F.No. 370142/27/2022-TPL

New Delhi, Dated 13th September, 2022

 

Finance Act 2022 inserted a new section 194R in the Income-tax Act, 1961 (hereinafter

referred to as "the Act") with effect from 1 st July 2022.

 

2. The new section mandates a person, who is responsible for providing any benefit or

perquisite to a resident, to deduct tax at source @ 1 0% of the value or aggregate of value of

such benefit or perquisite, before providing such benefit or perquisite. The benefit or

perquisite mayor may not be convertible into money but should arise either from carrying

out of business, or from exercising a profession, by such resident.

 

3. This deduction is not required to be made, if the value or aggregate of value of the benefit

or perquisite provided or likely to be provided to the resident during the financial year does

not exceed twenty thousand rupees.

 

4. The responsibility of tax deduction also does not apply to a person, being an

Individual/Hindu Undivided Family (HUF) deductor, whose total sales / gross

receipts / gross turnover from business does not exceed one crore rupees, or

from profession does not exceed fifty lakh rupees, during the financial year

immediately preceding the financial year In which such benefit or perquisite

is provided by him.

 

5. Sub-section (2) of section

guidelines,

for removal of

Government. These guidelines

Parliament and are binding

providing the benefit or perquisite.

194R of the Act authorises the Board to issue

difficulties, with the approval of the Central

are required to be laid before each House of

on the income-tax authorities and the person

6. Accordingly, in exercise of the power conferred by sub-section (2) of section

194R of the Act, CBDT had issued guidelines in the form of the Circular no 12

of 2022 dated

 

16th June 2022. Subsequently, some more clarifications are

requested by stakeholders on various issues. Accordingly, this Circular is also

issued under sub-section (2) of section 194R to provide clarification on Issues

which will help to remove difficulties in implementation of this provision.

1 7. It is clarified that this Circular is only for removing difficulties in

implementation of provisions of section 194R of the Act and it does

not impact the taxability of income in the hands of the recipient

which shall be governed by the relevant provisions of the Act.

Guidelines

 

Question 1: Refer question No 3 of the Circular No 12 of 2022: If loan settlement/waiver

by a bank is to be treated as b~nefit/perquisite, it would lead to hardship as the bank

would need to incur the additional cost of tax deduction in addition to the haircut that

he has taken. Will section 194R of the Act apply in such a situation?

 

Answer: It is true that waiver or settlement of loan by the bank may be an income to the

person who had taken the loan. It is also true that subjecting such a transaction to tax

deduction under section 194R of the Act would put extra cost on such bank, as this would

require payment of tax by the deductor in addition to him taking a haircut already. Hence, to

remove difficulty, it is clarified that one-time loan settlement with borrowers or waiver of

loan granted on reaching settlement with the borrowers by the following would not be

subjected to tax deduction at source under section 194R of the Act:

(i) Public Financial Institution as defined in clause (72) of section 2 of the Companies Act

2013;

(ii) Scheduled Bank as defined in clause (ii) of the Explanation to clause (viia) of sub

section (1) of section 36 of the Act;

(iii) Cooperative bank (other than a primary agricultural credit society) as defined III

the Explanation to sub-section (4) of section 80P ofthe Act;

(iv) Primary co-operative Agricultural and Rural Development Bank as defined III

the Explanation to sub-section (4) of section 80P of the Act;

(v) State Financial Corporation being a financial corporation established under section 3 or

section 3A or an institution notified under section 46 of the State Financial Corporation Act,

1951 ;

(vi) State Industrial Investment Corporation being a Government company within the

meaning of sub-section (45) of section 2 of the Companies Act 2013, engaged in the

business of providing long-term finance for industrial projects;

(vii) Deposit taking Non-Banking Financial Company as defined III clause (e) of

the Explanation 4 to section 43B of the Act;

(viii) Systemically Important Non-deposit Taking Non-Banking Financial Company as

defined in clause (g) of the Explanation 4 to section 43B of the Act;

(ix) Public company engaged in providing long term finance for construction or purchase of

houses in India for residential purpose and which is registered in accordance with the

guidelines/direction issued by the National Housing Bank formed under National Housing

Bank Act 1987;

 

2 (x) Asset Reconstruction Companies registered under section 3 of Securitization and

Reconstruction of Financial Assets and Enforcement of Security Interest (SRF AESI) Act

2002.

 

As stated earlier, this clarification is only for the purposes of section 194R of the Act. The

treatment of such settlement/waiver in the hands of the person who had got benefitted by

such waiver would not be impacted by this clarification. Taxability of such

settlement/waiver in the hands of the beneficiary will be governed by the relevant provisions

of the Act.

 

Question 2: Refer question No 7 of the Circular No 12 of 2022- If under the terms of

the agreement, the expense incurred by the service provider is the cost of service

recipient and such cost is reimbursed by the service recipient to service provider, how

is it benefit/perquisite if the bill is not in the name of service recipient?

Answer: In answer to question No 7 of the Circular No 12 of2022, it has been clarified that

any expenditure which is the liability of a person carrying out business or profession, if met

by the other person is in effect benefit/perquisite provided by the second person to the first

person in the course of business/profession.

 

Now, if service provider incurs some expense in the course of rendering service to service

recipient and the bill is in the name of service provider, then in substance (irrespective of the

terms of the agreement) this expense is the liability of the service provider and not of service

recipient. It is service provider who gets input credit of GST included in the expenses

incurred by him. If it was the liability of the service recipient, then GST input credit would

have been allowed to him (service recipient) and not to service provider. Hence, the answer

to question No 7 in the Circular No 12 of 2022. Gorrectly clarifies that in such a situation

reimbursement of such an expense is benefit/perquisite on which tax is required to be

deducted under section 194R of the Act.

 

Subsequently, it has been brought to the notice that in GST, if service provider incurs an

expense as "pure agent", then GST input credit is allowed to service recipient and not to

service provider. Broadly speaking a pure agent is one who while making a supply to the

recipient, also receives and incurs expenditure on some other supply on behalf of the

recipient and claims reimbursement (as actual, without adding it to the value of his own

supply) for such supplies from the recipient of the main supply. While the relationship

between them (provider of service and recipient of service) in respect of the main service is

on a principal to principal basis, the relationship between them in respect of other ancillary

services is that of a pure agent. Under the GST Valuation Rules 2017 "pure agent" is given

the following meaning.

 

"pure agent" means a person who

a) enters into a contractual agreement with the recipient of supply to act as his pure

agent to incur expenditure or costs in the course of supply of goods or services or both;

b) neither intends to hold nor holds any title to the goods or services or both, so procured

or provided as pure agent of the recipient of supply;

c) does not use for his own interest such goods or services so procured; and

d) receives only the actual amount incurred to procure such goods or services in addition

to the amount receivedfor supply he provides on his own account.

3 The GST valuation rules provide that expenditure incurred as a pure agent, will be excluded

from the value of supply, and thus also from aggregate turnover. However, such exclusion of

expenditure incurred as a pure agent is possible only and only if all the conditions required

to be considered as a pure agent and further conditions stipulated in the rules are satisfied by

the supplier in each case. The supplier would have to satisfy the following conditions (in

addition to the condition required to be satisfied to be considered as a pure agent and

discussed above) for exclusion from the value as under:-

i. the supplier acts as a pure agent of the recipient of the supply, when he makes payment

to the third party on authorization by such recipient;

ii. the payment made by the pure agent on behalf of the recipient of supply has been

separately indicated in the invoice issued by the pure agent to the recipient of service; and

iii. the supplies procured by the pure agent from the third party as a pure agent of the

recipient of supply are in addition to the services he supplies on his own account.

In case these conditions are not satisfied, such expenditure incurred is included in the value

of supply under GST. However, in the abovementioned case of "pure agent", if all the

conditions are satisfied, the GST input credit is allowed to the recipient and it is not

considered as supply of the pure agent, it is clarified that amount incurred by such "pure

agent" for which he is reimbursed by the recipient would not be treated as benefit/perquisite

for the purpose of section 194R of the Act.

Question 3: Refer question No 7 of the Circular No 12 of 2022- Question No 30 of

CBDT Circular No 715 dated 8th August 1995 clarifies that tax deduction under

section 194C and 194J is required to be made from the gross amount of bill including

the reimbursement. A person has provided service to a Company and out of pocket

expenses are charged by him to the Company along with service fee in the same bill.

Company deducts tax under section 194J of the Act on both service fee component as

well as on out of pocket expense in accordance with this circular. Is there a non

compliance with the provision of section 194R of the Act?

 

Answer: Relevant portion of CBOT Circular No 715 dated 8th August 1995 is as under

Question 30: Whether the deduction of tax at source under sections 194C and 194J has to

be made out of the gross amount of the bill including reimbursements or excluding

re imbursement for actual expenses?

 

Answer: Sections 194C and 194J refer to any sum paid. Obviously, reimbursements cannot

be deducted out of the bill amount for the purpose of tax deduction at source.

If out of pocket expenses (reimbursement) are already part of the consideration in the

bill on which tax is deducted under the relevant provisions of the Act, other than section

194R, in accordance with the Circular No 715 dated 8th August 1995, it is clarified that

there will not be further liability for tax deduction under section 194R of the Act.

In the above example, out of pocket expense is part of the consideration in the bill for

professional fee that is charged to the Company and the tax is deducted under section 194J

of the Act on the entire consideration including on out of pocket expense. In such a case, the

out of pocket expense is already included as part of professional fee. Hence, there IS no

further benefit/perquisite which requires tax deduction under section 194R of the Act.

 

4 Question 4: Refer question No 8 of the Circular No 12 of 2022- If there is a dealer

conference to educate the dealers about the products of the company - (i) is there a

requirement that all dealers must be invited in the conference, (ii) what if dealers

arrive one day before and leave one day after and (iii) how to identify benefit against

individual dealers in a group activity?

 

Answer: Representations have been received from various stakeholders seeking clarity on

these questions arising out of answer to question No 8. It is clarified that

(i) it is not necessary that all dealers are required to be invited in a dealer/business

conference for the expenses to be not considered as benefit/perquisite for the purposes of tax

deduction under section 194R of the Act.

 

(ii) Expenditure on participants of dealer/business conference for days which are on account

of over stay prior to the dates of conference or beyond the dates of such conference would

be considered as benefit/perquisite for the purposes of section 194R of the Act. However, a

day immediately prior to actual start date of conference and a day immediately following the

actual end date of conference would not be considered as over stay.

 

(iii) It is brought to the notice that there may be expenses during such dealer/business

conference which need to be classified as benefit/perquisite and tax is required to be

deducted under section 194R of the Act. However, there may be practical difficulties in

identifying such benefit/perquisite to actual recipient due to the fact that it is a group activity

and reasonable allocation is not possible. Noncompliance of the provision of section 194R of

the Act, in such a case, would not only result in disallowance under clause (ia) of section 40

of the Act but may also result in treating the benefit/perquisite provider as assessee in

default under section 201 of the Act with all other consequences.

 

In order to remove these practical difficulties, it is clarified that if benefit/perquisite is

provided in a group activity in a manner that it is difficult to match such benefit/perquisite to

each participant using a reasonable allocation key, the benefit/perquisite provider may at his

option not claim the expense, representing such benefit/perquisite, as deductible expenditure

for calculating his total income. If he decides to opt so, he will not be required to deduct tax

under section 194R on such benefit/perquisite and therefore he will not be treated as

assessee in default under section 20 I of the Act. Thus, in such a case he must add back the

expenditure, representing such benefit/perquisite, to calculate his total income if such

expenditure is debited in the account.

 

Answer to question No 8 in the Circular No 12 of2022 is modified to this extent.

Question 5: Refer question No 9 of the Circular No 12 of 2022- Company "A" gifts a

car to its dealer "B" and deducted tax on this benefit under section 194R of the Act.

Dealer "B" uses this car in his business. Will he get deduction for depreciation in

calculating his income under the head "profits and gains of business or profession"?

Answer: Once Company "A" has deducted tax on gifting of car in accordance with section

194 R of the Act (or released the car after dealer "8" showed him payment of tax on such

benefit) and dealer "8" has included this benefit as income in his income tax return, it would

be deemed that the "actual cost" of the car for the purposes of section 32 of the Act shall be

the amount of benefit included by dealer "8" as income in his income-tax return. Hence,

dealer "8" can get depreciation on fulfillment of other conditions for claiming depreciation.

 

5 Question 6: Whether Embassy/High Commissions are required to deduct tax under

section 194R of the Act?

 

Answer: For the removal of difficulty it is clarified that the provision of section 194R is not

applicable on benefit/perquisite provided by, an organization in scope of The United Nations

(Privileges and Immunity Act) 1947, an international organization whose income is exempt

under specific Act of Parliament (such as the Asian Development Bank Act 1966), an

embassy, a High Commission, legation, commission, consulate and the trade representation

of a foreign state.

 

Question 7: Whether issuance of bonus share/right share is a benefit or perquisite if

issued by a company in which the public are substantially interested as defined in

clause (18) of section 2 of the Act and whether tax is required to be deducted under

section 194R of the Act?

 

Answer: In case of bonus shares which are issued to all shareholders by a company in which

the public are substantially interested as defined in clause (18) of section 2 of the Act, it has

been represented that this does not result in any benefit to shareholders as the overall value

and ownership of their holding does not change. Further cost of acquisition of bonus share is

taken as nil for capital gains computation when this share is sold. Similar representations

have been received seeking clarity on issuance of right shares.

 

It is clarified that the tax under section 194R of the Act is not required to be deducted on

issuance of bonus or right shares by a company in which the public are substantially

interested as defined in clause (18) of section 2 of the Act, where bonus shares are issued to

all shareholders by such a company or right shares are offered to all shareholders by such a

company, as the case may be.

 

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