Taxmann's TDS on Benefits or Perquisites under Section 194R

!īâŸƌĊŻϼīĊâąǖ PAGE

Contents

Alphabetical Reckoner of TDS Under section 194R on perquisites and benefits

I-25

Reckoner to CBDT’s Circular No. 12/2022, dated 16-6-2022 : Clarifications, Issues arising from clarifications & Possible Solutions

I-31

I-9

Chapter 1

Deduction of tax on the benefit or perquisite in respect of business or profession [Section 194R]

1

Chapter 2

‘Provider of benefit or perquisite’/‘deductor’/‘ensurer’

5

Chapter 3

Benefit or perquisite should be provided to a Specified Deductee i.e. a resident recipient who satisfies specified conditions

8

Chapter 4

Specified benefit/perquisite

18

Chapter 5

Obligation cast upon by section 194R on the “deductor” (provider of benefit/perquisite)

42

Chapter 6

‘Removal of difficulty clause’ - Power of CBDT to issue Removal of Difficulties Guidelines

60

Chapter 7

Valuation of benefits/perquisites I-5

68

CHAPTER-HEADS

I-6 PAGE

Chapter 8

Applicability of section 194R to purely monetary perquisites/ benefits

75

Chapter 9

Applicability of section 194R to principal amount of loan waived

80

Chapter 10

Applicability of section 194R to interest-free loan

82

Chapter 11

Applicability of section 194R to discounts, rebates, gifts, incentives, cashbacks etc.

84

Chapter 12

Applicability of section 194R to amount received under consent decree from seller of plot for breach of contract to deliver possession of plot

93

Chapter 13

Applicability of section 194R to benefits or perquisites provided in the form of capital assets

95

Chapter 14

Applicability of section 194R to benefits or perquisites provided in the form of shares

99

Chapter 15

Applicability of section 194R to benefits or perquisites provided in the form of land

119

Chapter 16

Applicability of section 194R to benefits or perquisites provided in the form of jewellery

121

Chapter 17

Applicability of section 194R to benefits or perquisites provided in the form of archaeological collections, paintings, drawings, sculptures or any work of art

123

Chapter 18

Applicability of section 194R to benefits or perquisites provided in the form of car, furnitures/fixtures

125

Chapter 19

Complimentary Copies provided by publishers to authors/ others

129

I-7

CHAPTER-HEADS PAGE

Chapter 20

Applicability of section 194R to freebies given by pharma companies to doctors

133

Chapter 21

Applicability of section 194R to gifts to brand ambassadors

139

Chapter 22

Applicability of section 194R to foreign tours organised for dealers/agents who achieve targets

141

Chapter 23

Applicability of section 194R to products given free to social media influencers

144

Chapter 24

Applicability of section 194R to reimbursements

146

Chapter 25

Applicability of section 194R to dealers’ conference

153

Chapter 26

Applicability of section 194R to amalgamation

156

Chapter 27

Applicability of section 194R to shareholder’s loan to company converted into his earnest money for property sale to him and forfeited by company for failure to pay balance

157

Chapter 28

Applicability of section 194R to non-monetary benefits given to partner

159

Chapter 29

Applicability of section 194R to asset transferred to retiring partner

161

Chapter 30

Perquisites/benefits provided to a director of a company

162

Chapter 31

Perquisites provided by hospital to doctors

164

Chapter 32

Tips collected by hotel/food delivery apps from customers and paid over to employees/‘delivery partners’

175

CHAPTER-HEADS

I-8 PAGE

Chapter 33

Bad debts written off - Whether perquisite/benefit liable for TDS u/s 194R

177

Chapter 34

Rewards to athletes/sportspersons who win medals in Olympics/Worlds etc.

181

Chapter 35

Frequently Asked Questions (FAQs)

186

Chapter 36

Avenues for litigation

193

Chapter 37

Amendments made to Income Tax Rules consequent to Section 194R

199

APPENDICES APPENDIX 1

:

RELEVANT SECTION OF INCOME-TAX ACT, 1961

203

APPENDIX 2

:

RELEVANT RULE OF INCOME-TAX RULES, 1962

204

APPENDIX 3

:

PAYMENT OF ANY SUM SHALL BE LIABLE FOR DEDUCTION OF TAX ONLY UNDER ONE SECTION

216

APPENDIX 4

:

GUIDELINES FOR REMOVAL OF DIFFICULTIES UNDER SUB-SECTION (2) OF SECTION 194R OF THE INCOME-TAX ACT, 1961

217

!śŒƌĊŒƌǖ PAGE

Chapter-heads

Alphabetical Reckoner of TDS Under section 194R on perquisites and benefits

I-25

Reckoner to CBDT’s Circular No. 12/2022, dated 16-6-2022 : Clarifications, Issues arising from clarifications & Possible Solutions

I-31

I-5

1 DEDUCTION OF TAX ON THE BENEFIT OR PERQUISITE IN RESPECT OF BUSINESS OR PROFESSION [SECTION 194R] 1.1

Salient features of new section 194R providing for deduction of tax on the benefit or perquisite in respect of business or profession

1

1.2

Rationale for enacting section 194R

3

1.3

Ingredients of section 194R

4

2 ‘PROVIDER OF BENEFIT OR PERQUISITE’/ ‘DEDUCTOR’/‘ENSURER’ 2.1

Obligation is on any person responsible for providing benefit or perquisite (deductor)

5

2.2

Applicability to a non-resident provider

6

2.3

Exemption to specified individuals and specified HUFs from deducting tax under section 194R

7

2.3.1

Applicability of ICDSs for determining turnover of individual/HUF for determining whether he is liable to deduct TDS I-9

7

CONTENTS

I-10 PAGE

2.3.2

2.3.3

Applicability of section 145A(ii) for determining turnover of individual/HUF for determining whether he is liable to deduct TDS

7

Applicability of section 194M to benefit or perquisite covered by section 28(iv)/section 194R

7

3 BENEFIT OR PERQUISITE SHOULD BE PROVIDED TO A SPECIFIED DEDUCTEE i.e. A RESIDENT RECIPIENT WHO SATISFIES SPECIFIED CONDITIONS 3.1

Who should be the recipient of the benefit/perquisite so as to trigger the obligation section 194R(1)?

8

3.2

Recipient should not be employee of provider of benefit/ perquisite

10

3.2.1

Test of existence/non-existence of employer-employee relationship between deductor (provider) of benefit/perquisite and recipient

11

3.3

Recipient must be carrying on business/profession

14

3.4

Resident recipient must be having a business or professional relationship with the provider of benefit/perquisite (deductor)

14

What if the recipient of the benefit or perquisite is a non-resident ? In that case, will tax have to be deducted under section 195?

17

3.5

4 SPECIFIED BENEFIT/PERQUISITE 4.1

Specified benefit/perquisite: Benefit or perquisite which if provided triggers provider’s (deductor’s) liability to deduct TDS under section 194R

18

4.2

Meaning of ‘benefit’

18

4.3

Meaning of ‘perquisite’

20

4.4

Benefit or perquisite should be in the nature of income

21

4.5

Legal right to claim benefit or perquisite

22

4.6

Is it necessary that the benefit or perquisite must be in kind for section 194R of the Act to operate ?

23

I-11

CONTENTS PAGE

4.7

4.8 4.9

Illustrative list of items that will be treated as benefit or perquisite for TDS purposes u/s 194R (as per CBDT’s Circular No.12/2022, dated 16-6-2022)

24

Benefit or perquisite, whether convertible into money or not

26

4.8.1

28

CBDT’s views on the first proviso

CBDT’s views on the link between section 194R and section 28(iv) 4.9.1

29

Analysis of CBDT’s views on nexus between section 194R(1) and section 28(iv)

31

4.10

Benefit or perquisite must be ‘arising from business or the exercise of a profession, by such resident’

32

4.11

Meaning of ‘arising from’

33

4.12

Nexus between business/profession and benefit or perquisite

35

4.13

Discounts, rebates, gifts, incentives etc. to buyers - Whether liable to TDS under section 194R

36

4.14

Value of benefit or perquisite is ` 20,000 or less

40

5 OBLIGATION CAST UPON BY SECTION 194R ON THE “DEDUCTOR” (PROVIDER OF BENEFIT/PERQUISITE) 5.1

Obligation is to ‘ensure’ that tax has been deducted

42

5.2

Comparison of section 194R with sections 194B and 194S

42

5.3

Interpretation of the words ‘ensure that tax has been deducted’ used in section 194R(1)

45

5.4

How to comply with section 194R(1) and the first proviso thereto

46

5.5

CBDT’s clarification

47

5.6

Rate of TDS if deductee does not furnish PAN/or is a non-filer

48

5.7

Whether deductee can apply for a certificate of lower deduction or nil deduction

49

5.8

Whether non-deduction based on Form No.15G/15H is applicable

49

5.9

It shall be ‘ensured that tax has been deducted’ before providing such benefit or perquisite (Time of deduction)

49

CONTENTS

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5.10

Meaning of ‘providing’ benefit or perquisite to a resident

50

5.10.1

Different stages of delivery of benefit/perquisite

51

5.10.2

Implications on the cancellation of the foreign tour by a dealer/distributor

53

5.11

Deduction of tax in case of continuous providing of benefits or perquisites

54

5.12

Obligation to ensure that tax required to be deducted has been paid if the benefit or perquisite is wholly in kind or partly in cash and partly in kind

55

5.12.1

Meaning of ‘in kind’

55

5.12.2

Meaning of ‘tax’

56

5.13

5.14

5.15

How to comply with the first proviso i.e. how to ensure that tax required to be deducted has been paid where perquisite/ benefit is wholly in kind or partly in cash and partly in kind ?

57

Whether the first proviso can be construed as requiring deduction of tax at source u/s 194R where perquisite/benefit is wholly in cash/money ?

57

Where perquisite/benefit is wholly in cash, or partly in cash and partly in kind, whether TDS under other applicable sections such as section 194J/section 194C/section 194H will also have to be deducted on cash perquisite/cash component of perquisite ? In other words, will cash component attract TDS under section 194R as well as other applicable TDS sections ?

59

6 ‘REMOVAL OF DIFFICULTY CLAUSE’– POWER OF CBDT TO ISSUE REMOVAL OF DIFFICULTIES GUIDELINES 6.1

Rationale for removal of difficulty clause in newly enacted law or newly enacted legal provision

60

6.2

Power of CBDT to issue guidelines for removing any difficulty that arises in giving effect to the provisions of section 194R

61

6.3

Removal of Difficulties Guidelines not binding on resident recipient for section 28(iv) purposes

62

6.4

Removal of difficulty Guidelines binding on ‘income tax authorities’

62

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CONTENTS PAGE

6.5

6.6

Grounds on which the Removal of Difficulties clause as well as Guidelines /Orders issued thereunder can be challenged in a writ petition in High Court

62

Grounds on which Guidelines issued by CBDT under section 194R(2) can be challenged in writ petitions

63

7 VALUATION OF BENEFITS/PERQUISITES 7.1

How is the valuation of benefit/perquisite required to be carried out for the purposes of section 194R?

68

7.2

Valuation if item provided as perquisite is purchased by provider and provided to recipient

68

7.3

Valuation if item provided as perquisite is manufactured by the provider of benefit/perquisite

69

7.4

Valuation based on Fair Market Value

70

7.5

Grey areas in valuation - What about benefit/perquisite which is neither purchased nor manufactured by provider nor is a capital asset (e.g. services rendered free or at a huge discount, rental accommodation provided)

72

7.6

Above valuation norms not binding on the resident recipient for the purposes of section 28(iv)

73

7.7

Whether above valuation norms can be challenged in appellate fora?

74

8 APPLICABILITY OF SECTION 194R TO PURELY MONETARY PERQUISITES/BENEFITS 8.1

Provisions of the First Proviso to section 194R(1)

75

8.2

Redemption/buy-back of FCCBs at a discount

77

8.3

Share application money subsequently written back in books of account

78

8.4

Subsidy given by company to dealer/distributor for purchase of van which was to be utilised for display and demonstration of logo of company

78

CONTENTS

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9 APPLICABILITY OF SECTION 194R TO PRINCIPAL AMOUNT OF LOAN WAIVED 9.1

9.2

Applicability of section 194R to principal amount of loan waived by bank under OTS - Whether bank liable to deduct TDS u/s 194R 9.1.1 CBDT’s views Waiver by bank of loan taken by assessee for his personal purposes/Non-business purposes - Whether bank liable to deduct TDS

80 80

81

10 APPLICABILITY OF SECTION 194R TO INTEREST-FREE LOAN 10.1

Whether interest on interest-free loans to dealers, suppliers, etc. would be a ‘benefit or perquisite’?

82

11 APPLICABILITY OF SECTION 194R TO DISCOUNTS, REBATES, GIFTS, INCENTIVES, CASHBACKS ETC. 11.1

11.2

11.3

Whether sales discount, cash discount, rebates, gifts, incentives to buyers/customers are benefit or perquisite for the purposes of section 194R? Whether incentives to buyer in the form of free items other than the items from his stock-in-trade or cash incentives will attract TDS under section 194R? Cash backs-Whether perquisite or benefit

84

87 90

12 APPLICABILITY OF SECTION 194R TO AMOUNT RECEIVED UNDER CONSENT DECREE FROM SELLER OF PLOT FOR BREACH OF CONTRACT TO DELIVER POSSESSION OF PLOT 12.1

12.2

Amount received under consent decree from seller of plot for breach of contract to deliver possession after agreement to sell & receiving earnest money

93

CBDT’s views

93

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CONTENTS PAGE

13 APPLICABILITY OF SECTION 194R TO BENEFITS OR PERQUISITES PROVIDED IN THE FORM OF CAPITAL ASSETS 13.1

Benefits or perquisites provided in the form of capital assets

95

13.2

Benefits under advance license or DEPB

96

13.3

No benefit or perquisite arises where capital asset given conditionally under contract are returned as recipient failed to fulfil conditions

97

Valuation of benefit or perquisite in the form of a capital asset

97

13.4

14 APPLICABILITY OF SECTION 194R TO BENEFITS OR PERQUISITES PROVIDED IN THE FORM OF SHARES 14.1

14.2 14.3 14.4

No benefit or perquisite arises where shares given conditionally under contract are returned as recipient failed to fulfil conditions Purchase of shares of a non-related company from parties other than the company, at a price less than fair market value Shares issued to director 14.3.1 Valuation Valuation where benefit/perquisite is in the form of shares 14.4.1 Fair Market Value of quoted shares and securities as per Rule 11UA(1)(c)(b) 14.4.2 Determination of FMV of unquoted equity shares and securities 14.4.3 Determination of FMV of unquoted shares and securities other than equity shares

99 99 101 101 101 102 102 117

15 APPLICABILITY OF SECTION 194R TO BENEFITS OR PERQUISITES PROVIDED IN THE FORM OF LAND 15.1

Where assessee-firm purchased a land with co-owner and received excess share in partition of land

119

CONTENTS

I-16 PAGE

15.2

Value of gift of land to preacher by disciple

119

15.3

Valuation of perquisite/benefit provided in the form of gift of land

120

16 APPLICABILITY OF SECTION 194R TO BENEFITS OR PERQUISITES PROVIDED IN THE FORM OF JEWELLERY 16.1

Applicability of section 194R to benefits or perquisites provided/received is in the form of jewellery

121

16.2

Valuation of jewellery

121

17 APPLICABILITY OF SECTION 194R TO BENEFITS OR PERQUISITES PROVIDED IN THE FORM OF ARCHAEOLOGICAL COLLECTIONS, PAINTINGS, DRAWINGS, SCULPTURES OR ANY WORK OF ART 17.1

17.2

Applicability of section 194R to benefits or perquisites provided/received is in the form of archaeological collections, paintings, drawings, sculptures or any work of art

123

Valuation for TDS purposes

123

18 APPLICABILITY OF SECTION 194R TO BENEFITS OR PERQUISITES PROVIDED IN THE FORM OF CAR, FURNITURES/FIXTURES 18.1

18.2

18.3

Applicability of section 194R to benefits or perquisites provided/received is in the form of car, Furnitures/fixtures provided to director

125

Valuation

127

18.2.1

Valuation of Brand new car

127

18.2.2

Valuation of second hand car owned by provider

128

Gift in kind (car of the co-sponsor of the campaign) to brand ambassador of environmental campaign

128

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CONTENTS PAGE

19 COMPLIMENTARY COPIES PROVIDED BY PUBLISHERS TO AUTHORS/OTHERS 19.1

Backdrop

129

19.2

Applicability of section 194R to Complimentary Copies provided by publishers to authors

130

20 APPLICABILITY OF SECTION 194R TO FREEBIES GIVEN BY PHARMA COMPANIES TO DOCTORS 20.1

Requirements of Medical Ethics, Explanation 1 to Section 37(1) and Explanation 3 to section 37(1)

133

20.2

Whether pharma company liable to deduct TDS u/s 194 on these freebies to doctors tainted by unethicality and illegality and hit by disallowance under Explanation 1 and Explanation 3 to section 37(1)

135

Whether free samples to physicians/doctors are perquisites and attract TDS under section 194R?

137

20.3

21 APPLICABILITY OF SECTION 194R TO GIFTS TO BRAND AMBASSADORS 21.1

Gift of expensive watch to brand ambassador

139

22 APPLICABILITY OF SECTION 194R TO FOREIGN TOURS ORGANISED FOR DEALERS/ AGENTS WHO ACHIEVE TARGETS 22.1 22.2

Payment made to third party

141

22.1.1

142

Reimbursement of cost of foreign trip

What will be the TDS implications if an insurance company organises foreign travel for its agents?

142

CONTENTS

I-18 PAGE

23 APPLICABILITY OF SECTION 194R TO PRODUCTS GIVEN FREE TO SOCIAL MEDIA INFLUENCERS 23.1

Applicability of section 194R to products given free to social media influencers

144

23.2

Valuation

145

24 APPLICABILITY OF SECTION 194R TO REIMBURSEMENTS 24.1

Reimbursements

146

24.2

Making payment to someone who has not incurred the expense to be passed on to someone else, is not “reimbursement”

147

Whether reimbursement of out of pocket expense incurred by service provider in the course of rendering service is benefit/perquisite?

148

24.3

25 APPLICABILITY OF SECTION 194R TO DEALERS’ CONFERENCE 25.1

Applicability of section 194R to dealers’ conference

153

25.2

CBDT’s Clarification

154

25.3

Valuation

154

26 APPLICABILITY OF SECTION 194R TO AMALGAMATION 26.1

Where assessee-company amalgamated with 3 companies and Net book value of assets taken over exceeded consideration paid for acquiring 3 companies

156

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CONTENTS PAGE

27 APPLICABILITY OF SECTION 194R TO SHAREHOLDER’S LOAN TO COMPANY CONVERTED INTO HIS EARNEST MONEY FOR PROPERTY SALE TO HIM AND FORFEITED BY COMPANY FOR FAILURE TO PAY BALANCE 27.1

Shareholder’s loan to company converted into his earnest money for property sale to him and forfeited by company for failure to pay balance

157

28 APPLICABILITY OF SECTION 194R TO NONMONETARY BENEFITS GIVEN TO PARTNER 28.1

Applicability of Section 194R to non-monetary benefits given to the partner

159

28.2

Valuation of non-monetary perquisites given by professional firms/LLPs to their partners

160

28.3

At what stage to ‘ensure’ TDS deduction as per section 194R

160

29 APPLICABILITY OF SECTION 194R TO ASSET TRANSFERRED TO RETIRING PARTNER 29.1

Applicability of Section 194R to asset transferred to a retiring partner

161

30 PERQUISITES/BENEFITS PROVIDED TO A DIRECTOR OF A COMPANY 30.1

Whether company directors are employees and payments to them are liable for TDS u/s 192?

162

30.2

Buses owned by transport company sold to directors at written down value which is much below fair market value

163

30.2.1

163

30.3

Valuation

Repairs and renovations to own apartments of directors at cost to company

163

CONTENTS

I-20 PAGE

30.4

If no office in the residential accommodation provided to director, residence and other facilities cannot be treated as use for official purposes

163

31 PERQUISITES PROVIDED BY HOSPITAL TO DOCTORS 31.1

TDS on Perquisites/Benefits provided by Hospital to Doctors

164

31.2

Tests to Determine Whether Consultant Doctors are Employees of Hospital or Independent Professionals

164

31.3

Net Position which emerges

173

31.4

Perquisites/benefits provided by pharma companies to doctors of a hospital

174

32 TIPS COLLECTED BY HOTEL/FOOD DELIVERY APPS FROM CUSTOMERS AND PAID OVER TO EMPLOYEES/‘DELIVERY PARTNERS’ 32.1

TIPS collected by hotel from customers and paid to employees

175

32.2

Whether tips collected by food delivery apps and paid to delivery boys who are its employees are liable for TDS u/s 192

176

32.3

Whether TDS deductible on these tips u/s 194R, as TDS u/s 192 does not apply

176

33 BAD DEBTS WRITTEN OFF - WHETHER PERQUISITE/ BENEFIT LIABLE FOR TDS U/S 194R 33.1

Bad debts written off - Whether perquisite/benefit liable for deduction of TDS under section 194R?

177

33.2

Objective of unilateral write-off by creditor is to clean up his own account books to show a true and fair view, not ‘providing’ a benefit to debtor

179

If creditor grants a waiver on debtor’s request or write-off is abusive self-dealing, it can amount to providing a perquisite or benefit

180

33.3

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CONTENTS PAGE

33.4

Where write-off follows waiver of dues by bank under a one time settlement with the borrower

180

34 REWARDS TO ATHLETES/SPORTSPERSONS WHO WIN MEDALS IN OLYMPICS/WORLDS ETC. 34.1

Backdrop

181

34.2

Rewards received by Olympic/Asiad/CWG medal winners from the Central Govt. or any State Govt. are tax-free u/s 10(17A)(ii)

181

34.3

Awards & rewards not covered by CBDT’s exemption Order u/s 10(17A)(ii)

182

34.4

Amateur/Non-professional sportsperson vs. Professional Sportsperson

183

34.5

Award received by non-professional/amateur sportsperson - Whether taxable? Whether liable to TDS u/s 194R?

183

34.6

Award received by a professional sportsperson - Whether taxable? Whether liable TDS u/s 194R?

184

34.7

Rewards not covered by CBDT’s exemption order u/s 10(17A)(ii) - Whether taxable? Whether liable to TDS u/s 194R?

185

35 FREQUENTLY ASKED QUESTIONS (FAQs) 35.1

Sir, in guidelines, Board has mentioned of one time settlement is liable for TDS so whether bad debts written off is also liable for TDS?

186

What if the benefit has been provided by a person but not utilised it - Can it be said no advantage was received/ availed/ enjoyed/gained anything from it and hence not a benefit.

For instance leisure trip arranged for dealers but few of them could not go for the trip will it be subject to TDS u/s 194R considering the language used u/s 194R is ‘providing’?

187

35.3

Is section 194R applicable on perquisites provided under section 17(1) and 17(2) under head salary?

187

35.4

TDS cannot be deducted on consideration given in kind.

Can it be said that after ascertaining the fair market value of the consideration, TDS can be deducted?

187

35.2

CONTENTS

I-22 PAGE

35.5

How it is practicable to deduct tax from others when its providing at free of cost?

188

35.6

Discount meant for ultimate consumer, reimbursed by distributor to retailer, by company to distributor. Would it covered under section 194R or company can claim this as discount?

188

If one is deducting TDS on reimbursement of expenses of CHA, u/s 194C, whether one is supposed to deduct TDS u/s 194R on reimbursement of expenses ?

188

35.8

If car, laptop, foreign trip, etc. is given, on what amount the TDS will be deducted?

188

35.9

We are dealing with the Laboratory where we provide an instrument wroth ` 4 Lacs FOC and earning from its consumables within 3 years span of the business.

189

A manufacturer provides reimbursement to its distributor for the free goods given by him to retailers. Are these benefits or perquisites?

189

An FMCG company provides reimbursement to the distributor for the goods delivered to the location of the retailers.

Are these benefits or perquisites?

190

35.12

Whether complimentary copies of the books given by publisher to author a benefit or perquisites?

190

35.13

A company agrees to arrange foreign tours for dealers and distributors/agents who achieve specific targets. Who has to comply with section 194R? The company Or the tour operators/airlines/hotels who after accepting payments deliver the promised foreign tour to dealers/distributors/agents?

190

35.14

A client pays additional sum to architect for good work: TDS under section 194J or 194R or both sections?

190

35.15

A publisher provides complimentary copies to authors. How to value this perquisite or benefit. Publisher sells book at 40% discount to distributor and at 10% discount to end customers.

Which price to adopt for valuation?

191

35.7

35.10

35.11

36 AVENUES FOR LITIGATION 36.1

Backdrop

193

36.2

CBDT’s Clarification that section 194R has no nexus with section 28(iv)

194

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CONTENTS PAGE

36.3

CBDT’s Clarification on applicability to wholly monetary perquisites

195

36.4

Clarification on reimbursement in Question 7 of the Circular runs contrary to judicial definitions of reimbursement and section 190

196

36.5

CBDT’s clarification on valuation not clear and comprehensive

197

36.6

Benefit/perquisite arising from business or profession of recipient

197

36.7

CBDT’s clarification implying bad debts written off unilaterally will attract TDS

198

36.8

Reliance in Circular on Judicial decision reversed by Supreme Court

198

36.9

CBDT’s Clarification that free samples will attract TDS under section 194R

198

37 AMENDMENTS MADE TO INCOME TAX RULES CONSEQUENT TO SECTION 194R 37.1

Separate reporting of tax payments made in accordance with Provisos to Sections 194B, 194R and 194S

199

APPENDICES APPENDIX 1

:

RELEVANT SECTION OF INCOME-TAX ACT, 1961

203

APPENDIX 2

:

RELEVANT RULE OF INCOME-TAX RULES, 1962

204

APPENDIX 3

:

PAYMENT OF ANY SUM SHALL BE LIABLE FOR DEDUCTION OF TAX ONLY UNDER ONE SECTION

216

APPENDIX 4

:

GUIDELINES FOR REMOVAL OF DIFFICULTIES UNDER SUB-SECTION (2) OF SECTION 194R OF THE INCOME-TAX ACT, 1961

217

11 C

H

A

P

T

E

R

Applicability of section 194R to discounts, rebates, gifts, incentives, Cashbacks etc.

11.1 Whether sales discount, cash discount, rebates, gifts, incentives to buyers/customers are benefit or perquisite for the purposes of Section 194R? The following points emerge from CBDT’s clarification in response to Question 4 in its Circular No.12/2022, dated 16.06.2022: No tax is required to be deducted under section 194R of the Act on sales discount, cash discount and rebates allowed to customers.

Where a seller is selling its items from its stock in trade to a buyer and the seller offers two items free with purchase of 10 items, there would be no benefit or perquisite and no tax is to be deducted under section 194R since this is in substance selling items at a discount. The seller offers two items free with purchase of 10 items. In substance, the seller is actually selling 12 items at a price of 10 items. Let us assume that the price of each item is ` 12. In such a case, in substance, seller is selling 12 items at a discounted price of ` 10 per item. Therefore, this is discount/rebate and will not attract TDS under section 194R. The above relaxation will not apply when a person gives incentives (other than discount, rebate) in the form of cash or kind such as car, TV, computers, gold coin, mobile phone etc.

In other words, additional free items of the same item which is sold will be treated as discount.

84

85

SALES DISCOUNT, CASH DISCOUNT, ETC.

Para 11.1

If different item is given away free with item sold and the item

given away free is from stock-in-trade of seller, TDS u/s 194R is not applicable. If item given away free by seller to buyer is not from his stock-in-trade or any cash incentive is given by seller to buyer, TDS u/s 194R is applicable.

CBDT’s response to Question 4 in CBDT’s Circular No.12/2022, dated 16.06.2022, is reproduced hereunder for ready reference.

Question 4: Whether sales discount, cash discount and rebates are benefit or perquisite?

Answer: Sales discounts, cash discount or rebates allowed to customers from the listed retail price represent lesser realization of the sale price itself. To that extent, purchase price of customer is also reduced.

Logically these are also benefits though related to sales/purchase.

Since TDS under section 194R of the Act is applicable on all forms of benefit/perquisite, tax is required to be deducted. However, it is seen that subjecting these to tax deduction would put seller to difficulty. To remove such difficulty, it is clarified that no tax is required to be deducted under section 194R of the Act on sales discount, cash discount and rebates allowed to customers.

There could be another situation, where a seller is selling its items from its stock in trade to a buyer. The seller offers two items free with purchase of 10 items. In substance, the seller is actually selling 12 items at a price of 10 items. Let us assume that the price of each item is ` 12. In this case, the selling price for the seller would be ` 120 for 12 items. For buyer, he has purchased 12 items at a price of 10. Just like seller, the purchase price for the buyer is ` 120 for 12 items and he is expected to record so in his books. In such a situation, again there could be difficulty in applying section 194R provision.

Hence, to remove difficulty it is clarified that on the above facts no tax is required to be deducted under section 194R of the Act. It is clarified that situation is different when free samples are given and the above relaxation would not apply to a situation of free samples.

Similarly, this relaxation should not be extended to other benefits provided by the seller in connection with its sale. To illustrate, the following are some of the examples of benefits/perquisites on which tax is required to be deducted under section 194R of the Act (the list is not exhaustive): When a person gives incentives (other than discount, rebate) in the form of cash or kind such as car, TV, computers, gold coin, mobile phone etc.

Para 11.1

APPLICABILITY OF S. 194R TO DISCOUNTS, REBATES, ETC.

86

When a person sponsors a trip for the recipient and his/her

relatives upon achieving certain targets When a person provides free ticket for an event When a person gives medicine samples free to medical practitioners.

The above examples are only illustrative. The relaxation provided from non-deduction of tax for sales discount and rebate is only on those items and should not be extended to others.

It is further clarified that these benefits/perquisites may be used by owner/director/employee of the recipient entity or their relatives who in their individual capacity may not be carrying on business or exercising a profession. However, the tax is required to be deducted by the person in the name of recipient entity since the usage by owner/director/employee/relative is by virtue of their relation with the recipient entity and in substance the benefit/perquisite has been provided by the person to the recipient entity.

To illustrate, the free medicine sample may be provided by a company to a doctor who is an employee of a hospital. The TDS under section 194R of the Act is required to be deducted by the company in the hands of hospital as the benefit/perquisite is provided to the doctor on account of him being the employee of the hospital. Thus, in substance, the benefit/perquisite is provided to the hospital. The hospital may subsequently treat this benefit/perquisite as the perquisite given to its employees (if the person who used it is his employee) under section 17 of the Act and deduct tax under section 192 of the Act. In such a case it would be first taxable in the hands of the hospital and then allowed as deduction as salary expenditure.

Thus, ultimately the amount would get taxed in the hands of the employee and not in the hands of the hospital. Hospital can get credit of tax deducted under section 194R of the Act by furnishing its tax return. It is further clarified that the threshold of twenty thousand rupees in the second proviso to sub-section (1) of section 194R of the Act is also required to be seen with respect to the recipient entity.

Similarly, the tax is required to be deducted under section 194R of the Act if the benefit or perquisite is provided to a doctor who is working as a consultant in the hospital. In this case the benefit or perquisite provider may deduct tax under section 194R of the Act with hospital as recipient and then hospital may again deduct tax under section 194R of the Act for providing the same benefit or perquisite to the consultant. To remove difficulty, as an alternative, the original benefit or perquisite provider may directly deduct tax under section 194R of the Act in the case of the consultant as a recipient. The provision of section 194R of the Act shall not apply if the benefit or perquisite

87

CASH INCENTIVES WILL ATTRACT TDS U/S 194R

Para 11.2

is being provided to a Government entity, like Government hospital, not carrying on business or profession.

11.2 Whether incentives to buyer in the form of free items other than items from his stock-in-trade or cash incentives will attract TDS under section 194R? In response to Question No.4 in Circular 12/2022, dated 16.06.2022, CBDT has clarified that “The provision of section 194R of the Act shall not apply if the benefit or perquisite is being provided to a Government entity, like Government hospital, not carrying on business or profession.” Thus, the question of section 194R does not arise if the resident recipient is not carrying on any business or exercising a profession.

The second paragraph of CBDT’s Circular 12/2022, dated 16.06.2022 clarifies as under: “The new section mandates a person, who is responsible for providing any benefit or perquisite to resident, to deduct tax at source @ 10 % of the value or aggregate of value of such benefit or perquisite, before providing such benefit or perquisite. The benefit or perquisite may or may not be convertible into money but should arise either from carrying out of business, or from exercising a profession, by such resident.”

The position that emerges from second paragraph of CBDT’s Circular No. 12/2022 and response to Question 4 of the Circular, is as under: (a) CBDT in its reply to Question No.4 as above has clarified that “The provision of section 194R of the Act shall not apply if the benefit or perquisite is being provided to a Government entity, like Government hospital, not carrying on business or profession.” Further, CBDT has clarified that section 194R is not attracted in case of employee doctors of the hospital.

TDS under section 192 is attracted on benefits/perquisites to employee doctors.TDS under section 194R is attracted only in respect of benefits/perquisites to consultant doctors. It follows that if a resident customer is not carrying on any business or profession, such gift cannot be said to be a benefit or perquisite arising from business or exercising of a profession by the resident recipient. Clearly, the gift here has a nexus only with the business or profession of the provider, not of the resident

Para 11.2

APPLICABILITY OF S. 194R TO DISCOUNTS, REBATES, ETC.

88

recipient. Here, obviously, there is no question of any nexus with the business or profession of the resident recipient as he is not carrying on any business or profession. Hence, there is no question of TDS under section 194R. (b) In the opening paragraph of Circular No. 12/2022, CBDT has clarified that “The benefit or perquisite may or may not be convertible into money but should arise either from carrying out of business, or from exercising a profession, by such resident.” Thus, in order to attract section 194R, the perquisite or benefit must have nexus to the business or profession of the resident recipient. If such purchases by customers are in connection with personal purchases as distinct from purchases for their business or profession, there is no question of TDS under 194R. Clearly, the gift here has a nexus only with the business or profession of the provider. The gift in this case has no nexus with the business or profession of the resident recipient. The resident recipient here would have received the gifts qua customer or buyer whether or not he was carrying on any business or profession. As such, there is no question of TDS under section 194R in this case also. (c) If such gifts are in connection with business/professional purchases of customers, a question would certainly arise if such gift is ‘benefit or perquisite arising from business or profession’.

The following will be the position in such a case: If the gifts are offered to any buyer, whether he is car-

rying on any business/profession or not and regardless of whether he is dealer or distributor or final consumer, then the gift cannot be said to be arising from the exercise of business or profession. Suppose a tour operator offers a gift of a 5 gm gold coin to anyone booking a package during a particular season, and it is offered to any buyer of a package, then section 194R is not attracted. The tour operator will not have to ensure deduction of tax under section 194R in respect of such gift of the gold coin;

If gifts are to dealer or distributor, then the question ari-

ses whether such gifts can be said to arise from business or exercise of a profession and whether section 194R is attracted? In this case, it can be argued that such gifts are

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CASH INCENTIVES WILL ATTRACT TDS U/S 194R

Para 11.2

arising from business or profession as it can be said that the gift would not have been received but for carrying on the business of dealer/distributor. Going by the plain language of section 194R, there appears to be no bar to the application of section 194R in such cases. It would appear that the obligation under section 194R would apply in such cases to the provider of gifts.

Overview of the net legal position that emerges is as under: Business entity gifts valuable item to resident buyer instead of giving discount

Buyer is not carrying any Business/Profession

Section 194R not attracted

Buyer is carrying any Business/ Profession

Personal Purchase

Business Purchase

Section 194R is not attracted

Gift is given to any buyer, regardless of dealer, distributor & final consumer, and regardless of whether buyer is carrying any business or not

Gift is given to dealer/ distributor

Section 194R is not attracted

Section 194R is attracted

In view of the requirement that benefit or perquisite “should arise either from carrying out of business, or from exercising a profession, by such resident” in order to attract TDS under section 194R, it is clear that clarifications in Question No. 4 of the Circular cannot be applied without having regard to the following: (a) Whether the buyer is carrying on any business or exercising any profession? If not, obviously, the perquisite or benefit cannot be said to “arise either from carrying out of business, or from

Para 11.3

APPLICABILITY OF S. 194R TO DISCOUNTS, REBATES, ETC.

90

exercising a profession, by such resident”. In such a case, TDS under section 194R will not be attracted in respect of any cash incentive to buyer or in respect of any incentive to him in the form of free items other than the items sold. (b) Where the buyer is carrying on any business or exercising any profession, even then the cash incentive given to him or other freebies given to him will attract section 194R only if it has nexus with his business or profession. The test to be applied is whether the gifts are offered to any buyer, whether he is carrying on any business/profession or not and regardless of whether he is dealer or distributor or final consumer. If yes, then the nexus of business or profession with carrying on business or exercise of profession is absent. If gifts are to dealer or distributor, then the question arises whether such gifts can be said to arise from business or exercise of a profession and whether section 194R is attracted? In this case, it can be argued that such gifts are arising from business or profession as it can be said that the gift would not have been received but for carrying on the business of dealer/distributor. Another test to be applied is whether the purchase by the buyer is business/ professional purchase or personal purchase. If it is the former, section 194R would be attracted. If it is the latter, section 194R would not be attracted.

11.3 Cashbacks - Whether perquisite or benefit In response to Question 1 of Circular No. 12/2022, dated 16.06.2022, CBDT has clarified that “The deductor is not required to check whether the amount of benefit or perquisite that he is providing would be taxable in the hands of the recipient under clause (iv) of section 28 of the Act. The amount could be taxable under any other section like section 41(1) etc. Section 194R of the Act casts an obligation on the person responsible for providing any benefit or perquisite to a resident, to deduct tax at source @ 10%. There is no further requirement to check whether the amount is taxable in the hands of the recipient or under which section it is taxable.” This clarification overlooks the fact that what is given can be termed as “benefit” or “perquisite” only if it can be income in the hands of the recipient. If cash backs are received in relation to purchases of goods

91

CASH BACKS - WHETHER PERQUISITE OR BENEFIT

Para 11.3

or services for buyer’s business/profession, these may be taxable as business income in the hands of the buyer. An arguable case is made out to tax them on the basis of section 41(1). Since, these take the character of income, they are liable for TDS under section 194R. A question arises what is the cash backs are received from e-commerce website or for use of an app in respect of purchases or payments for personal use as distinct from for the purposes of business? Question arises whether cash back on personal purchases is ‘income? Lord Mac Naghten famously said “Income Tax, if I may be pardoned for saying so is a tax on income. It is not meant to be a tax on anything else,…,” The word ‘income’ in its popular ordinary connotation would mean ‘coming in’. In ordinary popular parlance, one says “I saved money on my purchases and payment of bills by using the app”. Savings in expenditure or outgo would not be ‘income’ except where specifically so defined in the Act e.g. accommodation provided by employer to employee on concessional rent, sweat equity or ESOPs allotted to employee at less than FMV, immovable property purchased at less than stamp duty value, specified movable property purchased at less than FMV. Income is increase in wealth during a year. Cash backs save on expenses but are not a source of income. They do not increase one’s wealth. If one earns nothing but spends what one has, the cash backs would not ensure one’s wealth increases at the end of the period. On the contrary, one’s wealth would decrease.

In terms of section 190, TDS cannot be deducted from any payment which has no income element in it. [Zephyr Biomedicals v. JCIT [2020] 12 taxmann.com 124 (Bom.); See Para 24.3] At the same time, it would be income in the hands of recipient if one pays electricity bill of ` 1000 but is given a cash back of ` 20,000 under a scheme. This clearly is income for recipient as it augments one’s wealth. It may be a perquisite or benefit but it does not arise out of business or profession of the recipient (if it is his household electricity bill or distinct from electricity bill of his shop/office).

Therefore, it cannot be subjected to TDS under section 194R.

Para 11.3

APPLICABILITY OF S. 194R TO DISCOUNTS, REBATES, ETC.

92

CASHBACKS

Pertain to purchases made for buyer’s business or profession Arguably, these are taxable u/s 41(1). These have the income element in them and are therefore liable to TDS u/s 194R.

Pertain to personal expenses of buyer

As these do not arise from business or profession, these cannot be subjected to TDS u/s 194R.

TDS on Benefits or Perquisites under Section 194R AUTHOR PUBLISHER DATE OF PUBLICATION EDITION ISBN NO NO. OF PAGES BINDING TYPE

: : : : : : :

Srinivasan Anand G. TAXMANN July 2022 2022 9789356222823 264 PAPERBACK

Rs. : 595 | USD : 39

Description This is a handy book on deduction of tax deduction at source (TDS) on benefits or perquisites under Section 194R of the Income-tax Act 1962, which came into effect from 01-07-2022. It covers a unique compliance-oriented & legal approach, along with the following: · Illustrative Case Studies on Deduction of TDS under various scenarios · Frequently Asked Questions (FAQs) on Key Concepts · Ready Reckoners o

Alphabetical Reckoner on Benefits/Perquisites

o

Reckoner to Central Board of Direct Taxes (CBDT) Circular [Circular No. 12/2022 | Dated 16-06-2022]

The Present Publication is the latest 2022 Edition & updated till 16th June 2022. This book is authored by CA Srinivasan Anand G., with the following noteworthy features: · [Reckoner to CBDT's Circular] which includes the clarifications & issues arising from the Circular, is given at the start of the book · [Applicability of TDS u/s 194R] discussed via various case studies & FAQs · [Threadbare Analysis of CBDT's Circular] which includes the following: o

What are the requirements of the Circular?

o

What are the matters clarified by the Circular?

o

What are the issues arising out of the Circular and the possible solutions

o

What are the grounds on which the Circular can be challenged?

· [Threadbare Analysis of Removal of Difficulty Clause] of section 194R(2) · [Complex Legal Positions] are simplified via flow charts · [Discussion Supported by Case Laws]

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