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Deduct ?

Pushkraj Sathe (Chartered Accountant) (203 Points)

24 December 2007

A has inherited huge wealth from his father.A has no income other than rent of property and interest on investments.A has employed a car driver for him to go around the city for bazar etc, to whom he pays monthly salary of Rs. 12000/-.Is A required to deduct tax at source?

Similarly ,he pays to his CA Rs. 30000/- pa for his consultancy services of personal taxation i.e. wealth tax,income tax,etc. Is A required to deduct tax at source from payment to CA?

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7 Replies

CA. Dashrath Maheshwari (TaXpert) (15103 Points)
Replied 24 December 2007

For personal payments, no one is liable for TDS but if any one is liable for Tax Audit under Income tax Act then he has to deduct TDS as per the applicability.

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Pushkraj Sathe (Chartered Accountant) (203 Points)
Replied 24 December 2007

Dear Mr.Maheshwari,Please refer to second provisio to Section 194J(1).Is there any such provisio to Section 192 ? If yes please bring it to my notice.Thanks.

CA. Dashrath Maheshwari (TaXpert) (15103 Points)
Replied 24 December 2007

The statute requires deduction of tax at source from the income under the head salary. As such the existence of employer-employee relationship is the sine-qua-non for taxing a particular receipt under the head salaries, Such a relationship is said to exist when the employee not only works under the direct control and supervision of his employer but also is subject to the right of the employer to control the manner in which he carries out the instructions. Thus the law essentially requires the deduction of tax when : (a) Payment is made by the employer to the employee. (b) The payment is in the nature of salary and (c) The income under the head salaries is above the maximum amount not chargeable to tax. For the various categories of employers, the persons responsible for making payment under the head salaries and for deduction of tax are as below : In the case of : 1 Central/State Government/P.S.U. The designated drawing & disbursing officers. 2 Private & Public Companies The company itself as also the principal officer thereof. 3 Firm The Managing partners/ partner of the firm. 4 HUF Karta of the HUF. 5 Proprietorship concern The proprietor of the said concern. 6 Trusts Managing trustees thereof. In case of a company, it is to be noted, that though the company may designate an officer/employee to make payments on the behalf of the company, still the statutory responsibility to deduct tax at source rests with the company and its principal officer thereof. In respect of companies, the I.T. Act Section 2(35) has specified principal officer to mean : (a) Secretary, Treasurer, Manager or agent of the company. (b) Any person connected with the management or administration of the company or upon whom the assessing officer has served the notice of his intention to treat him as a principal officer.

Pushkraj Sathe (Chartered Accountant) (203 Points)
Replied 24 December 2007

Dear Mr.Maheshwariji,
Please refer to second provisio to Section 194J(1).Is there any such provisio to Section 192 ?
If yes please bring it to my notice.Why the legislature has chosen not to insert such a provisio to Section 192?

In your six categories of employers, an Individual is not included.A doctor or for that matter anybody practising in his individual name would be exempt by the above logic.Right?

Please guide.

CA. O.P. Agarwalla (C.A.) (2916 Points)
Replied 24 December 2007

Mr. Pushkraj has raised a brain storming question. Section 192 seems to be applicab;e on all.Since the inception, some sections relating to TDS (192, 193, 194B, 194BB,194D etc. ) were applicable to all (including individuals), whereas some sections relating to TDS such as 194C were applicable for non individual assessees. Later-on, individuals having turnover in exceed of speific sum have been brought to the net of second categories(supra).
As regards meaning of "Person responsible for paying" is concerned, clause (i) of section 204 is very much clearand as per that clause, in this case, employer will be the person responsible.
Now, it will be interesting to find out that, why section 192 should not be applicable in cases of individuals who are having or not having business income.
I will be eagerly witing for the reply.

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Pushkraj Sathe (Chartered Accountant) (203 Points)
Replied 27 December 2007

Dear Mr. Agarwalla, Thanks for your favourable comment.In absence of any specific provisio,Section 192 is applicable to any and all employers if he/they fit into the definition of an "EMPLOYER". The general definition is that he pays salary,the person to whom he pays salary is employed by him,the salary exceeds Rs. 110000/- to a non-female person who is not a senior citizen and does no savings U/s 80C. I would appreciate the response from other experts also.

CA. Dashrath Maheshwari (TaXpert) (15103 Points)
Replied 28 December 2007

Sorry brothers, but I already stated that 5th category of employer is Proprietorship concern, which may have a name or not, so private practicing CA, Lawyers, Doctors etc. are nothing but a professional proprietary concerns,
therefore any person having income from business or profession is included in the category of empoyers.