Q. My employer has not remitted the TDS even though the amount was deducted from the professional fees paid to me. Please suggest what I should do? Answer: Our Expert Chartered Accountant is of this opinion for your question:
You can file the IT Returns showing the TDS and claiming that your tax liability has been discharged to the extent of TDS by employer.
In the absence of Form 16 issued by the employer, you should be able to establish the authenticity of the TDS claim by showing the payslips issued by the employer, Bank statement for the account where your salary has been credited etc.
Income Tax Department may (In most cases, will) call for clarification from the employee.*
* Our opinion is based on the decisions of the Mumbai High Court (Yashpal Sahni Vs ACIT, Mumbai) and Hyderabad High Court. The summary of the decisions is given below:
Where a company deducts Tax at Source (TDS) from the salary payable to an employee, but fails to deposit the said amount into the Government treasury, the Revenue cannot recover the TDS amount with interest from the concerned employee.
Therefore, the Revenue has to recover the said TDS amount with interest and penalty from the employer alone and the Revenue cannot seek to recover the said amount from the employee in view of the specific bar contained under section 205 of the Act.
In other words, even if the credit of the TDS amount is not available to the employee for want of TDS certificate, the fact that the tax has been deducted at source from salary income of the employee would be sufficient to hold that as per section 205 of the Act, the Revenue cannot recover the TDS amount with interest from the employee once again.
For InvestmentYogi by Rekha N S.
The writer is Principal, Agarwal & Italia, Chartered Accountants. She may be contacted at firstname.lastname@example.org