What if the employer defaults in deduction of TDS?

As under section 192 of INCOME TAX ACT, 1961 the employer is liable to deduct tax at source at salary income if the total income exceeds the minimum amount liable to tax. But are you also aware to the consequences where the employer/ deductor default in deducting the TDS.

Deemed Assessee in Default

Any person counting the principle officer of a company-

• Who is required to deduct any sum in accordance with the provisions of the act, or
• An employer paying tax on non monetary perquisites under section 192(1A)

Shall be deemed to be an Assessee in Default if he does not deduct the whole or any part of tax or after deducting fails to pay the tax.

Non applicability of deeming provision

Any person who fails to deduct the whole or any part of the tax on the amount credited or payment made to a resident payee shall not be deemed to be an Assessee in Default of such tax respectively,  if such resident payee-

• Has presented the return of income under section 139;
• Has taken into account such sum for calculating income in such return of income; and
• Has paid the due tax on the income declared by him in such return of income,

And the payer facilitates the certificate to this effect from an accountant in such form as may be prescribed.

Interest liability

Under section 201(1),a person deemed to be an Assessee in Default for failure to deduct tax or to pay the tax after deduction, is liable to pay simple interest @1% for every month or part of month on such amount of tax from the date on which tax was deductible to the date on which such tax was actually deducted and simple interest @1.5% for every month or part of month from the date on which tax was deducted to the dates on which such tax is actually paid.

The time limit for deeming a person to be an Assessee in Default for failure to deduct tax at source

No order under section 201(1), deeming a person to be an Assessee in Default for failure to deduct the whole or any part of the tax from a resident person in India, shall be passed at any time thereafter the expiry of seven years from the end of the financial year in which the payment is made or credit is given.

Non specification of time limit where the tax has been deducted but not paid

Section 201(1) deems a person to be an Assessee in Default if he-

1. Does not deduct tax ; or
2. Does not pay; or
3. After so deducting fails to pay

The whole or any part of such tax, as required by or under this act

Thus section 201(1) contemplates three types of defaults. The default contemplated in 2 is covered by the default contemplated in 3. However, the time limit has been specified only for passing of orders relating to default contemplated in 1 above. There is no time limit specified in respect of the other defaults.

Therefore, no time limits have been authorised for the order under section 201(1) where-

• The deductor has deducted but not deposited the tax deducted at source, now this would be a matter of defalcation of government dues,
• The employer has failed to pay the tax wholly or partly , under the sub section 1A of section 192, as the employee would not have paid tax on such perquisites,
• The deductee is a non resident as it may not be administratively possible to recover the tax from the non resident.