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    History:-

     

    Finance Act (no.2) 2009 has introduced the provisions of section 206AA. It provides that the deductee should furnish his PAN to the person responsible for deducting the tax else the minimum rate of TDS applicable would be 20%.

     

    The requirement to obtain PAN is governed by the provisions of section 139A. The section 206AA starts with a non-obstante clause “Notwithstanding anything contained in any other provisions of this Act”. This section will also be applicable in case the deductee provides an invalid PAN or PAN not belonging to him.

     

    So, reading together the provisions of section 139A and 206AA, one may conclude that though it is not mandatory for a person to obtain PAN still the provisions of higher rate of TDS referred U/S 206AA would apply on non-furnishment of PAN.

     

    This section will also apply in case the deductee is non-resident 1. However, if any beneficial provisions exist in DTAA then they will have overriding effect over the provisions of Income Tax Act, 1961 2.

     

    One issue which will arise is whether to claim the concessional rate mentioned in DTAA, should the non-resident have PAN so as not to be governed by provisions of section 206AA?

     

    To answer this, first look at the Judicial pronouncements which answered this question. The Bangalore ITAT 3 has held that the provisions of section 206AA will apply as it has overriding effect over other provisions of the Act. Thus, a non-resident whose income is chargeable to tax in India should obtain the PAN. However, the Pune ITAT 4 and the Bangalore Tribunal 5 have held that once the provisions of DTAA are applicable, section 206AA doesn’t apply.

     

    Even the honorable Supreme Court 6 has held that the provisions of DTAA with respect to the case to which they apply would operate even if inconsistent of the provisions of the Income Tax Act. So even the provisions of section 206AA has overriding effect over other provisions of the Act still they were inapplicable in applying the DTAA.

     

    Besides the section 90(2) provides that for granting relief of tax or as the case maybe, avoidance of double taxation, then, in relation to the assessee to whom DTAA applies, the provisions of the Act shall apply to the extent they are more beneficial to the assessee.

    Relief granted: -

     

    The FA 2013 has excluded the interest referred to in section 194LC7 from the operation of provisions of section 206AA8 with effect from 01-06-2013.

     

    FA 2016 has further amended the provisions of section 206AA (7) by extending the non-applicability of this section in relation to any payment subject to the conditions as may be prescribed 9.

     

    Rule 37BC provides the relaxation from the provisions of section 206AA. It mentioned that in case of non-resident, not being a company, or a foreign company and not having Permanent Establishment (PE) in India, the provisions of section 206AA shall not apply in respect of payments of interest, royalty, fees for technical services and payment on transfer of any capital asset, if the deductee furnishes the specified documents.

     

    Latest Developments: -

     

    The Visakhapatnam ITAT10 held that TDS on salary payment u/s 192 should be deducted as per applicable rates in force after allowing basic exemption limit and deductions towards investment in savings etc. Unlike any other provisions of the TDS, tax on salary can’t be deducted by applying a flat rate on gross amount. A careful study of the provisions of section 206AA made it clear that it is not automatic that a flat rate of 20 per cent shall be applied wherever PAN is not furnished. The deductor shall compute the tax in the manner specified under section 206AA, by applying the rate specified under the relevant provision of the act, or at the rate or rates in force and then, compared to flat rate of 20 per cent to decide whichever is higher.

     

    It further held that it is settled position of law that a short deduction of tax at source, by itself does not result in a legally sustainable demand under sections 201(1) and 201(1A). The taxes cannot be recovered once again from the assessee in a situation where the recipient of income has already paid the due taxes on such income.

     

    Unless, the Assessing Officer verified himself that the recipient of income has not paid the tax on such income and demonstrate that the rate applied by him was in accordance with the provisions of section 206AA, the assessee cannot be held as assessee in default under sections 201(1) and 201(1A)

     

    Note: - The CBDT circular 1/2017 dated 02-01-2017 which contains the rate of deduction of income tax from the payment of income chargeable under the head “Salaries” during the FY 2016-17 has mandated the furnishing of PAN by the employee in case of receipt of any sum or income or amount, on which tax is deductible. If the employee fails to furnish PAN to the deductor the provisions of section 206AA shall apply. It further states that the deductor should determine the tax amount in all the three conditions11and

     

    apply the higher rate of TDS. However, where the income of the employee computed for TDS u/s 192 is below taxable limit, no tax will be deducted. But where the income of the employee computed for TDS u/s 192 is above taxable limit, the deductor will calculate the average rate of income-tax based on rates in force as provided in sec 192.

     

    If the tax so calculated is below 20%, deduction of tax will be made at the rate of 20% and in case the average rate exceeds 20%, tax is to be deducted at the average rate. Education cess @ 2% and Secondary and Higher Education Cess @ 1% is not to be deducted, in case the tax is deducted at 20% u/s 206AA of the Act.

     

    This circular has answered the concerns raised by the Visakhapatnam ITAT (supra) to the extent of inability of the deductor in comparing the average rate of tax and rate mentioned in sec 206AA.

     

    The JAIPUR ITAT12 held that on perusal of the provisions of section 206AA, primary onus is on the person entitled to receive income on which tax is deductible at source to furnish his PAN and in case such PAN is invalid or does not belong to the said person by deeming fiction, it has been stated that he has not furnished his PAN to the deductor. In such a scenario, the onus shifts on the person responsible for deducting the tax that he shall deduct the tax at the rate specified in the relevant provisions of the Act or at the rate of 20 per cent whichever is higher.

     

    The Bangalore ITAT13 held that the obligation of deducting tax at source arises only when there is a sum chargeable under the Act. Thus, the provisions of TDS should be read along with the machinery provisions of computing the tax liability on the sum in question and there is no scope for deduction of tax at the rate of 20 per cent as provided under the provisions of section 206AA when the benefit of DTAA is available.

     

    CBDT vide notification no. 2/2017 dated 06-01-2017 has mandated that the person who has an account (other than time deposit and basic savings bank deposit account) maintained with banking company or co-operative bank to which Banking Regulation Act, 1949 applies and has not quoted his PAN or furnished Form no. 60 at the time of opening or subsequently, he shall furnish PAN or Form no. 60 to a manager or officer of a banking company or co-operative bank, as the case may be on or before 28-02-2017.

     

    One question which remains is that who will get the credit of TDS in case tax has been deducted applying the provisions of section 206AA? (Food for thought).

     

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    At the conclusion of an audit, findings and proposed recommendations are discussed with management and subsequently management action plans are developed to explain how the agreed recommendations will be implemented.

     

    Auditors should take care to communicate with the various stakeholders how their recommendations will help fix gaps and mitigate risks. The stakeholders will evaluate whether the recommendations being provided are worth the investment of time and resources required to implement them (cost vs. benefit). Competing priorities, budget limitations and other factors may prevent managers from implementing agreed actions in the agreed time line or as previously designed to mitigate the risk.

     

    Types of Recommendation

     

    Broadly, a recommendation is either a suggestion to fix an unacceptable scenario or a suggestion for improvement. Most internal audit reports provide recommendations to fix unacceptable scenarios because they are easy to identify and are less likely to be disputed by the process owner. However, recommendations to fix gaps in a process only take the process to where it is expected to be and not where it could be. Internal audit’s value lies not only in providing solutions to existing issues but in instigating thought provoking discussions. Recommendations also can include suggestions that will move the process or the department being audited to the next level of efficiency. When recommendations aimed at future improvements are included, internal audit reports become a tool in shaping the strategic direction of the department being audited.

     

    Sources of Information

     

    An auditor should draw recommendations from both inside and outside the organization. Internal sources of recommendations are easier to locate; however, they require a tactful approach as process owners may not be inclined to share unbiased opinions with internal audit team. External sources may not be as easily accessible — an internal audit function should invest in providing its staff with access to research libraries and professional networks to facilitate access. It is a good practice to jot down recommendation ideas as soon as they come to mind, even though they may not find a place in the final report. Even if internal audit testing does not result in a finding, the auditor may still recommend improvements to the current process.

     

    Articulation of recommendation

     

    Internal audit team should spend sufficient time brainstorming potential recommendations and choosing their wording carefully to ensure their audience have complete understanding. Recommendations should be written simply and should:

     

    vAddressthe root cause if a control deficiency is the basis of the recommendation.

    vAddressthe department rather than a specific person.

    vIncludebullets or numbering if describing a process that has several steps. vPositionthe most important observation or risk first and the rest in descending order of risk. vIndicate a suggested priority of implementation based on the risk and the ease of

     

    implementation.

     

    vIndicateany repeat findings. If the recommendation needs to be modified, provide an updated recommendation in the report.

     

    vExplainhow the recommendation will mitigate the risk in question.

     

    vListanyrecommendations separately that do not link directly to an audit finding but seek to improve processes, policies or systems.

     

    Feedback from Management

     

    Recommendations will go nowhere if they are not valued by management. Therefore, the process of obtaining management feedback on recommendations is critical to make them practical. Ultimately, process owners may agree with the recommendation, agree with part of the recommendation, and agree in principle, but technological or personnel resource constraints won’t allow them to implement it. They also may choose to revisit the recommendation at a future date as the risk is not imminent, or disagree with the recommendation because of varying perceptions of risk or mitigating controls.

     

    Management responses should be added to the recommendations with identified action items and implementation time lines whenever possible. Whatever be the management’s response, a recommendation should not be changed if it dilutes internal audit’s objectivity and independence and becomes representative of management’s opinions and concerns. It is internal audit’s prerogative to provide recommendations, regardless of whether management agrees with them or not. Persuasive and open-minded discussions with process owners are important to achieving agreeable and implementable recommendations.

     

    Conclusion

     

    The journey of a potential suggestion to a recommendation is complex and is influenced by every stakeholder and constraint in the audit process ; be it the overall tone of the organization toward change, its philosophy toward internal audit, the scope of the internal audit, views of the process owner, experience and exposure of internal audit staff, or available technology. However, an internal auditor must realize that every thought may add value to the organization and deserves consideration within the internal audit team. Internal audit departments should deliberate about the process and ask at the end of every audit: Does it align with the organization’s strategy and direction? Is it up to par with what is seen elsewhere? What is its relevance today and in the future?

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    GAAR (General Anti-Avoidance Rules) is a broad set of provisions that have the effect of invalidating an arrangement that has been entered into by the taxpayer with the objective of obtaining a tax benefit. While GAAR may not cease legitimate tax planning in all cases, it does call for a fundamental change in approach and mind-set of the taxpayer, going forward. Business reasons and commercial rationale will be pivotal to any tax planning in a GAAR regime. GAAR contains provisions to stop misuse of treaties, that India has with other countries, for tax avoidance. These are rules targeted at businesses that are structured solely for avoiding tax in India, such as routing investment into the country through tax havens. Transactions that fail the GAAR test will be subject to tax

     

    The conditions for applicability of GAAR, by their very nature, are subjective and are not capable of being defined precisely.

     

    Applicability of General Anti-Avoidance Rules. (Sec 95-102, Chapter –XA of IT Act, 1961 (’Act’))

     

    Notwithstanding anything contained in the Act, an arrangement entered into by an assessee may be declared to be an impermissible avoidance arrangement and the consequence in relation to tax arising therefrom may be determined subject to the provisions of this Chapter.

     

    Explanation—for the removal of doubts, it is hereby declared that the provisions of this Chapter may be applied to any step in, or a part of, the arrangement as they are applicable to the whole arrangement .

     

    An impermissible avoidance arrangement means an arrangement, the main purpose of which is to obtain a tax benefit, and it—

     

    • creates rights, or obligations, which are not ordinarily created between persons dealing at arm's length;

     

    • results, directly or indirectly, in the misuse, or abuse, of the provisions of this Act;

     

    • lacks commercial substance or is deemed to lack commercial substance under section 97, in whole or in part; or

     

    • is entered into, or carried out, by means, or in a manner, which are not ordinarily employed for bonafide purposes.

     

    An arrangement shall be presumed, unless it is proved to the contrary by the assessee, to have been entered into, or carried out, for the main purpose of obtaining a tax benefit, if the main purpose of a step in, or a part of, the arrangement is to obtain a tax benefit, notwithstanding the fact that the main purpose of the whole arrangement is not to obtain a tax benefit.

     

    The GAAR provisions under the ITA are effective from tax year 2017-18.On 27 May 2016, the Central Board of Direct taxes (CBDT), the apex administrative body for direct taxes in India, had sought inputs from stakeholders on the aspects of GAAR on which further clarity is desired, so that the Guidelines can be framed accordingly.

     

    Pursuant to the same, CBDT has issued 16 clarifications in Q&A format , vide Circular No 7 of 2017, dated 27 January 2017. Amongst others, the important clarifications are as follows:

     

    • GAAR and SAAR (Specific Anti Avoidance Rules) can co-exist and GAAR will also apply if the LOB (Limitations of Benefit clause) provisions do not adequately address anti-avoidance rules.

     

    • GAAR to not interplay with the right of the taxpayer on to select or choose method of implementing a transaction.

     

    • GAAR shall not be invoked merely because an entity is set up in a tax favourable jurisdiction if the main purpose was not to obtain tax benefit.

     

    • The convertible instruments such as compulsorily convertible debentures, convertible preference shares, Global Depository Receipts to be regarded as investment made for the purpose of grandfathering benefit if the terms are finalised at the time of issue of convertible instruments. Further bonus issues, share split/consolidations etc to be regarded as investment made for the purpose of grandfathering provisions. Lease contracts, loan arrangements are not regarded as investments and hence outside the purview of grandfathering benefit.

     

    • GAAR to not apply if the Courts have explicitly and adequately considered the tax implication while sanctioning an arrangement.

     

    • The time period for which a arrangement is in place may not be a sufficient factor for non-application of GAAR, though regarded to be a relevant factor.

     

    • Corresponding adjustment will not be permissible under GAAR as same could militate against deterrence.

     

    • The tax benefit computation of INR 30 M is in respect of a specific tax year and among all parties involved and not in relation to a single taxpayer.

     

    • GAAR to be invoked only in deserving cases and adequate safeguards in terms of two step procedure for invoking GAAR is already put in place:

     

    1. The Commissioner will have to satisfy himself about invoking GAAR; and

     

    1. The same will have to be approved via the approving panel headed by the High Court judge.

     

    The press release of CBDT also provides that the Government is committed to provide certainty and clarity in tax rules and further clarifications, if any, on doubts of stakeholders regarding GAAR implementation, will also be provided.

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    JAN 2017 INTERNS DIGEST

    Key Topics Covered:

    • DEBT - EQUITY ADVISORY
    • AUDIT
    • FEMA
    • INDIRECT TAX

    Updates

    • COMPANIES ACT, 2013
    • IDA UPDATES
    • DEBT - EQUITY ADVISORY

    This article is contributed by Partners of SBS and Company LLP - Chartered Accountant Company. You can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.

    January – 2017 (Volume 30)

    Key Topics Covered:

    • INTERNATIONAL TAXATION
    • FEMA
    • AUDIT
    • INCOME TAX
    • INDIRECT TAX

    Updates

    • COMPANIES ACT, 2013
    • IDT UPDATES
    • DEBT - EQUITY ADVISORY

    This article is contributed by Partners of SBS and Company LLP - Chartered Accountant Company. You can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.

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