Q7: Which years are relevant for FY 2021-22 based on the definition of “Specified person”?

Reading of the definition of “Specified person” in Section 206AB gives an impression that the relevant Previous Years (‘PYs’) to be considered for this purpose are those years which are immediately preceding the subject Previous Year (‘PY’)for which the due date of filing income-tax return under Section 139(1) has expired.

Based on the above, as of 1 July 2021, the time limit for filing Income-tax returns under section 139(1) is expired for FY 2018-19 and FY 2019-20 in case of all the types of taxpayers and as such the due date for FY 2020-21 is not expired. Therefore, these two PYs i.e. FY 2018-19 and FY 2019-20 are relevant PYs for checking the applicability of Section 206AB as of 1 July 2021.

However, once the time limit for filing the Income-tax return expires for Financial Year (FY) 2020-21, the relevant PYs would be FY 2019-20 and FY 2020-21.

Q8: What are the possible ways the Tax deductors can ensure compliance with this Section from 1 July 2021?

Given that the Section is applicable from 1 July 2021, before the said date, it is pertinent that the Tax deductors make sufficient arrangements to ensure the compliance of this Section. Tax deductors can reach out to their respective Deductees in this regard to obtain an appropriate declaration on compliance of filing of the Income-tax returns for applicable PYs. Such a declaration can be obtained manually from the Deductees or through online forms or by way of the survey through survey Apps etc. It also needs to be noted that the confidentiality of the data obtained from the Tax deductees is appropriately maintained in whichever mode the data is obtained. Further, given the sensitivity of the information involved, the Tax deductees may not be willing to share the tax return acknowledgements etc. for this purpose.

Furthermore, the Tax deductors can obtain sufficient indemnities while taking the declaration from the Tax deductees in order to cover the risks of non-compliance involved in this regard.

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Q9: Should a separate declaration be taken once the Section 139(1) date for FY 2020-21 gets over?

Right now, there is no mechanism or platform available for the Tax deductors to check the compliance of Income-tax return filing by the Deductees. Given this, it would be useful if the Tax Department comes up with an online platform that can provide the requisite data for determining the applicability of Section 206AB in the case of the vendors. However, in the absence of any such platforms, it may be required to take a top-up declaration/confirmation from the vendors in relation to the status of filing of the tax return for FY 2020-21.

Q10: What happens if the Tax deductee has filed the tax return for one of the years in the applicable two PYs?

Such a Deductee would not be treated as “Specified person” since the definition of “Specified person” is triggered only when the Deductee has not filed the tax return for both the two assessment years. Given this, technically Section 206AB provisions should not be applicable here the tax return is not filed for one of the years.

Q11: What happens if the Tax deductee has filed the tax returns after the due date of filing return under section 139(1) of the Act?

A Tax deductee will be treated as a “Specified person” where he has not filed the tax returns for both the applicable PYs. As such, the Section does not require that the Tax deductee should have filed the tax return within the due date mentioned in Section 139(1),for not being treated as a “Specified person” under the Section.

Given this, it appears that even if the Deductee has filed the tax return after the due date of filing the return under Section 139(1), the Deductor should not be required to apply the provisions of Section 206AB of the Act in such cases since the requirement of filing of the tax return has been met by the Tax deductee.

Q12: What happens if the Tax deductee is not liable to file the tax return under the provisions of the Act and therefore he has not filed the returns for applicable PYs?

It may be noted that Section 206AB does not provide an exemption in such cases. However, the Tax deductors can keep in mind the threshold of INR 50,000 of TDS while determining the applicability of Section 206AB in case of such Deductees.

Q13: Would the compliance be necessary if the tax deduction done by the Deductor is less than INR 50,000 in case of any particular Deductee for both the applicable PYs?

A Tax deductee would be treated as a “Specified person” if the aggregate of TDS and tax collected at source (‘TCS’) in his case is INR 50,000 or more in each of the two PYs. Therefore, the aggregate of TDS / TCS should be calculated from the perspective of the all the TDS / TCS available to the Tax deductee concerned (as may be reflected in his Form 26AS) and not from the perspective of the quantum of TDS / TCS made by the subject Tax deductor.

Representation for extending dates for furnishing belated/Revised Returns 

Q14: What happens if the TDS is less than INR 50,000 in one of the two applicable PYs and the Tax deductee has not filed the tax returns for both the applicable PYs?

In such a scenario, the Tax deductee should not be treated as a “Specified person” since the Section requires the aggregate of TDS and TCS to be INR 50,000 or more in each of the applicable PYs.

Q15: Is there any relaxation for non-residents who are subject to TDS under section 195 of the Act?

Yes, a non-resident who does not have a “permanent establishment” (PE) in India is outside the purview of applicability of Section 206AB.

Further, it may be noted that Section 206AB has provided an inclusive definition of PE for this purpose, wherein it suggests that a PE includes a fixed place of business through which the business of the enterprise is wholly or partly carried on. Given that the Section provides a definition for PE, the relevance and applicability of this definition vis-à-vis relevance and applicability of the definitions typically provided for PE in the Double Taxation Avoidance Agreements may become a matter of debate in future. It may be also relevant to include a reference of the PE definition / PE contemplated under Section 206AB of Act in the PE related declarations that are typically obtained from the non-resident vendors for the purposes of withholding under Section 195 of the Act.

Q16: What could be the potential implications in case of non-compliance with Section 206AB?

The following implications could possibly arise where a Tax deductor does not comply with the provisions of Section 206AB of the Act –

•  Classification as “assessee in default” in terms of Section 201 of the Act
• Interest in terms of Section 201(1A) of the Act
• Penalty in terms of Section 221 of the Act
• Penalty in terms of Section 271C of the Act
• Where there is said to be a short-deduction of tax due to trigger of Section 206AB, potentially disallowance of expense in terms of Section 40 of the Act
• Disclosure in Clause 34 of Form 3CD