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Article discusses option available with Employee/ Taxpayer when his employer refuses to issue Employer refuses to issue TDS Certificate / Form 16 / Salary Certificate and can a Taxpayer claim credit for Tax deducted despite non issue of such certificate.

I worked in XYZ limited for the period from 01.4.17 to 31.03.2018. My Company deducted TDS of Rs. 1,00,000 but not given TDS certificate till date. What legal remedy I have to force my employer to issue me the TDS certificate i.e. Form 16?

The employee has a right to obtain the TDS certificate in form 16 from his employer. The certificate details should be filled in return of income, since no credit for TDS can be given without it. In case your employer fails to issue the TDS certificate, he shall be liable to a penalty of Rs. 100/- for each day of default u/s 272A(2)g).  The Only remedy in case your employer refuse to issue you tds certificate or he is not issuing TDS certificate is that you can  complain to the concerned Assessing Officer in writing, who will take appropriate action or initiate penalty proceedings against the employer.

The employee however has no other legal remedy against his employer in case he refuses to issue the certificate except that the employee may intimate about such default to concerned Assessing Officer, who may take appropriate action or initiate penalty proceedings against the employer.

Although my previous employer not issued TDS certificate for the TDS deducted by them, can I claim the credit for TDS deducted by them while filing my IT return for A.Y. 2017-18?

Yes. The claim can be made in your return. Department however will raise a demand which will not be enforced on you but on your employer.

Can Employer Decline To Issue Form 16 When there is no deduction of TDS on Salary?

Confusion arises among employees regarding Form 16 is on following grounds :

  • That they think Form 16 is a salary certificate.
  • That income tax Return can not be filed in absence of Form 16.

While the fact is that  Form 16 is the prescribed form for issue of certificate of deduction of tax at source from an employee. employer can decline to issue Form 16 in case there is no deduction of tax at source.It is clear from a bare reading of section 203 of the I T Act and the relevant rule 31 of IT Rule .

Liability to give a certificate of tax deduction is given in Section 203 of the I T Act .For employer, specific provision is given in sub-section 2 of section 203 of the I T Act. The said subsection is given as under

 [Certificate for tax deducted.

203. (1) Every person deducting tax in accordance with the foregoing provisions of this Chapter shall, within such period as may be prescribed from the time of credit or payment of the sum, or, as the case may be, from the time of issue of a cheque or warrant for payment of any dividend to a shareholder, furnish to the person to whose account such credit is given or to whom such payment is made or the cheque or warrant is issued, a certificate to the effect that tax has been deducted, and specifying the amount so deducted, the rate at which the tax has been deducted and such other particulars as may be prescribed.

(2) Every person, being an employer, referred to in sub-section (1A) of section 192 shall, within such period, as may be prescribed, furnish to the person in respect of whose income such payment of tax has been made, a certificate to the effect that tax has been paid to the Central Government, and specify the amount so paid, the rate at which the tax has been paid and such other particulars as may be prescribed.

It is clear from the aforesaid provision that an employer shall furnish the certificate only if any tax has been paid to central govt. on behalf of the employee. Rule 31 of IT Rules states that employer has to issue TDS certificate in Form 16 . The said Rule states as under

31. Certificate of tax deducted at source [or tax paid under sub-section (1A) of section 192].

(1) The certificate of deduction of tax at source by any person in accordance with Chapter XVII-B or the certificate of payment of tax by the employer on behalf of the employee under sub-section (1A) of section 192 shall be in—

Form No. 16, if the deduction or payment of tax is under section 192; and

Therefore , it is legal to refuse to issue a certificate of deduction of tax when there is no deduction of tax

Also Read:

1. https://taxguru.in/income-tax/form-1616a-26as-online-annual-statement.html

2. https://taxguru.in/income-tax/form-26as-check-anytime-tax-credit-status.html

(Republished with amendments)

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91 Comments

  1. Kapil sharma says:

    Dear sir,

    My company was give the incentive in april’2021 month (FY 21-22) and amount credit in my account in same month. But company take this incentive benefit in previous FY 20-21 and also he calculated my tax for FY20-21 included this incentive money and also shown in Form-16. Can i take tax refund in FY20-21 on this extra tax amount. And give tax as per credit year.

    Please help me tax amount is BIG .

    Regards,
    Kapil Sharma
    +91-9754304339

  2. Joseph P Varghese says:

    You have stated that if the deduct or does not issue the Form 26 ( I presume this applies to Form 16A as well), we can complain to the “concerned” income tax authority . The Deductor’s tax authority or the deductee’s authority ?

  3. Mohamed ismail says:

    my wife is working as sec grade teacher in government aided school. she have paid tax regularly through their school TAN but i view the form 26as there is no tax will credited also she has not been received form 16. so what my questions is who can responsible to issued form 16. because their correspondent have no knowledge of tds related issues

  4. S Ramasamy says:

    I am engaging growing Broiler chickens for the XY Poultry Firm and I am getting Growing charges after deducting TDS. How can I claim the TDS amount already deducted from the Income Tax Dept. and what type of forms to file tax Return?

  5. Sachin Patil says:

    I am working in education department as FDA, my annual salary is Rs. 395000/- and savings of Rs. 150000/- after savings I get Rs. 245000/-.
    My employer not deducted TDS because the amount is below the 250000/-
    My question is, the employer is not given Form-16 & is it is mandatory or not.

  6. GANDHI MOHAN BHARATI says:

    The system of TDS and issue of certificates and reconciliation with 26AS needs a thorough look by the concerned authorities. We the assessees are harassed for no fault of ours

  7. Indu Mehta says:

    For A.Y. 2011-12 the TDS was deducted and shown in the Form 16 issued by the Employer but NOT UPLOADED,folly of employer MISPRINTING PAN. Inspite of several reminders to the Employer, A.O and also to the ITO TDS, no relief has been granted to assessee. The demand created in A.Y. 2011-12 was adjusted against the refund determined in successive A.Y. 2016-17 . For no fault of assessee why harassment is being
    caused ?

  8. lokesh bhatt says:

    sir i got form 16 from my previous employer but they are not signed nor digital sign.My bank official asked me to provide genuine documents as from 16 dully signed to transfer my home loan to other bank.
    is it necessary form 16 shuld be signed or digitally signed

  9. Antony says:

    My employer has paid the tax for month of March and it reflects in my Form 26, but my employer has not paid the salary for month of March, as I quit the job in April They are saying they will pay March salary in August. How to compute my gross salary for the year? Should i exclude
    salary of March.

  10. M.Viswanatha naidu says:

    Sir, I am a retired railway employee, retired on August 2016. Still I didn’t get my IT form 16 from railways. What is my option to file income tax for assessment year 2017-2018

  11. S Gupta says:

    As per interpretation of Rules in this article, an employer is at liberty not to issue Form16, if no TDS / remittance is made. It will be the onus of the employee / assesse to calculate annual income from salary, for reaching taxable income. If some error is there in doing so, as may be detected by the IT department later, the assesse is liable to penalty etc.
    How unfair !
    The Rules need be amended so that an assesse / employee / receiver of other income, will go by whatever is shown in form 26AS ( unless found abnormally inflated ), on or after, say 31sy May, well after the due date of submission of return by a company / entity disbursing any type of income of regular / recurring nature, including Interest. In such a case, an individual assesse should not be penalised for fault of others.

  12. REGUNATHAN V says:

    The Post office had deducted TDS on my interest during AY 2016-17 and even after complaints they are not issuing FORM 16 ( not reflected in my 26AS also). What is the remedy in this case of a GOVT Orgn

  13. Manish Gupta says:

    Is this my liability to pay t.d.s if my employer not having tan number and not deducting TDS from my gross income max. rs.9 lakhs.. How can I fill my return of a.y 20116-17.. Plz answer

  14. R K GULATI says:

    I am a bank employee. I have taken PF Loan for extension of my house in my name. If rebate will be available for interest paid in this a/c.

  15. vijay c sawant says:

    Resp dear sir,
    I was working with Synergy Diagnostics pvt, ltd, Laxmi ind estate, laxmi mkt, vartka nagar, tahne west.director-sanjay bawsay, managing direcotr-madhvi bawasay.
    sir worked their from dec 2012 to june 2014.
    i asked form 16, for the month of april 2014 to june 2014, company refused to give me and they say that, whatever you want to do do it.

    kindly guide how to get form 16.

    regards

    vijay sawant
    9870642174 / 9022642174

  16. lakshmipriya says:

    Sir I was working as a contractual staff in KV No 1 AFS pune and my work period was 1-04-2014 to 05-04-2015 and 1-04-2013 to 25-11-2013 now I want my form16 but they refuse give me . So please help me how should i get my form16

  17. Amit Prasad says:

    Hi Sir,

    I am working as a freelancer and route the case through my partners and they give the commission against those cases.

    One of my Partner given me commission by cheque and some of cash and deducted TDS @10% of my commission amount but he refuses to give TDS Certificates.

    Please suggest what will I do??

    Regards,
    Amit

  18. Prem Sharma says:

    dear sir
    I m an up govt employee who isn’t paying tax and I. want form 16 b to be issued to me for some purpose. But I m not being issued it and it has been delayed too . Kindly Please tell me a way out. Please be fast

  19. Prem Sharma says:

    dear sir
    I m an up govt employee who isn’t paying tax and I. want form 16 b to be issued to me for some purpose. But I m not being issued it and it has been delayed too . Kindly Please tell me a way out.

  20. Rakesh R Shinde says:

    Dear Sir,
    In the F.Y. 2014-15 I got Total Gross salary of Rs. 128318/- and tax is not deducted from my salary. I made an application to office to issue me Form No.-16 for Loan Purpose. But Office denies me as My Gross salary is Rs. 128318/- (From July-14 to Feb-15).
    Sir is there is rule relating Gross Salary to issue Form No. 16.

  21. Hemlata Gupta says:

    if a company has lower deduction of TDS certificate which was valid till 31st march 2015. It worked for mar 2015 and it produced the bill on april 2015. then what should be the rate of TDS for bill

  22. Hemlata Gupta says:

    if a company has lower deduction of TDS certificate which was valid till 31st march 2015. It worked for mar 2015 and it produced the bill on april 2015. then what should be the rate of TDS for bill

    Pls reply me through mail

  23. Ramkumar V J says:

    Hi,

    I worked in some XYZ company from 1st April 2015 to 08 May 2015 and I changed the Job to ABC company from 11 May 2015. My previous company (XYZ) computed tax exemption based on Financial year 2014 declaration which is NO TAX. I dont know the details of previous employer (PAN,TAN etc). I have only payslip for 1st April 2015 to 08 May 2015 . (For now ,My current employer does not include salary from previou employer. but i could correct it by requesting them .) Now , Do i need to fill form No 12 B and submit to current employer ? or Get form 16’s from previous employer after 1 year ( i may form 16 in May 2016) and current employer (in may 2016), then proceed for corrected income tax filing ? which is the best way , please help me out .

  24. Nagesh says:

    Hello..
    My employer has deducted TDS against salary for Aug, Sep, Oct & Nov 2014 (period in which I worked), amount around Rs. 60,000/-. He is not issuing the Form-16 and when I log in my IT Account, no credit is available, it seems he has not credited. Out of 4 months salary, I got only 1.5 month salary (partly) and balance he issued the cheque after deducting the TDS towards final settlement. Of course cheque got bounced and it is under Trial 138. Please advise how to proceed in the matter. Thank you

  25. Sanjay Kuamr Gupta says:

    Dear Sir, My employer has deducted TDS from salary but it is not reflecting in 26 AS form. My employer has not give form 16A also. What shall I do. Please advise.
    Thank you

  26. kunal says:

    Hi,

    My ex-employer has not issues form-16 as well as they have not paid income tax deducted from our salary to IT department. The company was a pvt ltd company, part of conglomerate and has already ceased the business (the parent company is still in business and parent company was funding our company). Suggest me:
    1) legal procedure to file a complaint against the ex-employer
    2) how can i file income tax return without form16 and no entry in 26AS

    Regards,
    Kunal

  27. Jai Prakash Singh Kushwaha says:

    Dear Sir,
    My employer has deducted TDS from salary but it is not reflecting in 26 AS form. My employer has not give form 16A also. What shall I do. Please advise.
    Thank you

  28. Jayaram says:

    Hi All,
    I worked for some X company from Feb 2014 to Dec. 2014 they deducted tax every month but TDS credit is not happen yet on my PAN, will I get my Form 16. How do i get Form 16, Employer not responding properly, to whom I should complain on this? Please guide me if anyone knows this.

  29. pankaj says:

    Sir,
    I have form 16 A form for year 2012-2013 & 2013-2014. Now I want to withdraw my TDs in 2015 but CA is saying that u can’t withdraw the TDs for 2012-2013. Only 2013-2014 only can withdraw.

  30. Vishal says:

    My employer neither deposit the TDS deducted from all the employees for the f/y 2013-14 till date. Hence they have not issued the Form 16.
    How can we file the IT Return for the said f/y.
    Since there is still a back log 4-5 months salary,we can’t insist for the same.
    Your advise is appreciated

    Vishal

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