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Tds on salaries

aishwarya s raghavan (student) (224 Points)

30 June 2014

Dear All!

KIndly clarify if in the below mentioned case if TDS needs to be deducted on salary paid. X Co, incorporated outside India is having 5 employees in India who are doing HR activity for the company from India. X co, pays salary to them in INR. X co does not have a permanent establishment in India and the salary paid is accounted only in its books abroad. Is the company liable to deduct TDS on the payments made to employees in India?

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ADITYA (Chartered Accountant) (124 Points)
Replied 30 June 2014

2.2 Who is to deduct tax
The statute requires deduction of tax at source from the income
under the head salary. As such the existence of “employer-employee”
relationship is the “sine-qua-non” for taxing a particular receipt under
the head salaries. Such a relationship is said to exist when the employee
not only works under the direct control and supervision of his
employer but also is subject to the right of the employer to control the
manner in which he carries out the instructions. Thus the law
essentially requires the deduction of tax when;
(a) Payment is made by the employer to the employee.
(b) The payment is in the nature of salary and
(c) The income under the head salaries is above the maximum
amount not chargeable to tax.
For the various categories of employers, the persons
responsible for making payment under the head salaries and for
deduction of tax are as below:
In the case of,
1. Central/State Government/P.S.U - The designated
drawing &
disbursing officers.
2. Private & Public Companies - The company
itself as also the
principal officer
thereof.
3. Firm - The managing
partners/partner of
the firm.
4. HUF - Karta of the HUF
5. Proprietorship concern - The proprietor of
the said concern.
6. 1
Trusts - Managing trustees
thereof.
In case of a company, it is to be noted, that though the company
may designate an officer /employee to make payments on the behalf
2 3
1
As per sub section 4 of Sec 192, the trustees of a recognised provident fund
are required to deduct tax at source at the time of making payment of the
accumulated balance due to an employee. The TDS is to be made in a case
where sub-rule(1) of rule 9 of part - A of Fourth Schedule of the Act applies
and the deduction is to be made as per rule 10 of part A of Fourth Schedule.