"Assessee in default" is a status, not a finding of dishonesty: it arises under section 201 when a deductor fails to deduct or pay TDS, and under section 220(4) when a demand is not paid within thirty days of service of the notice of demand. Each has its own escape route — for TDS, proof that the payee has paid the tax; for demand, extension or instalments, or a stay pending appeal.
There are two quite different defaults and they get confused. One is the deductor's default under section 201. The other is the taxpayer's default in paying a demand under section 220.
Section 201(1) provides that a person required to deduct tax who does not deduct, or does not pay, or after deducting fails to pay the whole or part of the tax, shall be deemed to be an assessee in default in respect of that amount. The first proviso is the way out: the deductor is not deemed in default if the resident payee has furnished his return of income under section 139, has taken the sum into account in computing income in that return, and has paid the tax due on the income declared, and the deductor furnishes a certificate to that effect from an accountant in the prescribed form — Form 26A in practice. The departmental guidance records that this relief was extended to payments to non-residents from 1 September 2019.
Relief from the principal does not remove interest. Section 201(1A) charges interest at one per cent for every month or part of a month from the date the tax was deductible to the date it was deducted, and at one and a half per cent for every month or part of a month from the date of deduction to the date of actual payment, and interest must be paid before furnishing the statement. The Supreme Court in Hindustan Coca Cola Beverage Pvt. Ltd. v. CIT held that where the payee has already discharged the tax, the tax cannot be recovered again from the defaulting deductor, and CBDT Circular No. 7/2003 dated 5 September 2003 records the same position; the interest exposure until the payee filed his return is a separate question.
There is also a time bar. Section 201(3) provides that no order under section 201(1) deeming a person an assessee in default for failure to deduct shall be made after the expiry of six years from the end of the financial year in which the payment was made or credit given.
The second default is under section 220. Sub-section (1) requires the amount specified in a notice of demand under section 156 to be paid within thirty days of the service of the notice, and allows the Assessing Officer to shorten that period with the approval of the Joint Commissioner where it is necessary to protect the revenue. Sub-section (4) says that if the amount is not paid within the time allowed, the assessee shall be deemed to be in default. Sub-section (2) charges simple interest at one per cent for every month or part of a month from the day immediately following the end of that period, and the interest reduces proportionately if the demand is later reduced in appeal or rectification.
The routes out of a section 220 default are three. Sub-section (3) allows the assessee, before the thirty days expire, to apply to the Assessing Officer for extension of time or for permission to pay in instalments, which the officer may grant on such conditions as he thinks fit. Sub-section (6) allows the officer, where an appeal under section 246 or 246A is pending, in his discretion and subject to conditions, to treat the assessee as not in default in respect of the disputed amount so long as the appeal is undisposed of. Sub-section (7) protects an assessee whose foreign income cannot be remitted.
The administrative gloss on stay is CBDT's Office Memorandum dated 31 July 2017 (F. No. 404/72/93-ITCC), which partially modifies Instruction No. 1914 dated 21 March 1996. It sets the standard rate for stay of demand at the first appeal stage before the Commissioner (Appeals) at twenty per cent of the disputed demand, raising the fifteen per cent standard set by the earlier memorandum of 29 February 2016, and contemplates that the Assessing Officer may consider a different amount in appropriate cases.
Being in default also exposes you to penalty. Section 221 allows the Assessing Officer to direct payment of a penalty in addition to arrears and section 220(2) interest, subject to the total penalty not exceeding the amount of tax in arrears, and only after a reasonable opportunity of being heard. Crucially, where the officer is satisfied that the default was for good and sufficient reasons, no penalty shall be levied. If the tax on which the penalty was based is subsequently reduced, the penalty is cancelled and any amount paid is refunded.
The label triggers recovery machinery, so the first thing to fix is the clock: the thirty days run from service, and an application under section 220(3) has to go in before they expire. On a TDS default, gathering Form 26A from the payee's accountant can eliminate the principal demand entirely, leaving only interest. On a section 221 penalty, "good and sufficient reasons" is a statutory defence you have to plead, not something the officer will find for you.
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