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Proffessional paying taxes more than one head for remunerations recd?

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Nikhil Kaushik (Fellow CA) (85509 Points)
Replied 24 November 2018

Originally posted by : rama krishnan
@ dr. jyothish, I think you haven't gone through 44ada provisions in subtle. for your convenience, 44ADA. [1] Notwithstanding anything contained in sections 28 to 43C, in the case of an assessee, being a resident in India, who is engaged in a profession referred to in sub-section [1] of section 44AA and whose total gross receipts do not exceed fifty lakh rupees in a previous year, a sum equal to fifty per cent of the total gross receipts of the assessee in the previous year on account of such profession or, as the case may be, a sum higher than the aforesaid sum claimed to have been earned by the assessee, shall be deemed to be the profits and gains of such profession chargeable to tax under the head "Profits and gains of business or profession".it's mentioned that minimum 50% or sum higher than the aforesaid sum claimed to be earned by the assessee. so even if you opt for 44ada, if you have knowledge that you have earned more than the 50 percent of turnover then that sum have to be declared as total income. the only benefit in 44ada is that you no need to maintain books and audit them. for expenses, you can bring in your car bike laptop desktop mobile phone as fixed assets and can claim depreciation . you can also claim maintenance charges for that fixed assets apart from fuel expenses. you can also claim travelling expenses attributable to the professional services rendered to the pharma companies. this is my humble view

Not sure where are you reading this. But once 44ADA or 44AD is invoked, you have no obligation to account for any of the expenses and are at absolute liberty to disclose the minimum percentage as permitted in the respective section. The whole idea is that you are not maintaining books of accounts, hence have no idea what your expenses are.


Dr.Jyothish Vijay (Dr) (214 Points)
Replied 24 November 2018

@ Nikhil... Sir I think Mr Ramakirshnan was referring to the usual income-expenses method (ie not using 44 ADA)

Nikhil Kaushik (Fellow CA) (85509 Points)
Replied 24 November 2018

Originally posted by : Dr.Jyothish Vijay
@ Nikhil... Sir

I think Mr Ramakirshnan was referring to the usual income-expenses method (ie not using 44 ADA)

may be. but again that only reflects misplaced understanding of the issue here.


Navin Agarwal (354 Points)
Replied 24 November 2018

if you are declaring income under 44 Ada and your actual income is higher than 50 percent of 44 Ada such higher income will be your deemed income..my recommendation is that u should go for the audit...and get your TDS deducted on the entire 52 lakhs ...by doing so ur advance tax penalty will also be saved....and it is completely legal...all odds are in its favor

Dr.Jyothish Vijay (Dr) (214 Points)
Replied 24 November 2018

Originally posted by : Navin Agarwal
if you are declaring income under 44 Ada and your actual income is higher than 50 percent of 44 Ada such higher income will be your deemed income..my recommendation is that u should go for the audit...and get your TDS deducted on the entire 52 lakhs ...by doing so ur advance tax penalty will also be saved....and it is completely legal...all odds are in its favor

This thread is intended for another purpose. I really don't feel like discussing on a different issue. But still.....
If actual income and expenses are quoted, then the profit so derived is "actual" profit....not "deemed" profits. That is the basic concept behind 44 ADA. The other thing is that when you don't maintain books, you DON'T KNOW what your actual expenses are (expenses include depreciation, maintencance charges etc)-therefore when you are not going into those parameters in detail, you "deem" your profits-thats 44 ADA!!!

That much is my understanding after reading the income tax sections.. Now if you would refer to my first reply in page 2 of this thread, you can see that i have pasted an excerpt in it. Its taken from an official document released by income tax authorities. In it, the above aspect has been very clearly covered.

And finally this particular issue has been covered in this forum previously too.....in all cases what i said has been the general opinion!!!



Dr.Jyothish Vijay (Dr) (214 Points)
Replied 24 November 2018

Originally posted by : Navin Agarwal
if you are declaring income under 44 Ada and your actual income is higher than 50 percent of 44 Ada such higher income will be your deemed income..my recommendation is that u should go for the audit...and get your TDS deducted on the entire 52 lakhs ...by doing so ur advance tax penalty will also be saved....and it is completely legal...all odds are in its favor


Secondly as far your recommendation is concerned...i already have in mind a better solution. If nothing else works out, i will stop accepting remuneration once the total remuneration reaches near rs.50 lakh.

I was simply looking for a solution where i could accept the money ....without actually loosing money !

What do i mean by loosing money, you might ask!

Ans: If i stop at rs.49 lakhs and pay taxes, i retain more money with me than when i accept rs.52 lakh and pay taxes without using 44 ADA. Thats what i meant by "accepting money, but still will be loosing money"


Dr.Jyothish Vijay (Dr) (214 Points)
Replied 24 November 2018

Now that noone is seen to have any suggestion may i put forward my ideas?

1) How about receiving the payment under section 194C? Will it make any difference?

2)How about receiving the money under section 192? Is such an arrangement legally wrong? I mean the work that I do for the pharma companies does not change....but instead pf paying through 194J, they pay me through 192! Is there any legal limitations that prevent them from naming the money they give me as "salary" (eventhough its a one time, or two time or atmost a three time payment in an year)?


Nikhil Kaushik (Fellow CA) (85509 Points)
Replied 25 November 2018

Originally posted by : Dr.Jyothish Vijay
Now that noone is seen to have any suggestion may i put forward my ideas?

1) How about receiving the payment under section 194C? Will it make any difference?

2)How about receiving the money under section 192? Is such an arrangement legally wrong? I mean the work that I do for the pharma companies does not change....but instead pf paying through 194J, they pay me through 192! Is there any legal limitations that prevent them from naming the money they give me as "salary" (eventhough its a one time, or two time or atmost a three time payment in an year)?

As a 44ADA case, 194C wont get benefit of 44AD or 44ADA and hence taxable as normal income. Plus, the payer would have an issue as he would be taking risk of becoming penalized from wrong classification of professional payments as contractual payments and therefore laible for relevant penalty for lower deduction of taxes.

 

receiving payments as salary would create the employer and employee relationship. This is permitted under law but has to be addressed again from the perspective of what legal obligations you create as in employer-employee arrangement as the company would be required to comply to all employer related taxation and legal norms. Given the industry you are part of, these relationships are not to be taken lightly, just for saving a few bucks in taxes!


Nikhil Kaushik (Fellow CA) (85509 Points)
Replied 25 November 2018

Originally posted by : Dr.Jyothish Vijay
Now that noone is seen to have any suggestion may i put forward my ideas?

1) How about receiving the payment under section 194C? Will it make any difference?

2)How about receiving the money under section 192? Is such an arrangement legally wrong? I mean the work that I do for the pharma companies does not change....but instead pf paying through 194J, they pay me through 192! Is there any legal limitations that prevent them from naming the money they give me as "salary" (eventhough its a one time, or two time or atmost a three time payment in an year)?

As a 44ADA case, 194C wont get benefit of 44AD or 44ADA and hence taxable as normal income. Plus, the payer would have an issue as he would be taking risk of becoming penalized from wrong classification of professional payments as contractual payments and therefore laible for relevant penalty for lower deduction of taxes.

 

receiving payments as salary would create the employer and employee relationship. This is permitted under law but has to be addressed again from the perspective of what legal obligations you create as in employer-employee arrangement as the company would be required to comply to all employer related taxation and legal norms. Given the industry you are part of, these relationships are not to be taken lightly, just for saving a few bucks in taxes!


Nitesh bind (Student CA Final ) (12692 Points)
Replied 25 November 2018

@ Dr. Jyothish.. Sir, all the options have already been discussed (legal as well as Under the table as you said) but you are not satisfied.

Because the main problem is You are not ready to accept anything and still searching for the answer. That's Hypothetical..!


Dr.Jyothish Vijay (Dr) (214 Points)
Replied 25 November 2018

Originally posted by : Nitesh bind
@ Dr. Jyothish.. Sir, all the options have already been discussed (legal as well as Under the table as you said) but you are not satisfied. Because the main problem is You are not ready to accept anything and still searching for the answer. That's Hypothetical..!

You seem to imply that lot many options were given to me....so let me clarify

I checked again the whole thread. The only legal option i found tenable is the one i suggested -salary. But as Mr.Nikhil has suggested its difficult to negotiate and achieve

Then there is that under the table suggestion you posted.....which the companies won\t agree to (because its illegal)

All other suggestions were effectively differently worded but meaning the same thing: viz accept rs.52 lakh pay taxes without using 44 ADA


Dr.Jyothish Vijay (Dr) (214 Points)
Replied 25 November 2018

Originally posted by : Nikhil Kaushik



Originally posted by : Dr.Jyothish Vijay



Now that noone is seen to have any suggestion may i put forward my ideas?

1) How about receiving the payment under section 194C? Will it make any difference?

2)How about receiving the money under section 192? Is such an arrangement legally wrong? I mean the work that I do for the pharma companies does not change....but instead pf paying through 194J, they pay me through 192! Is there any legal limitations that prevent them from naming the money they give me as "salary" (eventhough its a one time, or two time or atmost a three time payment in an year)?





As a 44ADA case, 194C wont get benefit of 44AD or 44ADA and hence taxable as normal income. Plus, the payer would have an issue as he would be taking risk of becoming penalized from wrong classification of professional payments as contractual payments and therefore laible for relevant penalty for lower deduction of taxes.

 

receiving payments as salary would create the employer and employee relationship. This is permitted under law but has to be addressed again from the perspective of what legal obligations you create as in employer-employee arrangement as the company would be required to comply to all employer related taxation and legal norms. Given the industry you are part of, these relationships are not to be taken lightly, just for saving a few bucks in taxes!

Sir. for me-Its not just a few bucks....its a matter of few lakhs (thats not "few" for me).

But i do understand what you are saying. ...Thanks all the same


Dr.Jyothish Vijay (Dr) (214 Points)
Replied 25 November 2018

Dear members...i am posting an article posted here in this website an year back....kindly look into this:

Another question that may be posed is that nowadays it is very common for a professional to act as a visiting faculty in seminars and workshop or oral coaching classes, writing articles of professional interest, authorship of books relating to profession etc. In such cases, honorarium is usually paid to the concerned professional. The question is whether this should also form part of gross receipts? There can be two views possible in this regard. One view is that since these activities are related to one’s profession only hence any receipts whether by way of honorarium or otherwise should be included in gross receipts. Another view may be that gross receipts should consist of total amount of bills issued during the year by the concerned professional. Since activities mentioned above are in the nature of extracurricular activities and for which there is no question of professional billing, receipts from them should not form part of gross receipts though they are off course needs to be disclosed in the income tax return. In the opinion of the author later view appears to be more appropriate.

Read more at: https://www.caclubindia.com/articles/presumptive-income-scheme-for-professionals-an-insight-29695.asp

 

The above author has taken that activities similar to mine are "extracurricular" for which professional billing is not done-they don't form part of gross receipts! My question is:

1)Can i make use of this interpretation? (to avoid 44 ADA)

2)If yes-can i disclose the said income (received under 194J) under income from other sources?


Navin Agarwal (354 Points)
Replied 25 November 2018

while filing itr4 also ...there is the requirement to fill the figures of debtors creditors cash and inventory....now if u don't maintain any books of accounts how will this figure will be filled in...and secondly u can't shift tds section from 194j to 192..it will not be beneficial for u...because then ur entire amount will be taxable....


Dr.Jyothish Vijay (Dr) (214 Points)
Replied 25 November 2018

Originally posted by : Navin Agarwal
while filing itr4 also ...there is the requirement to fill the figures of debtors creditors cash and inventory....now if u don't maintain any books of accounts how will this figure will be filled in...and secondly u can't shift tds section from 194j to 192..it will not be beneficial for u...because then ur entire amount will be taxable....

I have seen those columns...."sundry creditors", "sundry debtors", "cash in hand" etc are the ones you are referring to-isn't it?

I have absolutely no idea what those means.....my CA told that its OK and he will fill it appropirately . I think the credtors and debtors will be 0 and some small amount will be entered as "cash in hand"

As for the 192 vs 194J confusion you have....i am not talking about shifting everything under 192. My main amount which is less than rs.50 lakh is from one source and it will come under 194J....and the smaller amount coming from other sources could be from 192....thats what i was implying

That was only a suggestion...i don't know whether i can negotiate to achieve that !



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