Is Income Tax circular regarding use of functionality u/s 206AB and 206CCA consistent with legal provisions?

CA Tejas Andharia | Last updated: 24 June 2021

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This article scrutinises whether the recent Income Tax circular concerning the application of Sections 206AB and 206CCA is consistent with the existing legal framework. It highlights potential discrepancies in how 'specified persons' are identified and treated, particularly concerning the timing of return filings and the calculation of TDS/TCS amounts. The piece suggests that the circular's interpretation might deviate from the Act's provisions, warranting further review and possible amendments.

Section 206AB(3) and Section 206CCA(3) defines the term 'specified person' as - 'For the purposes of this section "specified person" means a person who has not filed the returns of income for both of the two assessment years relevant to the two previous years immediately prior to the previous year in which tax is required to be deducted/collected, for which the time limit of filing return of income under sub-section (1) of section 139 has expired; and the aggregate of tax deducted at source and tax collected at source in his case is rupees fifty thousand or more in each of these two previous years'

Section 206AB(1) [and Section 206CCA(1)] contains the word 'Where', so it is quite obvious that one has to decide as to someone (probable deductee or collectee) is specified person or not as on the relevant date of deduction or collection at source.

Now, one may refer to the Circular No. 11 of Year 2021 issued by CBDT. Link is Click Here

Now, we will discuss some of the bullet points given under the point no. 3 titled as 'logic of the functionality' of above mentioned circular.

1. In 2^nd bullet point, it is said that 'During the financial year 2021-22, no new names are added in the list of specified persons. This is a taxpayer friendly measure to reduce the burden on tax deductor and collector of checking PANs of non-specified person more than once during the financial year.'

Income Tax Circular 206AB/206CCA: Legal Consistency Check

Consider the following example

Financial Year	139(1) Limit Expired	Return filed?
FY 2021-22
FY 2020-21	No	No
FY 2019-20	Yes	No
FY 2018-19	Yes	Yes

In situation given above, person will not be considered as 'Specified Person' as on 01/04/2021, if he has filed return for FY 2018-19 by that date. But immediately on 01/10/2021 (when due date 30/09/2021 will expire to file return for FY 2020-21), he must have to be declared as 'Specified Person'.

How such a relaxation can be given by CBDT which is not looking consistent with the legal provisions contained in sub-section (1) and (3) of sections 206AB and Section 206CCA?

2. In 3^rd bullet point, it is said that 'If any specified person files a valid return of income (filed & verified) for assessment year 2019-20 or 2020-21 during the financial year 2021-22, his name would be removed from the list of specified persons. This would be done on the date of filing of the valid return of income during the financial year 2021-22.

Now, suppose a case where return of income is filed for FY 2018-19 (AY 2019-20) during FY 2021-22 on 01/10/2021 [suppose in response to notice issued under 142(1)]. But the same person has not filed a return of income for both FY 2019-20 and FY 2020-21, so as on 01/10/2021, he must be continued to be classified as a 'Specified Person'.

3. In bullet points 4 and 5, which due date they are discussing? As the due date for the purpose of section 139(1) is different for different persons as to whether he is liable to tax audit or audit under any other law or Transfer Pricing audit or not liable to any audit?

4. Further, to calculate the aggregate amount of TDS/TCS (Rs. 50,000 or more), obviously their system would fetch the data from Form No. 26AS. Now what to do if someone erroneously enters our PAN in his TDS / TCS return and we get an erroneous credit in our Form No. 26AS?

Thus, it is quite clear from the above-mentioned points that matters of the above-mentioned circular must be again considered for proper modification and if needed, an amendment should also be brought into relevant sections of the Income Tax Act, 1961 also.

FAQ :

A 'specified person' is someone who has not filed income tax returns for the two assessment years preceding the current financial year, and whose aggregate tax deducted or collected at source in each of those two years was ₹50,000 or more.

A person should be identified as 'specified' on the relevant date of tax deduction or collection at source, based on whether they meet the criteria at that specific time.

Yes, the circular mentions that no new names were added to the list of specified persons during the financial year 2021-22 as a taxpayer-friendly measure.

If a specified person files a valid return for assessment year 2019-20 or 2020-21 during FY 2021-22, their status as a 'specified person' would be removed on the date of filing that valid return.

A potential issue arises if incorrect PAN details are entered into TDS/TCS returns, leading to erroneous credit in Form 26AS, which could affect the calculation of the aggregate TDS/TCS amount.