CAM Charges, Section 194-I and Section 194-C

By CA Surekha S Ahuja

In TDS law, the most expensive mistakes are not made by non-compliance, but by misclassification. Common Area Maintenance (CAM) charges—an unavoidable feature of modern commercial leasing—have become a frequent trigger for TDS notices, primarily because they are mechanically equated with rent or contractual payments without examining their true legal character.

Recent judicial pronouncements, culminating in Dy. CIT v. Bird Automotive (P) Ltd. (ITAT Delhi, 2025), following the Delhi High Court in CIT (TDS) v. Liberty Retail Revolutions Ltd., have now settled the law. Yet disputes continue, largely because Sections 194-I and 194-C are applied without first satisfying their charging conditions.

This note undertakes a complete statutory and interpretative analysis of both sections, explains where CAM charges fit (and where they do not), and sets out a compliance framework that prevents mismatches, notices and assessee-in-default proceedings.

Section 194-I — Law, Scope and Interpretation

Statutory Language (Essence)

Section 194-I applies where a person responsible for paying to a resident any income by way of rent deducts tax at source at the prescribed rate.

“Rent” is defined as any payment, by whatever name called, for the use of land, building, land appurtenant thereto, machinery, plant or equipment.

Judicial Interpretation of “Rent”

Courts have consistently held that:

• Rent must be consideration for possession, occupation, or right to use immovable property.

• The expression “by whatever name called” does not enlarge the scope of rent beyond its essential character.

• Payments that do not grant or regulate the right of occupation cannot be treated as rent merely because they arise from a lease arrangement.

Why CAM Charges Fail the Section 194-I Test

CAM charges:

• Do not confer possession or right to occupy

• Do not enhance or regulate tenancy rights

• Do not create any interest in property

They represent proportionate sharing of common expenses incurred for:
cleanliness, electricity, water, security, HVAC, lifts, common repairs and upkeep.

In Bird Automotive (P) Ltd., the ITAT categorically held that such payments “cannot, by any stretch of imagination, be construed as payment of rent.”
Once a payment fails to qualify as rent, Section 194-I is excluded at the charging stage itself. Thresholds, rates, defaults and interest provisions become irrelevant.

Section 194-C — Law, Scope and Interpretation

Statutory Language (Essence)

Section 194-C applies where any person responsible for paying a resident any sum for carrying out any work (including supply of labour) in pursuance of a contract, deducts tax at source.

The section is triggered only when:

• There exists a contract, and

• The contract is for carrying out work.

Judicial Interpretation of “Work”

Courts have clarified that:

• “Work” implies execution of an obligation for another person.

• Mere reimbursement or cost sharing does not amount to carrying out work.

• The payer-payee relationship must be that of contractee and contractor, not owner and occupier.

Application of Section 194-C to CAM Charges

CAM charges do not automatically fall under Section 194-C.

Where CAM is:

• Recovered by the landlord as cost sharing for maintaining common areas, and

• The landlord is merely discharging ownership obligations or allocating expenses,

there is no contract for carrying out work for the tenant.
In such cases, Section 194-C does not apply.

Section 194-C becomes relevant only where:

• The tenant (or association of tenants) directly engages service providers, or

• The landlord separately undertakes service contracts as a contractor, not as an owner.

Thus, Section 194-C applies based on contractual substance, not payment labels.

The Crucial Distinction: Responsibility for Maintenance

Maintenance Responsibility with Landlord

Where the lease places responsibility for common area maintenance on the landlord:

• CAM is reimbursement / contribution

• Landlord is not a contractor

• CAM is neither rent (194-I) nor contractual payment (194-C)

• No TDS obligation arises

This is the strongest legally defensible position and is directly supported by judicial precedent.

Maintenance Responsibility with Tenant

Where tenants:

• Directly contract security, housekeeping, facility management, or

• Act through a tenants’ association,

payments may attract Section 194-C, subject to existence of a work contract.
Section 194-I has no application in this model, as payments are unrelated to occupation rights.

Hybrid Models

In mixed arrangements:

• Rent → tested only under Section 194-I

• CAM cost sharing → outside TDS

• Outsourced services → tested independently under Section 194-C

Segregation is mandatory. Aggregation is legally impermissible.

Why Thresholds Do Not Cure Wrong Classification

A recurring compliance fallacy is applying thresholds first. This is legally unsound.

Thresholds:

• Do not create taxability

• Operate only after a payment satisfies the charging description

CAM charges do not become rent because they are large, recurring or linked to lease tenure. Courts have repeatedly held that quantum cannot substitute legal character.

Why Notices and Section 201 Demands Commonly Arise

Most CAM-related demands arise because:

• Rent and CAM are clubbed in lease agreements

• Invoices lack descriptive break-ups

• TDS is deducted “to be safe” under wrong sections

• Authorities apply thresholds mechanically

Courts have consistently disapproved this approach.

Compliance Architecture That Survives Scrutiny

A litigation-proof framework requires:

• Clear lease clauses separating rent and CAM

• CAM defined as cost sharing / reimbursement

• Invoices reflecting actual expense heads

• Consistent accounting and TDS treatment

• Reliance on binding judicial precedents

In TDS matters, documentation determines destiny.

Final Conclusion

Sections 194-I and 194-C are charging provisions, not convenience tools. They apply only when their statutory conditions are met. Common Area Maintenance charges meet neither condition by default.

The law now stands settled:

CAM charges are operational contributions, not consideration for occupation and not automatically contractual payments.

Taxpayers who understand the distinction between rent, work contracts, and cost sharing, and who align their agreements and invoices accordingly, remain fully insulated from mismatches, notices and assessee-in-default exposure.

In TDS law, accuracy is not caution.

It is compliance.

Section 80JJAA Deduction: ITAT Clarifies Eligibility, Compliance, and Verification Requirements

By CA Surekha S Ahuja

Claiming a deduction is a right; sustaining it is a responsibility.

The Income Tax Act provides relief under Section 80JJAA to encourage employment, but the recent ITAT ruling in Innovative Cuisine (P.) Ltd. v. ACIT [2025] 181 Taxmann.com 14 makes it clear that deductions are fact-sensitive, evidence-driven, and employee-specific. Blanket disallowances are impermissible, but so is casual compliance.

Case Reference:

• Assessee: Innovative Cuisine (P.) Ltd.

• Bench: ITAT Ahmedabad – T.R. Senthil Kumar & Narendra Prasad Sinha

• Assessment Year: 2017-18

• Facts:

  • Assessee claimed Section 80JJAA deduction for 274 additional employees employed during the year.

  • AO disallowed the entire claim because most employees worked less than 240 days and statutory conditions were allegedly unverified.

  • Tribunal remanded the matter, directing AO to verify employee-wise eligibility.

Legal Framework of Section 80JJAA

1 Deduction:

• 30% of additional employee cost for three assessment years (year of employment + 2 subsequent years).

2 Eligibility Conditions (Section 80JJAA(2) & Explanation):

1. Employee’s monthly emoluments ≤ ₹25,000.

2. Participation in recognized Provident Fund and Pension Scheme.

3. Employee works not less than 240 days in the financial year.

4. Salary paid via account payee cheque/draft or electronic transfer (ECS/NEFT/RTGS).

3 Burden of Proof:

• Onus is squarely on the assessee to prove compliance with all conditions.

• Verification includes: payroll, attendance, bank records, PF/pension enrollment, and employment letters.

“Merely submitting sample employee details is insufficient; AO must verify employee-wise compliance.” [ITAT]

Key Observations of the Tribunal

1. Employee-Wise Verification Mandatory:

   • AO cannot disallow the entire deduction merely because some employees worked less than 240 days.

   • Deduction should be allowed only for employees satisfying all statutory conditions.

2. Payment Mode Verification:

   • Salary must be traceable via account payee instruments.

   • Even if offer letters are missing, bank statements and salary registers can substantiate compliance.

3. Sample Evidence is Insufficient:

   • Submission of 15 employees’ details out of 274 is inadequate.

   • AO must check all employees’ eligibility before disallowance.

4. Treatment of Part-Year Employees:

   • Employees working <240 days are ineligible.

   • Partial-year service cannot be aggregated unless statutory requirement is fulfilled.

5. PF / Pension Compliance:

   • Employees not enrolled in recognized schemes are ineligible.

   • Auditor certification strengthens the claim.

6. Monthly Emoluments Limit:

   • Only employees earning ≤ ₹25,000/month are eligible.

   • Include basic + allowances; exclude non-qualifying allowances.

Compliance Checklist – All “Ifs and Buts”

Requirement	Compliance Action	Caution / Points to Avoid Disallowance
Employee Eligibility	Maintain appointment letters, payroll, attendance	Avoid claiming for employees <240 days
Salary Limit	Verify monthly salary ≤ ₹25,000	Exclude bonuses/allowances beyond limit
Payment Mode	Salary via account payee instruments	Avoid cash or untraceable payments
PF / Pension Enrollment	Maintain proof of enrollment	Non-compliance invalidates deduction
Record Maintenance	Employee-wise summary linking salary, days worked, PF	Partial or sample evidence insufficient
Auditor Support	Certificate on employee cost and eligibility	Avoid unsupported claims
AO Queries	Respond with employee-wise computation and supporting documents	Delay or incomplete response can trigger disallowance

Tax Planning Insights

1. Staggered Recruitment:

   • Hire employees to ensure they complete ≥240 days within the financial year.

2. Payroll & HR Integration:

   • Maintain digital payroll linked with attendance and PF records for real-time verification.

3. Pre-Audit Verification:

   • Auditor to certify compliance for all eligible employees before filing.

4. Bank Transfer Compliance:

   • All emoluments to be routed through account payee / ECS to prevent disputes.

5. Documentation Readiness:

   • Maintain master sheet summarizing: employee name, joining date, PF details, monthly emoluments, salary payment proof, and days worked.

Judicial Support / Legal Precedents

• ITAT Ahmedabad (2025):

  AO cannot disallow full Section 80JJAA claim without verifying employee-wise compliance with 240-day and other statutory conditions.

• Principle: Deduction is evidence-driven, not discretionary.

• Other observations emphasize that:

  • Partial compliance or partial documentation does not justify blanket disallowance.

  • AO must provide opportunity for assessee to produce evidence.

Conclusion / Practitioner Takeaways

1. Section 80JJAA is highly fact-sensitive.

2. Employee-wise verification is mandatory; no blanket disallowances permitted.

3. Proper documentation, payroll integration, and auditor certification are essential to sustain deduction.

4. Tax planning: phased hiring, PF/pension compliance, salary limit adherence, bank-mode payment, and complete records ensure maximum deduction with minimal risk.

“Eligibility + Documentation + Verification = Sustainable Section 80JJAA Deduction.”

In essence, practitioners must ensure that every new employee satisfies all statutory conditions, maintain detailed evidence, and pre-empt AO queries to secure deduction under Section 80JJAA and prevent unnecessary litigation.

When Law Meets Life: Section 54, HUFs and the Reality of Buying the Family Home in the Wife’s Name

By CA Surekha S Ahuja

An authoritative, empathetic and litigation‑tested guide for Indian taxpayers and professionals

“Courts do not decide cases on intentions. They decide them on facts.”

That single sentence explains why so many honest families find themselves anxious during income‑tax scrutiny.

In real life, Indian families often purchase homes in the wife’s name — for loan eligibility, long‑term security, succession comfort, administrative convenience, or simply because that is how families have traditionally functioned. When a Hindu Undivided Family (HUF) sells its residential house and reinvests the proceeds in such a home, the decision is usually genuine and practical.

Yet, during assessment, a familiar objection is raised:

“The new house is not in the name of the HUF.”

This article explains — calmly, honestly and exhaustively — when Section 54 protects such reinvestments, when it does not, and what genuinely makes the difference. It is written to help taxpayers who acted in good faith, and professionals who want to guide without pushing aggressive or unsafe positions.

The statutory foundation — and where interpretation begins

Section 54 grants exemption where the assessee, being an Individual or a Hindu Undivided Family, transfers a long‑term residential house and:

“has, within the prescribed period, purchased or constructed a residential house.”

The provision is silent on one point that causes all the controversy: it does not expressly say that the new house must be registered exclusively in the assessee’s name.

The interpretational question therefore is simple, but decisive:

Does “purchased by the assessee” mean legal title alone, or does it include beneficial ownership supported by the assessee’s funds?

Indian courts have answered this question in two distinct ways — one liberal and substance‑oriented, the other strict and form‑driven.

The liberal judicial view — substance over form, especially for HUFs

Courts and Tribunals adopting the liberal view recognise that Section 54 is a beneficial provision and must be applied in a manner that protects genuine reinvestment of capital gains, rather than defeating it on technicalities.

In ITO v. Ramesh Kumar (HUF) (ITAT Bangalore), the HUF sold a residential property and claimed Section 54 exemption even though the new house was purchased in the name of an HUF member. The entire consideration flowed from HUF funds and the property was recorded as an HUF asset. The Tribunal held that exemption cannot be denied merely because the sale deed stood in a member’s name. What mattered was the source of funds and beneficial ownership.

This principle was reinforced at the High Court level in PCIT v. Vaidya Panalalmanilal (HUF) (Gujarat High Court), where the new residential house was purchased in the names of HUF members. The Court held that the rights of the HUF do not disappear merely because the conveyance deed carries the names of its members, so long as the investment belongs to the HUF and the property is treated as such.

These decisions are crucial because they recognise a doctrinal reality under Hindu law: HUF property can be held in the name of a member without losing its HUF character, provided substance supports that conclusion.

Applied to practical life, this means that where an HUF reinvests sale proceeds in a house registered in the karta’s wife’s name, and the wife is clearly acting as a member holding it for the family, Section 54 is not automatically lost.

Spouse‑name cases for individuals — and why they matter for HUFs

Even though these cases involve individual assessees, courts frequently rely on their reasoning when deciding HUF matters.

In CIT v. Kamal Wahal (Delhi High Court), the assessee invested capital gains in a house purchased in his wife’s name. The Court held that Section 54F does not require the house to be purchased exclusively in the assessee’s name and clearly distinguished earlier strict decisions involving sons or other relatives.

Similarly, in CIT v. Ravinder Kumar Arora (Delhi High Court), full exemption was allowed even though the property was jointly purchased with the wife, because the entire consideration was paid by the assessee.

Tribunals have followed the same reasoning even where houses were purchased jointly with close family members, emphasising that the spouse is not a stranger and funding is decisive.

The combined effect of these judgments is clear: where investment flows from the assessee and beneficial ownership is established, courts are willing to look beyond the name on the title deed.

The strict judicial view — and why some genuine cases still fail

The Revenue often relies on Prakash v. ITO (Bombay High Court), where exemption under Section 54F was denied because the new property was purchased entirely in the name of the assessee’s adopted son. The Court adopted a strict interpretation, holding that investment must be in the assessee’s own name.

What is important — and often overlooked — is why such cases fail. In strict‑view cases:

• the relative is treated as a distinct legal owner, not merely a conduit;
• funding and control are not clearly shown to vest with the assessee; and
• records, approvals and enjoyment point away from the assessee.

Courts themselves have distinguished spouse‑name cases from son or heir cases, and HUF cases add an additional layer of Hindu law that is absent in Prakash‑type situations.

Where assessments actually go wrong — real trigger points

In practice, Section 54 claims fail less because of law and more because of facts and documentation.

Common trigger points include:

• payments routed through the wife’s personal bank account;
• absence of capitalisation of the house as an HUF asset;
• housing loan or municipal approvals only in the wife’s name;
• rental income or self‑occupied benefit claimed in the wife’s return;
• Capital Gains Account Scheme deposits made in the wife’s name instead of the HUF’s.

Each of these weakens the argument of HUF ownership, even if the intention was genuine.

What genuinely strengthens a Section 54 claim in such cases

Strong cases consistently show discipline on three fronts.

Funding discipline — direct payment from the HUF bank account with a clear trail from sale proceeds.

Ownership discipline — HUF resolutions or declarations, capitalisation of the property as an HUF asset, and consistent reflection in accounts.

Usage discipline — expenses, control and income aligned with HUF ownership, not individual enjoyment.

Even simple drafting in the purchase deed — stating that the wife is acquiring the property for and on behalf of the HUF out of HUF funds — can materially strengthen the case.

Joint ownership of the old house — a frequent source of confusion

Where the old property is jointly held by the HUF and the wife, capital gains must be computed separately. The HUF can claim Section 54 only to the extent of its share and investment. The wife’s individual exemption, if any, must stand on her own footing.

Mixing these claims is a common and avoidable mistake.

What this is — and what it is not

This approach is not aggressive tax planning. It does not rely on artificial structures or paper ownership. It relies on alignment between family reality, accounting truth and judicial principles.

Courts have repeatedly shown that they will protect genuine reinvestments when records tell a consistent story — and withdraw protection when they do not.

Judicial support snapshot — how courts have actually decided

Case	Court / Tribunal	Section	In whose name was new house	Source of funds	Outcome	Core ratio relevant to HUF + wife cases
ITO v. Ramesh Kumar (HUF)	ITAT Bangalore	54	Name of HUF member	HUF funds	Exemption allowed	For HUF, purchase in member’s name does not defeat Section 54 when funds and beneficial ownership vest in HUF.
PCIT v. Vaidya Panalalmanilal (HUF)	Gujarat High Court	54F	Names of HUF members	HUF funds	Exemption allowed	HUF rights do not vanish merely because sale deed carries members’ names; substance prevails.
CIT v. Kamal Wahal	Delhi High Court	54F	Wife	Assessee	Exemption allowed	Section does not mandate exclusive ownership in assessee’s name; spouse is not a stranger.
CIT v. Ravinder Kumar Arora	Delhi High Court	54F	Joint with wife	Assessee	Full exemption allowed	Entire funding by assessee decisive; joint registration irrelevant.
Smt. Rachna Arora v. ITO	ITAT Chandigarh	54	Joint with daughter & son-in-law	Assessee	Exemption allowed	Close family members not strangers when assessee invests full capital gains.
Prakash v. ITO	Bombay High Court	54F	Adopted son	Assessee	Exemption denied	Strict interpretation; investment in son’s name treated as investment in another person.

Why this chart matters:

The cases allowing exemption consistently turn on three factual anchors — source of funds, beneficial ownership, and relationship category. The cases denying exemption usually fail on one or more of these anchors, especially where ownership appears to be consciously shifted away from the assessee.

Closing perspective

Section 54 was enacted to encourage reinvestment in residential housing, not to punish families for practical decisions. But the protection it offers depends entirely on facts, consistency and preparation.

When funds belong to the HUF, control rests with the HUF, and records speak with one voice, courts have repeatedly looked beyond the name on the deed — even when that name is the karta’s wife.

The difference between relief and litigation lies not in intention, but in execution.

Handled with clarity and discipline, Section 54 can — and does — protect genuine HUF reinvestments in the real world.

UAE LLC Liquidation & Repatriation to India: A Complete Tax & Compliance Roadmap

By CA Surekha S Ahuja

Scenario: A couple has set up a UAE LLC and now wishes to wind it up and bring the proceeds to India. What is the most legitimate way to do this, and what are the tax implications?

Navigating cross-border business closure and repatriation requires precise compliance under UAE company law, Indian FEMA regulations, Income Tax provisions, residential status rules, and the India-UAE DTAA. Here’s a step-by-step professional guide.

Part I: UAE LLC Liquidation Procedure

The UAE Federal Law No. 32 of 2021 (New Commercial Companies Law) governs the LLC liquidation process. Key stages include:

1. Board/Shareholder Resolution

   • Approve voluntary liquidation and appoint a licensed liquidator.

   • Notarization required (approx. AED 800).

2. Initial Approval Application

   • Submit to relevant authority (DED for mainland; Free Zone authority for JAFZA/RAK) with MOA, trade license, shareholder IDs, and liquidator letter.

   • Fee: ~AED 2,010 for mainland LLC.

3. Publication of Liquidation Notice

   • In two newspapers (Arabic & English) for minimum 45 days to allow creditor claims.

4. Creditor Notification & Settlement

   • Settle employee dues, supplier bills, utility obligations, and lease obligations.

5. Obtain Clearance Certificates (NOCs)

   • Telecom, utilities, Ministry of HR, Free Zone authority (if applicable), banks, property authorities.

6. Cancel Immigration Records

   • All employee and sponsor visas linked to company must be cancelled.

7. Final Audit Report

   • Liquidator prepares full Statement of Affairs including assets, liabilities, employee settlements, and cash balances.

8. Final Liquidation Certificate

   • Issued by DED/Free Zone authority confirming completion and trade license cancellation.

Timeline: Typically 60–90 days (including 45-day creditor period).

Part II: Taxation on Liquidation Proceeds in India

Capital Gains under Section 46 of the Income Tax Act

• Proceeds received on liquidation of a foreign company are taxed as capital gains in India under Section 46(2).

• Computation:

$$\text{Capital Gain} = \text{Money/Assets Received} - \text{Dividend component u/s 2(22)(c)} - \text{Cost of Acquisition of Shares}$$

• UAE LLC qualifies as a “company” under amended Section 2(17), making Section 46 fully applicable.

Short-Term vs Long-Term Capital Gains

• Unlisted foreign shares:

  • Holding ≤ 24 months → Short-term (taxed at slab rate).

  • Holding > 24 months → Long-term (concessional rate).

• Rates:

  • Residents (ROR/RNOR): Long-term 12.5%, Short-term at slab rate.

  • Non-Residents: Long-term 10% (no indexation), Short-term at slab rate.

Foreign Exchange Considerations

• Gains are computed in INR at the spot rate on distribution.

• No benefit for indexation or FX fluctuation for non-residents.

Part III: Residential Status & Tax Implications

1. Determining Residential Status (Section 6(1))

• Resident: ≥182 days in India OR ≥60 days in year + ≥365 days in preceding 4 years.

• ROR vs RNOR: ROR if 2/10 years residency + 730/7 years physical presence conditions met.

2. Tax Implications by Status

Residential Status	Capital Gains Tax (LTCG)	Global Income Taxable	DTAA Benefits
ROR	12.5% on unlisted shares	Yes	Yes (TRC required)
RNOR	12.5%	No	Yes (TRC required)
NR	10% (no indexation)	No	Yes (TRC required)

Key: Tax rate depends on residential status on liquidation distribution date.

Part IV: India-UAE DTAA Considerations

1. Article 13 – Capital Gains:

   • Capital gains from UAE company shares are taxable in UAE (country of incorporation).

   • UAE has 0% personal income tax, making gains potentially tax-free if TRC obtained.

2. Limitation of Benefits (LOB) & Principal Purpose Test (PPT):

   • DTAA benefits denied if the LLC was created mainly for tax advantage without genuine business activity.

   • Maintain economic substance: employees, office, transactions.

3. UAE Tax Residency Certificate (TRC):

   • Present ≥183 days in UAE calendar year.

   • Apply via EmaraTax portal, valid 1 year.

4. Form 10F Filing in India:

   • Mandatory if claiming DTAA benefit.

   • Disclose personal details, UAE TIN (if any), address, income type, and attach TRC.

Part V: Repatriation under FEMA

• Proceeds from liquidation: Considered capital inflow under FEMA regulations.

• Compliant route:

  1. Obtain UAE liquidation certificate.

  2. Open FCNR/NRE/NRO account in India (as per FEMA).

  3. Submit Repatriation request with bank including liquidation certificate, board resolution, and bank statement from UAE.

• Ensure tax compliance in India (TDS / self-assessment) before repatriation to avoid defaults.

Key Takeaways for Practitioners

• Liquidation must strictly follow UAE law to obtain valid certificate.

• Residential status and holding period determine Indian tax rates.

• Proper TRC & Form 10F filings unlock DTAA benefits and prevent double taxation.

• Maintain genuine economic substance to avoid LOB/PPT challenges.

• FEMA-compliant repatriation ensures smooth inflow into India.

Professional Note: Cross-border liquidation and repatriation require meticulous documentation, sequential compliance, and tax planning. Missing any step—be it UAE NOCs, residential status certification, or DTAA filings—can lead to default notices or tax disputes.

Compliance Portal Mismatch Notices — The Definitive Professional Response Framework

When AIS, SFT, TDS and the ITR Do Not Align: Law, Reasoning, and Correct Closure

By CA Surekha S Ahuja

In recent assessment cycles, the Income Tax Department’s compliance ecosystem has decisively shifted from scrutiny-based selection to data-driven nudging. Compliance Portal notices—particularly under High Value Transactions and allied e-Campaigns—are neither assessment orders nor show-cause notices. They are system-generated reconciliation alerts, triggered when the Department’s consolidated data (AIS, SFT, Form 26AS, TDS returns and third-party reporting) does not align with the manner in which income is presented in the return of income.

One of the most frequent—and technically misunderstood—triggers is commission income offered under “Income from Other Sources” (IFOS) while the reporting entity or system algorithm perceives the receipts as business-linked.

This note sets out a legally defensible, professionally accepted, and practically effective framework for responding to such notices—across assessment years—without panic, over-correction, or avoidable litigation exposure.

The Nature of a Compliance Portal Notice — First Principles

A Compliance Portal notice is not an allegation.
It is a request for reconciliation.

At this stage, the Department is not examining tax evasion; it is examining data consistency. The obligation on the taxpayer is not to litigate, but to explain or regularise.

Three realities must be kept distinct:

• The portal operates on limited, standardised response options.

• The law operates on substantive classification principles under the Income-tax Act, 1961.

• The professional role is to bridge this gap without conceding an incorrect legal position.

Why These Notices Are Issued — The Real Trigger

Such notices typically arise due to one or more of the following system signals:

• TDS under sections 194H, 194D or 194J, suggesting an agency or commission relationship

• SFT / Form 61A reporting of receipts beyond threshold limits

• Payer-side tagging of payments as “business commission”

• AIS auto-categorisation differing from the head selected in the ITR

• Pattern-based AI flags (frequency, amount, payer consistency)

The system does not decide the correct head of income.
It merely detects inconsistency.

The Legal Axis — How Commission Income Is Classified

The Act does not classify income based on payer perception, TDS section, or system tagging. Classification depends on substance, continuity, organisation, and intent.

Commission income may lawfully fall under:

Profits and Gains of Business or Profession — Section 28
Where the activity reflects regularity, organised effort, continuity, and a profit-oriented business structure.

Income from Other Sources — Section 56
Where the receipt is incidental, occasional, supplementary, or devoid of business organisation.

A compliance notice does not mean the classification is wrong.
It means the system seeks to understand why your classification differs from its inference.

The Compliance Portal Constraint — and the Correct  Response

The Compliance Portal offers limited dropdown responses that do not capture nuanced legal classification. This is a design limitation, not a legal one.

In professional practice, the most defensible response in classification mismatch cases is:

“Information is not fully correct”

This option allows explanation without denying the transaction or conceding error.

The remarks should clearly record:

• That the amount is fully disclosed

• That the classification difference is intentional and law-based

• The factual basis for the chosen head of income

• Whether a revised return has been filed, or whether the original return is being relied upon

This approach preserves the legal position while satisfying the reconciliation objective of the portal.

Revised Return — When It Is Mandatory and When It Is Strategic

A revised return under section 139(5) is not compulsory in every mismatch case.

It becomes essential where:

• The original classification is demonstrably incorrect

• The selected ITR form becomes invalid due to reclassification

• Deductions, audit exposure, or computation materially change

• The taxpayer seeks to close the issue conclusively at the return level

Where IFOS classification is legally correct, a reasoned portal response alone may suffice.

Where reclassification is required, a revised return is the strongest statutory cure, far superior to narrative explanation alone.

Multi-Year Perspective — Why Similar Notices Appear Across Years

Similar notices may arise for different years because:

• AIS and SFT data are refreshed retrospectively

• Payers revise TDS returns belatedly

• System risk parameters evolve year-on-year

• Classification inconsistencies compound over time

Each assessment year must be examined independently.
Consistency is desirable—but correctness overrides consistency.

Scenario-Based Professional Action

Commission is truly incidental
Explanation on the portal with documentary support; revised return only if disclosure error exists.

Commission has gradually become regular
Reclassification through revised return is advisable to prevent future escalation.

Payer classification is aggressive but facts are passive
Maintain IFOS position with evidence; do not reclassify merely to match payer tagging.

Reclassification increases compliance burden
Correctness must prevail over convenience. Defensive compliance today prevents adversarial proceedings tomorrow.

Documentation That Actually Matters

At the compliance stage, quality outweighs volume. The most persuasive records are:

• Bank statements showing receipt pattern

• Payer correspondence or agreements

• TDS certificates and AIS extracts

• Prior-year treatment demonstrating continuity—or its absence

What the Department Usually Does Next

In most cases, a reasoned response or revised return results in silent closure.

If the matter progresses, it usually moves to:

• Information request under section 142(1)

• Verification of deductions (if PGBP is accepted)

• Rarely, reassessment—typically where facts contradict explanation

A proactive, well-documented compliance-stage response significantly reduces escalation risk.

The objective is not merely to “clear the notice”, but to align tax records with economic reality in a legally defensible manner.

Overreaction creates compliance risk.
Underreaction invites scrutiny.

Measured correction—supported by law and facts—closes the matter.

Closing Note

Compliance Portal mismatch notices are a structural feature of modern tax administration, not a signal of wrongdoing. When handled with legal clarity, factual discipline, and procedural maturity, they remain exactly what they are intended to be: course-correction prompts, not litigation triggers.

This framework reflects best professional practice and applies equally to commission income mismatches, AIS variances, SFT discrepancies, and similar compliance alerts across assessment years.

Share Premium, Start-ups and Section 68:

By CA Surekha S Ahuja

Evidence, Enquiry and the Limits of Assessing Officer Discretion

ITO v. Indic Wisdom (P.) Ltd.

(2025) 181 taxmann.com 23 (ITAT Mumbai) 

The jurisprudence surrounding share capital and share premium has reached a stage where the law is settled, but its application remains unsettled. Additions under section 68 continue to be made not for want of evidence, but for want of enquiry.

The Mumbai Bench of the ITAT, in ITO v. Indic Wisdom (P.) Ltd. (2025), delivers a measured and legally disciplined ruling, restoring the statutory boundaries between section 68 and section 56(2)(viib), particularly in the context of DPIIT-recognised start-ups.

This decision is not expansive; it is corrective.

Legislative Architecture: Understanding the Two Provisions

Section 68 — A Rule of Evidence, Not Valuation

Section 68 operates where:

• a credit appears in the books, and

• the assessee fails to satisfactorily explain its nature and source.

Judicially, the explanation is tested on three immutable parameters:

1. Identity of the creditor

2. Creditworthiness of the creditor

3. Genuineness of the transaction

These are conditions precedent, not postulates of convenience.

Once prima facie evidence on these three limbs is produced, the section exhausts itself unless the Assessing Officer brings contrary material on record.

Section 56(2)(viib) — A Targeted Charging Mechanism

Section 56(2)(viib) is:

• valuation-specific,

• rule-driven (Rule 11UA), and

• legislatively excluded for DPIIT-recognised start-ups.

Its inquiry is not into source, but into price in excess of FMV.

CBDT Circular dated 10.10.2023, issued under section 119, makes this exclusion binding and non-discretionary.

Factual Matrix in Brief

The assessee, a DPIIT-recognised start-up engaged in manufacturing natural products, issued equity shares at a premium during AY 2022-23.

The assessment was framed under section 143(3) read with section 144B, wherein:

• section 56(2)(viib) was effectively bypassed,

• yet the entire share premium was added under section 68.

The addition was sustained despite:

• valuation under Rule 11UA,

• banking channel receipts,

• statutory filings, and

• identification details of subscribers.

Core Legal Determinations by the Tribunal

Section 56(2)(viib) Immunity — Affirmed but Contained

The Tribunal categorically held:

• DPIIT recognition grants immunity from section 56(2)(viib),

• in terms of DPIIT notification dated 19.02.2019 and CBDT Circular dated 10.10.2023.

However, the Tribunal clarified that:

• such immunity does not, by itself, bar enquiry under section 68.

This preserves conceptual separation between charging and evidentiary provisions.

Discharge of Initial Onus under Section 68

The Tribunal recorded that the assessee had furnished:

• names and PANs of subscribers,

• bank statements evidencing fund flow,

• valuation report under Rule 11UA,

• Form PAS-3 and allied statutory filings,

• explanations for NRI subscribers.

These documents constituted adequate prima facie proof of identity, creditworthiness, and genuineness.

The statutory burden under section 68 thus stood discharged.

Assessing Officer’s Failure to Conduct Enquiry

Despite multiple opportunities afforded by the Commissioner (Appeals):

• no remand report was filed,

• no independent verification was undertaken,

• no adverse material was produced.

The Tribunal held that:

Section 68 does not permit substitution of enquiry with conjecture.

Allegations of fund layering or low returned income, without investigation, remain suspicion — not evidence.

Valuation Cannot Be Reintroduced Through Section 68

The Tribunal implicitly reaffirmed that:

• dissatisfaction with share valuation,

• especially where section 56(2)(viib) is legislatively inapplicable,

• cannot be routed through section 68.

Section 68 is not a backdoor valuation provision.

Binding Legal Propositions Emanating

1. Section 68 is evidentiary and conditional, not presumptive.

2. Once the assessee furnishes primary evidence, the onus shifts conclusively.

3. Absence of enquiry by the Assessing Officer vitiates the addition.

4. DPIIT protection under section 56(2)(viib) cannot be diluted indirectly.

5. CBDT circulars issued under section 119 are mandatory in application.

Litigation Significance

This ruling strengthens a crucial litigation position:

Section 68 cannot be used to correct what the statute consciously chose not to tax under section 56(2)(viib).

For start-ups, investors, and tax professionals, the decision reinforces that:

• commercial valuation is not to be judged through suspicion, and

• statutory exemptions cannot be neutralised by evidentiary shortcuts.

Conclusion

The Tribunal’s ruling in Indic Wisdom (P.) Ltd. is a quiet but firm assertion of legal discipline.

Where evidence exists and enquiry is absent,
section 68 collapses under its own conditions.

This decision restores section 68 to its intended evidentiary role — nothing more, nothing less.

GST on Rent Paid to Unregistered Landlords

 By CA Surekha Ahuja

Why RCM Becomes a Cost at 5% and a Credit at 12% / 18%

Accommodation businesses across India increasingly operate from residential buildings taken on rent from unregistered individuals, converting them into hotels, hostels, PGs, guest houses and service apartments.

While outward GST at 5% on room tariff appears simple and attractive, the GST paid under reverse charge on rent often emerges as a silent margin killer.

This article explains the current position under GST law, the interplay of Sections 9, 16 and 17, the relevant rate and RCM notifications, and finally, the lawful tax-planning levers available to such businesses.

Substance Over Structure: Why This Is Not “Residential Renting”

GST law looks at use, not architectural design.

Even if the property is residential in nature, once it is used for:

• short-term or transient stays,

• tariff-based accommodation,

• hotel, hostel, PG or guest-house operations,

• bundled services such as pantry, housekeeping or managed lodging,

the supply ceases to be “renting of residential dwelling for use as residence.”

Accordingly:

• the exemption under Notification 12/2017-CT (Rate) does not apply, and

• the rent becomes a taxable supply, ordinarily liable to GST at 18%.

This position has been consistently reinforced through CBIC clarifications and sectoral understanding.

Section takeaway:

A residential building used commercially is taxed commercially.

Why Reverse Charge Applies on Such Rent

Under Section 9(3) of the CGST Act, the Government may notify supplies on which GST is payable by the recipient.

Renting of immovable property by an unregistered person to a registered person has been notified under this provision through:

• Notification 13/2017-CT (Rate), and

• the later introduction of Entry 5AB, covering renting of any immovable property by unregistered persons to registered (non-composition) recipients.

Result:
Where a registered accommodation operator takes premises on rent from an unregistered landlord, GST @18% must be paid under RCM, irrespective of:

• the room tariff charged, or

• whether outward supplies are taxed at 5%, 12% or 18%.

RCM here is structural, not optional.

The Core Question: Is ITC of RCM Rent Available?

The answer depends entirely on the outward tax regime chosen.

A. Where Outward Accommodation Is Taxed at 5% Without ITC

Accommodation services taxed at 5% are subject to a decisive condition in the rate notification:

“Provided that credit of input tax charged on goods and services used in supplying the service has not been taken.”

This condition has overriding effect.

Even though:

• Section 16 generally allows ITC of tax paid under reverse charge, and

• rent is clearly used in the course or furtherance of business,

the concessional rate itself contractually blocks ITC.

Consequences

• GST paid under RCM on rent cannot be availed as ITC

• ITC on pantry, housekeeping, security, repairs, etc. is also blocked

• RCM becomes a pure cost, not a credit

Section takeaway:

At 5%, GST simplicity comes at the cost of credit denial.

B. Where Outward Accommodation Is Taxed at 12% or 18% With ITC

Once the concessional 5% option is not adopted:

• the “no-ITC” condition disappears,

• RCM tax on rent qualifies as input service, and

• ITC becomes available, subject to Sections 16 and 17.

There is no block under Section 17(5) for such rent when premises are used for taxable accommodation.

Here, RCM shifts from cash leakage to recoverable credit.

Section takeaway:

The same RCM tax behaves very differently under a regular rate regime.

Ancillary Services: No Separate Immunity

Ancillary services such as:

• pantry and catering,

• housekeeping,

• security,

• maintenance and facility management,

do not enjoy independent ITC treatment.

Their credit eligibility flows entirely from the outward accommodation rate:

• 5% regime → no ITC on any inputs or services

• 12% / 18% regime → ITC allowed, with proportionate reversal under Section 17 if required

Mandatory Compliance Under RCM

Where rent is paid to an unregistered landlord, statutory compliance is non-negotiable:

• Self-invoice under Section 31(3)(f)

• Payment voucher under Rule 52

• GST payment in cash

• Reporting in GSTR-3B

A lease agreement or rent receipt does not substitute self-invoicing.

Lawful Tax-Saving and Structuring Strategies

GST does not prohibit planning — it penalises ignorance.

The following strategies are lawful, defensible and audit-safe.

Periodic Review of 5% vs 12% Option

Remaining at 5% merely because it “looks cheaper” is often sub-optimal.

Where:

• rentals are high,

• operating inputs are significant, and

• business is stable rather than transient,

12% with ITC may yield a lower effective tax burden.

There is no statutory bar on switching options prospectively.

Segmentation of Distinct Business Lines

Where factually supported, separation of:

• accommodation,

• conference or training facilities,

• cafeteria services,

• events or banquet operations,

allows:

• accommodation at 5% (no ITC), and

• ancillary services at 18% with ITC,

with proportionate credit under Section 17.

Artificial splitting without operational independence should be avoided.

Contract Clarity With Landlords

Well-drafted agreements clearly distinguishing:

• rent,

• utilities,

• maintenance or reimbursements,

reduce valuation disputes under Section 15 and support correct tax treatment.

This is commercial clarity, not tax avoidance.

Cost Management Where ITC Is Blocked

Even under the 5% regime:

• vendor selection,

• GST-inclusive pricing,

• service consolidation,

can materially reduce embedded tax costs.

Preventive Compliance: The Cheapest Saving

Wrongful ITC claims under the 5% regime attract exposure under Section 73.

Best practices include:

• separate non-creditable ledgers,

• disabling auto-ITC capture for RCM rent,

• monthly pre-GSTR-3B reviews.

Final Position

• RCM on rent is unavoidable when property is used for commercial accommodation

• ITC depends entirely on the outward rate chosen

• At 5%, RCM is a sunk cost

• At 12% / 18%, RCM becomes a recoverable credit

In One Line

RCM always applies. ITC applies only if you consciously allow it.

GST efficiency in accommodation businesses is therefore a matter of design, not accident.