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Scope & Coverage of TDS on Benefits or Perquisites u/s 194R

In the Finance Act 2022, a new TDS section 194R, has been inserted in the Income Tax Act, and which has been made applicable w.e.f. 1.7.2022.

This new TDS section 194R requires deduction of tax at source @ 10%, by any person, including a company, providing any benefit or perquisite, whether convertible into money or not, exceeding Rs. 20,000 in value in a year, to a resident, arising from the carrying out of any business or exercise of any profession by such resident recipient.

The provisions of this section shall not apply if the benefit or perquisite provider is an individual or a Hindu undivided family, whose total sales, gross receipts or turnover does not exceed one crore rupees in case of business or fifty lakh rupees in case of profession, during the financial year immediately preceding the financial year in which such benefit or perquisite, as the case may be, is provided by such person.

Clarificatory Circular by CBDT

The Apex body CBDT has come up with a Clarificatory Circular No. 12 of 2022 bearing folio no. 370142/27/2022-TPL, dated 16.6.2022, containing clarificatory guidelines in the form of ‘Ten Question-Answers’, on newly inserted provisions concerning applicability of TDS on Benefits or Perquisites, u/s 194R of the Income Tax Act. The CBDT Circular provides that:

1. TDS u/s 194R is to be deducted @ 10%, w.e.f. 1.7.2022, irrespective of whether the Benefit or Perquisite is Taxable or Not in the hands of the Recipient.

2. TDS u/s 194R is to be deducted on Purchase Value (Actual Cost Basis) of such Benefit or Perquisite, if such benefit or perquisite has been purchased before giving the same to recipient, and in other cases, on Fair Market Value of such Benefit or Perquisite.

3. GST is to be Excluded from the Purchase Value or Fair Market Value of such Benefit or Perquisite, for the Purpose of TDS Deduction.

4. TDS u/s 194R is to be deducted if the Aggregate Value of the Benefit or Perquisite is in excess of Rs. 20,000/-, in a Year, per Recipient.

5. For FY 2022-23, the Value of Benefit or Perquisite given in the Period from 1.4.2022 to 30.6.2022, will be counted and considered for determining the threshold limit of Rs. 20,000 in a year, but TDS u/s 194R will not be deducted on such Benefits or Perquisites. TDS u/s 194R will be deducted only on those Benefits or Perquisites which are provided or given on or after 1.7.2022.

Perquisites under Salary Head are not Covered under section 194R

The benefits or perquisites to be covered by this new section 194R are those perks, benefits, amenities, or facilities, in cash or kind, or in a combination of cash and kind, which a resident person enjoys, pursuant to, or in exercise of his business or profession, in lieu of the regular consideration payable to him, in monetary terms, in exercise of such business or profession.

The benefit or perquisite referred to in this new section 194R is not the perquisite u/s 17(2), under the head salary income, paid or payable by the employer to employees, as for that perquisite u/s 17(2), another TDS section 192 is already there.

Therefore, any benefits or perks (perquisites) given by the Company to its Directors and Employees, like ESOPs, Cars, Rent Free Accommodations, Free Tours, LTCs, Mobiles, Performance Linked Incentives etc. are not covered u/s 194R, as these are already subject to TDS u/s 192 under the Salary Head, of the Income Tax Act.

Identification of Financial Transactions in Business Attracting TDS u/s 194R

We have identified some significant financial transactions in a Business, which may attract this new TDS provision u/s 194R, and have tabulated the same hereunder:

TDS Implications on Transactions with Dealers/Distributors/Channel Partners/Agents

TDS Implications on Transactions with Auditors/Consultants

TDS Implications on Transactions with Brand Ambassadors/Social Media Influencers/Artists

TDS Implication on Deeming Basis on Incentives given by
Third Parties to Company’s Director/Employee/Consultant

Some Controversial Interpretations in CBDT Circular

In exercise of the power conferred by section 194R(2) of the Income Tax Act, the CBDT, has issued the following guidelines, in its Circular No. 12/2022 dated 16.6.2022:

1. Section 194R requires deduction of TDS on any Benefit or Perquisite, irrespective of whether such amount is taxable in the hands of recipient or not and also irrespective of the falling of such income, in any particular section of the Income Tax Act or not.  

It is imperative to note here that the Memorandum explaining the provisions of the Finance Bill 2022 specially and categorically required the deduction of tax at source u/s 194R of the Income Tax Act, only in respect of those Benefits or Perquisites which are in the nature of business income falling under section 28(iv) of the Income Tax Act.

However, the captioned CBDT Circular No. 12/2022 dated 16.6.2022, containing the clarificatory guidelines on TDS provisions in section 194R, takes a complete U turn and departure from the above reproduced Legislative Intent of the Parliament in bringing about this new TDS section 194R and in the very First Question contained in it, clarifies that the requirement of deduction of TDS u/s 194R on any benefit or perquisite arising out of any business or profession of a resident Indian will arise, irrespective of whether such benefit or perquisite is in the nature of any business income under section 28(iv) of the Income Tax Act, or not.

In fact, in the said Question No. 1, the CBDT Circular goes to the extent of clarifying that Section 194R of the Act casts an obligation on the person responsible for providing any benefit or perquisite to a resident, to deduct tax at source @10% and as such there is no further requirement to check whether the amount is taxable in the hands of the recipient or under which section it is taxable.

In arriving at this conclusion, the CBDT Circular relies upon the Hon’ble Supreme Court Judgement in the case of PILCOM vs. CIT West Bengal (Civil Appeal No. 5749 of 2012), requiring the deduction of TDS u/s 194E of the Act, in respect of Non-Resident Sportsmen or Sports Association, irrespective of whether such sum is taxable in the hands of the recipient or not. The CBDT Circular also tries to bring out a distinction between the language used in section 195 and section 194R of the Act, to infer that as the expression ‘rates in force’ as used in section 195 has not been used in section 194R of the Act, therefore, there is no requirement to check the aspect of taxability of such income in the hands of the recipient.

However, it is pertinent to mention here that both sections 195 and section 194E of the Act are applicable in respect of Non-Resident Recipients, whereas section 194R of the Act is applicable on a Resident Recipient of any Benefit or Perquisite, and as such this analogy as brought about by the CBDT Circular seems to be vague and ambiguous, and as such requires reconsideration.

2. Section 194R requires Deduction of TDS on any Benefit or Perquisite, either in Kind, or Cash or a Combination of Both.

In its second question, the CBDT Circular clarifies that tax under section 194R of the Act is required to be deducted irrespective of whether the benefit or perquisite is in cash or in kind, by virtue of the language used in first proviso to section 194R.

It is imperative to mention here that as discussed supra, the Explanatory Memorandum to the Finance Bill 2022, envisaged the applicability of TDS deduction u/s 194R of the Act, only in respect of business income falling under section 28(iv) of the Income Tax Act, and the Hon’ble Supreme Court in the Mahindra & Mahindra Case 93 taxmann.com 32 (SC) has categorically held that only business income represented in Kind, are taxable u/s 28(iv) of the Act. Thus, as a natural corollary, it was inferred that requirement of deduction of TDS u/s 194R of the Act, will arise only in respect of those benefits or perquisites, which are in kind.

However, as the CBDT Circular in its question no 1 has clarified that applicability of section 194R of the Act, will arise even in those cases which are not covered by section 28(iv) of the Act, and as such, in a way has negated the reliance on the hon’ble Supreme Court judgement in the case of Mahindra & Mahindra, as discussed supra.

3. Section 194R requires Deduction of TDS on any Benefit or Perquisite, even a Capital Asset

In Question No. 3, the CBDT Circular has clarified that it can be seen that the asset given as benefit or perquisite may be capital asset in general sense of the term like car, land etc but in the hands of the recipient it is benefit or perquisite and has accordingly been held to be taxable. In any case, as stated earlier, the deductor is not required to check if the benefit or perquisite is taxable in the hands of recipient. Thus, the deductor is required to deduct tax under section 194R of the Act in all cases where benefit or perquisite (of whatever nature) is provided

As discussed in point no 1 and 2 above, the CBDT Circular, on one hand, has categorically clarified that TDS u/s 194R will be required to be deducted on any benefit or perquisite, irrespective of whether such benefit is taxable as business receipts u/s 28(iv) of the Act or not.

However, interestingly, on the other hand, in its Question No. 3, CBDT has relied upon several judgements of the Hon’ble High Courts, wherein it has been held that business income falling u/s 28(iv) of the Act is taxable, even if the same is a Capital Asset like the judgements of Ramesh Babulal Shah v CIT (2015) 53 taxmann.com 277 (Born), CIT v Rainaniyam Homes (P) Ltd (2016) 68 taxmann.com 289 (Mad), CIT v Subrata Roy (2016) 385ITR 547 (All), in clarifying that TDS is required to be deducted on any benefit or perquisite, even if it is a Capital Asset.

Therefore, the CBDT Circular very conveniently adopts the Cherry-picking approach of relying upon some selective judgements rendered in the context of very same section 28(iv) of the Act, the applicability of which section has been tried to be made redundant in Question No. 1 of the very same CBDT Circular. 

4. TDS u/s 194R is to be Deducted in some cases, even if the Recipient in his individual capacity, is not carrying on any business or profession

In Question No. 4 of the said CBDT Circular, it has been further clarified that these benefits/perquisites may be used by owner/director/employee of the recipient entity or their relatives who in their individual capacity may not be carrying on business or exercising a profession. However, the tax is required to be deducted by the person in the name of recipient entity since the usage by owner/director/employee/relative is by virtue of their relation with the recipient entity and in substance the benefit/perquisite has been provided by the person to the recipient entity.

To illustrate, the free medicine sample may be provided by a company to a doctor who is an employee of a hospital. The TDS under section 194R of the Act is required to be deducted by the company in the hands of hospital as the benefit/perquisite is provided to the doctor on account of him being the employee of the hospital. Thus, in substance, the benefit/perquisite is provided to the hospital. The hospital may subsequently treat this benefit/perquisite as the perquisite given to its employees (if the person who used it is his employee) under section 17 of the Act and deduct tax under section 192 of the Act. In such a case it would be first taxable in the hands of the hospital and then allowed as deduction as salary expenditure. Thus, ultimately the amount would get taxed in the hands of the employee and not in the hands of the hospital. Hospital can get credit of tax deducted under section 194R of the Act by furnishing its tax return. It is further clarified that the threshold of twenty thousand rupees in the second proviso to sub-section (1) of section 194R of the Act is also required to be seen with respect to the recipient entity.

Thus, a deeming fiction of obtainment of any benefit or perquisite not arising out of carrying out of any business or profession in the individual capacity of the recipient, but by virtue of his employment, has been provided by the CBDT Circular, for the applicability of the TDS provisions as contained in section 194R of the Act.

5. Applicability of TDS u/s 194R on Reimbursement of Out of Pocket Expenses

In Question No. 7, the CBDT Circular has clarified that TDS u/s 194R would be required to be deducted even on Out-of-Pocket Expenses, being incurred by the Service Provider, and being reimbursed to him by the Service Recipient, if the Bill/Invoice of such Out of Pocket Expenses, is not in the name of Service Recipient.

However, if the Invoice/Bill of such Out of Pocket Expenses is in the name of Service Recipient, then TDS provisions u/s 194R would not be applicable.

This treatment of applicability of deduction of TDS u/s 194R, even on Out of Pocket Expenses, being incurred by the Service Provider and being reimbursed by the Service Recipient, on Cost to Cost basis, if the Bill of such Out of Pocket Expenses is not in the name of Service Recipient, is clearly contradictory to the legislative intent of bringing in this TDS section 194R by the Legislature, as in such cost to cost basis reimbursement of out of pocket expenses, no benefit or perquisite is arising in the first place to attract TDS levy u/s 194R. 

Concluding Remarks

Off late, the CBDT Instructions and Circulars, some-how, try to encompass each and everything within the realms of tax net, and cover even those transactions or items, and in this case, the Benefits or Perquisites which are in fact not even intended by the Legislature, at the time of introducing the Legislative Provisions in the Income Tax Act.

The captioned CBDT Circular is trying to convert a machinery TDS provision of section 194R into a self-contained charging section in itself, in complete disregard of the Legislative Intent of the Parliament in bringing in the said TDS section, as reflected in the Explanatory Memorandum to the Finance Bill 2022.

Another silent hardship which has come embedded with TDS on Benefits & Perks u/s 194R is simultaneous applicability of Section 206AB. So now the Payer of benefit is also required to check whether the benefit or perquisite receiver has filed his/her ITR in immediately preceding year or not, if the aggregate TDS deduction amount in respect of such recipient exceeds Rs. 50,000 in a year. If such recipient has not filed the ITR, then TDS is to be deducted at twice the applicable rate @ 20%, otherwise benefit provider will be considered as an assessee in default.

In bringing such Circulars, it should be remembered that our Hon’ble Prime Minister Sh. Narendra Modi ji has referred the Taxpayers as “Wealth Creators in Nation Building”, and as such the ever growing tendency of killing the golden goose for short term gain of revenue maximisation, should be avoided, in order to bring in “Ease of Doing Business” at the ground level.