paragraph provided in Form No. 3CA or Form No. 3CB, as the case may be.

FAQ 87. Should quantitative details of each and every stock be mentioned in clause 35?

Clause 35 requires quantitative details of ‘principal items’ of raw materials and finished goods. Therefore, information about petty items need not be given. Normally, items that constitute more than 10% of the aggregate value of purchases, consumption, or turnover may be classified as principal items.

FAQ 88. In the case of a manufacturing concern, the auditor failed to ascertain the yield of finished goods because of different measurement units of raw material and the finished product. How to report this in Form 3CD?

If the assessee is engaged in the manufacture of goods, the yield and shortage cannot be ascertained if the input of raw materials and the output of finished goods are recorded in different units of measurement.

If the end product is a standard item and can be converted back and related to the input of the raw material in the same unit of measurement, it should be done to ascertain the shortage, yield, etc. If it is not possible, the tax auditor should state the fact under this clause.

FAQ 89. My client has furnished the statement of tax deducted or tax collected within the prescribed time limit. Do I have to report the details of such returns in form 3CD?

Up to Assessment Year 2017-18, an assessee is required to report details regarding furnishing of statement of tax deducted or tax collected under clause 34(b) if such statements weren’t submitted within the prescribed time limits. However, w.e.f. the assessment year 2018-19, Form 3CD requires such details even if the assessee has submitted the statements within prescribed time limits.

Further, if the assessee failed to report all transactions in statements of TDS/TCS, then unreported transactions have to be disclosed in clause 34(b) of Form 3CD.

FAQ 90. Should capital expenditure be reduced from the actual cost of a capital asset if tax was not deducted from such expenditure?

As per section 40(a)(ia), 30% of an expense is disallowed if tax is not deducted or after deduction is not paid to the government. Whether this provision shall be applicable only in the case of revenue expenditure or capital expenditure has been a matter of dispute between taxpayers and revenue. The revenue always argues for reducing the actual cost of a fixed asset if the tax has not been deducted for an expense that is capitalised as

per provisions of section 43(1). In the cases of CIT v. Plasmac Machine Mfg. Co. Ltd. [1993] 201 ITR 650 (Bom.) and Sumilon Industries Ltd. v. ITO [2010] 3 taxmann.com 187 (Ahmedabad-ITAT), it was held that disallowance under this section could be made only from an expense that is claimed in Profit and Loss Account. Since, in the case of capital expenditure, no deduction is claimed under the P/L account, there should not be any disallowance under section 40(a)(ia) in respect of such payment.

FAQ 91. How to furnish the ratios in Clause 40 of Form 3CD?

Clause 40 seeks the following details ratios for the previous year and the preceding previous year. S.No.

1. Total turnover of the assessee

2. Gross profit/turnover

3. Net profit/turnover

4. Stock-in-trade/turnover

5. Material consumed/finished goods produced

The ratios have to be given for the business as a whole and not product-wise. The relevant previous year’s figures are to be taken from the last previous year’s audit report. If the previous year is not subject to audit, nothing should be mentioned in the relevant column.

The tax auditor is not to sit in judgment over whether ratios calculated under clause 40 are fair for tax assessment purposes. He should simply comply with clause 40 to calculate and report the ratios with calculations.

FAQ 92. Whether a change in shareholding of a start-up company is to be reported in Clause 32(b) of Form 3CD?

Clause 32(b) applies only to closely held companies (companies in which the public is not substantially interested). It seeks information on the change in shareholding of the company in the previous year, due to which the losses incurred before the previous year cannot be allowed to be carried forward in terms of section 79.

Section 79 provides that the losses incurred by a closely held company in any year before the previous year shall not be carried forward and set off against the income of the previous year unless the shares of the company carrying at least 51% of the voting power are beneficially held by the same persons on the following two dates:

(a) On the last day of the previous year in which loss was incurred;

(b) On the last day of the previous year in which, such brought forward loss has to be set off.

The losses incurred by an eligible start-up shall be allowed to be carried forward and set off against the income of the previous year on the satisfaction of any of the two conditions specified below:

Condition 1: Continued 51% shareholding

In the year of set-off of losses, at least 51% of voting power is beneficially held by the same persons who held them as on the last day of the year in which loss was incurred; or

Condition 2: Continued 100% shareholders with the same voting rights

100% of shareholders, on the last day of the previous year in which loss was incurred, should continue to hold the same shares on the last day of the previous year in which loss is to be set off. Further, such losses should have been incurred for 1016 years beginning from the year of incorporation of the company.

Hence, the tax auditor should check whether a change in shareholding as envisaged by Section 79 of the Act has taken place, and the composition of shareholding as of the last day of the current previous year should be compared with the composition of shareholding as at the last day of each previous year in which loss was incurred. The comparison should be made by reference to the Register of Members. The carry-forward of loss incurred in respect of different previous years should be determined the previous year-wise.

FAQ 93. Should the Net Profit disclosed in Clause 40 be considered pre-tax or post-tax?

Net profit represents the excess of revenue over expenses during a particular accounting period. When the result of this computation is negative, it is referred to as a net loss. It may be noted that the net profit to be shown in Clause 40 is net profit before tax. There should be consistency between the numerator and the denominator while calculating the ratios. Any significant deviation thereof should be pointed out in Para 3 of Form 3CA or Para 5 of Form 3CB.

FAQ 94. What is the relevant date for reporting under Clause 41 in case of a refund?

Clause 41 seeks details of demand raised or refund issued during the previous year under any tax laws other than the Income-tax Act, 1961 and Wealth-tax Act, 1957 along with details of relevant proceedings.

As per Para 79.1 of the ICAI’s Guidance Note on tax audit, the tax auditor should obtain a copy of all the demand/ refund orders issued by the governmental authorities during the previous year and received by the assessee up to the date of audit under any tax laws other than Income Tax Act

and Wealth Tax Act.

It may be noted that even though the demand/refund order is issued during the previous year, it may pertain to a period other than the relevant previous year. Further, if there is any adjustment of refund against any demand, the same should be reported.

About TAXMANN

Our mission at Taxmann is ‘Spearheading the pursuit of expertise & authenticity’. We at Taxmann strive to provide authentic and fastest reporting of information. We are proud to call ourselves the #1 source for everything on Tax and Corporate Laws in India. Our domain knowledge of more than 60 years has helped us in being trusted by more than 500K legal professionals across the country.

Taxmann Alliance is the only publishing house in India with complete backward and forward integration, right from self-owned paper printing unit to in-house research and editorial team, and finally reaching the readers through its own distribution network all across India. The group has also ventured into the technologies division since 2007.

Taxmann Alliance consists of four independent verticals:

Research & Editorial

Taxmann Research & Editorial comprises of an enthusiastic team of over 200 Legal associates. They are responsible for keeping the readers abreast of the latest developments in the judicial, administrative and legislative fields in the form of authentic articles and updates.

Sales & Marketing

At Taxmann, we believe in marketing our products through various refined sales channels, with a diverse network of Dealers & Distributors and an in-house marketing team.

A quick preview of the strength of our sales is listed below:

Printing

Tan Prints has been carrying out specialized printing jobs since the 1980s in their beautifully landscaped facility spread over 10,000 sq. meters. Tan Prints has a strong presence in Nigeria, Ghana, Ethiopia, Rwanda, Uganda and Kenya. It not only caters to reputed Book Publishers but also Governments, Universities and Institutes.

Technologies

Taxmann’s excellent team of professionals offers the best in class end-to-end website and App designing, development and maintenance solutions.

Research & Editorial

21/35, West Punjabi Bagh, New Delhi – 110026

Phone : +91-11-45662200 | E-mail : editorial@taxmann.com

Printing - Tan Prints

44 Km. Mile Stone, National Highway, Rohtak Road Village Rohad, Distt. Jhajjar (Haryana)

Phone : 01276-278155-56 | Mobile : 9896514100 | E-mail : sales@tanprints.com

Technologies

59/32, New Rohtak Road, New Delhi - 110005 (India) | Phone : +91-11-46462222 | E-mail : technologies@taxmann.com

Delhi: 59/32, New Rohtak Road, New Delhi - 110005 (India)

Tel: +91-11-45562222 | For Support Enquiry: support@taxmann.com

For Sales Enquiry: sales@taxmann.com | Skype ID: taxmannindia

Mumbai: 35, Bodke Building, Ground Floor, MG Road, Opp. Mulund Railway Station, Mulund (W), Mumbai - 400080

Tel: +91-022-25934806/07/09, 25644807 | Mobile: 09322247686, +91-9619668669

Email: sales.mumbai@taxmann.com, nileshbhanushali@taxmann.com

Ahmedabad: 7, Abhinav Arcade, Ground Floor, Nr. Bank of Baroda, Pritam Nagar Paldi, Ahmedabad - 380007 Tel: +91-079-26589600/02/03 | Mobile: +91-9909984900, 9714105770, 9714105771

Email: bdurgaprasad@taxmann.com, sales.ahmedabad@taxmann.com

Hyderabad: 4-1-369-Indralok Commercial Complex Shop No. 15/1 - Ground Floor, Beside Hotel Jaya International Reddy Hostel Lane Abids Hyderabad - 500001 Mobile: +91-9391041461/09322293945 | Email: bdurgaprasad@taxmann.com, sales.hyderabad@taxmann.com

Pune: Office No. 14, First Floor, Prestige Point, 283 Shukrwar Peth, Opp.Chinchechi Talim, Nr. BSNL office, Bajirao Road, Pune - 411002 Mobile: 9822411811, 9834774266, 9322293945 | Email: sales.pune@taxmann.com

For Contact & Assistance: Tel. : +91-11-45562222 | E-mail : support@taxmann.com, sales@taxmann.com

www.taxmann.com