Clauses of Form 3CD which can’t be answered while submitting it by 30th November 2020

The Income Tax Act has been amended by the Finance Act 2020 and further amended by The Taxation And Other Laws (Relaxation And Amendment Of Certain Provisions) Act, 2020 to provide certain restrictions and/or relaxations in the existing provisions and also to bring in some additional provisions. One of such additional restriction that has been inserted pertains to the requirement of furnishing of Audit Report/ CA Certificates at least  one month prior to the due date for furnishing the return of income under sub-section (1) of section 139. The reports are as under:

Furnishing of Audit  Reports:

S.L. Section Report
1 44AB Tax Audit Report
2 92E Transfer Pricing Report
3 12A(b) Charitable Trust claiming exemption u/s 11 & 112
4 10(23C) Various Govt. Relief Funds ,Universities  Education Institutions, Hospitals etc claiming exemption
5 80IA Deductions in respect of profits and gains from industrial undertakings or enterprises engaged in infrastructure development, etc.
6 80JJAA Deduction in respect of employment of new employees.
7 115JB Companies paying MAT
8 115JC Special provisions for payment of tax by certain persons other than a company.

The submission of the above reports at least  one month prior to the said due date u/s 139(1) is very important in so far as the claim for exemptions or deductions under above sections are concerned. The due date for filing of the Return of Income in all of the above cases is 31st January 2021 and therefore the date one month prior to this date is 31st December 2020 by which date the above reports must be submitted.

The logic behind the above provision is best known to the Finance Ministry only. Many amendments have been made either in whole or in piecemeal including the provision for Concessional Rate of Taxation regime for all assessees. Many provisions are widely scattered across the Act and it really takes a very good look at these provisions before deciding any particular alternative options.

These extravagant pretensions only served to excite ridicule. Moreover the exposure of these amendments turned the whole thing into a big ridicule and gave the assessees an excuse for postponing their implementations.

The biggest ridicule is the fact that the Act now requires placing the cart before the horse and not vice versa. The ideal law about submission of audit reports would  be that these audit reports are submitted within one month after  the date of submission of  the Return of Income u/s 139(1). In such cases the Revenue would rest assured that whatever information that has been submitted in the Return of Income is  True & correct by ensuring that this information is audited by qualified Chartered Accountants and their report is submitted within one month after the date of submission of  the Return of Income u/s 139(1).

After all Audit is a tool of Post Mortem and not a tool of Prediction

The  present provision is like an auditor is predicting a financial position for a date one month in future and giving an advantage to some smart assessee to arrange the accounts in concordance with the audit report already submitted by the auditor one month prior to the actual happening of any financial event. The Finance Ministry has not offered any guidelines about the treatment of financial events occurring after the date of submission of audit report.

Audit Report and Form 3CD

Let us consider some examples of  this ridicule.

In a case where an assessee is required to be audited u/s 44AB of the Act, the auditor now has to submit form 3CD to the department by 31st December 2020 for return of income of the assessee to be filed one month later.

1) No auditor would submit form 3CD unless he has authentic accounting information certified by the assessee. When such authentic accounting information is available with the assessee then why would he not submit the ROI also by 31st December 2020. The situation would become more complex when the Tax Auditor and the Statutory Auditor are different persons. In case of variation how would the reconciliation be done and what would be the legal value of such reconciliation under the Act?

2) Further in Form 3CA/3CB the Tax Auditor will have to give his report as under:

“In our opinion and to the best of our information and according to examination of books of account including other relevant documents and explanations given to us, the particulars given in the said Form No.3 CD are true and correct subject to the following observations/qualifications, if any:”

Is it possible to do so if the accounts were still open and not closed as on 31st December 2020

3) Clause (8a) seeks answer on the question if the assessee has opted for taxation under section 115BA/ 115BAA/ 115BAB?

Under Section 115BA/115BAA/115BAB the option can be exercised by the assessee in the prescribed manner on or before the due date specified under section 139(1). That means an assessee willing to exercise the option can do so upto 31st January 2021, then how can an auditor answer the question in clause 8a latest by 31st December 2020, when the said option becomes time barred only on 31st January 2021.

4) Clause 18 answer is required to be given to the questions

(ca) Adjustment made to the written down value u/s115BAA Rs………
(cb) Adjusted written down value Rs………
(c) Depreciation allowable Rs………
(d) Written down value at the end of the year Rs………

The figures would vary depending upon whether the option u/s 115BAA has been exercised or not and for which the last date is again 31st January 2021.

Section 115BAA(3) Proviso  requires that where there is an additional  depreciation allowance in respect of a block of asset which has not been given full effect to prior to the assessment year beginning on the 1st day of April, 2020 then corresponding adjustment shall be made to the written down value of such block of assets as on the 1st day of April, 2019 in the prescribed manner, if the option under sub-section (5) is exercised for a previous year relevant to the assessment year beginning on the 1st day of April, 2020.

The value of Adjustment to be made to the written down value u/s 115BAA as stated in clause (ca) is equal to the amount of unabsorbed additional depreciation as at 1st April 2019 which is required to be carried forward to the AY 2020-21. The other figures in the remaining clauses would depend the amount of adjustment in clause (ca).

5) Clause 20 (b) : Details of contributions received from employees for various funds as referred to in section 36(1)(va):

S.N. Nature of Fund Sum receivable from employees Due date  for payment The actual  amount paid The actual date of payment to the concerned authorities –
1 2 3 4 5 6

Under this clause compliance with respect to the Due date of Payment is required to be ensured. Whether this due date is the date as per the Provident Fund Act or as per the date u/s 43B i.e. the contribution of the employees will be allowed as expenses if paid upto the due date as per section 43B. There are contradictory judgements of various State High Courts as under. Allowed means allowed u/s 43B even if paid by the due date u/s 139(1) and Disallowed means not allowed if not paid by 15th day of the month next to the month of receipt.

1 Gujarat High Court Not Allowed
2 Karnataka High Court Allowed
3 Calcutta High Court Allowed
4 Bombay High Court Generally allowed but 1 dissenting decision
5 Madras High court Allowed & Disallowed both
6 Delhi High Court Allowed
7 Rajasthan High Court Allowed
8 Kerala high Court Not Allowed
9 Punjab & Har High Court Allowed
10 Madhya Pradesh High Court No Clarity
11 Patna High Court Allowed
12 Allahabad High Court Allowed
13 Gauhati High Court Allowed

In the case of Rajasthan there was a chance to settle this controversy when the Revenue filed appeal before the Supreme Court but as the luck will have it, the Revenue had to withdraw this appeal due to revised higher monetary limit of tax effect for filing appeal before the Supreme Court.

“Case disposed off.  Dismissed as withdrawn- 9th January 2020” Reported on 27th April 2020.

So we are again back to square one with the controversy because the SC did not decide the case on merit.

So whether the deduction will be allowed or disallowed can be answered only after knowing the High Court in whose jurisdiction the assessee has the place of business. Moreover the following orders were passed subject to the final order of the Supreme Court on these questions.

So while submitting form 3CD by 30th November 2020 the Tax Auditor will not be able to give correct answer because the assessee has got time upto 31st December 2020 to make payment of the same and claimed it as deduction.

6) Clause 21(b)(i)(B) : Details of payment on which tax has been deducted but has not been paid on or before the due date specified in sub-section (1) of section 139.

The tax auditor just can’t straight way answer this question and disallow 30% of the expenditure when the time for payment of TDS is still available upto 31st January 2021.

7) Clause 26(B): Payment under Section 43B

Section 43B. Notwithstanding anything contained in any other provision of this Act, a deduction otherwise allowable under this Act in respect of-

S. No Clause Description of Payment
1 (a) any sum payable by the assessee by way of tax, duty, cess or fee, by whatever name called, under any law for the time being in force.
2 (b) any sum payable by the assessee as an employer by way of contribution to any provident fund or superannuation fund or gratuity fund or any other fund for the welfare of employees.
3 (c) any sum referred to in section 36(1)(ii) i.e.  any sum paid to an employee as bonus or commission for services rendered, where such sum would not have been payable to him as profits or dividend if it had not been paid as bonus or commission; or
4 (d) any sum payable by the assessee as interest on any loan or borrowing from any public financial institution or a State financial corporation or a State industrial investment corporation in accordance with the terms and conditions of the agreement governing such loan or borrowing , or
5 (da) any sum payable by the assessee as interest on any loan or borrowing from a deposit taking non-banking financial company or systemically important non-deposit taking non-banking financial company, in accordance with the terms and conditions of the agreement governing such loan or borrowing, or
6 (e) any sum payable by the assessee as interest on any loan or advances from a scheduled bank or a co-operative bank other than a primary agricultural credit society or a primary co-operative agricultural and rural development bank ] in accordance with the terms and conditions of the agreement governing such loan or advances, or
7 (f) any sum payable by the assessee as an employer in lieu of any leave at the credit of his employee, or
8 (g) any sum payable by the assessee to the Indian Railways for the use of railway assets.

shall be allowed (irrespective of the previous year in which the liability to pay such sum was incurred by the assessee according to the method of accounting regularly employed by him) only in computing the income referred to in section 28 of that previous year in which such sum is actually paid by him :

Provided that nothing contained in this section shall apply in relation to any sum which is actually paid by the assessee on or before the due date applicable in his case for furnishing the return of income under sub-section (1) of section 139 in respect of the previous year in which the liability to pay such sum was incurred as aforesaid and the evidence of such payment is furnished by the assessee along with such return.

Therefore a tax auditor just can’t answer this question particularly when the time for payment of the above sums is still available upto 31st December.

8) Clause 32(a): Details of brought forward loss or depreciation allowance, in the following manner, to the extent available: (Also refer clause 4 above)

Sl.  No. Asses sment year Nature of Loss / Allo wance Amount as retu rned All losses/ allowances not allowed under section 115BAA Amount as adjusted by withdrawal of additional deprec iation on account of opting for taxation under section 115BAA Amo unts as assessed Re marks
(1) (2) (3) (4) (5) (6) (7) (8)

The answer to the question in column (5) & (6) will depend upon whether the assessee has exercised the option of being assessed under the concessional rate of taxation as provided in section 115BAA. However the last date for exercising this option is 31st January 2021. If the assessee does not exercise the option then the amount to be reported in column (5) & (6) will be NIL and if exercised then the amount will have to be calculated in the manner as given in section 115BAA. Therefore it will be very difficult for the tax auditor to provide the accurate answer one month in advance of a date in future.

9) Clause 33 Section-wise details of deductions, if any, admissible under Chapter VIA or Chapter III (Section 10A, Section 10AA):

Section under which deduction is claimed Amounts admissible as per the provision of the Income-tax Act, 1961 and fulfils the conditions, if any, specified under the relevant provisions of Income-tax Act, 1961 or Income-tax Rules,1962 or any other guidelines, circular, etc., issued in this behalf
   

The answer to these questions will again depend whether the assessee has exercised the option of being assessed under the concessional rate of taxation as provided in section 115BAA. However the last date for exercising this option is 31st January 2021. If the assessee does not exercise the option then the amount to be reported will be the actual amount eligible for deduction  and if exercised then the amount to be reported will be NIL. Therefore it will again be very difficult for the tax auditor to provide the accurate answer one month in advance of a date in future.

For availing this concessional rate the assessee will be required to forego some deductions otherwise allowable to it under various sections :

Section Type of deduction Quantum  od deduction
10AA Special provisions in respect of newly established Units in Special Economic Zones. 100% of Profit
32(1)(iia) Additional Depreciation 20% of New Machinery installed.
32AD Investment in new plant or machinery in notified backward areas in certain States 15% as Additional deduction on New Machinery.
33AB Tea development account, coffee development account and rubber development account Amount deposited in Specified Bank or 40% of eligible profit whichever is less.
33ABA Site Restoration Fund Amount deposited in specified Bank or 20% of the eligible profit whichever is less.
35 Expenditure on scientific research 150% of the specified amount.
35AD Deduction in respect of expenditure on specified business. 100% of the specified capital expenditure.
35CCC Expenditure on agricultural extension project. 150% of the specified amount.
35CCD Expenditure on skill development project. 150% of the specified amount.

 

No deduction under any provisions of Chapter VI-A other than the provisions of section 80JJAA or section 80M.

Disclaimer:

The above study is meant only for academic purposes. The readers should consult professionals before using it for professional purposes. The author owes no responsibility for any error or omission in the above study.

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9 Comments

  1. Kantilal Jain says:

    Very nice article.when audit is done what remains next to not to file ITR.Since inception of Tax Audit in 1986 it is first time that such a foolish provision has been made which is of no use.Instead the non audittee cases should have been given more time so that professionals could have relaxed.Otherwise now 31 st December is the last date for Tax Audit,ITRS for non auditee and GST Audit for 18-19.Some
    Mischivious Beurocate has drafted such extensions just to harrass professionals.Unite all professionals and oppose such non practical provision.

  2. N K Jain says:

    Sir The Last date to upload audit report u/s 44AB has been extended upto 31.12.2020 for AY 2020-21 vide press release. Kindly clarify the issue.

    1. CA Lalit Munoyat says:

      My Sincere apology for misquoting the extended due dates. The same are as under:

      NOTIFICATION NO. 88/2020 New Delhi, the 29th October, 2020

      (A) The due date for furnishing of Income Tax Returns for the taxpayers (including their partners) who are required to get their accounts audited [for whom the due date (i.e. before the extension by the said notification) as per the Act is 31st October, 2020] has been extended to 31st January, 2021.

      (B) The due date for furnishing of Income Tax Returns for the taxpayers who are required to furnish report in respect of international/specified domestic transactions [for whom the due date (i.e. before the extension by the said notification) as per the Act is 30th November, 2020] has been extended to 31st January, 2021.

      (C) The due date for furnishing of Income Tax Returns for the other taxpayers [for whom the due date (i.e. before the extension by the said notification) as per the Act was 31st July, 2020] has been extended to 31st December, 2020.

      (D) Consequently, the date for furnishing of various audit reports under the Act including tax audit report and report in respect of international/specified domestic transaction has also been extended to 31st December, 2020.

  3. Harish says:

    Please give clarity on due date of submission of tax audit report. is it 30th Nov or 31st Dec??

    As per notification given, it is clearly mentioned that tax audit reports to be submitted one month before filing of returns i,e 31st Dec.

  4. N K Mittal says:

    Your minutely/ technical observation about the due date for submitting Audit Reports and ITR date,are really enlightening us,which force us to pay more attention to read every notification very attentively.
    Thanks a lot for your valuable article.

  5. Chetan Nalwar says:

    Dear Sir, Due date for Submitting Audit Reports is now 31st December 2020, and ROI is 31st Jan 2021 for audit Cases you are mentioning it as 30th Nov 2020 for Audit Report. Pls clarify

    1. CA Lalit Munoyat says:

      :My Sincere apology for misquoting the extended due dates. The same are as under: NOTIFICATION NO. 88/2020 New Delhi, the 29th October, 2020 (A) The due date for furnishing of Income Tax Returns for the taxpayers (including their partners) who are required to get their accounts audited [for whom the due date (i.e. before the extension by the said notification) as per the Act is 31st October, 2020] has been extended to 31st January, 2021. (B) The due date for furnishing of Income Tax Returns for the taxpayers who are required to furnish report in respect of international/specified domestic transactions [for whom the due date (i.e. before the extension by the said notification) as per the Act is 30th November, 2020] has been extended to 31st January, 2021. (C) The due date for furnishing of Income Tax Returns for the other taxpayers [for whom the due date (i.e. before the extension by the said notification) as per the Act was 31st July, 2020] has been extended to 31st December, 2020. (D) Consequently, the date for furnishing of various audit reports under the Act including tax audit report and report in respect of international/specified domestic transaction has also been extended to 31st December

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