Disallowance of Expenses under Section 40 & 40A: A Comprehensive Guide

While preparing Profit and Loss accounts, many expenses may appear to represent valid expenses from an operational/business perspective; however, when considering the Income Tax Act, not all expenses that have been recorded in your books will qualify for a deduction. This is when Sections 40 and 40A come into play. They will not challenge whether the expense was actually incurred; rather, they will challenge how the expense has been incurred and/or paid (who was paid), and what the regulations concerning the payment of tax on these expenses were. To help with understanding this subject, we will examine some simple and practical real-life examples.

Section 40 – Disallowance Due to Non-Compliance

Section 40 mainly deals with non-deduction or non-payment of TDS and certain other statutory defaults.

1️⃣ Section 40(a)(ia) – TDS Not Deducted or Not Paid

If:

TDS was required to be deducted
But not deducted, OR deducted but not deposited within due date

Then 30% of such expense will be disallowed.

Example:

A business pays ₹10,00,000 as professional fees. TDS was required but not deducted.

₹3,00,000 (30%) will be disallowed.
Taxable income increases accordingly.

Once TDS is deducted and paid in later year, the expense becomes allowable in that year.

2️⃣ Section 40(a)(i) – Payments to Non-Residents

If payment is made to a non-resident and TDS is not deducted as required under Section 195:

Entire expense may be disallowed.

This is common in:

Foreign consultancy
Software payments
Commission to overseas agents

3️⃣ Section 40(b) – Payments by Partnership Firm to Partners

In case of firms:

Salary/remuneration must be within limits prescribed.
Interest on capital should not exceed 12% p.a.

If exceeded → Excess portion is disallowed.

Very relevant for LLP and partnership tax planning.

Section 40A – Reasonableness & Mode of Payment

Section 40A focuses on how payments are made and whether they are reasonable.

1️⃣ Section 40A(2) – Excessive Payment to Related Parties

If payment is made to:

Relatives
Directors
Sister concerns
Specified persons

And the Assessing Officer feels the payment is excessive compared to market value,

Excess portion can be disallowed.

This applies even if payment is genuine.

So documentation and benchmarking matter.

2️⃣ Section 40A(3) – Cash Payment Above ₹10,000

If a business makes payment exceeding ₹10,000 in cash to a person in a day:

Entire amount is disallowed.

Exception:

Certain notified circumstances (Rule 6DD)
Payments in areas without banking facility
Government payments etc.

This provision is very commonly triggered in:

FMCG distribution
Small traders
Transport businesses

3️⃣ Section 40A(3A)

If earlier liability was booked and later paid in cash above ₹10,000:

Disallowance will happen in the year of payment.

Why These Sections Matter

Many businesses focus on:

Increasing sales
Managing GST
Reducing profit legally

But they ignore:

TDS compliance
Cash payments
Related party documentation

At assessment stage, these small compliance gaps can significantly increase taxable income.

Practical Compliance Tips

✔ Always check TDS applicability before making payment ✔ Deposit TDS within due dates ✔ Avoid cash payments above ₹10,000 ✔ Document related party transactions ✔ Structure partner remuneration properly in deed

Conclusion

Section 40 and 40A are not anti-business provisions.

They are compliance enforcement tools.

If tax is deducted properly, payments are transparent, and transactions are reasonable — there is nothing to worry about.

But if compliance is ignored, these sections can quietly increase your taxable income.