Clause 31 of Form 3CD for AY 2026-27: 269SS, 269T & 269ST — What Every Assessee and CA Should Check Before Tax Audit

 By CA Surekha S Ahuja

Clause 31 of Form 3CD is often treated as a cash transaction clause.

That is not the right way to approach it.

Clause 31 covers specified loans, deposits, specified sums, repayments and high-value receipts and payments. Under Clauses 31(a), 31(b) and 31(c), a transaction is reportable even where it has been undertaken through a permitted banking or electronic mode.

For FY 2025-26 / AY 2026-27, Form 3CD under the Income-tax Act, 1961 continues to apply.

The safest approach is:

Identify → Aggregate → Determine the Clause → Report → Identify the actual mode → Test compliance → Check exceptions

The most important point: Reporting is not the same as violation

This distinction should be understood first.

A qualifying transaction under 31(a), 31(b) or 31(c) does not become non-reportable merely because it was made through a permitted mode.

For example:

• ₹10 lakh loan received through NEFT;
• ₹5 lakh specified sum received through RTGS; or
• ₹8 lakh qualifying loan/deposit repaid through RTGS.

The mode may be compliant, but the qualifying transaction is still relevant for Clause 31 reporting.

Therefore:

Reportability and compliance are two separate tests.

• First: Is the transaction covered by Clause 31?
• Second: Was the prescribed mode followed?

This is the single most important practical distinction in completing Clause 31.

The position is different for Clauses 31(ba) to 31(bd), 31(d) and 31(e). These capture transactions where the prescribed mode requirements are not followed. For these sub-clauses, the mode itself determines whether the transaction falls within the reporting requirement.

Clause 31 at a glance

Clause	What is reported	Main provision	Practical trigger
31(a)	Loan or deposit accepted	269SS	₹20,000 threshold
31(b)	Specified sum received	269SS	₹20,000 threshold
31(ba)	High-value receipt through non-prescribed mode	269ST	₹2 lakh
31(bb)	Such receipt by non-account-payee cheque/draft	269ST	₹2 lakh
31(bc)	High-value payment through non-prescribed mode	269ST	₹2 lakh
31(bd)	Such payment by non-account-payee cheque/draft	269ST	₹2 lakh
31(c)	Loan/deposit/specified advance repaid	269T	₹20,000 threshold
31(d)	Specified repayment received otherwise than through prescribed modes	269T	₹20,000 threshold
31(e)	Such repayment received by non-account-payee cheque/draft	269T	₹20,000 threshold

The current tax-audit guidance separately identifies 31(a), 31(b), 31(c), 31(d) and 31(e), including the different reporting treatment for repayments.

The Clause 31 flow chart

START — Is there a loan / deposit / specified sum / specified advance / high-value receipt or payment?

1. IDENTIFY THE NATURE
Loan / Deposit / Specified Sum / Repayment / Other Receipt or Payment

↓

2. APPLY THE RELEVANT THRESHOLD

• ₹20,000 → Sections 269SS / 269T
• ₹2 lakh → Section 269ST

↓

3. APPLY THE STATUTORY AGGREGATION TEST

• 269SS: current amount + earlier unpaid amount from the same person
• 269T: amount with interest + aggregate amount held from that person
• 269ST: person-wise daily aggregate, single transaction, and one event or occasion

↓

4. IDENTIFY THE CORRECT CLAUSE 31

↓

5. REPORT

• Under 31(a), 31(b) and 31(c), report the qualifying transaction; do not exclude it merely because payment was through bank/electronic mode.
• Under 31(ba) to 31(bd), 31(d) and 31(e), the prescribed/non-prescribed mode determines whether the transaction is reportable.

↓

6. RECORD THE ACTUAL MODE SEPARATELY

Cash / account-payee cheque / account-payee draft / ECS / prescribed electronic mode / other

↓

7. TEST COMPLIANCE

Permitted mode?

YES:
31(a), 31(b), 31(c) → reportable + compliant
Other mode-based sub-clauses → not reportable on account of prescribed-mode compliance

NO:
Reportable + examine exception / reasonable cause / penalty

1. Section 269SS — loan, deposit or specified sum accepted

Section 269SS restricts acceptance of a loan, deposit or specified sum otherwise than through the prescribed banking/electronic modes where the statutory threshold is attracted.

The test is not always limited to the amount of the individual receipt. Relevant earlier unpaid amounts and aggregation have to be considered.

Trigger

Check whether the relevant amount reaches the ₹20,000 threshold, including the statutory aggregation rules.

Example

• Opening loan balance from a person: ₹18,000
• Further cash loan received: ₹5,000

The ₹5,000 cannot be examined in isolation. The earlier unpaid amount and the new loan together come to ₹23,000, which crosses the ₹20,000 threshold. The ₹5,000 cash receipt therefore falls within section 269SS, even though it is below ₹20,000 on its own.

Default

Contravention of section 269SS can attract section 271D penalty equal to the amount of the loan, deposit or specified sum accepted in contravention.

Care point

Do not test 269SS merely from individual cash or bank entries. Review the party-wise outstanding balance.

2. Section 269SS — specified sum and property advances

A specified sum includes money received as an advance or otherwise in connection with the transfer of an immovable property, whether or not the transfer ultimately takes place.

This makes property transactions an important Clause 31 checkpoint.

Review separately

• booking advances;
• earnest money;
• sale advances;
• cancelled transactions;
• refunds; and
• adjustments.

Practical trigger

Property transaction → party → amount → mode → ₹20,000 test → subsequent refund/adjustment

Caution

Cancellation of the property transaction does not by itself remove the need to examine the original receipt under section 269SS.

3. Clauses 31(a) and 31(b) — report even when the mode is permitted

This is where one of the most common mistakes occurs.

Example 1

₹10 lakh unsecured loan received from director through NEFT
→ qualifying transaction → 31(a) reporting → permitted mode → no 269SS mode violation

Example 2

₹5 lakh property advance received through RTGS
→ qualifying specified sum → 31(b) reporting → permitted mode → no 269SS mode violation

Therefore:

“Received through bank” is not a reason for leaving 31(a) or 31(b) blank.

The transaction must first be identified for reporting; its mode is then separately examined.

4. Section 269T and Clause 31(c) — repayments made

Section 269T governs repayment of qualifying loans, deposits and specified advances where the statutory threshold is attracted.

Clause 31(c) deals with such repayments made by the assessee.

Example

Loan of ₹8 lakh repaid through RTGS.

The prescribed mode may have been followed. But the qualifying repayment is still relevant for Clause 31(c) reporting.

Correct sequence

Repayment identified → 31(c) reporting → Actual mode recorded → Section 269T compliance tested

Default

Contravention of section 269T can attract section 271E penalty equal to the amount of the loan, deposit or specified advance repaid in contravention.

Care point

Do not examine only the payment voucher. Review:

loan/deposit ledger + earlier outstanding + amount repaid + actual mode

5. Clauses 31(d) and 31(e) — repayment received by the assessee

These clauses are different from 31(c).

They deal with specified repayments received by the assessee where the repayment is received otherwise than through the prescribed modes or through a non-account-payee cheque/draft, as applicable.

Clause 31(d)

Repayment received otherwise than through the prescribed modes specified in the clause.

Clause 31(e)

Repayment received by a cheque or bank draft which is not an account-payee cheque or account-payee bank draft.

Thus:

• 31(c) = qualifying repayment made by the assessee
• 31(d)/(e) = specified repayment received by the assessee

This distinction should be built into the working paper.

6. Permitted-mode segregation — a must-have working paper

Clause 31 should not be worked out simply as:

“Cash transactions identified — therefore Clause 31 completed.”

The working should separately capture the actual mode.

Recommended working format

Party	Nature	Amount	Clause	Actual mode	Permitted?	Action
Director	Loan received	₹10 lakh	31(a)	NEFT	Yes	Report
Customer	Property advance	₹5 lakh	31(b)	RTGS	Yes	Report
Lender	Loan repaid	₹8 lakh	31(c)	RTGS	Yes	Report
Director	Loan received	₹5 lakh	31(a)	Cash	No	Report + 269SS review
Lender	Loan repaid	₹6 lakh	31(c)	Cash	No	Report + 269T review

The key principle

A permitted mode may make the transaction compliant; it does not by itself make a qualifying transaction non-reportable under 31(a), 31(b) or 31(c).

7. Do not review Clause 31 through the cash book alone

A proper Clause 31 review should cover:

• loan and deposit ledgers;
• director/shareholder/partner accounts;
• property advances;
• relevant customer/vendor advances;
• cash book;
• bank statements;
• journal entries;
• set-offs and adjustments; and
• party-wise outstanding balances.

ICAI's tax-audit material specifically emphasises obtaining complete borrowing/repayment information and examining relevant advances and supporting evidence.

8. Journal entries and set-offs — important caution

A transaction may be settled through:

• journal adjustment;
• set-off;
• transfer of an asset;
• transfer of a liability;
• conversion; or
• another mode.

Therefore:

No cash movement does not automatically mean no Clause 31 issue.

The substance of the transaction and the applicable statutory provision must be examined.

ICAI material on Clause 31 specifically highlights set-off/book-entry settlement as an area requiring consideration under sections 269SS, 269T and 269ST.

9. Section 269ST — the ₹2 lakh test

Section 269ST applies to the receipt of any sum of ₹2 lakh or more otherwise than by the prescribed modes, subject to its statutory exclusions.

There are three separate tests:

Test 1 — Person + day

Aggregate receipts of ₹2 lakh or more from a person in a day.

Test 2 — Single transaction

₹2 lakh or more in respect of a single transaction.

Test 3 — One event or occasion

₹2 lakh or more relating to one event or occasion from a person.

Example

Customer pays ₹1.20 lakh + ₹90,000 on the same day.

Individual payments are below ₹2 lakh. Aggregate = ₹2.10 lakh.

The relevant 269ST test therefore has to be examined.

Caution

Do not assume that splitting a large receipt into smaller instalments avoids section 269ST. The statutory tests specifically address aggregation, single transactions and one event or occasion.

10. Clauses 31(ba) to 31(bd)

These clauses separately capture high-value receipts and payments of ₹2 lakh or more where the prescribed mode requirements are not followed.

Receipts and payments through permitted modes are not reported under these clauses.

The working should therefore identify:

Person → date → amount → aggregate → transaction/event → mode → exception → Clause 31

The distinction between:

• receipt and payment; and
• prescribed and non-prescribed mode

should not be lost.

11. Statutory exceptions — always check before calling it a default

Sections 269SS, 269T and 269ST contain specified exceptions.

Depending upon the provision and conditions, these cover transactions involving entities such as:

• Government;
• banking companies;
• post office savings banks;
• co-operative banks;
• specified Government companies/corporations; and
• notified persons, institutions or classes.

Certain agricultural-income cases and specified co-operative agricultural lending institutions also have special provisions under section 269SS.

Therefore:

Amount alone does not establish a violation. Nature, parties, mode and statutory exception must all be checked.

12. Penalty exposure

Section	Default	Potential penalty
271D	Contravention of 269SS	Amount of loan/deposit/specified sum
271E	Contravention of 269T	Amount of loan/deposit/specified advance repaid
271DA	Contravention of 269ST	Amount received in contravention

The potential exposure can therefore be 100% of the relevant amount.

That makes Clause 31 a year-end risk review, not merely a form-filling exercise.

13. Reasonable cause — protection, not planning

The law provides a reasonable-cause defence in appropriate cases.

But the better sequence is:

Prevent the default → document the circumstances → preserve evidence → examine reasonable cause if required.

The genuineness of the transaction alone should not be treated as a substitute for compliance with sections 269SS, 269T or 269ST.

14. Six practical red flags

1. Related-party loans — Director, shareholder and partner accounts require special scrutiny.
2. Property advances — Review receipt, cancellation, refund and adjustment.
3. Cash repayment — A genuine loan does not automatically make cash repayment permissible.
4. Split receipts — Apply all relevant 269ST aggregation tests.
5. Journal settlements — Do not ignore them merely because the cash book is unaffected.
6. Old outstanding balances — Earlier unpaid amounts can affect the ₹20,000 test.

15. The year-end Clause 31 checklist

Before finalising Form 3CD:

• Extract all loans and deposits accepted
• Extract specified sums/property advances
• Extract all qualifying repayments
• Review party-wise opening and outstanding balances
• Reconcile cash and bank transactions
• Review journal/set-off entries
• Apply ₹20,000 tests under 269SS/269T
• Apply ₹2 lakh tests under 269ST
• Identify the correct Clause 31 sub-clause
• Record the actual mode separately
• Check statutory exceptions
• Identify non-compliance and penalty exposure
• Preserve confirmations and supporting evidence

The simplest way to remember Clause 31

₹20,000

• Loan / deposit / specified sum accepted → 269SS
• Loan / deposit / specified advance repaid → 269T

₹2 lakh

• High-value receipt/payment → 269ST

And always remember:

REPORT FIRST. MODE SECOND. COMPLIANCE THIRD.

(For 31(ba) to 31(bd), 31(d) and 31(e), the mode determines whether the transaction falls within the reporting requirement.)

CA Sahuja Perspective

Clause 31 should never be completed by asking only:

“Was there any cash transaction?”

The better question is:

“What qualifying transaction took place, which Clause 31 applies, what was the actual mode, and was that mode permitted?”

For AY 2026-27, the safest approach is a two-layer review:

Layer 1 — REPORTING
Identify every qualifying transaction and report it under the appropriate Clause 31.

Layer 2 — COMPLIANCE
Test its mode, aggregation, exception and penalty exposure.

The practical lesson is simple:

A permitted banking/electronic mode can make a qualifying transaction compliant; it does not, by itself, make the transaction non-reportable under Clause 31(a), 31(b) or 31(c).

Income Tax Department's New Foreign-Asset Message: Don't Ignore It — But Don't Misread It

 What taxpayers should check about overseas assets, AIS, Schedule FA and FAST-DS before 31 December 2026

By CA Surekha S Ahuja

The Income-tax Department is sending taxpayers a message along these lines: "Our records indicate that you may have overseas financial interests…"

The message refers to overseas bank accounts, shares, immovable property and other financial interests acquired in earlier years. It asks taxpayers to review the Foreign Assets Information in their AIS. It also points to the Foreign Assets of Small Taxpayers – Disclosure Scheme, 2026 (FAST-DS), open until 31 December 2026.

The message deserves attention. It also deserves to be read correctly.

It is a compliance prompt — not, by itself, a finding of undisclosed income.

It sits alongside the Department's NUDGE initiative, which focuses on better reporting of foreign assets and income in ITRs. FAST-DS, separately, provides a limited route for specified past omissions.

The real issue is not the message — it is the mismatch

A taxpayer receiving this message should not first ask, "How do I file FAST-DS?"

The first questions are:

1. Was I required to disclose this foreign asset?
2. Did I disclose it correctly?
3. If not, why not?

Only after answering these should FAST-DS be examined.

The whole approach in one flow

                 MESSAGE RECEIVED
          Don't panic — but don't ignore it
                        │
                        ▼
          1. CHECK AIS — what does the
             Department actually hold?
                        │
                        ▼
          2. LIST EVERY FOREIGN ASSET
             (not just the one mentioned)
                        │
                        ▼
      ┌──────────────────────────────────────┐
      │ For each asset, record:              │
      │ Year · Ownership · Residential status│
      │ Source · Value · ITR · AIS           │
      └──────────────────────────────────────┘
                        │
                        ▼
          3. RECONCILE WITH PAST RETURNS
                        │
                        ▼
          4. TEST THE LEGAL POSITION
             (see decision tree below)
                        │
                        ▼
          5. ACT — correct, declare, or
             document why nothing is due

That sequence matters more than the message itself.

Seven myths taxpayers should avoid

Myth 1: "The Department has found undisclosed income."
Not necessarily. Foreign financial information reaches the Department through information-sharing and compliance systems. Holding that information is not the same as establishing undisclosed income.

Information with the Department ≠ finding of undisclosed income. It is, however, a clear reason to reconcile your records.

Myth 2: "The money was already taxed in India, so there was no disclosure obligation."
This is one of the most important misconceptions. Source of funds and disclosure are two different questions.

Indian salary → tax paid → foreign shares bought → Schedule FA omitted.

The source may be fully explainable, yet the asset may still have required reporting. FAST-DS itself recognises this by treating assets bought from taxed income as a separate category.

A legitimate source does not remove a reporting obligation.

Myth 3: "It is a small investment, so it need not be reported."
There is no general rule that a small foreign asset need not be reported.

The Black Money Act's ₹20 lakh threshold (for assets other than immovable property) affects a specific penalty consequence. It is not a ₹20 lakh reporting exemption.

Penalty consequence ≠ reporting requirement.

Myth 4: "The account is old or dormant, so it does not matter."
An old account can still need examination. So can:

• an overseas brokerage account
• foreign shares, ESOPs or RSUs
• a foreign pension or retirement account
• property bought while working abroad
• a joint or beneficially owned account
• an account where you only had signing authority

Ask: When was it acquired? Who owned it? What was your residential status then? Was it held in the reporting period? Was it disclosed?

Myth 5: "If it appears in AIS, it is already in my ITR."
AIS is information, not your return. The two must be reconciled.

Equally, if something does not appear in AIS, that does not mean it need not be reported. The obligation comes from the law, not from what AIS happens to show.

Myth 6: "I received the message, so I must file FAST-DS."
No. The message should trigger an assessment of facts and law, not an automatic declaration. FAST-DS has defined categories, conditions and value limits. Receiving the message does not establish eligibility.

Myth 7: "I did not receive the message, so there is nothing to worry about."
Equally unsafe. The disclosure obligation does not start when the Department sends a message. No message is not an exemption.

The key distinction: two separate questions

	What it asks
Question 1	Was the foreign asset or income required to be disclosed?
Question 2	If there was an omission, is FAST-DS available for that case?

These questions must never be answered in reverse order.

                   FOREIGN ASSET
                         │
                         ▼
          Q1 · WAS DISCLOSURE REQUIRED?
             (residential status is key)
                 /                \
               NO                  YES
               │                    │
               ▼                    ▼
        RECORD THE BASIS     WAS IT DISCLOSED?
                               /          \
                             YES           NO
                              │             │
                              ▼             ▼
                        NO FA ISSUE —   WHY NOT? Establish
                        keep evidence   source · status ·
                                        value · year
                                             │
                                             ▼
                              Q2 · WHICH FAST-DS ROUTE?
                   ┌─────────────────┼─────────────────┐
                   ▼                 ▼                 ▼
              CATEGORY 2        CATEGORY 1       OUTSIDE FAST-DS
            Taxed income or     Untaxed or       Above ceiling or
            acquired as NR      unexplained      ineligible
            Up to ₹5 crore      Up to ₹1 crore   Other legal
            ₹1 lakh fee         60% of value     analysis needed

FAST-DS is not the starting point. Your actual history is.

Residential status can change the answer

The Department's Schedule FA guidance states that Schedule FA is not required for a non-resident or a resident but not ordinarily resident (RNOR). FAST-DS separately deals with assets acquired while non-resident that became reportable after the taxpayer became resident.

The year of acquisition and your status in each relevant year can therefore be decisive. This matters most for:

• Indians who worked abroad and later returned
• people who became residents after several years overseas
• accounts opened during foreign employment or education
• overseas pensions and retirement accounts
• investments made while non-resident
• inherited or jointly held foreign assets

The reconciliation checklist

Don't start by opening Form 1. Start here.

Check	What to establish
1. Asset	What exactly is the foreign asset or financial interest?
2. Ownership	Legal owner, beneficial owner, beneficiary, joint holder or signatory?
3. Timeline	When acquired or opened? Held in which years?
4. Residential status	ROR, RNOR or non-resident in each relevant year?
5. Source	Salary, savings, inheritance, gift, overseas income or taxed Indian income?
6. ITR	Reported in the relevant return and Schedule FA?
7. AIS	What is currently visible to the Department?
8. FAST-DS	If there was an omission, does the case actually fit the scheme?

FAST-DS: what it is — and what it is not

	Category 1	Category 2
Covers	Undisclosed foreign income or assets	Assets bought from taxed income, or acquired while non-resident, but not reported
Ceiling (aggregate)	₹1 crore	₹5 crore
Payable	30% tax + 30% additional = 60% of value	Flat ₹1 lakh fee
Valuation date	31 March 2026	31 March 2026

• Window: 16 August to 31 December 2026, via Form 1 on the e-filing portal.
• Ceilings are all-or-nothing: cross the limit and the category is unavailable. You cannot declare part and leave the rest.
• Immunity follows only a valid declaration and payment.
• Payments are not refundable.

The ₹1 lakh fee is not a universal settlement amount. And the scheme's existence does not mean every omission belongs in it. Eligibility must be established case by case.

Why these messages are going out now

FAST-DS is operational, Form 1 guidance is published, and the NUDGE initiative focuses specifically on Schedule FA. It is reasonable to see this message as part of a broader, data-driven compliance outreach.

But you should not try to infer the Department's precise basis in your case merely from receiving the message.

The practical lesson is simpler: if the Department is asking you to look at your foreign assets, look at them properly.

The bottom line

• Do not ignore the message — but do not read it as a tax demand.
• The message does not, by itself, establish undisclosed income.
• An overseas asset can have a fully legitimate source and still have a disclosure problem.
• AIS is not a substitute for disclosure in your return.

CHECK → RECONCILE → DETERMINE DISCLOSURE → TEST FAST-DS → ACT

The most expensive mistake may not be having a foreign asset. It may be choosing the wrong compliance route after discovering it.

Gratuity Provision in Tax Audit: Provision, Payment, Write-back and LIC Fund — AY 2026-27

 By CA Surekha S Ahuja

The gratuity charge in P&L is not automatically the tax deduction

Gratuity is a classic year-end tax-audit trap.

A company may recognise an actuarial gratuity liability in its accounts, but the closing liability is not itself the tax deduction.

The tax treatment depends on what actually happened:

PROVISION → PAYABILITY → PAYMENT → APPROVED FUND CONTRIBUTION → WRITE-BACK

For AY 2026-27, FY 2025-26 is governed by the Income-tax Act, 1961. Income from 1 April 2026 onwards falls under the Income-tax Act, 2025 and the new Tax Year regime.

The law in one view

Transaction	Tax treatment	Legal basis
Provision for future gratuity	Generally disallowed	s. 40A(7)(a)
Gratuity that became payable during the year	Exception to the above	s. 40A(7)(b)
Contribution to approved gratuity fund	Deductible subject to payment conditions	s. 36(1)(v) + s. 43B(b)
Contribution to unapproved fund	Generally disallowed	s. 40A(9)
Direct gratuity payment out of provision disallowed earlier	Deduction may arise on payment	s. 37(1), read with s. 40A(7)
Provision allowed earlier and subsequently paid	No second deduction	Explanation to s. 40A(7)
Write-back of provision disallowed earlier	Generally not taxable merely because of write-back	No earlier tax deduction
Write-back where deduction was allowed earlier	May be taxable	s. 41(1)

Section 40A(7)(a) disallows a provision for gratuity, subject to the specific exceptions in section 40A(7)(b). The Explanation also prevents a second deduction where the original provision had already been allowed.

1. Provision is not payment

Suppose the gratuity charge debited to P&L for FY 2025-26 is ₹30 lakh.

If that charge represents future gratuity liability and the gratuity has not otherwise become payable during the year, the amount is generally added back under section 40A(7).

But the correct statement is not: "Every gratuity provision is disallowed."

Section 40A(7)(b) creates an exception for a provision for gratuity that has become payable during the previous year.

Therefore:

Future gratuity provision
→ generally disallow.

Gratuity that became payable during FY 2025-26
→ examine the section 40A(7)(b) exception.

The closing actuarial liability should never simply be equated with the amount to be added back. The tax working should identify the current-year charge and separately examine amounts that became payable.

2. What happens when the previously disallowed provision is paid?

Suppose: Opening tax-disallowed provision: ₹10 lakh

• Current-year gratuity charge: ₹3 lakh
• Gratuity paid during the year from the provision: ₹4 lakh

If the ₹4 lakh relates to a provision that was disallowed earlier, deduction may arise when the gratuity is actually paid, subject to the applicable provisions.

The legal basis is the general deduction provision in section 37(1), read with section 40A(7).

But if the same payment has already been charged to P&L and thereby claimed in arriving at accounting profit, it should not be deducted again.

Equally, where the underlying provision had already been allowed as a deduction, the Explanation to section 40A(7) prevents a second deduction when the amount is subsequently paid.

The practical test : Was the amount already allowed for tax, or is the payment now releasing a provision on which tax deduction was denied earlier?

That is why a tax-disallowed gratuity provision register is essential.

3. Do not put every gratuity payment under section 43B

This distinction is important.

Section 43B(b) deals specifically with an employer's contribution to a gratuity fund.

It is therefore not correct to treat every gratuity paid directly to an employee as a section 43B payment.

Direct payment to employee

Analyse under the section 40A(7) framework, including whether the gratuity had become payable and whether a previously disallowed provision is being utilised.

Contribution to approved gratuity fund : Analyse under section 36(1)(v) read with section 43B(b). 

The legal character of the payment determines the tax treatment.

4. LIC Group Gratuity: the policy is not the tax test

An employer may have an LIC Group Gratuity arrangement. But the relevant question is not merely: "Is there an LIC policy?"

It is: Is the contribution being made to an approved gratuity fund and are the statutory conditions satisfied?

Section 36(1)(v) provides the deduction for contributions to an approved gratuity fund, while section 43B(b) governs the timing of deduction by reference to actual payment.

Tax computation for a funded arrangement - 

As a practical computation:

Add back: the full gratuity charge recognised in the books under AS 15 / Ind AS 19, to the extent not otherwise deductible.

Deduct: the eligible contribution actually paid to the approved gratuity fund, subject to section 43B.

And importantly: Gratuity paid by LIC/fund to employees does not give the employer a second deduction where the employer's eligible contribution has already been allowed.

Before claiming the contribution, verify:

• approval of the gratuity fund;
• irrevocable trust documentation;
• LIC policy/scheme;
• contribution demand;
• actual payment date; and
• fund statement.

An LIC policy by itself is not the statutory test for deduction.

5. A write-back follows the tax history of the provision

Suppose actuarial remeasurement reduces the liability and ₹50,000 is credited to P&L.

Do not automatically treat ₹50,000 as taxable income.

Ask: Was the original provision allowed as a tax deduction?

If disallowed earlier:  the write-back generally should not become taxable merely because it is credited to P&L.

If allowed earlier: section 41(1) may bring the corresponding benefit to tax.

The principle : The tax treatment of the write-back follows the tax treatment of the original provision.

The current year's accounting entry cannot be examined in isolation.

6. The reconciliation that catches the mistake

Assume:

Particulars	₹
Opening tax-disallowed provision	10,00,000
Current-year gratuity charge	3,00,000
Gratuity paid from provision	(4,00,000)
Excess provision written back	(50,000)
Closing provision	8,50,000

Assuming the opening provision was entirely disallowed in earlier years:

Add back: current-year provision — ₹3,00,000

Less: eligible gratuity payment — ₹4,00,000

Less: write-back of previously disallowed provision — ₹50,000

Net tax adjustment: ₹1,50,000 deduction

The movement independently confirms the number:

₹10 lakh opening − ₹8.50 lakh closing = ₹1.50 lakh

If the tax computation does not reconcile with the movement in the tax-disallowed provision, stop and investigate before filing.

7. Form 3CD and ITR: do not force the wrong section

For AY 2026-27, the relevant Form 3CD provisions include:

Clause	Gratuity relevance
21(e)	Provision for payment of gratuity not allowable under section 40A(7)
21(f)	Amounts covered by section 40A(9)
26	Amounts covered by section 43B, including relevant gratuity-fund contributions

CBDT's current tax-audit guidance expressly identifies Clause 21(e) for provision for gratuity not allowable under section 40A(7) and Clause 21(f) for section 40A(9).

The important distinction

A gratuity provision belongs to the section 40A(7) analysis.

An eligible contribution to an approved gratuity fund belongs to the section 43B analysis.

A direct gratuity payment should not be shifted into Clause 26 merely to make the numbers appear to match.

On the ITR side, a direct payment that is not a section 43B item should be claimed through the appropriate deduction route, including the relevant "any other amount allowable as deduction" field where applicable, rather than being put into the 43B row.

The objective is not to make 3CD and ITR mechanically identical by using the wrong statutory provision.

It is to make the legal character, 3CD disclosure and ITR computation tell the same story.

8. FY 2025-26: the gratuity valuation deserves another look

The Code on Social Security, 2020 gratuity provisions became applicable from 21 November 2025. The Ministry of Labour's FAQ confirms that the gratuity calculation provisions apply from that date and that a fixed-term employee becomes eligible for gratuity on completing one year of service under the contract.

This can affect the underlying gratuity liability and the actuarial valuation for FY 2025-26.

But keep the two laws separate:

A liability under labour law does not automatically become a deductible provision under income-tax law.

The tax question remains whether the amount is merely provided, has become payable, has been paid, or represents an eligible contribution to an approved fund.

AY 2026-27 — 10-point gratuity audit check

Before signing the tax audit report:

1. Obtain the actuarial valuation.

2. Reconcile the opening and closing gratuity liability.

3. Identify gratuity that became payable during FY 2025-26.

4. Separate it from the future gratuity provision.

5. Trace every payment — through provision or directly through P&L.

6. Maintain the tax-disallowed gratuity register.

7. For LIC/approved-fund arrangements, verify approval + contribution + payment.

8. Trace every write-back to the year in which the provision was originally dealt with for tax.

9. Reconcile Clause 21(e), 21(f) and 26 with the computation.

10. Ensure the 3CD, computation and ITR tell the same legal story.

Final Perspective

The real mistake is not making a gratuity provision.

It is losing the tax history of that provision.

For AY 2026-27, follow the legal sequence:

PROVISION → PAYABILITY → PAYMENT → WRITE-BACK

For a funded arrangement:

APPROVAL → CONTRIBUTION → PAYMENT → DEDUCTION

For every material amount, the working paper should answer four questions:

What was provided?
When did it become payable?
When and how was it paid?
Was a tax deduction already claimed?

That is the real control.

Do not deduct the accounting provision merely because it is an expense.
Do not disallow the same amount twice.
Do not claim the same payment twice.
And do not treat an LIC policy as a substitute for approved-fund verification.

For AY 2026-27, a properly maintained gratuity tax reconciliation can prevent a small year-end accounting entry from becoming a tax-audit or return-processing problem.

One final transition point

The above analysis is for AY 2026-27 under the Income-tax Act, 1961. From 1 April 2026, the Income-tax Act, 2025 applies. The terminology, section numbering and tax-audit reporting framework change; for Tax Year 2026-27, the erstwhile Forms 3CA/3CB/3CD are replaced by the unified Form No. 26 under section 63 of the new Act.

When Does an Audit Under Another Law Make the ITR Due on 31 October

 By CA Surekha S Ahuja

AY 2026-27 | FY 2025-26

An audit report does not decide the ITR due date.

The legal requirement to get the accounts audited does.

This distinction matters particularly for LLPs, partnership firms, trusts, societies, cooperative societies and other regulated entities, where an audit may arise under different laws or for different purposes.

For AY 2026-27, the return for FY 2025-26 continues to be governed by the Income-tax Act, 1961, even though the new Income-tax Act, 2025 has come into force from 1 April 2026.

The real question is:  Were the accounts required to be audited under the Income-tax Act or under any other law for the time being in force?

That wording in Explanation 2 to section 139(1) is more important than the mere existence of an audit report.

AY 2026-27: the practical due-date map

Situation	ITR due date
Individual/HUF — no business or profession and no audit category	31 July 2026
Business/profession income, accounts not required to be audited	31 August 2026
Firm/LLP not falling in an audit category	31 August 2026
Company	31 October 2026
Accounts required to be audited under the Income-tax Act	31 October 2026
Accounts required to be audited under another law	31 October 2026
Working partner of a firm whose accounts are required to be audited	31 October 2026
Person required to furnish report under section 92E	30 November 2026

The Income Tax Department's current transition FAQ confirms the 31 August non-audit and 31 October audit-category dates for AY 2026-27.

For cases where the ITR due date is 31 October, the tax-audit report for FY 2025-26 is generally due by 30 September 2026. For section 92E cases, the audit report is generally due by 31 October 2026.

The real test: “audited” or “required to be audited”?

This is the key distinction.

Audit situation	Does it by itself put the return in the 31 October category?
Tax audit required under section 44AB	Yes
Statutory audit required under another applicable law	Yes
Company statutory audit	Yes
Audit obtained only because a bank requires it	Not merely for that reason
Investor/commercial audit	Not merely for that reason
Internal or management audit	No
LLP audit conducted under the statutory mechanism of Rule 24(8)	Requires specific examination

Section 139(1) specifically refers to a person whose accounts “are required to be audited under this Act or under any other law for the time being in force.”

Therefore, the first working-paper question should always be:

What legal provision required the audit?

LLPs: where the real nuance lies

LLPs require special attention because the LLP Act, 2008 itself provides a statutory audit framework.

Section 34(4) requires LLP accounts to be audited in accordance with the prescribed rules.

Rule 24(8) of the LLP Rules, 2009 provides an exemption where:

• turnover does not exceed ₹40 lakh in a financial year; or
• contribution does not exceed ₹25 lakh.

The word “or” matters

These are alternative limits, not cumulative conditions.

Satisfying either limb brings the LLP within the Rule 24(8) exemption.

But that is not necessarily the end of the analysis.

The second proviso to Rule 24(8) provides that where the partners of such an LLP decide to get the accounts audited, the accounts shall be audited in accordance with the Rules.

Therefore, for an audit-exempt LLP, the analysis should be:

Does the Rule 24(8) exemption apply?
↓
Did the partners exercise the statutory audit option?
↓
Was the audit conducted in accordance with the LLP Rules?
↓
Does that statutory audit bring the LLP within the audit category under Explanation 2 to section 139(1)?

This is where the Paramsukh Infradevelopers LLP ruling becomes relevant.

Paramsukh Infradevelopers LLP: why the ruling matters

In Paramsukh Infradevelopers LLP v. ITO, Ward 1(1)(1), Agra, ITA No. 56/Agr/2023, AY 2019-20, the ITAT Agra SMC Bench considered an LLP which was otherwise within the Rule 24(8) exemption but whose partners had decided to have its accounts audited.

The audit was undertaken within the LLP statutory framework, including reference to section 34(4), with relevant LLP records supporting the position.

The Revenue treated the return as belated, affecting the LLP's claim to carry forward a business loss of about ₹16.96 lakh.

The Tribunal held that the second proviso to Rule 24(8) provided a statutory mechanism for the partners to have the accounts audited and that, once exercised, the accounts were to be audited in accordance with the LLP Rules.

On those facts, the Tribunal treated the LLP as falling within the audit category contemplated by the applicable provision of section 139(1), allowing the return to be treated as timely for the relevant purpose.

The decision can be read here: Paramsukh Infradevelopers LLP — ITAT Agra

What should not be inferred 

Paramsukh should not be read as saying:  Every voluntary audit of an LLP automatically makes the ITR due on 31 October.

The more precise proposition is: Where an otherwise audit-exempt LLP exercises the specific statutory option under the second proviso to Rule 24(8), and the accounts are audited in accordance with the LLP Rules, Paramsukh supports the 31 October position on such facts.

It is an ITAT Agra SMC decision, not a High Court or Supreme Court ruling. Therefore, the precise statutory route followed and the supporting documents remain important.

Partnership firms: do not confuse commercial audit with statutory audit

The Indian Partnership Act, 1932 does not impose a general annual statutory audit requirement on every partnership firm.

Therefore, an audit undertaken merely because:

• a bank requires it;
• an investor requires it;
• management wants it; or
• another commercial party requires it

does not, by itself, establish the 31 October category.

However, where section 44AB requires tax audit, the firm's accounts are required to be audited under the Income-tax Act and the audit-category due date applies.

The working partner's due date should then be examined with reference to the firm's audit status. Section 139 expressly links the working partner's due date to the audit status of the firm.

Trusts, societies and cooperative societies: identify the governing law

Here, the answer is statute-specific.

For a trust or institution, examine the applicable audit requirement under the Income-tax Act, including section 12A(1)(b) where relevant.

For societies, cooperative societies and other regulated entities, identify:

Governing law → audit provision → threshold/condition → legal requirement → section 139(1) consequence.

The entity's name alone does not determine the due date.

A statutory audit required under the applicable governing law can bring the entity into the 31 October category.

A purely voluntary or commercial audit cannot simply be assumed to do so.

The five-minute working paper

Before selecting the ITR due date, record:

Question	What to document
Entity	Company / LLP / firm / trust / society / cooperative etc.
Governing law	Relevant statute and provision
Audit provision	Exact section/rule requiring or permitting audit
Threshold/condition	Turnover, contribution or other applicable test
Actual position	Whether the statutory requirement/option was triggered
Audit evidence	Resolution, audit report, financial statements, MCA filings or other relevant records
Tax conclusion	31 August / 31 October / 30 November, with the statutory basis

For an LLP claiming the Rule 24(8) route, preserve the turnover computation, contribution records, partner decision/resolution, audit report, LLP agreement and relevant MCA filings.

Why the date matters

This is not merely a calendar exercise.

The difference between 31 August and 31 October can affect:

• validity of a loss return and carry-forward;
• exposure to consequences of belated filing;
• compliance planning;
• partner-level filing timelines;
• audit and reporting coordination; and
• the evidentiary position if the due date is later questioned.

The mistake is often made before the ITR is filed — by assuming that an audit report itself determines the due date.

It does not. The statutory basis for the audit determines the starting point of the analysis.

Last Words

For AY 2026-27, do not ask only: “Has the entity been audited?”

Ask: “Under which law, under which provision, and because of which facts were its accounts required to be audited?”

For an LLP, go one step further: “If it was otherwise exempt under Rule 24(8), did the partners exercise the statutory audit option under its second proviso, and was the audit conducted under the LLP Rules?”

The ITR due date follows the legal audit position — not merely the existence of an audit report.

That distinction can turn a seemingly simple 31 August vs 31 October decision into an important compliance and loss-carry-forward issue.

General information for compliance and educational purposes. The applicable law, facts and judicial position should be independently examined before determining the filing due date.

Transfer Pricing at Year-End: One Comparable, One Allocation—and Several Red Flags

 By CA Surekha S Ahuja

What the TVS Motor ruling teaches before financial statements and TP positions are finalised

Transfer pricing should be stress-tested at closing—not defended for the first time after the TPO changes the numbers.

That is the real practical lesson from the recent ITAT Chennai decision in TVS Motor Co. Ltd. v. DCIT, order dated 9 September 2026 for AY 2022-23.

At first sight, the case is about a narrow question:

Can a taxpayer using a single internal comparable still claim the statutory tolerance band where the range concept under Rule 10CA does not apply?

The Tribunal held that it can.

But for companies currently finalising their financial statements, the larger lesson is more important:

A transfer-pricing position should not be reviewed only on the numbers produced by the business. It should be stress-tested for the changes a TPO could make—and for the other AE exposures that sit outside the tolerance-band calculation altogether.

What happened in TVS Motor?

TVS Motor applied TNMM with OP/OC as the PLI and used its own non-AE/domestic segment as the internal comparable.

The TPO's principal intervention was the allocation of depreciation between the AE and non-AE segments. That changed the AE segment margin materially.

The assessee argued that even on the TPO's recomputed figures, the difference remained within the notified 3% tolerance band.

The relevant figures were:

	Margin
Internal comparable / non-AE segment	1.31%
AE segment after TPO's recomputation	–0.46%
Variance	Within ±3%

The Tribunal accepted the tolerance-band argument and deleted the adjustment.

How can one comparable have an “arithmetic mean”?

This was the central legal question.

Rule 10CA(1)–(6) provides the range concept in specified cases where six or more comparables are used.

Rule 10CA(7) applies where the range mechanism does not apply.

The Revenue argued that an arithmetic mean necessarily required more than one value.

The Tribunal's answer was straightforward:

The arithmetic mean of a dataset containing one value is that value itself.

Rule 10CA(7) does not prescribe a minimum number of comparables before the tolerance mechanism can operate.

Therefore, a single internal comparable is not automatically excluded from the Rule 10CA(7) tolerance-band analysis.

The more important lesson: the comparable and the allocation travel together

The internal comparable in TVS Motor was not just a number in a TP study.

Its usefulness depended upon the underlying segmental results and allocation of costs, particularly depreciation.

This is where the year-end risk begins.

If depreciation or common costs are allocated differently, the AE margin can change.

And if the margin changes, the transfer-pricing conclusion can change.

The Tribunal ultimately did not decide whether the TPO's depreciation allocation itself was correct because the tolerance-band issue disposed of the adjustment.

So the ruling should not be read as approving any particular allocation methodology.

The practical lesson is:

Do not merely test the TP conclusion. Test the assumptions and allocations that produce the TP conclusion.

And the TP review should not stop at the operating margin

This is particularly important in group structures.

A company may be comfortable with its operating-margin analysis and still have separate TP exposures arising from other dealings with its AEs.

Corporate guarantee

A corporate guarantee given on behalf of an AE should be reviewed independently.

It should not simply be folded into the operating-margin tolerance-band analysis.

The attached guidance note identifies corporate guarantee as a separate benchmarking exposure and specifically states that it is not covered by the tolerance-band ratio.

At year-end, therefore, ask:

• Have all guarantees given for AEs been identified?
• Are the amount, tenure, beneficiary and underlying borrowing documented?
• Has the applicable TP treatment and benchmarking been considered?
• Is the guarantee exposure being analysed separately from the operating-margin tolerance?

Outstanding AE receivables

Delayed realisation from an AE is another area requiring separate attention.

The attached note identifies outstanding receivables beyond the credit period as a potential international-transaction exposure and states that this issue is not covered by the TVS Motor tolerance-band reasoning.

So the year-end review should also ask:

Are there significant AE receivables outstanding beyond the agreed credit period, and has the resulting TP exposure been separately examined?

The year-end TP red-flag test

Before the financial statements and TP documentation are frozen, review the complete AE relationship:

Red flag	Closing-stage question
Internal comparable	Is it genuinely comparable and supported by reliable segmental data?
AE vs non-AE margin	What is the variance on the relevant PLI?
Depreciation allocation	Can another allocation materially change the AE margin?
Common costs	Is the allocation basis rational, documented and consistently applied?
Comparable count	Does the range concept apply, or should Rule 10CA(7) be examined?
Tolerance band	Has the percentage applicable to the relevant AY been correctly verified?
Corporate guarantee	Has the guarantee been identified and independently benchmarked?
AE receivables	Has delayed realisation been separately examined?
Documentation	Would the TP file explain the position without depending on a future litigation argument?

The attached guidance note itself identifies internal comparables, segmental allocations, corporate guarantees and outstanding receivables as separate year-end areas requiring attention.

Six questions before signing off the TP position

1. What is the most appropriate method and PLI for each AE transaction?

2. What exactly is the comparable set—and if there is one internal comparable, is its segmental basis defensible?

3. Can depreciation or common-cost allocation materially change the result?

4. Does the applicable tolerance mechanism cover the case, and has the percentage for the relevant AY been verified?

5. Have corporate guarantees been separately identified and benchmarked?

6. Have delayed AE receivables and other separate TP exposures been reviewed?

The tolerance percentage should be verified against the applicable notification for the relevant assessment year rather than simply carried forward from the preceding year.

Where the position falls within the applicable tolerance, the conclusion should be documented contemporaneously in the TP study and Form 3CEB.

Where the position is outside the tolerance or remains uncertain, the related tax provision and contingent-liability implications should be considered during financial-statement finalisation.

A favourable Tribunal ruling is not a year-end strategy

TVS Motor gives an important legal answer where Rule 10CA(7) applies.

But the purpose of a year-end TP review should not be to prepare for a long litigation journey.

The better objective is:

Identify → stress-test → correct where possible → document → assess the remaining exposure.

That review should happen before the accounts and TP documentation are frozen.

Once an adjustment is proposed, the focus necessarily shifts from prevention to defence.

Concluding words

The real lesson of TVS Motor is not merely that one comparable can still qualify for the tolerance band.

It is that transfer pricing has to be reviewed as a complete AE relationship—not just as an operating-margin calculation.

Before closing the year, look at:

the comparable → the segmental margin → depreciation → common costs → tolerance → corporate guarantee → receivables → documentation.

A favourable Tribunal ruling may provide protection in an appropriate case.

It should not become the year-end strategy.

The better strategy is to identify the red flags while the numbers can still be reviewed, the allocation can still be examined, the documentation can still be strengthened and the financial statements can still be finalised with the exposure understood.

Transfer pricing should be stress-tested at closing—not defended for the first time after the TPO changes the numbers.

Important

TVS Motor is a Tribunal-level, fact-specific decision. Its reasoning concerns the non-range framework under Rule 10CA(7) and should not be mechanically extended to cases where the range provisions apply or to materially different methods and facts. The applicable tolerance percentage must be verified for the relevant assessment year.

LLP to Private Limited Company: Do You Really Need a Merger- 8 Smarter Restructuring Routes

8 restructuring routes promoters should examine before converting, transferring or merging

By CA Surekha S Ahuja

A promoter has an LLP and a private company. The businesses overlap.

The instinctive question is: “Can we merge the LLP into the company?”

That may not be the right starting point. The better question is:

What exactly must the restructuring achieve?

Is the objective ownership, cooperation, investor readiness, succession, selective transfer of a business or assets—or genuinely one legal entity carrying everything forward?

The answer can change the entire route, cost, tax position, stamp-duty exposure, compliance burden and timeline.

First decide what needs to change

An LLP and a company are separate legal entities. Their restructuring mechanisms are not interchangeable. The LLP Act contains provisions dealing with reconstruction and amalgamation of LLPs, while company mergers operate within the Companies Act framework.

The relevant framework may involve, depending on the proposed route, the LLP Act, Sections 366 and 230–232 of the Companies Act, and the applicable income-tax provisions governing conversion, succession and tax-attribute continuity.

Therefore, an LLP-to-company merger should not be assumed to be an ordinary company-to-company merger.

Eight routes promoters should examine

Objective	Possible route	What changes?	Principal issue
Ownership	LLP becomes shareholder	LLP holds shares in company	Business stays in LLP
Participation	Company becomes LLP partner	Company acquires partnership interest	LLP agreement becomes critical
Cooperation	JV / commercial arrangement	Contractual relationship only	Tax, GST and related-party implications
Corporate form	LLP converted into company	Legal form changes	Tax-neutrality conditions
Selective integration	Conversion + transfer	Selected business/assets move	Capital gains, GST, stamp duty, contracts
Complete consolidation	Conversion + merger	One company survives	NCLT, valuation, cost and time
Direct LLP → company	Specialist restructuring route	Proposed direct consolidation	Statutory availability must be established
Multiple LLPs	LLP amalgamation + conversion	LLPs consolidate first	Two-stage restructuring

These are not merely eight technical alternatives.

They represent eight different levels of disruption to legal identity, assets, liabilities and tax attributes.

Ownership does not require moving the business

If the objective is simply to bring the LLP and company under a common ownership structure, the business itself may not need to move.

An LLP can hold shares in a private company.

The LLP can continue to own its business, assets, contracts and liabilities while participating in the company's ownership.

Dividend, share transfer, buyback and other shareholder-level consequences should, however, be separately examined.

The reverse structure can also be relevant: a company may become a partner in an LLP where commercial participation in the LLP business is intended.

In that case, capital contribution, profit sharing, voting, reserved matters, exit and deadlock provisions need careful drafting.

Change the ownership without unnecessarily changing the business.

Cooperation may be enough

Sometimes the businesses need to work together, not become one entity.

Management services, shared services, licensing, financing, use of intellectual property or other commercial arrangements can achieve substantial integration without transferring the underlying business.

That may avoid a major restructuring altogether.

But “simple” does not mean undocumented.

Pricing, valuation, GST, income-tax, related-party requirements, TDS and transfer of resources must still be examined on the facts.

Conversion and merger solve different problems

If the LLP structure itself has become unsuitable—for example, because of equity investment, conventional corporate ownership, succession or future investor requirements—conversion into a company may be appropriate.

But conversion does not automatically require merger.

Conversion changes the legal form.
Merger eliminates the separate entity.

If conversion achieves the commercial objective, merging immediately afterwards may simply add another layer of cost and procedure.

Where only a particular business, undertaking or asset needs to move, selective transfer may be more appropriate.

That route requires separate modelling of:

• capital gains;
• GST;
• stamp duty;
• valuation;
• contract novation or consents;
• financing arrangements; and
• assumption or retention of liabilities.

When does complete consolidation justify a merger?

A full consolidation becomes relevant when the commercial requirement is genuinely:

one legal entity + one balance sheet + one ownership structure + consolidated assets and liabilities.

A possible broad restructuring sequence is:

LLP → Company → NCLT merger → Surviving company

This can achieve much greater legal consolidation, but it is also the most elaborate route.

The planning analysis may involve 8–15 months, depending on the facts and approvals. This is a practical planning range, not a statutory timeline.

Valuation, professional fees, notices, creditor considerations, hearings, documentation, stamp duty and post-merger implementation can materially affect both cost and timing.

Therefore:

A merger should solve a real consolidation or succession problem—not merely the inconvenience of having two entities.

The direct LLP-to-company route requires a separate legal opinion

This is an area where promoters should resist “standard template” advice.

The LLP Act provides a framework for reconstruction and amalgamation of LLPs. Company mergers, on the other hand, operate within the Companies Act framework.

That does not automatically establish a routine direct LLP-to-existing-company merger mechanism identical to a company-to-company merger.

Accordingly, where a direct LLP → company route is proposed, the first step should be to obtain a specific written legal opinion on the statutory route, approvals, tax consequences and implementation mechanism.

Establish the route first. Spend on implementation second.

Tax neutrality must be tested separately

A legally valid conversion does not automatically make the transaction tax-neutral.

The applicable income-tax provisions need to be tested for the particular conversion, including their conditions and consequences for tax attributes.

The transition to the Income-tax Act, 2025 with effect from 1 April 2026 should also not be misunderstood as wiping out conditions attached to earlier transactions or transactions whose tax treatment depends on prescribed continuity requirements.

The conversion file should answer five questions

Tax area	Question to establish
Capital gains	Does the applicable exemption or transition provision protect the conversion?
Losses	Can brought-forward business losses continue?
Depreciation	What happens to unabsorbed depreciation?
Tax credits	What is the statutory basis for their continuation?
Continuing conditions	What must remain true after conversion?

Pending assessments, demands, refunds, appeals and litigation also need an entity-by-entity transition plan.

Business continuity is not, by itself, proof of tax-attribute continuity.

Where a five-year continuity condition applies, it should be treated as a post-conversion compliance obligation to be monitored, not as a box to be ticked and forgotten.

A better restructuring sequence

Do not begin with:

Merger → documentation → tax consequences

Begin with:

Commercial objective
↓
Which entity should ultimately survive?
↓
What actually needs to move?
↓
What should remain where it is?
↓
Which tax attributes must be preserved?
↓
What are the entry, implementation and exit costs?
↓
Select the simplest lawful structure

This sequence often prevents unnecessary restructuring.

Calculate the total cost—not just the professional fee

The cost of a restructuring is not the merger fee.

A proper model should consider:

Professional and statutory costs + tax cost + stamp duty + GST impact + financing consequences + compliance cost + management time + contractual disruption + future exit or unwind cost + risk to tax attributes

A structure that is inexpensive to create may be expensive to maintain.

And a structure that looks elegant on paper may create unnecessary tax, compliance or contractual friction.

The restructuring decision

If the objective is ownership: examine ownership structures.

If it is cooperation: consider a commercial arrangement.

If it is investor readiness: examine conversion.

If it is selective integration: consider selective transfer.

If it is complete succession or consolidation: evaluate conversion followed by merger.

If a direct LLP → company merger is proposed: establish the statutory route before implementation.

Do not merge because you have two entities.

Merge only when the business actually needs one surviving legal entity.

The best restructuring is not necessarily the one that achieves the maximum integration.

It is the one that achieves the commercial objective with the minimum unnecessary movement of legal identity, assets, liabilities, tax attributes and compliance burden.

Casahuja Perspective

Restructuring should begin with the business objective—not the legal form.

Before asking “How do we merge the LLP into the company?”, ask:

“What is the minimum structural change required to achieve what the promoter actually wants?”

That one question can determine whether the right answer is no merger at all, ownership restructuring, conversion, selective transfer—or a full consolidation.

Proprietor Dies? GST Can Transition the Business. Income Tax Requires a Succession Strategy — 2026 Guide

 By CA Surekha S Ahuja

What happens to GST registration, ITC, tax liabilities, losses, inherited assets and the business when a sole proprietor dies? A practical 2026 guide to succession, tax continuity and the critical differences between GST and Income Tax.

A sole proprietor's death can happen in a day. The business cannot.

Customers still need invoices. Employees need salaries. Receivables and payables remain. GST returns may be due. Tax notices may be pending. Assets may carry years of tax history.

But the person behind the business is no longer there.This creates an important distinction: 

GST has a transition mechanism. Income Tax has a succession framework. The real challenge is connecting the person, the business, the period, the tax attributes and the assets.

That is the real succession problem.

Two Tax Laws. Two Different Succession Questions

The mistake is to treat the proprietor's death as one common "tax succession" exercise.

It is not.

GST	Income Tax
Primarily deals with continuation of the business	Primarily deals with the deceased taxpayer and succession
Provides a route for GST registration and eligible ITC transition	Determines who represents the deceased and who succeeds to the business
ITC-02 provides the mechanism for eligible ITC transfer	Loss carry-forward depends on the loss, succession and statutory conditions
Old GST liabilities remain relevant	Pre-death and post-death income require separate treatment
Focus: business transition	Focus: person, period, succession, tax attributes and assets

This distinction should determine the entire workflow.

The Succession Map

              BEFORE DEATH
           PLAN THE SUCCESSION
                    ↓
             DEATH OF PROPRIETOR
                    ↓
      FREEZE → SEPARATE → TRANSFER
                    ↓
             PROTECT → CONTINUE
                    ↓
             NRI HEIR?
       TAX + FEMA + BANKING
          BEFORE MONEY MOVES

Before death: plan the succession

Death cannot be planned. Succession can.

Where the business is expected to continue, establish in advance:

• who is expected to continue;
• what assets and liabilities belong to the business;
• where books and tax records are maintained;
• what registrations, bank accounts and contracts exist;
• what tax disputes or notices are pending; and
• whether the intended successor is resident or NRI.

The objective is simple:  Death should not become the first day on which the family discovers how the business operates.

After Death: First Establish What Existed

The first step should not be cancellation. It should be establishing what existed on the date of death.

Prepare a Date-of-Death and Succession Statement covering:

Area	Establish
Business	Stock, receivables, creditors, contracts
GST	Returns, ITC, notices and demands
Income Tax	Income, TDS, payments, losses, proceedings
Assets	Property, investments, machinery
Liabilities	Loans, creditors, tax exposure
Records	Books, title documents, agreements
Succession	Legal representative and business successor

This creates the factual bridge between the deceased and the successor.

GST: The Law Provides a Transition Route

GST is principally concerned with continuing the registered business.

For the death of a sole proprietor, the GST framework provides a relatively clear transition mechanism.

Where the business continues, the successor deals with the GST registration and eligible unutilised ITC. CBIC Circular No. 96/15/2019-GST provides that FORM GST ITC-02 should be filed before applying for cancellation of the deceased proprietor's registration; on acceptance, eligible ITC is credited to the successor's electronic credit ledger.

The GST sequence

DEATH → SUCCESSION → SUCCESSOR GST REGISTRATION → ITC-02 → ELIGIBLE ITC TRANSFER → CANCELLATION / TRANSITION

The practical message: Do not make GST cancellation the first step. Deal with the eligible ITC transition first.

GST Transition Does Not Erase GST Liability

Moving the business does not wipe out its tax history.

Section 93 of the CGST Act provides the statutory framework for tax, interest and penalty where a person liable to tax dies and the business is continued. The liability position therefore needs to be established before the successor takes over.

Prepare an: OLD GST LIABILITY REGISTER

Capture:  unpaid tax, interest and penalty; notices and assessments; appeals; refund disputes; and

• periods still open for action.

The GST registration may change. The GST history does not.

Income Tax: Succession Starts With the Person, Not the Registration

Income Tax begins with a different question. It must establish: 

Who represents the deceased?

What income belongs to the deceased's period?

Who succeeded to the business?

What happens to eligible losses?

What happens to the assets and their tax history?

This makes an important distinction necessary: Legal representative and business successor are not automatically the same legal capacity.

A person may represent the deceased for tax compliance while another person becomes the person continuing the business.

The documentation should make that distinction clear.

Income Tax Has a Date-of-Death Cut-Off

Unlike GST's registration-and-ITC transition, Income Tax requires the taxpayer's period and capacity to be identified.

UP TO THE DATE OF DEATH : The tax affairs of the deceased.

AFTER DEATH / SUCCESSION : The applicable position of the estate, successor or other person entitled to the income, depending on the facts and legal arrangement.

The Income-tax Act, 2025 separately addresses legal-representative liability and succession to a business or profession.

The practical rule: Create a clean date-of-death cut-off instead of simply continuing the deceased proprietor's books under a new identity.

Income-tax Act, 2025: Continuity, But Not Automatic Transfer

The new Act does not by itself erase valid historical tax positions from 1 April 2026.

The repeal-and-saving framework preserves applicable earlier rights, liabilities, proceedings and other tax consequences, subject to the relevant conditions. This is particularly relevant for historical losses.

But two questions must remain separate:  Did the loss survive?

and Can the successor use it?

The second question depends on the particular loss and the manner of succession.

The analysis should therefore be:  LOSS → VALIDITY → TYPE → MODE OF SUCCESSION → CONDITIONS → REMAINING PERIOD

The law distinguishes succession by inheritance from certain other forms of succession.

So neither blanket statement is safe: "All losses disappear on death."

"All losses automatically transfer."

The correct answer is loss-specific and succession-specific.

Where the Two Laws Still Need Different Treatment

Question	GST	Income Tax
What is being transitioned?	Registered business, including eligible ITC	Taxpayer's affairs and, separately, the succeeded business
Who matters?	Successor / person continuing the business	Legal representative, estate and business successor, depending on the issue
Key dividing point	Registration transition	Date of death and succession
Tax attribute	Eligible unutilised ITC	Losses subject to their own conditions
Past liability	GST dues remain relevant	Deceased's tax liability continues through the statutory legal-representative framework
Asset history	Relevant to business records	Critical for future tax computation
NRI issue	Not primarily a GST issue	Tax + FEMA + banking may arise on inherited assets and remittance

The difference can be reduced to one line:

GST asks, "How does the business move?" Income Tax asks, "Who is responsible, for which period, in what capacity, and with what tax history?"

Inherited Assets: The Title Moves, the History Must Follow

An inherited property may be sold years later.

Preserve: original acquisition documents; succession and title documents; historical cost; improvement expenditure; valuation evidence where relevant; and earlier tax records.

The chain is: INHERIT → OWNERSHIP → HOLDING → SALE → CAPITAL GAINS

Succession must preserve history, not merely title.

NRI Heir: Add FEMA Before the Money Moves

For an NRI heir, the succession file acquires another layer.

The sequence becomes:  INHERIT → TITLE → TAX REVIEW → SALE → TAX / TDS → BANKING → REPATRIATION

RBI's framework permits an NRI/PIO, subject to applicable conditions and documentation, to remit up to USD 1 million per financial year from specified NRO balances, sale proceeds and eligible assets acquired through inheritance or legacy. Applicable FEMA, tax and authorised-dealer requirements must be satisfied.

The practical rule: Do not sell first and ask the FEMA question later.

A Practical 30-Day Working Model

This is a working model, not a statutory deadline.

Stage	Action
1–7	FREEZE — death date, records and Day-Zero position
8–15	SEPARATE — pre-death and post-death transactions
16–20	TRANSFER — succession, GST registration and ITC-02
21–25	PROTECT — notices, liabilities, losses and assets
26–30	CONTINUE — successor books, banking and operations

NRI heir: add TAX + FEMA + BANKING before sale or remittance.

Five Errors That Turn Succession Into a Tax Problem

1. Treating GST and Income Tax as one succession exercise

Their objectives and mechanisms are different.

2. Cancelling GST before dealing with eligible ITC

The ITC-02 mechanism must form part of the transition sequence.

3. Mixing pre-death and post-death transactions

Establish a clean accounting and tax cut-off.

4. Assuming losses automatically disappear or transfer

Examine the particular loss and succession route.

5. Selling inherited assets before planning the NRI tax/FEMA/banking route

The sale and movement of money should be considered together.

Final Perspective

Death Is Sudden. Succession Should Be Structured.

A proprietor's death is not one tax event. It is a connection problem.

GST : BUSINESS → REGISTRATION → ITC → LIABILITIES → TRANSITION

Income Tax : DECEASED → LEGAL REPRESENTATIVE → DATE OF DEATH → SUCCESSION → LOSSES → ASSETS → SUCCESSOR

The Income-tax Act, 2025 preserves important historical tax positions subject to applicable conditions. But the practical challenge remains identifying who is acting, for whom, for which period and in respect of which business, loss or asset.

The best succession file should answer:

What existed on the date of death?

Who became responsible, and in what capacity?

Who succeeded to the business?

Which liabilities and tax attributes survived?

What evidence will be required years later?

For an NRI successor:

How will the money legally move after the asset is sold?

GST can transition the business. Income Tax can address succession. The real work is connecting the person, the business, the period, the tax attributes and the assets.

The practical discipline

BEFORE DEATH
PLAN THE SUCCESSION

AFTER DEATH
FREEZE → SEPARATE → TRANSFER → PROTECT → CONTINUE

NRI HEIR
PLAN TAX + FEMA + BANKING BEFORE MONEY MOVES

Death may be unexpected. Succession should not be unstructured.