ITDS Provision On Cash Withdrawals From Bank – An Invalid Piece Of Legislation

CA Sanjay Mody has raised the interesting question whether section 194N of the Income-tax Act 1961, which provides for deduction of tax at source in respect of cash withdrawal from banks etc, is Constitutionally valid. He has put forward the convincing argument that as a transaction of withdrawal of money by a person from his own bank account cannot give rise to income chargeable to tax, the question of subjecting such a transaction to TDS cannot arise. He has made good his contention by relying on several judgements

In this write-up, an attempt has been made to find out whether the provisions contained in section 194N of the Income-tax Act, 1961 (the Act) providing for deduction of tax at source in respect of cash withdrawal from banks etc. is permissible under the Constitution and valid within the scheme of the Act or not.

Section 194N was introduced in the statute by Finance No. 2 Act, 2019 with effect from 01.09.2019 to discourage cash transactions and move towards less cash economy. It is noted that for somewhat similar objective, Banking Cash Transaction Tax (BCTT) was introduced by the Finance Act, 2005 whereby a type of direct tax was levied on withdrawal of cash of more than a specified limit from bank in a day. The said BCTT was withdrawn by the Finance Act, 2008. By the Finance No. 2 Act, 2019, the very same transaction which was earlier subjected to BCTT, has been made subject matter of ITDS. 

The said section 194N of the Act is substituted within one year of its insertion by the recent Finance Act, 2020. In the original Finance Bill, 2020 as was introduced in the Parliament there was no proposal to substitute section 194N of the Act and the same was incorporated during the course of enactment of Finance Act only. The substituted section is to come into force w.e.f. 01.07.2020. The new substituted section 194N of the Act reads as under:-

‘‘194N. Every person, being,—

(i) a banking company to which the Banking Regulation Act, 1949 applies (including any bank or banking institution referred to in section 51 of that Act);

(ii) a co-operative society engaged in carrying on the business of banking; or

(iii) a post office,

who is responsible for paying any sum, being the amount or the aggregate of amounts, as the case may be, in cash exceeding one crore rupees during the previous year, to any person (herein referred to as the recipient) from one or more accounts maintained by the recipient with it shall, at the time of payment of such sum, deduct an amount equal to two per cent of such sum, as income-tax:

Provided that in case of a recipient who has not filed the returns of income for all of the three assessment years relevant to the three previous years, for which the time limit of file return of income under sub-section (1) of section 139 has expired, immediately preceding the previous year in which the payment of the sum is made to him, the provision of this section shall apply with the modification that—

(i) the sum shall be the amount or the aggregate of amounts, as the case may be, in cash exceeding twenty lakh rupees during the previous year; and

(ii) the deduction shall be—

(a) an amount equal to two per cent of the sum where the amount or aggregate of amounts, as the case may be, being paid in cash exceeds twenty lakh rupees during the previous year but does not exceed one crore rupees; or

(b) an amount equal to five per cent of the sum where the amount or aggregate of amounts, as the case may be, being paid in cash exceeds one crore rupees during the previous year:

Provided further that the Central Government may specify in consultation with the Reserve Bank of India, by notification in the Official Gazette, the recipient in whose case the first proviso shall not apply or apply at reduced rate, if such recipient satisfies the conditions specified in such notification:

Provided also that nothing contained in this section shall apply to any payment made to—

(i) the Government; (ii) any banking company or co-operative society engaged in carrying on the business of banking or a post office; (iii) any business correspondent of a banking company or co-operative society engaged in carrying on the business of banking, in accordance with the guidelines issued in this regard by the Reserve Bank of India under the Reserve Bank of India Act, 1934; (iv) any white label automated teller machine operator of a banking company or co-operative society engaged in carrying on the business of banking,  in accordance with the authorisation issued by the Reserve Bank of India under the Payment and Setllement Systems Act, 2007:

Provided also that the Central Government may specify in consultation with the Reserve Bank of India, by notification in the Official Gazette, the recipient in whose case the provision of this section shall not apply or apply at reduced rate, if such recipient satisfies the conditions specified in such notification.”

For the purpose of present discussion, it is suffice to observe that section 194N of the Act obliges banking companies, co-operative banks or post offices(hereinafter ‘bank’ for short) to deduct certain amount as income-tax out of the amount of withdrawal made by a person in cash when such amount of withdrawal exceeds certain specified amount during a year except in cases of certain specified or notified persons. In other words, the transaction of cash withdrawal from bank has been made a subject matter of deduction of income-tax. 

It is matter of common knowledge that the transaction of withdrawal of money by a person from his account maintained with bank is only a capital receipt of own money. The recipient receives own money or property in cash out of his own property or money which was lying in his account with bank. There is no provision in the Act to deem such capital receipt as income. The said transaction, in the hands of recipient, does not and cannot give rise to any income or deemed income which forms part of total income within the meaning of the Act. Absolutely no element of income as understood under the Act is comprised in a transaction of cash withdrawal from bank by an assessee. In other words, the said transaction does not involve any income on which income-tax is payable.

Hence, a transaction which cannot give rise to any income chargeable to tax under the Act, whether such a transaction can be subjected to the provisions of ITDS (income-tax deduction at source)

To start with, let us give a look at all other transactions which are subjected to ITDS under the Act. All the transactions which are subjected to ITDS are contained in Part – ‘B’ of chapter XVII of the Act. Apart from section 194N, there are 33other sections covering different types of transactions which are subjected to ITDS. They are : – i) Section 192 covers income chargeable under the head salaries; ii) section 193 covers Income by way of Interest on Securities; iii) section 194 covers Dividend within the meaning of section 2(22) of the Act, iv) section 194A encompasses income by way of interest other than interest on securities, v) section 194B –Income by way of Winning from lottery or cross puzzle etc.; vi) section 194BB –Income by way of Winning from horse race ; vi) 194C – Payment to contractor & sub-contractor on income comprised therein; vii) 194D  – income by way of Insurance Commission etc.; viii) 194DA – Income comprised in payment under Life Insurance Policy; ix) 194E –Income referred to in section 115BBA payable to non-resident sportsmen or sports association; x) 194EE – Payment of NSS deposit which is deemed as income in the hands of the recipient under section 80CCA(2); xi) 194F – Repurchase of units of Mutual Fund or UTI deemed as income under section 80CCB(2); xii) 194G –Income by way of Commission etc. on sale of lottery tickets; xiii) 194H –Income by way of Commission or brokerage; xiv) 194I – Income by way of Rent; xv) 194IA –Payment on transfer of immovable property other than agricultural land.; xvi) 194IB – Payment of Income by way of Rent by certain Individual or HUF; xvii) 194IC – Payment otherwise than in kind in respect of consideration assessable under section 45(5A); xviii) 194J – Fee for professional or technical services etc. on income comprised therein; xix) 194K – Income in respect of units; xx) 194LA – Payment of compensation on compulsory acquisition of certain immovable except agricultural land; xxi) 194LB – Income by way of interest from infrastructure debt fund; xxii) 194LBA –Income from units of a business trust xxiii) 194LBB – Income in respect of units of investment fund; xxiv) 194LBC – Income in respect of investment in securitization trust; xxv) 194LC –  Income by way of interest to non-resident ; xxvi) 194LD –Income by way of interest on certain bonds and government securities; xxvii) 194M – Payment by certain Individual or HUF in respect of contract work, commission or brokerage, or fee for professional services; xxviii) 194O – payment by e-commerce operator for sale or services by e-commerce participant; xxix) 195 – Payments to Non Residents of any sum which is chargeable to tax under the provisions of the Act; xxx) 196A – Payment to non-resident Income in respect of units; xxxi) 196B – Income in respect of units under section 115AB or by way of long term capital gains in respect of such units payable to Offshore Fund; xxxii) 196C – Income from foreign currency bonds or share of India Co. referred in sec. 115AC; and xxxiii) 196D – Income of Foreign Institutional Investors from securities referred in sec. 115AD of the Act.

A perusal of all the above 33 provisions shows that the transactions covered therein include income either, wholly or partly. Transactions like payment of salary, interest and dividend etc. are in the nature of payment of income. Transaction like payment to contractors or payment of professional fee etc. though the gross amount paid is not income but element of income is included therein. In other words, all of the transactions covered in remaining 33 provisions of ITDS are capable of yielding income in the hands of the recipient which forms part of total income chargeable to tax under the provisions of the Act. Income chargeable to tax is at least expected to be embedded in those transactions.

In contradistinction to the above, no element of income chargeable to tax is embedded in transaction covered by section 194N of the Act. As discussed earlier, transaction of mere withdrawal of money in cash from bank cannot yield any income in the hands of recipient which is chargeable to tax under the provisions of the Act.  The conspicuous absence of ‘income’ in the transaction covered by section 194N of the Act which differentiates it from all other transactions covered under 33 ITDS provisions raises a suspicion about the validity of the provisions of section 194N of the Act. Be it stated that the word ‘income’, in this write up means income which forms part of total income and on which income-tax is chargeable under section 4 of the Act.

Article 265 of the Constitution of India provides “No tax shall be levied or collected except by authority of law”. In the Income tax Act, 1961, basic charging section is section 4 of the Act which provides for levy of income-tax in respect of total income of the previous year of a person and the same also authorizes collection of said income-tax by way of Advance Tax and/or ITDS. Thus, as per the provisions of Income-tax Act only that tax which is chargeable under section 4 of the Act can be levied and only that tax can be collected. Section 4 of the Act is reproduced hereunder:-

“4. (1) Where any Central Act enacts that income-tax shall be charged for any assessment year at any rate or rates, income-tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions (including provisions for the levy of additional income-tax) of this Act in respect of the total income of the previous year of every person :
Provided that where by virtue of any provision of this Act income-tax is to be charged in respect of the income of a period other than the previous year, income-tax shall be charged accordingly.

(2) In respect of income chargeable under sub-section (1), income-tax shall be deducted at the source or paid in advance, where it is so deductible or payable under any provision of this Act.”

A perusal of the above provision makes it clear that the provisions relating to ITDS contained in Chapter – XVII-B of the Act including section 194N does not and cannot provide for levy of any fresh or new tax. They only facilitate collection of that very tax which is chargeable as per provisions of section 4(1) of the Act. In other words, provisions relating to ITDS are only machinery provisions and these machinery provisions are to facilitate collection of tax charged or chargeable by section 4(1) of the Act.

Now the issue is how to read these machinery provisions. If these machinery provisions are to be read along with charging sections then, deduction can be made only in respect of income chargeable to tax. On the other hand, if themachinery provisions relating to ITDS can be read independently and divorced of charging provisions then, perhaps deduction out of non-taxable capital receipts can also be madeand in that circumstance, though such deducted amount will not be ‘tax on income’ in itself but the same will be appropriated against income-tax liability of the deductee on income from other transactions, if any and in absence of such other transaction, the same will be refunded back to the deductee at a later date. Therefore, to decide the issue under consideration, it has to be examined whetherin the scheme of the Act,the ITDS provisions can be treated as provisions independent of charging provisions?

It is observed that the above issue is no more res-intigra. Exactly the same issue cropped up before the Hon’ble Supreme Court in the case of CIT v. Eliy Lilly& Co. (2009) 312 ITR 225 (SC). In this landmark decision, the Hon’ble Supreme Court analyzed in great length provisions of chapter XVII-B of the Act with reference to other sections and the scheme of the Act.

One of the issues considered by the Hon’ble Supreme Court was, in its words, to quote:-

“Whether TDS provisions which are in the nature of machinery provisions are independent of the Charging Provisions?”

The Hon’ble Supreme Court after going through the provisions of various sections of the Act decided the above issue in negative and held that the Income-tax Act is an integrated code in which one cannot segregate computation machinery from the collection and recovery machinery and it cannot be stated that TDS provisions are independent of charging provisions.

While answering the above issue, the Hon’ble Supreme Court, inter-alia observed, to quote:-

“Section 192 provides for deduction of tax on the income chargeable under the head “Salaries” by any person responsible for paying such salaries. Section 193 provides for deduction of income-tax by the person responsible for paying any income byway of “interest on securities”. Section 194 provides for deduction of tax at source by the company paying “dividends”. Section 194A, Section 194B,Section 194BB inter alia provides for deduction of tax at source from the income of interest other than interest on securities, winnings from lotteries, winnings from horse race respectively. Even with regard to payment to contractors and sub-contractors, specific provision is made for deducting tax at source on the basis of payment of such sum as the income-tax on income comprised therein. Under the 1961 Act, total income for the previous year is chargeable to tax under Section 4. Section 4(2) inter alia provides that in respect of income chargeable under Section 4(1), income-tax shall be deducted at source where it is so deductible under any provision of the 1961Act. Section 192(1) falls in the machinery provisions. It deals with collection and recovery of tax. That provision is referred to in Section 4(2). Therefore, ifa sum that is to be paid to the non-resident is chargeable to tax, tax is required to be deducted. The sum which is to be paid may be income out of different heads of income mentioned in Section 14, that is to say, income from salaries, income from house property, profits and gains of business, capital gains and income from other sources. The scheme of the TDS provisions applies not only to the amount paid, which bears the character of “income” such as salaries, dividends, interest on securities etc. but the said provisions alsoapply to gross sums, the whole of which may not be income or profits in the hands of the recipient, such as payment to contractors and sub-contractors. The purpose of TDS provisions in Chapter XVII B is to see that the sumwhich is chargeable under Section 4 for levy and collection of income-tax, thepayer should deduct tax thereon at the rates in force, if the amount is to be paid to a non-resident.
…..

On the question as to whether there is any inter-linking of the charging provisions and the machinery provisions under the 1961 Act, we may, at the very outset, point out that in the case of CIT v.  B.C. Srinivasa Setty reported in [1981] 128 ITR 294 this Court has held that the charging section and the computation provisions together constitute an integrated Code. When there is a case to which computation provisions cannot apply at all, it is evident that such a case was not intended to fall within the charging section. We may add that, the 1961 Act is an integrated code and, as stated hereinabove, Section 9(1) integrates the charging section, the computation provisions as well as the machinery provisions. (see Section 9(1)(i) read with Sections 160, 161, 162 and 163).

In the present case, it has been vehemently urged that TDS provisions being machinery provisions are independent of the charging provisions whereas as held by this Court in the case of B.C. Srinivasa Setty(supra), the 1961 Act is an integrated Code. To answer the contention herein we need to examine briefly the scheme of the 1961 Act. Section 4 is the charging section. Under section 4(1), total income for the previous year is chargeable to tax. Section 4(2) inter alia provides that in respect of income chargeable under sub-section(1), income-tax shall be deducted at source where it is so deductible under any provision of the 1961 Act which inter alia brings in the TDS provisions contained in Chapter XVII-B. In fact, if a particular income falls outside Section 4(1) then TDS provisions cannot come in.……..

Thus, from the above landmark decision of the Hon’ble Supreme Court, inter-alia, the followings legal principles emerges:-

i) ITDS provisions contained in Chapter XVII-B of the Act are in the nature of machinery provisions.

ii) The said ITDS provisions are not independent of charging provisions.

iii) Section 4 of the Act is the basic charging section.

iv) As per provisions of section 4(1) of the Act, total income for the previous year is chargeable to tax.;

v) Section 4(2) of the Act inter alia provides that in respect of income chargeable under sub-section (1), income-tax shall be deducted at source where it is so deductible under any provision of the 1961 Act .

vi) Provisions of section 4(2) of the Act inter alia brings in the ITDS provisions contained in Chapter XVII-B; and

vii) In fact, if a particular income or receipt falls outside Section 4(1) of the Act then ITDS provisions cannot come in.
Thus, the position of law, as settled by the Apex Court of the land are that the source of ITDS provisions contained in Chapter XVII-B of the Act can be traced to section 4(2) of the Act; and only in respect of income chargeable to tax under section 4(1) of the Act, provisions of ITDS can come in.
It may be mentioned here that not only the ‘ratio decidendi’ but also the ‘obiter dicta’ in the decision of the Hon’ble Supreme Court is binding as held by the Hon’ble Bombay High Court in Mohandas Issardas and Ors v. A. N. Sattanthan & Ors. AIR 1955 Bom 113. The above position of law is also recognized by the Hon’ble Supreme Court in The Peerless General Finance & Investment Co. Ltd. v CIT (2019) 416 ITR 1 (SC).

To sum-up, the amount received in a transaction of cash withdrawal from Bank, in the hands of the recipient, the amount received is a capital receipt of his own money. No element of income is embedded therein. Consequently, in respect of the said transaction no income-tax is chargeable under section 4(1) of the Act. Therefore, in view of section 4(2) of the Act, the provisions of ITDS in respect of such transaction cannot come in. The inevitable conclusion, thus, is that the provision of section 194N is ultra vires to the provisions of section 4 of the Act. The above view is also buttressed by a recent decision of Hon’ble Bombay High Court in the case of Rupesh Rashmikant Shah v. Union of India (2019) 417 ITR 169 (Bom) wherein it has been held as under:-

“The provision for deduction of tax at source is not a charging provision. It only makes deduction of tax at source on payment of same, which, in the hands of payee, is income. If the payee has no liability to pay tax on such income, the liability to deduct tax at source in the hands of the payer cannot be fastened.”

The issue can be looked into from yet another angle. Article 265 of the Constitution of India provides that “no tax shall be levied or collected except by authority of law”. Entry 82 of Union List in Schedule VII to the Constitution empowers or authorizes Central Government to make laws in respect of ‘taxes on income other than agricultural income’. In exercise of the said power under entry 82, Income-tax Act, 1961 has been enacted. Consequently, ‘taxes on income’ (other than agricultural income) can only be levied as tax and collected as tax by the Act. Thus, levy or collection of an amount as tax, which is not qualitatively in the nature of ‘tax on income’ in pursuance to the Act, will violate the provisions of Article 265 of the Constitution. Keeping in view the above, the validity of power to collect ITDS under section 194N is to be tested. It is undisputable that in absence of any ‘income’ being embedded in the amount of cash withdrawal from bank, no part of that withdrawal amount can have the nature of ‘income’ and consequently a part thereof cannot be ‘tax on income’. Therefore, what is collected by Government by way of ITDS under section 194N of the Act is a part of capital of the deductee which clearly lacks the colour, quality or nature of ‘tax on income’. Merely because as per the scheme of the Act, the said collected amount under section 194N is subsequently, either appropriated or adjusted with income-tax liability of the deductee, if any, in respect of his income (which of-course can only be from some other transaction of the deductee) or otherwise, refunded back to the deductee, will not give the amount collected a colour of ‘tax on income’, when none was there at the time of collection of the same by way of deduction from capital receipt. Thus, the collection of a part of the capital of the deductee under section 194N of the Act by simply giving the part collected nomenclature as Income tax when it qualitatively lacks character of ‘tax on income’, violates the provisions of Article 265 of the Constitution also. 

Moreover, as discussed earlier, apart from section 194N of the Act, there are 33 sections in the Act which provides for deduction of income-tax at source out of most of the transactions by which amount is normally deposited in a bank. Thus, it is more likely than not, that the amount which was deposited in the bank, before its withdrawal, has already suffered ITDS. Soto again deduct ITDS at the time of withdrawal from bank out of the very same amount will result in subjecting the same amount to ITDS twice in the hands of very same person. For example, Mr. A received salary of Rs. 300 lakhs on which ITDS of say, Rs. 90 lakh was deducted from him by his employer in accordance with the provisions of section 192 of the Act and the balance amount of Rs. 210 lakhs was credited in his bank account. The amount of Rs. 210 lakh which is in the bank of Mr. A having been subjected to ITDS is tax paid amount. Now, irrespective of the fact that income-tax has already been paid by Mr. A in respect of the said amount lying in his bank account, and even though, there is no provision in the Act which deems amount of cash withdrawal from bank as income on which income-tax is chargeable under section 4(1) of the Act, the provisions of section 194N of the Act again requires the Bank to deduct ITDS from Mr. A when he makes withdrawal in cash exceeding the limit specified in that section. Thus, ITDS is again deducted by the Bank from Mr. A under section 194N whereas in respect of very same amount income-tax has already been paid by Mr. A by way of ITDS under section 192. Thus, in pursuance to provisions of section 194N, a person often than not, will be required to pay ITDS twice on the very same amount, once, when he earned and  received that amount in bank and again when he withdraws from bank out of the said amount in cash. This also shows that under the scheme of Income-tax Act, ITDS out of non-taxable capital amount (withdrawal of own money in cash from bank) as provided in section 194N is unwarranted and leads to double taxation and therefore, bad in law.

Thus, the provisions of section 194N of the Act which provides for deduction of an amount out of a non-taxable capital transaction is ultra vires to the provisions of Article 265 of the Constitution and also violates section 4 of the Act and the same also results in double taxation which is bad in law and consequently, the provision of section 194N is a misfit in the scheme of the Act and is an invalid piece of legislation.

Disclaimer: The contents of this document are solely for informational purpose. It does not constitute professional advice or a formal recommendation. While due care has been taken in preparing this document, the existence of mistakes and omissions herein is not ruled out. Neither the author nor itatonline.org and its affiliates accepts any liabilities for any loss or damage of any kind arising out of any inaccurate or incomplete information in this document nor for any actions taken in reliance thereon. No part of this document should be distributed or copied (except for personal, non-commercial use) without express written permission of itatonline.org