1) Who is responsible to deduct tax u/s 192?

All persons paying salary are responsible to deduct TDS on income chargeable under the head “Salary”. In other words none of the payer of Salary is excluded; Individual, HUF, Partnership firms, companies, cooperative societies, Trust and other artificial judicial persons have to deduct TDS on Salary.

2) Who is the payee?

Any employee having taxable income under the head “Salary” shall be treated as payee for TDS u/s 192. For application of Sec. 192, there must exist employer employee relationship between payer and payee.

For e.g

i. Director of company is not employee and as such no TDS u/s 192 on any amount paid to director

ii. Part-Time Directors of the company, visiting professors & visiting doctors are covered u/s 194J and not covered u/s 192. The whole-time directors are employees of the company and hence TDS is deductible u/s 192.

TDS on Salary

Case laws:

    • PCIT(TDS) vs. National Health & Education Society [2019] 4112 ITR 404 (Bom):

Where there existed no relationship of employer and employee between assessee and Hospital Based Consultants (HBCs), provisions of section 192 would not be applicable

Where assessee trust, running a hospital, shared receipts from patients with consultant doctors in fixed ratio, TDS was to be deducted under section 194J as such payment was professional fees

3) Is TDS deducted on Salary Paid to Non-resident Employees?

Yes, TDS to be deducted by employers on payments made to non-resident employee u/s 192.

4) When to Deduct TDS under Section 192?

Liability to deduct tax at source shall arise at the time of actual payment of salary and not at the time of accrual. Thus, the employer is not required to deduct tax at source when salary has not been paid but merely credited to the account of the employee. Although, as per section 15 the salary is taxable in the hands of the employee either at the time of actual receipt or at the time of accrual whichever is earlier.

5) Threshold limit

No tax is required to be deducted at source unless the estimated salary exceeds the maximum amount not chargeable to tax. No TDS u/s.192 if tax payable (after taking rebate u/s. 87A) by the employee is NIL.

6) Rate of TDS under Section 192

Under section 192 there is no specific TDS rate. TDS to be deducted is calculated according to the tax slabs and rates thereof applicable to the financial year for which the salary is paid. The requirement of deducting TDS u/s 192 shall be worked out, after considering all the exemptions, allowances, rebate and deductions which are available to the employee.

TDS u/s 192 has to be deducted at the average of income tax computed on the basis of rates in force during the financial year. The total tax to be deducted on the estimated income of the employee for the relevant financial year is divided by the number of months of his employment. The amount so arrived is the monthly deduction of tax at source.

However, if the employee does not have PAN No., TDS shall be deducted 20% without including Health & Education Cess, if the normal tax rate in this case is less than 20%.

7) Whether employer is also liable to deduct TDS on non-monetary perquisites?

Section 192(1)(a) provides an option to employer to pay tax on behalf of employee on non-monetary perquisites, however it is not mandatory for the employer to pay so. For the purpose of paying tax by employer u/s 1(a) tax shall be determined at the average rate of income tax in force on the income chargeable under the head salaries including the value of non-monetary perquisites.

ILLUSTRATION:

Estimated Salary of an employee below 60 years of age is ₹8.00 lakh out of which ₹50,000/- is on account of non-monetary perquisites and the employer opts to pay the tax on such perquisites as per the provisions of income tax act. Total salary income chargeable to Tax is ₹8.00 lakhs. Employers are required to deduct perquisite tax for the A.Y. 2020-21 computed as follows:

Income Chargeable under the head “Salaries” inclusive of all perquisites ₹8,00,000.00
Tax on Total Salary (including Health & Education Cess ) ₹65,000
Average Rate of Tax [(₹65000/₹800000) * 100] 8.125%
Tax payable on ₹50,000/ = (8.125% of ₹50,000) ₹4062.5
Amount required to be deposited each month ₹339(i.e.₹4062.5/12)

The tax so paid by the employer shall be deemed to be TDS made from the salary of the employee. This TDS contributed by employer is exempt in the hands of employee.

8) Excess or shortfall of TDS during the financial year

  • Any excess/deficiency arising out of previous deduction or failure to deduct during the financial year can be adjusted subsequently as per Section 192(3).
  • Thus, where assessee did not deduct tax from salaries in each month, rather it deducted tax at end of financial year, interest u/s. 201(1A) could not belevied–CIT v. Enron Expat Services Inc.(Uttarakhand HC)(ITANo.78/2007)
  • If TDS u/s.192 is not deducted in equal installments intentionally (not bonafide) and the deficiency is made good in last months, interest u/s. 201(1A) is liable to be levied

Madhya Gujarat Vij Co. Ltd. v. ITO (Ahmedabad Trib.) (ITA No.420/Ahd/2011)

9) RELIEF WHEN SALARY IS PAID IN ARREARS OR ADVANCE –SECTION 89(1)

  • Advance Salary and Arrears of salary-Taxable in the year of receipt.
  • However, eligible to claim relief u/s. 89(1).
  • Relief to be computed as per Rule 21A.
  • As per Sec.192 (2A), Form No.10 E is required to be submitted to the employer. Form No.10 E is also required to be submitted electronically on the e-filing portal.
  • Section 89(1) and Section 10(10C):

If any amount received on voluntary retirement or termination of service as per VRS or in case of public sector company, a scheme of voluntary separation is claimed as exempt u/s. 10(10C), relief u/s. 89(1) cannot be claimed.

10) Other relevant points related to section 192

a. Every person responsible for paying salary income is first required to estimate the income chargeable under the head “Salaries”. The value of the perquisites provided by the employers to their employees shall be determined under rule 3 and shall be taken in to account while estimating income under the head “Salaries”.

b. Further, any income falling under section 10 (income which do not form part of total income) shall not be included in computing the income from salaries for the purpose of section 192 of the Act.

c. The person responsible for making payments shall also take into consideration amount deductible under section 80C, 80CCC, 80CCD, 80CCG, 80D, 80DD, 80DDB, 80E, 80EE, 80G, 80GG, 80GGA, 80TTA and 80U.

d. Section 192(2A) provides that deduction of tax at source is to be made after allowing relief u/s 89(1) and after considering the tax on perquisites agreed to be borne by employer.

e. Section 192(2D) further casts responsibility on the person responsible for paying any income chargeable under the head ‘Salaries’ to obtain from the assessee (employee), the evidence or proof or particulars of prescribed claims (including claim for set-off of loss) under the provisions of the Act in the prescribed form and manner for the purposes of –

i.  estimating income of the assessee (employee); or

ii. computing tax deductible under section 192(1).

f. Section 192 (2) provides that where an assessee is employed under more than one employer, then the assessee (employee) may choose the employer for deduction of tax at source. Thereupon, that employer shall deduct tax at source from the aggregate salary of an employee. For this purpose, employee is required to furnish details of salary due or received by him from other employer(s) in Form No. 12B to one of the employers (as chosen by him).

g. As per the provision of section 192(3), the person responsible for paying the salary may, at the time of deducting tax at source, increase or reduce the amount to be deducted for the purpose of adjusting any excess or deficiency arising out of previous deduction or non-deduction.

> The employee MAY provide to the employer, particulars of:

      • Other Income, including tax deducted thereon
      • Loss, only if it is under the head ‘Income from house property’

> Income from House Property-

    • Any other rental income may be informed to the employer.
    • Deemed let out property- From A.Y. 2020-21, if assessee owns more than 2 Self occupied houses, such other house or houses shall be deemed to have been let out and its annual value shall be computed in accordance with Section 23(1). [Prior to A.Y. 2020-21, if the assessee owned 2 houses, the other house had to be deemed to have been let out]
    • Assessee can claim deduction of interest paid on borrowed capital u/s 24(b) of the Act.
    • Loss only under the head ‘Income from House Property’ can be informed to the employer. House Property loss can be set-off maximum upto Rs. 2 Lakhs. [Section 71(3A)]
    • Particulars of ‘Other Income’ to be informed to the employer in simple statement duly verified by the employee- Rule 26 B

h. In case if the employee furnishes to his employer, the details regarding his other incomes, investments, eligible deductions etc., then for the purpose of TDS u/s 192, the employer shall be bound to consider such information.

11) Tax to be deducted from other incomes of the employee

  • The employee may declare his other incomes to the employer for the purpose of tax deduction at source under this section.
  • If he wants to declare, then particulars of

i. other income (not being a loss) and tax deducted thereon

ii. the loss under the head “Income from house property”

shall be submitted to the employer in a prescribed form and verified in a prescribed manner.

  • On receipt of the same, employer shall deduct tax under section 192 after taking into account the other income.
  • However, this shall not have the effect of reducing the tax deductible (except where the loss under the head “Income from house property” has been taken into account) from salary income below the amount that would be so deductible if the other income and tax deducted thereon had not been taken into account.

12) Whether benefit of lower deduction or no deduction of TDS is available u/s 192?

Yes. However assessee to whom the salary is payable may make an application in Form No. 13 to the Assessing Officer and if the Assessing Officer is satisfied that the total income of the recipient justifies the deduction of income tax at any lower rate or no deduction of income-tax, he may be given such certificate as may be appropriate.

W.E.F. 1-4-2010, as per section 206AA(4), no certificate under section 197 shall be granted unless the application made in Form No.13 under that section contains the Permanent Account Number of the applicant.

13) Whether provisions of Section 192 shall also apply to salary paid by non-resident employer to a non-resident employee for services rendered in India?

Yes, Provisions of Sec. 192 shall apply if the salary was paid for services rendered in India even though the employers as well as employee were non-resident and the payment is made outside India.

14) Evidence/Proof Of Claims To Be Submitted By The Employee –Section 192(2D)

The person responsible for making any payment of income chargeable under the head ‘Salaries’ shall obtain from the assessee the evidence or proof of particulars of prescribed claims made by him in Form No. 12BB:

a) Exemption of House Rent Allowance

– Amount of rent paid to the landlord

– Name and address of the landlord

– PAN of the landlord if aggregate rent paid during the previous year exceeds Rs. 1 lakh

– Rent receipts/ rent agreement from the landlord

b) Leave Travel Concession

– Evidence of expenditure is required to be furnished to the employer as per Rule 26C

– Leave Travel Concession cannot be claimed for foreign travel- Syndicate Bank Vs. ACIT (TDS) 164 ITD 319 (Bengaluru Trib.)

– However, if the assessee has, under bonafide belief that foreign travel costs can be claimed as exempt u/s 10(5), not deducted TDS, penalty u/s 271C could not be levied and the same was treated as reasonable cause for the purpose of Section 273 B- State Bank of India Vs. ACIT (TDS) [2019] 063 ITD 440 (Jaipur Trib.)

c) Deduction of Interest u/s 24 (b)

– Interest on borrowing can be set off against Salary income. (House Property) loss to the extent of Rs. 2 Lakhs)

– Details to be submitted:

– Interest payable/ paid to the lender

– Name, address and PAN/Aadhaar number of the lender.

– Interest Certificate from the lender

d) Donations under sec. 80G – The donations are made under sec 80G (other than to a notified charitable institute) then the employer should allow that donation while calculating tax deductible. When donation is made to a notified public then the employer should not allow that donation while calculating tax deductible.

e) Other deductions- Deductions under sections 80C, 80CCC, 80CCD, 80CCG, 80D, 80DD, 80DDB, 80E, 80EE, 80GG, 80GGA, 80TTA, 80U.

15) TDS on Salary to Partners

Salary or remuneration paid to partners is not taxable in hands of partners as Salary but it is considered as income from business. No employer employee relationship exists between partner and partnership firm.

Explanation 2 of section 15 says that “Any salary, bonus, commission or remuneration, by whatever name called, due to, or received by, a partner of a firm from the firm shall not be regarded as “salary”.

Therefore no TDS is to be deducted on salary paid to the partners

Some person argues that this provision only applies on salary paid to active partners Salary paid to inactive partners is not allowed as deduction to the partnership firm under section 40(b) but still it’s a business income for the partner. The above explanation doesn’t differentiate between active or inactive partner and thus salary paid to any partner is not liable to TDS.

16) TDS on Pension and Family Pension

There is difference between “Pension” and “Family Pension” for the purposes of Income Tax Act, 1961. The Income Tax treatment for “Pension” and “Family Pension” is different.

It is pertinent to point out that “Pension” received from a former employer is taxable under the head “Salary” since Section 17 of Income Tax Act specifically lays down in clause (ii) of sub-section (1) that “any annuity or pension” is included in “salary”. Therefore, “Pension” is taxed in the same way as “Salary” is taxed.

On the other hand, “Family Pension” is taxed under Section 56 as “Income from Other Sources”.

Now, Section 192 of Income Tax Act makes any income chargeable under the head “Salary” subject to Tax Deduction at Source (TDS). Since pension is also considered as Salary, therefore TDS is deducted on pension also, wherever applicable as per the prevailing rates.

On the other hand, Family Pension is not “Salary” but an “Income from Other Sources”. Therefore, TDS cannot be deducted on Family Pension under Section 192. Moreover, there is no other Section in the Income Tax Act which makes it mandatory to deduct TDS on family pension. Therefore, there is no TDS deduction on Family Pension.

In case of pensioners of a Govt. or other departments, receiving pension through nationalized banks, TDS has to be deducted by the bank u/s 192.

Further, the Banks are bound to issue Form No. 16 to such pensioners as per Section 203.

Form No. 16 cannot be denied merely because there is no Employer-employee relationship between the bank and such pensioner. [CBDT Circular No. 761 dated 13.01.1998]

17) Salary received by MP, MLA, Ministers

  • Remuneration received by a Member of Parliament, Member of Legislative Assembly is not chargeable as Income under the head ‘Salary’. As there is no employer- employee relationship. It is chargeable under the head ‘Income from other sources’ – CIT Vs. Shiv Charan Mathur (Raj. HC) (ITA No. 96 of 2006) (Also refer CBDT Letter F. No. 40/29/67-IT(A-1) DATED 22.05.1967
  • Salary received by Chief Minister or a minister is taxable under the head ‘Salary’ – Lalu Prasad Vs. CIT ( Patna ) (2009) 316 ITR 186
  • Daily allowance, Constituency allowance, etc. received by MP/MLA is exempt u/s 10(17).

18) TDS under section 192 and Section 115BAC

Tax rates u/s 115 BAC inserted vide Finance Act, 2020

Total Income Rate of Tax
Upto Rs. 2,50,000 Nil
From Rs. 2,50,001 to Rs. 5,00,000 5%
From Rs. 5,00,001 to Rs. 7,50,000 10%
From Rs. 7,50,001 to Rs. 10,00,000 15%
From Rs. 10,00,001 to Rs. 12,50,000 20%
From Rs. 12,50,001 to Rs. 15,00,000 25%
Above Rs. 15,00,000 30%

When to exercise option u/s 115 BAC

> A person can opt under Section 115 BAC

    • If having income from business or profession
    • Option to be exercised on or before due date u/s 139(1)
    • Option once exercised shall apply to subsequent years
    • Can only be withdrawn once and thereafter, the assessee shall not be eligible to opt u/s 115 BAC.

> If NOT having income from business or profession

    • Option to be exercised at the time of furnishing return of income
    • Assessee will have option each assessment year to choose from either the normal provisions or Section 115 BAC.

19) TDS U/S. 192 IN LIGHT OF THE SECTION 115 BAC?

  • Intimation to Employer-The employee, whether having any income under head ‘profits and gains from business or profession’ or not, has to intimate the employer about the intention to opt for concessional rate of taxation u/s.115BAC of the Act. The employer will deduct TDS accordingly.
  • If no such intimation is made, TDS will be deducted without considering Section115BAC.
  • Intimations made to the employer cannot be modified during the year.
  • However, this intimation given to employer is not binding and the employee can choose different option while filing return of income.
  • In respect of employee having income under PGBP head– intimation for subsequent years should not deviate from previous intimation, except when the employee opts out from Section115BAC.
  • CBDT Circular No.C1 of 2020 dated April 13, 2020

Extract of Section 192 of Income Tax Act, 1961

192. (1) Any person responsible for paying any income chargeable under the head “Salaries” shall, at the time of payment, deduct income-tax on the amount payable at the average rate of income-tax computed on the basis of the rates in force for the financial year in which the payment is made, on the estimated income of the assessee under this head for that financial year.

(1A) Without prejudice to the provisions contained in sub-section (1), the person responsible for paying any income in the nature of a perquisite which is not provided for by way of monetary payment, referred to in clause (2) of section 17, may pay, at his option, tax on the whole or part of such income without making any deduction therefrom at the time when such tax was otherwise deductible under the provisions of sub-section (1).

(1B) For the purpose of paying tax under sub-section (1A), tax shall be determined at the average of income-tax computed on the basis of the rates in force for the financial year, on the income chargeable under the head “Salaries” including the income referred to in sub-section (1A), and the tax so payable shall be construed as if it were, a tax deductible at source, from the income under the head “Salaries” as per the provisions of sub-section (1), and shall be subject to the provisions of this Chapter.

32[(1C) For the purposes of deducting or paying tax under sub-section (1) or sub-section (1A), as the case may be, a person, being an eligible start-up referred to in section 80-IAC, responsible for paying any income to the assessee being perquisite of the nature specified in clause (vi) of sub-section (2) of section 17 in any previous year relevant to the assessment year, beginning on or after the 1st day of April, 2021, shall deduct or pay, as the case may be, tax on such income within fourteen days—

(i) after the expiry of forty-eight months from the end of the relevant assessment year; or

(ii) from the date of the sale of such specified security or sweat equity share by the assessee; or

(iii) from the date of the assessee ceasing to be the employee of the person,

whichever is the earliest, on the basis of rates in force for the financial year in which the said specified security or sweat equity share is allotted or transferred.]

(2) Where, during the financial year, an assessee is employed simultaneously under more than one employer, or where he has held successively employment under more than one employer, he may furnish to the person responsible for making the payment referred to in sub-section (1) (being one of the said employers as the assessee may, having regard to the circumstances of his case, choose), such details of the income under the head “Salaries” due or received by him from the other employer or employers, the tax deducted at source therefrom and such other particulars, in such form and verified in such manner as may be prescribed, and thereupon the person responsible for making the payment referred to above shall take into account the details so furnished for the purposes of making the deduction under sub-section (1).

(2A) Where the assessee, being a Government servant or an employee in a company, co-operative society, local authority, university, institution, association or body is entitled to the relief under sub-section (1) of section 89, he may furnish to the person responsible for making the payment referred to in sub-section (1), such particulars, in such form and verified in such manner as may be prescribed, and thereupon the person responsible as aforesaid shall compute the relief on the basis of such particulars and take it into account in making the deduction under sub-section (1).

Explanation.—For the purposes of this sub-section, “University” means a University established or incorporated by or under a Central, State or Provincial Act, and includes an institution declared under section 3 of the University Grants Commission Act, 1956 (3 of 1956), to be a University for the purposes of that Act.

(2B) Where an assessee who receives any income chargeable under the head “Salaries” has, in addition, any income chargeable under any other head of income (not being a loss under any such head other than the loss under the head “Income from house property”) for the same financial year, he may send to the person responsible for making the payment referred to in sub-section (1) the particulars of—

(a) such other income and of any tax deducted thereon under any other provision of this Chapter;

(b) the loss, if any, under the head “Income from house property”,

in such form and verified in such manner as may be prescribed, and thereupon the person responsible as aforesaid shall take—

(i) such other income and tax, if any, deducted thereon; and

(ii) the loss, if any, under the head “Income from house property”,

also into account for the purposes of making the deduction under sub- section (1) :

Provided that this sub-section shall not in any case have the effect of reducing the tax deductible except where the loss under the head “Income from house property” has been taken into account, from income under the head “Salaries” below the amount that would be so deductible if the other income and the tax deducted thereon had not been taken into account.

(2C) A person responsible for paying any income chargeable under the head “Salaries” shall furnish to the person to whom such payment is made a statement giving correct and complete particulars of perquisites or profits in lieu of salary provided to him and the value thereof in such form and manner as may be prescribed.

(2D) The person responsible for making the payment referred to in sub-section (1) shall, for the purposes of estimating income of the assessee or computing tax deductible under sub-section (1), obtain from the assessee the evidence or proof or particulars of prescribed claims (including claim for set-off of loss) under the provisions of the Act in such form and manner as may be prescribed.

(3)  The person responsible for making the payment referred to in sub-section (1) or sub-section (1A) or sub-section (2) or sub-section (2A) or sub-section (2B) may, at the time of making any deduction, increase or reduce the amount to be deducted under this section for the purpose of adjusting any excess or deficiency arising out of any previous deduction or failure to deduct during the financial year.

(4)  The trustees of a recognised provident fund, or any person authorised by the regulations of the fund to make payment of accumulated balances due to employees, shall, in cases where sub-rule (1) of rule 9 of Part A of the Fourth Schedule applies, at the time an accumulated balance due to an employee is paid, make therefrom the deduction provided in rule 10 of Part A of the Fourth Schedule.

(5)  Where any contribution made by an employer, including interest on such contributions, if any, in an approved superannuation fund is paid to the employee, tax on the amount so paid shall be deducted by the trustees of the fund to the extent provided in rule 6 of Part B of the Fourth Schedule.

(6)  For the purposes of deduction of tax on salary payable in foreign currency, the value in rupees of such salary shall be calculated at the prescribed rate of exchange.

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