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Withholding tax on non-resident unit income: consolidation preserves treaty relief and UTI exemption under prescribed conditions.
Clause 393 consolidates TDS on income in respect of units paid to non-residents: Clause 393(2) requires deduction by any payer on units of specified mutual funds and specified companies paid to non-resident individuals and foreign companies at rates per Note 2 with DTAA benefits subject to prescribed documentation; Clause 393(4) exempts income on Unit Trust of India units payable to NRIs and non-resident HUFs subject to prescribed conditions and FEMA compliance, thereby retaining the legacy UTI carve-out while delegating exemption details to subordinate rules.
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TDS exemption for specified public entities prevents withholding on interest, dividends and other income, simplifying payer compliance.
Clause 393(5) provides an overriding TDS exemption for payments to the Government, the Reserve Bank of India, statutorily tax exempt corporations established by or under a Central Act, and mutual funds specified in Schedule VII, covering interest, dividends (in respect of securities or shares owned by or in which they have full beneficial interest) and any other income accruing or arising to them, with the non obstante language ensuring the exemption prevails over other withholding obligations.
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Grossing-up requirement preserves tax base where payer bears recipient's tax liability, altering TDS computation and compliance.
Clause 393(10) mandates a grossing-up requirement where the payer bears the recipient's tax: taxable income must be increased so that, after deduction of tax at the rates provided in the Chapter (including applicable surcharge and cess), the net amount equals the contractual payment. The clause applies to TDS payments under the Chapter except specified salary cases, covers residents and non residents, and requires use of the applicable DTAA rate when beneficial. Key practical issues include computation of add ons, allocation across composite payments, currency fluctuation effects, and contract drafting to evidence net of tax obligations.
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TDS on payments to non-residents: a table-based framework modernizes withholding obligations and aligns rates with treaty benefits.
Clause 393(2) Table S.No.17 imposes a residuary TDS obligation on interest (excluding specified categories) and any other sum chargeable under the Act, excluding salaries, payable to non-residents or foreign companies; deduction is by "any person" at the earlier of credit or payment at the "rates in force," with treaty rates available subject to procedural compliance, and operates alongside exemptions, lower/nil deduction certificates, suspense-account deeming rules and grossing-up anti-avoidance provisions.
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The Bill requires withholding on any benefit or perquisite arising from business or profession whether cash or non-cash, obliges the provider to deduct tax and, if consideration is wholly or partly in kind with insufficient cash, to ensure tax payment before release. A parallel VDA withholding regime mandates deduction on transfers of virtual digital assets with specified exemptions for small-value transactions and small taxpayers, similar safeguards for non-cash consideration, and procedural rules addressing timing, aggregation and crediting for compliance.
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TDS on non-monetary benefits: providers must withhold tax on in-kind and indirect business advantages, affecting compliance and valuation.
Clause 393(1)[Table: S.No. 8(iv)] and section 194R require the provider of any benefit or perquisite arising from business or profession to deduct tax at source on the value or aggregate value of such benefits, covering cash and non-cash advantages, with specified thresholds and exemptions for smaller providers; the Bill consolidates this obligation, clarifies anti-overlap treatment with other TDS provisions, links timing of deduction to credit or payment, and preserves reliance on administrative guidance for valuation and operational issues.
Act Rules Bills
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TDS on purchase of goods: buyer withholding required, with precedence rules to avoid overlap with other withholding provisions.
Clause 393(1)[Table: S.No. 8(ii)] imposes a TDS obligation on the buyer to deduct tax on purchases of goods from resident sellers once aggregate purchases from a seller in a financial year exceed the specified threshold, with deduction due at credit or payment, and a broad exclusionary clause preventing application where tax is deductible or collectible under any other provision of the Act.
Act Rules Bills
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TDS on specified senior citizens centralises tax deduction at banks, relieving return filing when tax is correctly deducted at source.
Specified banks are required to compute a specified senior citizen's total income after allowing Chapter VIII deductions and rebate, deduct tax at rates in force with a nil threshold, and remit TDS; an express precedence clause ensures this provision overrides other TDS provisions. The mechanism centralises compliance with banks obtaining declarations, maintaining evidence and records, thereby relieving eligible senior citizens from return filing provided the bank correctly applies deductions and remits tax.
Act Rules Bills
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TDS on e-commerce: operators must withhold on gross platform-facilitated sales, with a small-seller exemption on conditions.
E-commerce operators must withhold TDS on the gross amount of sales or services facilitated through their platforms, with withholding due at the earlier of credit or payment and including direct buyer payments as deemed payments by the operator. Deductions apply on a gross basis without netting fees, exclude operator receipts for unrelated services such as advertising, and take precedence over other TDS provisions. Individual and HUF participants with annual turnover below the legislated threshold who furnish PAN or Aadhaar are exempt from withholding.
Act Rules Bills
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TDS on large cash withdrawals: deduction at payment with exemptions for banks and regulated intermediaries, non filer rule absent here.
Clause 393(3) requires banks, co operative societies engaged in banking and post offices to deduct two per cent TDS at the time of cash payment where aggregate withdrawals from one or more accounts of a recipient exceed prescribed thresholds, with a higher threshold for co operative societies; Clause 393(4) exempts payments to the Government, banks, post offices, regulated business correspondents and authorised white label ATM operators. The Bill mirrors the existing framework but, in the extracted text, omits an explicit non filer regime and express central government notification powers, creating potential operational and interpretive uncertainty.
Act Rules Bills
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TDS on high-value payments by individuals/HUFs expands withholding obligations for contractual, professional and commission disbursements.
Clause 393(1)[Table: S.No. 6(ii)] requires TDS by individuals or HUFs (not otherwise liable under specified TDS entries) on payments to a resident for carrying out work (including supply of labour), fees for professional services, or commission/brokerage (excluding insurance commission) where aggregate payments to the payee in a tax year exceed a prescribed threshold; deduction is at the time of credit or payment and the clause is integrated into a tabular TDS framework necessitating aggregation, with definitions and certain procedural relaxations left to rules or guidance.
Act Rules Bills
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TDS on interest for foreign borrowings consolidated under new clause, keeping concessional framework but raising definitional and transition issues.
Clause 393(2) consolidates concessional TDS treatment for interest to non residents on foreign currency borrowings, rupee denominated bonds and IFSC listed bonds, aligning mechanics and cut off windows with Section 194LC while differing in presentation and reliance on external definitions; Central Government approval remains a condition for specified instruments and drafting gaps on limits, definitions and transitional treatment may require subordinate rules to avoid interpretive disputes.
Act Rules Bills
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TDS on securitisation trust distributions: uniform 10% for residents, treaty rates for non-residents, no threshold.
Clause 393 mandates TDS on distributions by a securitisation trust: Clause 393(1) imposes 10% TDS on any income paid to resident investors with no threshold, deducted at the earlier of credit or payment by the trust; Clause 393(2) requires withholding on non-resident investors at rates in force, permitting treaty relief. Both provisions treat credits (including to suspense accounts) as TDS events and require trusts to maintain documentation of payee status and treaty claims.
Act Rules Bills
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TDS on investment fund distributions: withholding applies, with treaty relief and exemptions for non taxable income.
TDS on distributions by investment funds requires withholding at applicable resident and non resident rates at the earlier of credit or payment, excluding any portion of income that is statutorily exempt. Funds must determine and segregate taxable versus exempt portions of mixed income, apply treaty or domestic rates for non residents upon proper documentation, and maintain records to support exemptions or reduced rates, while coordinating these obligations with other TDS provisions to avoid double deduction.
Act Rules Bills
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TDS on business trust distributions: differentiated resident/non resident rates and SPV contingent exemptions under the Income Tax Bill, 2025.
Clause 393 of the Income Tax Bill, 2025 mandates 10% TDS on distributed income to resident unitholders, differentiated rates for non-resident unitholders (including lower rates for certain interest-type distributions and "rates in force" for others), and exempts specified distributions from TDS where the underlying SPV has not opted for the concessional tax regime, thereby tying withholding obligations to the SPV's tax-regime choice.
Act Rules Bills
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TDS on infrastructure debt fund interest: concessional withholding retained for non-resident investors, deducted at credit or payment.
Clause 393(2)[Table: S.No. 5] retains a concessional TDS regime for any income by way of interest paid by an infrastructure debt fund listed in Schedule VII to a non resident (including foreign companies), requiring deduction at source at the specified concessional rate at the earlier of credit or payment, with no monetary threshold, and integrated within the Bill's harmonised TDS framework that addresses procedural rules, exceptions, grossing up, and interaction with double taxation treaties.
Act Rules Bills
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TDS on land acquisition compensation maintained; threshold and RFCTLARR Act exemptions preserved, procedural consolidation introduced.
Clause 393 of the Income Tax Bill, 2025 mandates TDS at 10% on any sum in the nature of compensation or enhanced compensation, or consideration or enhanced consideration, for compulsory acquisition of immovable property (other than agricultural land), when amounts paid or credited to a resident exceed Rs. 5,00,000 in a financial year; Clause 393(4) exempts awards or agreements exempt from income-tax under the RFCTLARR Act, and deduction is required at the earlier of payment or credit.

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Tax Deduction at Source on Contractual and Professional Payments : Clause 393(1)[Table: S.No. 6(ii)] of Income Tax Bill, 2025 Vs. Section 194M of the Income-tax Act, 1961

24 June, 2025

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Clause 393 Tax to be deducted at source.

Income Tax Bill, 2025

Legal Commentary on

Introduction

The mechanism of Tax Deduction at Source (TDS) is a cornerstone of the Indian income tax regime, ensuring steady revenue inflow to the government and promoting tax compliance at the source of income generation. Over the years, the scope and application of TDS provisions have evolved, adapting to changing economic realities and policy objectives. Two such provisions - Clause 393(1)[Table: S.No. 6(ii)] of the Income Tax Bill, 2025 and Section 194M of the Income-tax Act, 1961-are particularly significant for individuals and Hindu Undivided Families (HUFs) making substantial payments for contractual work, professional services, or commissions/brokerages. This commentary provides a comprehensive analysis of Clause 393(1)[Table: S.No. 6(ii)], explores its legislative intent, practical implications, and potential ambiguities, and juxtaposes it with the existing Section 194M to elucidate continuities, changes, and implications for stakeholders.

Objective and Purpose

The legislative intent behind introducing specific TDS provisions for individuals and HUFs not engaged in business or professional activities, or not otherwise liable to deduct TDS under the main business provisions (such as Sections 194C, 194H, or 194J), is to widen the tax base and plug potential revenue leakages. Historically, individuals and HUFs making high-value payments for personal or non-business purposes could escape the TDS net, creating a compliance gap and facilitating tax evasion or under-reporting by recipients. Section 194M, inserted by the Finance (No. 2) Act, 2019, addressed this gap by mandating TDS on certain payments by individuals/HUFs exceeding a prescribed threshold. The Income Tax Bill, 2025, through Clause 393(1)[Table: S.No. 6(ii)], seeks to continue and rationalize this regime, possibly with refinements in scope, definitions, and compliance requirements, as part of a broader overhaul of the TDS framework.

Detailed Analysis of Clause 393(1)[Table: S.No. 6(ii)] of the Income Tax Bill, 2025

1. Structure and Scope of the Provision

Clause 393(1) lays down the general rule for TDS, specifying that where any income or sum of the nature specified in the accompanying Table is credited or paid by the person specified, to a resident, the payer shall deduct income-tax at the specified rate, subject to threshold limits and timing rules. The Table is organized by serial numbers, each corresponding to a category of payment or income.

Serial No. 6(ii) reads as follows:

  • Nature of Payment: Any sum-
    • (a) for carrying out any work (including supply of labour for carrying out any work) in pursuance of a contract; or
    • (b) by way of fees for professional services; or
    • (c) by way of commission [not being insurance commission referred to in serial number 1(i)] or brokerage.
  • Payer: Any person, being an individual or Hindu undivided family [other than those required to deduct income-tax as per Sl. No. 6(i) and (iii) or Sl. No. 1(ii)].
  • Rate: 2%.
  • Threshold limit: Rs. 50,00,000.

This provision essentially covers high-value payments by individuals or HUFs (not otherwise required to deduct tax under the main business/professional TDS provisions) for contractual work, professional services, commission, or brokerage, with a threshold of Rs. 50 lakh per financial year, and a TDS rate of 2%.

2. Definitions and Exclusions

  • Payer: The provision applies to individuals or HUFs who are not required to deduct TDS under:
    • Sl. No. 6(i): Payments by a "designated person" (typically those in business/profession with turnover above a threshold, akin to the main TDS provisions under the 1961 Act such as 194C, 194H, or 194J).
    • Sl. No. 6(iii): Payments by a "specified person" (possibly companies, firms, etc. as defined elsewhere).
    • Sl. No. 1(ii): Commission or brokerage by a "specified person".
  • Nature of Payments: The terms "work", "professional services", "commission", and "brokerage" are not defined in the extract, but are likely to adopt definitions similar to those in the current 1961 Act:
    • "Work" (as per 194C Explanation): Includes advertising, broadcasting, carriage of goods/passengers, catering, manufacturing/supplying product as per customer specification, etc.
    • "Professional services" (as per 194J Explanation): Includes services rendered by legal, medical, engineering, architectural, accountancy, technical consultancy, interior decoration, etc.
    • "Commission or brokerage" (as per 194H Explanation): Any payment received/directly/indirectly for services rendered in the course of buying/selling goods, transactions relating to any asset, valuable article, or thing, excluding insurance commission.
  • Threshold Limit: No TDS is required if the sum, or aggregate of sums, paid to a resident during the financial year does not exceed Rs. 50,00,000. This is a significant threshold, ensuring that only high-value transactions are covered, thus balancing compliance burden with revenue interests.
  • Rate: The TDS rate is 2% of the sum paid or credited.
  • Timing: TDS is to be deducted at the time of credit or payment, whichever is earlier.

3. Procedural Aspects and Compliance

  • Exemption from Main TDS Provisions: The provision applies only if the payer is not otherwise liable to deduct tax under the main TDS sections (i.e., not in business/profession above prescribed turnover, not a company/firm, etc.). This ensures that there is no overlap or double deduction.
  • Aggregation: The threshold applies on an aggregate basis for payments to each payee during the financial year, requiring payers to monitor cumulative payments for compliance.
  • Rate and Nature of Deduction: The flat 2% rate applies regardless of the nature of underlying service (work, professional, commission), simplifying compliance.
  • Documentation and Reporting: The provision does not specify PAN requirements, TDS certificate issuance, or return filing, but these may be detailed in rules or subsequent sections. Under the current Section 194M, there is no requirement to obtain a TAN (Tax Deduction Account Number), easing compliance for individuals/HUFs-whether this continues under the new provision would depend on subordinate legislation.
  • Exclusions: Payments for personal purposes are not explicitly excluded in the main text, but under the "No Deduction at Source" Table, payments by individuals/HUFs exclusively for personal purposes are exempt-this aligns with the policy of not burdening personal/non-commercial transactions with TDS compliance.

4. Interplay with Other Provisions and Ambiguities

  • Overlap with Other TDS Provisions: The clause is carefully drafted to avoid overlap with Sl. No. 6(i) (business/profession payers) and 6(iii) (specified persons). However, practical issues may arise if the status of the payer changes during the year, or if there is ambiguity in classification.
  • Definition of Terms: The lack of explicit definitions in the Bill may create interpretative ambiguity, especially if the definitions in the 1961 Act are amended or repealed. Judicial guidance or clarificatory circulars may be required to resolve disputes.
  • Aggregation and Threshold Calculation: The provision requires aggregation of payments for threshold determination, but does not clarify whether this is on a contract-wise or payee-wise basis. The prevailing practice is payee-wise aggregation, but explicit clarification would aid compliance.
  • Nature of Payment: The inclusion of both "work" and "professional services" ensures wide coverage, but may also lead to interpretative disputes where the distinction is blurred (e.g., technical consultancy vs. contract work).
  • No Deduction at Source Table: As per Sl. No. 8(b) and Sl. No. 9, payments exclusively for personal purposes by individuals/HUFs are exempt from TDS, providing relief for non-commercial transactions and aligning with the legislative intent of targeting only large, non-personal payments.

Practical Implications

  • For Individuals and HUFs: The provision brings high-value, non-business payments by individuals/HUFs within the TDS net, requiring them to monitor payments, deduct tax, deposit it with the government, and comply with reporting requirements. While the high threshold of Rs. 50 lakh limits the scope to significant transactions (such as construction contracts, large professional fees, property renovations, etc.), it does impose compliance on non-business taxpayers who may not be familiar with TDS processes.
  • For Recipients (Contractors, Professionals, Agents): The provision ensures greater reporting and traceability of high-value income, reducing the scope for tax evasion. However, it may also lead to cash flow issues if TDS is not appropriately credited, and require recipients to reconcile TDS credits in their tax returns.
  • For Tax Authorities: The provision enhances the ability to track high-value transactions and widen the tax base, but also necessitates clear administrative guidance to address ambiguities and ensure smooth compliance by non-business payers.
  • Compliance Requirements: While procedural relaxations (such as exemption from TAN in Section 194M) reduce compliance burden, the need to monitor cumulative payments, deduct and deposit TDS, and issue TDS certificates remains a challenge for individuals/HUFs not accustomed to tax withholding obligations.

Comparative Analysis with Section 194M of the Income-tax Act, 1961

1. Text of Section 194M

Section 194M, inserted by the Finance (No. 2) Act, 2019 (effective from 1 September 2019), provides as follows:

  • Any individual or HUF (other than those required to deduct tax under 194C, 194H, or 194J) responsible for paying any sum to a resident for carrying out any work (including supply of labour), commission (not being insurance commission), brokerage, or fees for professional services, shall deduct TDS at 2% (w.e.f. 1 October 2024; earlier 5%) if the aggregate payments exceed Rs. 50,00,000 in a financial year.
  • No requirement to obtain TAN (Section 203A not applicable).
  • Definitions of "contract", "commission or brokerage", "professional services", and "work" are as per corresponding explanations in Sections 194C, 194H, and 194J.

2. Key Similarities

  • Coverage: Both provisions apply to individuals/HUFs not otherwise liable to deduct TDS under the main business/professional TDS sections, and cover payments for contract work, professional services, and commission/brokerage.
  • Threshold: Both have a threshold of Rs. 50 lakh per financial year, ensuring only high-value payments are covered.
  • Rate: Both prescribe a TDS rate of 2% (Section 194M was amended from 5% to 2% effective 1 October 2024).
  • Timing: Both require deduction at the time of credit or payment, whichever is earlier.
  • Definitions: Both rely on definitions from the main TDS sections for key terms, ensuring consistency and clarity.
  • Aggregation: Both require aggregation of payments to each payee for threshold determination.
  • Exemption for Personal Purposes: Both exempt payments made exclusively for personal purposes by individuals/HUFs from TDS, aligning with the policy of targeting only non-personal, high-value transactions.

3. Key Differences and Evolution

  • Structural Integration: Clause 393(1)[Table: S.No. 6(ii)] is part of a comprehensive, tabular TDS regime in the 2025 Bill, integrating various TDS provisions into a single framework, whereas Section 194M is a standalone section in the 1961 Act.
  • Reference to Other Provisions: The new provision cross-references other serial numbers in the Table (e.g., excluding those liable under 6(i), 6(iii), 1(ii)), while Section 194M refers to 194C, 194H, and 194J. The underlying intent is similar, but the drafting is adapted to the new structure.
  • Definitions: Section 194M explicitly adopts definitions from other sections, while the Bill relies on cross-references and may require reading definitions from elsewhere in the Bill or subordinate legislation.
  • Procedural Relaxations: Section 194M explicitly exempts payers from obtaining a TAN, easing compliance. The Bill's provision does not specify this, leaving the matter to rules or administrative instructions. If the exemption continues, it would be a significant relief for non-business payers.
  • Wording and Clarity: The Bill's provision is more concise and tabular, which aids in quick reference but may create interpretative challenges for complex cases. Section 194M's narrative format is more detailed.
  • Potential for Expansion: The Bill's tabular structure allows for easier modification, addition, or rationalization of TDS categories in the future, potentially increasing flexibility for policymakers.

4. Policy and Compliance Considerations

  • Compliance Burden: Both provisions impose new compliance requirements on individuals/HUFs making high-value payments, but the high threshold ensures that only significant transactions are covered. The exemption from TAN and simplified procedures u/s 194M should ideally be retained in the new regime to avoid discouraging compliance.
  • Revenue Impact: The provision is aimed at plugging revenue leakages from high-value, non-business transactions, and is likely to yield significant tax collections from sectors such as construction, consultancy, and agency services.
  • Risk of Litigation: Ambiguities in definitions, aggregation, and classification of payments may lead to disputes, particularly where the line between personal and non-personal payments is blurred, or where the payer's status changes during the year.
  • Administrative Guidance: Clear rules, FAQs, and circulars will be essential to ensure smooth transition and compliance, especially for non-business taxpayers unfamiliar with TDS processes.

Comparative Table

 

Aspect Clause 393(1)[Table: S.No. 6(ii)] of the Income Tax Bill, 2025 Section 194M of the Income-tax Act, 1961
Payer Individual or HUF (not required to deduct under S.No. 6(i), 6(iii), or 1(ii)) Individual or HUF (not required to deduct under 194C, 194H, or 194J)
Payee Resident Resident
Nature of Payment Work contracts, professional services, commission/brokerage (excluding insurance commission) Work contracts, professional services, commission/brokerage (excluding insurance commission)
Threshold Rs. 50,00,000 (aggregate in tax year) Rs. 50,00,000 (aggregate in financial year)
Rate 2% 2% (w.e.f. 1-10-2024; previously 5%)
Timing Credit or payment, whichever is earlier Credit or payment, whichever is earlier
Definitions Not expressly defined, but to be interpreted as per existing law Explicitly references definitions in 194C, 194H, 194J
Exemptions Does not apply where payer is otherwise required to deduct TDS under other provisions Does not apply where payer is otherwise required to deduct TDS under 194C, 194H, or 194J
Procedural Simplicity Implied, but not specified; expected to follow existing simplified regime No TAN required; simplified compliance

Conclusion

Clause 393(1)[Table: S.No. 6(ii)] of the Income Tax Bill, 2025 represents a continuation and rationalization of the policy embodied in Section 194M of the Income-tax Act, 1961, targeting high-value payments by individuals and HUFs for contract work, professional services, and commissions/brokerages. The provision is carefully crafted to avoid overlap with the main TDS sections, applies a high threshold to minimize compliance burden, and adopts a flat 2% rate for simplicity. Its integration into a comprehensive, tabular TDS framework enhances clarity and flexibility, but also necessitates careful administrative guidance to address potential ambiguities and ensure smooth compliance. The comparative analysis reveals substantial continuity between the two regimes, with refinements in drafting and structure reflecting broader reforms in the TDS framework. Going forward, clarity on procedural requirements (such as TAN exemption), aggregation methodology, and definitions will be critical to achieving the policy objectives of widening the tax base and promoting compliance, while minimizing undue burden on non-business taxpayers.


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Clause 393 Tax to be deducted at source.

Topics

Acts Income Tax