No government in anywhere in this world has placed so much trust and confidence in Public Accountants like the Indian Government has placed on Chartered Accountants. Tax Audit by a Chartered Accountant is an Indian phenomenon and does not exist in any other country. Finance Act, 1984 introduced Tax Audit under Section 44AB with effect from the assessment year 1985-86. This not only broadened the area of practice by a Chartered Accountant to an unimaginable scale but also pinned so much trust on the Chartered Accountancy Profession. If you say that you are a Chartered Accountant to any stranger, he would say “ Oh ! you are one of those people who are busy in the month of September” Yes friends the association between a CA and tax audit is inseparable.

Purpose of Tax Audit:

The purpose of Tax Audit is to ensure that books of Accounts have been maintained in accordance with the provisions of the Income Tax Act. Circular No.387  issued by the Central Board of Direct Taxes which has been annexed to the material circulated to you also highlights this fact. Accordingly a proper audit for tax purposes would ensure that proper records are being maintained, and that the accounts properly reflect the income reported by the Assessee. This audit effectively curbs Tax Evasion and ensures Tax Compliance. Tax Audit also ensures that the Accounts are properly being presented to the Assessing Officers when called for. The precious time of the Assessing Officers is also saved from the routine and ineffective verifications like checking of totals and vouching of Purchase and Sales transactions. They can devote their time in more important investigation aspects of a Case. Thus Tax Audit saves considerable time to the Income Tax Department.

Who has to get accounts audited?

Now after knowing the purpose and necessity of Tax Audit, the next question arises as to the applicability of Tax Audit. Audit under section 44AB is applicable to four categories of Assesseess. Now let me explain each category one by one.

The first category covers any person carrying on a business whose total sales, turnover or gross receipts exceed Rupees Sixty Lakhs during the previous year. Here we should be careful about each word I said. Though the words Total Sales, Turnover and Gross Receipts seem to give the same meaning, each one has its own meaning. Various Legal forums have interpreted these words to have different meaning. The limit for this category was increased from Rs.40 lakhs to Rs.60 lakhs only by Finance Act, 2010 but with effect from 01.04.2011. Hence for the current Assessment Year the old limit of Rs.40 lakhs holds good.

The Second Category covers any person who is carrying on a profession whose gross receipts exceed Rs.15 lakhs. This limit also was increased from Rs.10 lakhs to Rs.15 lakhs by Finance Act, 2010 with effect from 01.04.2011.

The Third Category covers persons whose income is assessed on a presumptive basis under section 44AE, 44BB or 44BBB. Where such assessee declare an income lesser than that presumed under the Sections 44AE, 44BB or 44BBB, they are required get their accounts audited in accordance with Section 44AB.

The Fourth Category is of recent origin. It was brought into the act by virtue of Finance (No. 2) Act, 2009, with effect from 01.04.2011. This category covers those persons who declare a lower income than the amount presumed under section 44AD. The difference between the fourth and the third category is that, in the case of the fourth category, the assessees are subject to audit under section 44AB only if their income exceeds the basic exemption limit.

At this juncture it is worth quoting the amendments brought to Section 44AF and 44AD by Finance (No.2) Act, 2009. The said Act has now merged Section 44AF and Section 44AD of the Income Tax Act. The benefit of presumptive income under section 44AD and 44AF is now not restricted to civil contractions contracts and Retail Trade alone. Now any individuals and partnership firm excluding an LLP whose turnover does not exceed Rs.60 lakhs can avail this benefit. They just have to declare an income of 8% of gross turnover or a higher amount as income.

Any person who is covered by the above four categories is required to get his accounts audited by an accountant before 30th September each year. Now certain issues arise regarding the applicability of tax audit on account of a combination of the above four categories. ICAI has clarified quite a few of these issues through its Guidance Note on Tax Audit under Section 44AB of the Income Tax Act.

A question may arise as to the limit applicable if the assessee carries on both business and profession. For e.g. when a person has a business which has a turnover of say 61 lakhs and a professions whose gross receipt is just 9 lakhs, a question may arise as to whether the accounts of the profession are also subject to audit. ICAI has clarified the issue saying that both the business and profession are subject to audit though the gross receipts of the profession do not exceed Rs.15 lakhs. However if the business turnover is Rs.50 lakhs and professional receipts are Rs.10 lakhs, tax audit will not be applicable.

Where a person has more than one business, then in calculating the turnover for Section 44AB, the total turnover of all the business put together should be taken. It should also be noted that for calculating the turnover any turnover of business covered under presumptive income sections like Section 44B or 44BB or 44BBA or 44BBB or 44AD or 44AE should be excluded.

Let’s consider another situation. A firm has achieved a total gross turnover of Rs.65 lakhs. Sales return during the year amounts to Rs.10 lakhs. Out of the Sales Return of Rs.10 Lakhs Rs.4 lakhs belongs to the current year and Rs. 6 lakhs are returns of previous year. Now again the question arises as to the applicability of tax audit. If the total sales return is deducted, then the firm will not be subject to tax audit. ICAI through its guidance note has clarified that for the purpose of Section 44AB, sales return should be deducted from total turnover and that no distinction needs to be made as to the current year sales return and previous year sales return. Hence the firm will not be subject to Tax Audit

Let me give you another example. A firm has a total turnover 59 lakhs. During the year the firm had sold a car which was held for business use for Rs.2.5 lakhs. On adding up the two, the turnover becomes Rs.61.5 lakhs. Will tax audit be applicable in this situation? Here again ICAI has clarified that turnover will not include any amount received on account of sale of Fixed asset. Since it was originally held for business use, Tax audit will not be applicable.

Who can carry out Tax Audit?

After the applicability of Tax Audit, the next question arises regarding who can conduct Tax Audit. Section 44AB requires that the accounts should be audited by an Accountant. The explanation to Section 44AB states that the word accountant shall have the same meaning as the explanation to Section 288(2). The Explanation to Section 288(2) states that

accountant” means a chartered accountant within the meaning of the Chartered Accountants Act, 1949 (38 of 1949), and includes, in relation to any State, any person who by virtue of the provisions of sub-section (2) of section 226of the Companies Act, 1956 (1 of 1956), is entitled to be appointed to act as an auditor of companies registered in that State.

Section 226 of the Companies Act, 1956 says that a person holding a certificate issued by a Part B State may also be appointed as an auditor. But this provision has no relevance today. No person is eligible to be appointed as an auditor by virtue of this provision today. Hence effectively only a Chartered Accountant holding a valid Certificate of Practice can carry out Tax Audit under section 44AB. This proves the level of trust we has been entrusted with. It will be in the duty of us all future Chartered Accountants to uphold this trust. After all C and A are the Alphabets of trust.

 

This monopolist trust vested on Chartered Accountants was also upheld by the Supreme Court in the Case of T.D. Venkata Rao v. Union of India [1999] 237 ITR 315 (SC).In this instant case, T.D.Venkata Rao, an Income Tax Practitioner, had questioned the legal validity of allowing only CAs to Audit under section 44AB. Supreme Court upheld the superiority of CAs by noting that Chartered Accountants, by reason of their training have special aptitude in the matter of audits and no other person can be held eligible to conduct audit under Section 44AB.  Supreme Court further held that CAs are a Class by themselves meaning that CAs are the brand for auditing itself.

Exception to Tax Audit:

Once a person gets covered under any one of the four categories, Tax audit becomes mandatory. But there are two exceptions to tax audit. The first proviso to Section 44AB, exempts business covered under Section 44B and 44BBA from the purview of tax audit. But the second proviso is something more interesting. The second proviso says that if the accounts of a person are to be audited under any other law, it would be sufficient if the accounts are audited under that law before the 30th of September. The accounts need not once again be audited by an Accountant but the report in form 3CA and 3CD needs to be obtained from an Accountant.

The effects of this section arouse much fascination. Since Companies are required to be audited under the Companies Act, 1956, they need not be audited once again under Section 44AB. It is sufficient if the audit reports in the prescribed forms are obtained. This is even more fascinating in the Case of Co-operative Societies. Co-ops are required to be audited under the Co-operative Societies Act, but the auditor of a co-op need not be a CA. Even then a co-op need not be once again audited under Section 44AB.

Consequences if Companies follows different Accounting Year other than Financial Year:

Another Fascinating situation arises out of this proviso. Everyone is aware that under the income tax act, previous year means the financial year beginning from 1st April. But there is no such restriction under the Companies Act. Hence Companies may adopt the calendar year i.e. January to December as their Accounting Year. In such a situation a question arises where by using the above proviso, a Tax Auditor issue Form 3CA and Form 3CD for the previous year without auditing the accounts.

The CBDT clarified this issue vide Circular no.561 dated 22/05/1990. CBDT said that the second proviso is applicable only when the accounting year is same as the previous year. If the accounting year is different from the previous year then fresh audit has to be conducted. In this case, even though, the company was subject to statutory audit, the Tax auditor has to issue his report only in form 3CB and not in 3CA. Isn’t it fascinating?

Mode of Furnishing of Tax Audit Reports:

As per the age old practice, the assessees were required to get the Tax Audit Reports in the prescribed forms from an Accountant and file the same by the prescribed due date along with their return of Income. But with the advent of e-filing and ITR series of return forms, the situation has changed completely.  As per the ITR philosophy, Returns are annexure less. No annexure like the computation sheet, Audited Financial Statements and Audit reports needs to be annexed.

As per the current scheme, the assessee has to obtain the tax audit report from the Tax auditor before 30th September and using the details given in it, prepare the applicable ITR form and file it either manually or electronically with the Income Tax Department. The Audit Reports are to be furnished only on the request of the Assessing Officer. But this scheme has many defects. There is no way to ascertain whether the accounts have been really audited or not. CBDT should consider a scheme of e-filing of Tax audit forms directly by the Tax auditor using his digital signature to remove this difficulty.

Penalty for failure to get accounts audited:

Non compliance of any provision of the Income Tax Act attracts huge penalty. Similarly the non compliance of Section 44AB attracts penalty under section 271B of the Income Tax Act, 1961. If any person who is required to get his accounts audited by an Accountant before the specified date fails to do so shall be liable for penalty under section 271B. The amount of penalty shall be half a percent of turnover / gross receipts or Rs.150000/- whichever is lower. The maximum penalty under this section was increased from one lakh to one and a half lakhs by the Finance Act, 2010, with effect from 01.04.2011. This penalty shows the seriousness that the Government affixes towards Tax Audit under section 44AB.

However no penalty may be levied if here is a reasonable cause for such failure. For e.g. in a firm it may so happen that the partner who manages the entire accounting and finance is not in the country and has gone abroad. In such a situation, the other partners will not be in a position to offer explanations to the Tax Auditor to complete his audit. Hence the accounts may not get audited by the due date. A similar situation also arises when the accountant quits the firm just before the end of September. But what serves as a reasonable cause is always uncertain.

Limitation on No of Tax Audits

In order to ensure quality and equitable distribution of audit work done by Chartered Accountants, ICAI has fixed a maximum limit for the Tax audit assignments that can be taken by a CA or a firm of CAs. This limit is set at 45 assignments per person. For if a firm of CAs has 3 partners, the maximum number of Tax audits that can be taken up by the firm will be 45*3 i.e. 135. If the firm takes all the 135, partners cannot take any audit in their personal capacity.  If a person is found to have accepted more than 45 assignments in a year, he would be deemed to have been involved in professional misconduct.


65 Responses to “Issues in Tax Audit under Section 44AB”

  1. gaurav Tiwari says:

    hiiii
    frnd I liked it
    and it is very help ful

  2. Omprakash Prithani says:

    Nice. It is useful specially for CA’ s . Further I want to know if a partner CA of a 3 CA firm can SIng all 135 audits on behalf of the firm.

  3. Of course any one partner can sign all the audit reports. But it should specially be mentioned that he is signing on behalf of the firm. This right arises out of the partnership act since any partner can act on behalf of other partners, subject agreement between partners.

  4. Once section 44AB is applicable to any assessee due to turnover more than 40 lakhs, Is there any provision that “Once Applicable Always Applicable”???

  5. Nothing like that. Every assessment year has to be considered separately for the purpose of tax audit. Tax audit is applicable only if the turnover / gross receipts exceeds the limits specified in that particular year. But in case of companies, they are always subject to audit irrespective of the turnover.

  6. CA Achyut Shendye says:

    Dear Mr. R.Sivanesh,
    Thanks for posting such a informative blog !
    I have one doubt in this regard. Could you please clarify the same.
    My query is what is the applicability of tax audit to Remuneration and share of Profit, received by Partner from Partnership Firm. Could you please explain with reference to Sections. Case Laws, Guidence notes if any
    Thanks
    Achyut

  7. Arpit Shekhar says:

    Dear Sir Your article is very useful and well written.I have another query and would be glad to receive your response on that.Our co. is audited in companies act 1956 and prepares accounts from 1 jan to 31 dec and gets it audited.Our turnover is less than prescribed limit u/s 44ab till 31 march the financial year for tax purposes but it is necessary to file accounts for year ending 31 march in the income tax department..please advise how to file the balance sheet in Income tax department and in which section as tax audit is not applicable.

    Thanks & regards

  8. hardik bunha says:

    please give me full overview of section 44AD with in the event of loss and for share investor.

  9. Mahendra Jain says:

    Dear Sir,
    I like your article. I have one doubt. BPO services – Turnover Rs. 39 L , 44AB will applicable or not? If ;yes please give reason for the same. Thanks

  10. Dear Mahendra Jain,
    I think your question fallout of the question whether BPO would be classified as business or profession. BPO with no doubt will come under the category business only. Hence the Limit of Rs. 60L alone will be applicable. Hence tax audit is not applicable.

    To add more clarity, profession will include only qualified professionals like doctors, CAs, Architects, Engineers etc..

  11. paresh agarwal says:

    whether tax audit carried out under 4th category i.e. 44ad will be cosidered for the calculation of 45 audit per ca

  12. As per chapter VI of the Council General Guidelines, 2008 audit under section 44AD is not considered for calculating the tax audit limit. For more information see http://220.227.161.86/12766Council_General_Guidelines.pdf

  13. Thanks a lot – this information was helpful

  14. R.Subramanian says:

    The major issues often confronted with as regards IT is the classification / interpretation. I have a latent doubt as regards the applicability of tax audit for trading in shares. While some of the shares may remain for a period of over 1 year, many may be liquidated within a period of 1 year. If applicable, what is the criteria for ascertaining the turnover?

  15. SANDEEP AGARWA; says:

    PLS TELL ME WHETHER AN AUDIT DONE U/S 44AF AND PROFIT IS BELOW 5%, WILL IT B COUNTED IN THE 45 AUDIT LIMIT ???
    PLS ADVISE

  16. Dear Sandeep, first of all I would like to remind you that section 44AF is redundant for the current assessment year (AY 2011-12). The relevant section would be 44AD. Again here I have to give you the same reply I have given to Paresh Agarwal above. ICAI’s stand is very clear that these audits are not covered under the threshold limit for CAs.

  17. sanket goyal says:

    dear sir,
    can you please let me know whether digital signature is required for audit u/s 44AD?

  18. Dear Sanket,

    This year use of digital signatures is mandatory for all tax audit cases. There is no difference between 44AB/44AD. You have to note that even in case of 44AD the audit section is 44AB only.

  19. Hi
    Will Poultry Farm attract Audit u/s 44AB
    thanks

  20. Hi,
    can i deduct vat and excise duty from the sales turnover while calculation of turnover criteria when i am following exclusive method?

  21. Sanjay G. Lad says:

    Whether 2 chartered accountant firm can do tax audit of single company.

    Thanks and Best Regards.

    Sanjay G. Lad

  22. Ravinder Kumar says:

    Dear Mr. R.Sivanesh,

    Thanks for posting such a informative blog !

    I have one doubt in this regard. Could you please clarify the same.

    My query is what is the applicability of tax audit to Remuneration and share of Profit, received by Partner from Partnership Firm.

    for Example a firm is having total Sale is Rs.11.5 Lakh in a financial year & Rs.96,000/- has been paid as Remuneration & after paying remuneration firm Net Profit is ZERO.

    Could you please explain with reference to Sections. Case Laws, Guidance notes if any

    Thanks
    Ravinder Kumar

  23. Dear From Sanjay G. Lad,

    Joint tax audit is allowable as it is not specifically prohibited.

  24. Dear Ravinder Kumar,
    In the example you are citing, the firm has not reached the tax audit limit yet, so why do you care about tax audit. further Remuneration has nothing to do with turnover limit for tax audit. Once tax audit limit is reached the firm has to get accounts audited even if there is loss.

  25. CA Tousif Ahmed says:

    Dear Sir
    Wonderful explanation regarding tax audit
    Thanks
    CA Tousif Ahmed

  26. Dear Sir,

    Could you pl.clarify my doubt on technical consultancy?

    If one gets Rs 45 Lakh in his counltancy:

    a)will consultancy be considered as a Bussiness?
    b)can consultant also show his profit 8% only?
    c)If consultant shows more than 8% profit,how tax will be calculated under section 44?

    I would appriciate your response.

    Regards,
    Dinesh

  27. SOBHAN BHATTACHERJEE says:

    #

    Dear sir,

    I have one doubt in this regard. Could you please clarify the same.

    My query is what is the applicability of tax audit to Remuneration and share of Profit, received by Partner from Partnership Firm.

    for Example a firm is having total Sale is Rs.8.5 Lakh in a financial year & Rs.216,000/- has been paid as Remuneration & after paying remuneration firm Net Profit is 40,000/-.is it under tax audit?

    Could you please explain with reference to Sections. Case Laws, Guidance notes if any

    Thanks
    s.k.bhattacharjee

  28. Dear Sir,

    One of my friend fullfil condition of 80RRA & 44AB.

    Can one get both deduction facilities together?

    If not,what all kind of other deduction allowed with 80RRA?

    Your response would be appreciated!!
    Thanks

  29. Dear friend
    is digital key mandatory for e filling individual whose turnover for the financial year 2010-2011 a.y 2011 -12 is below 50 lakhs

  30. Rajiv K. Chopra says:

    Pls provide me you expert opinion about the coverage under Tax Audit (U/s 44AB) in the folowing three (03) cases :

    Case #1
    If any professional (say, individual practising C.A./Doctor) has a total income of Rs. 9.6 Lacs ( from his profession) for the accounting year 1/4/2010 ot 31/03/2011 but also has business income of Rs. 5.30 Lacs for the accounting year 1/4/2011 ot 31/03/2012, would he be subject to compulsory tax audit U/s 44AB ?? The assesse has not filed his ITR so far.

    Case # 2
    If any professional (say, individual practising C.A./Doctor) has a total income of Rs. 14.75 Lacs ( from his profession) for the accounting year 1/4/2011 ot 31/03/2012 but also has business income of Rs. 3.15 Lacs for the accounting year 1/4/2011 ot 31/03/2012, would he be subject to compulsory tax audit U/s 44AB ??

    Case # 3
    If any professional (say, practising C.A./Doctor) has a total income of Rs. 13.60 Lacs ( from his profession) for the accounting year 1/4/2011 ot 31/03/2012 but also has business income of Rs. 1.35 Lacs for the accounting year 1/4/2011 ot 31/03/2012, would he be subject to compulsory tax audit U/s 44AB ??

  31. Dear Rajiv K. Chopra,

    I have already covered the issue you are raising in the above article itself. For the sake you clarify let me reproduce it again.

    The limits for tax audit for business and profession operate individually. There is no clubbing. A business will be subject to tax audit only if the sales exceeds 60 lakhs. Similiarly for profession if the gross receipts exceeds 20 lakhs. But if either of the limits are reached both become subject to tax audit.

  32. Dear Sir,

    i found it much helpful for me .thanks for all replies i learnt from the both side .i have a doubt could u please tell me please .can a cost accountant conduct tax audit u/s44ab. please ans.me .

  33. In nocase a Cost Accountant can conduct Tax Audit. Tax Audit under section 44AB can be done only by a Chartered Accountant

  34. Very useful information, thanks for sharing valuable content.

  35. uday kumar says:

    hi,
    Please clarify a company had participated in a tender bid for a new project with RVNL and had given EMD to RVNL. However it withdrew its tender after the due date and RVNL forfeited the EMD. The forfeited emd amount was written off to P & L as it was non recoverable. Now income tax department is treating this as income and adding back the same to income. the contention of the company is that this is an expense as it had failed to discharge its contractual obligation so treated this as expense. please clarify.

  36. Dr P K JAIN says:

    I am medical Doctor and i have income of salary 24lacs and other consultancy income from by visit other Hospitals of 10lacs. Pl let me know weather Ihave to get my accounts audited for the assesment year 12-13.

  37. sir,

    please explain me difference between tax audit and statutory audit…

    thanksin advance
    kalpana
    kalpana_sagala@yahoo.co.in

  38. Prabesh Agarwal says:

    Sir,
    In case of the year in which the turnover of an assessee crosses the exemption limit for the first time and the aseesee doesnt maintain books as so long he was not reqd to do so and it was expected that will not be reqd in current year also…..how will he get his books audited if books not maintained…….this difficulty has ariesed sice no diffrerence for books maintaining limits and auditing limits…

  39. srinath kr says:

    sir,

    superb article about sec 44AB, i have one clarification raised after reading your article. I am an Income Tax Practitioner, can I sign Tax Audit Report and audit the books of accounts as CA works. I have full knowledge about audit and presentation as CA Works. Also I would like to know what are the pros and cons of Income Tax Practitioner. I am eager to read your comment on this regard.

    thanks in advance.

  40. Jinna Dinakar says:

    I had a lot of confusion about 2nd Proviso to Sec. 44AB
    It has finally been clarified.
    Thanks a lot.

  41. Dear Mr. R.Sivanesh,

    Thanks for posting such a informative blog !

    I have one doubt in this regard. Could you please clarify the same.

    My query is what,
    for Example a firm is having total Sale (turnover) is Rs.11.5 Lakh in a financial year & there is loss of Rs.1.5L. Is that necessary to conduct the Audit U/S 44AB.
    Could you please explain with reference to Sections. Case Laws, Guidance notes if any

    Thanks
    Ravinder Kumar

  42. CA M F fARIDI says:

    Dear Sir

    My question is that i have got my membership no on 16-6-2012 and firm name on 21-06-2012 can i do the tax audit wef from 21-06-2012 and what about statutory audit of the company .is i am eligible for statutory audit for the year ended 31-3-2012 in case of company.

  43. CA BHAVESH PATEL says:

    Thanks For ur article on tax audit. Sir my queery is regarding Tax Audit to Trust
    An NGO (Trust) has establised a Eye Hospital . The receipts derived by the hospital has been utilized as per the provisions of Sec 11 of Income tax act to claim exemption. The gross receipts of Hospital is Rs.92,00,000/-
    Trust has to file its IT Return for the F.Y 2010-11. The following are my queries :
    1. Is Hospital considered as business or not?
    2. If so, should it disclose Receipts of Hospital under Business or Other Sources?
    3. Is it liable for tax audit under Sec.44AB?
    4. If considered as business, does it hamper the exemption status under Sec 11 of the act claimed by the trust.
    5. If Hospital receipts are disclosed under Income from Other Sources, does it attract tax audit under Sec 44AB, since 44AB audit is only for Business Chapter and not for Other Sources.
    Thanks & Regards
    CA Bhavesh Patel

  44. Dear SIr,
    The first category you had mentioned above for setion 44AB may be little different as it covers any person carrying on a business whose total sales, turnover or gross receipts exceed Rupees Sixty Lakhs during any previous year….

  45. Adil Shah says:

    Hello,

    Very informative stuff.

    Thanks a Ton
    Adil
    adilonly@rediffmail.com

  46. thanks sir,

  47. CA Arihant Jain says:

    Sir,

    Your article is really very helpful.

    I would be really thankful to you if you could kindly clear my below mentioned query.

    There is an individual who is a free lancer. He writes articles on stocks listed in the U.S. stock exchanges for some consultancy firms based in the USA. Would this work of his be considered as a business for the purposes of section 44AD.

    Thanking you in anticipation,

  48. Profession includes any vocation hence freelancing would be covered under 44AB as profession and will be subject to tax audit if it exceeds the limit.

  49. ஹலோ சார் இ ஜஸ்ட் வான்ட் டு க்நொவ் தாத தேரே இஸ் லிமிட் போர் க டு சிங்க் ௪௫ ஆடித் பட் இ வான்ட் டு க்நொவ் தட் வித் ௪௪ஆ ஆடித் (தி ௪௪ஆ ஆடித் இன்ச்ளுதேத் ) பிளஸ் கிவ் மீ ரேப்லே ஒன மி ஈமெயில் ஈத்

    தங்க உ

  50. pooja agarwal says:

    Dear CA R.Sivanesh
    I have one doubt. Could you please clarify the same.
    what is the applicability of tax audit to Remuneration received by Partner from Partnership Firm. Could you please explain with reference to Sections. Case Laws, Guidence notes if any..
    It is urgent as well as important
    Thank You

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