Finance Bill 2020 – Suggestions Of Tax Consultants – Reform In Tax Law And Tax Administration – Ease Of Doing Business

Dr. K. Shivaram, Senior Advocate, has offered several valuable suggestions on what reforms in tax laws and tax administration have to be implemented so as to achieve the noble objective of improving the ease of doing business. He has opined that if these suggestions are followed, there will be a proper recovery of taxes as well as a drastic reduction in litigation, which will benefit the Government as well as the citizens

Envisaged under Article 51 of the Constitution of Indiaare the Fundamental duties of every citizen of India Article 51A(j) reads as under, “to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement.”

Article 265 of the Constitution reads as under “No tax shall be levied or collected except by authority of law.” One of the duties of a tax consultant is to make objective suggestions for better law and tax administration of the Country. Our Honourable Prime Minster Shri Narendra Modi always emphasized for “Ease of doing business in India.” It is an undisputed fact that the Government is making an honest attempt to make India a better place to do business and increase prosperity to make India a $ 5 trillion economy.Tax professionals can play a proactive role by making various suggestions to achieve the Goal of our Honourable Prime Minster. Our Honourable Finance Minister Mrs. Sitaraman has interacted with various forums and business organizations, and it is desired that leading professional organizations like the All India Federation of Tax Practitioners (AIFTP), Bombay Chartered Accountants Society (BCAS), The Chamber of Tax Consultants (CTC) may also be requested to present their views.

Members of voluntary organizations of tax professionals are bridge between the tax payers and tax administration, and are well conversant with the difficulties faced by the tax payers. Accordingly, we have pen down the following suggestions for the consideration of our Honourable Finance Minister. We present our suggestions in three parts.

Conceptual, specific and vision for 2022

1. Authority for Advance Rulings (AAR)

1.1. Delay in passing the orders

One of the brilliant provisions under the Income-tax Act, 1961 (Act) is under Chapter XIXB of the Act viz. Advance Rulings, i.e. Sections 245N to 245V of the Act.

As per section 245R(6) of the Act, the Authority shall pronounce its advance ruling in writing with in six months of the receipt of application. When the AAR was initially constituted the parties concerned were being served by a Ruling within the time frame of six months of the receipt of the application. However, recently it is observed that it takes more than two years to get a hearing for reasons best known to the administration. Unless a remedial action is taken at war footing, the entire purpose of constituting an AAR is defeated. We hope our Honurable Finance Minister will look in to this matter. This is a stepping stone in ease of doing business in India.

1.2. Lowering of Transaction value

The Central Government vide Notification no. 73 of 2014 dated November 28, 2014 clarified that, a resident can approach the AAR, in relation to his tax liability arising out of one or more transactions valuing rupees one hundred crore or more in total which has been undertaken or proposed to be undertaken.

It is suggested that this value of 100 Crore rupees is exorbitant, there are numerous cases where clarifications are required especially in matters of deduction of tax at source. Reduction of this amount will immensely help tax payers and consultants.

1.3. Advance Ruling power may be given to Income Tax Appellate Tribunal.  

We are of the view that the Income tax Appellate Tribunal (ITAT) is more competent to decide the issues relating to Advance Rulings. The ITAT has benches in more than 26 locations and a robust infrastructure. The pendency of appeal before ITAT is only 95,000 appeals. The ITAT has the ability to decide the issue within three months of the filing of the application. It is urged that our recommendation may be considered for residents intending to have an advance ruling.

2. Settlement Commission (STC) – Settlement Commission: Transparency in appointment of Members of Settlement Commission – Professionals to be appointed

Income-tax STC was established in the year 1976 with a view to expeditiously settle disputes between the assessees and the Revenue. The STC is one of the most high-powered commissions under Direct Tax laws. Section245B(3) of the Act, in express terms, requires the Central Government to appoint the Chairman, Vice-Chairman and its other members from amongst persons of integrity and outstanding ability, having special knowledge of, and, experience, in problems relating to direct taxes and business accounts.

Unfortunately, at present, there is no transparency in appointment of the Members of STC.  There is complete transparency as regards manner of appointment of Members of the ITAT. The applications for the posts of Members of the ITAT are invited from professionals and Commissioners of Income-tax who are selected by aCommittee headed by the senior most Judge of the Supreme Court, the Law Secretary and independent professionals(Additional Advocate General or member of the Law Commission) and the President of the ITAT.

Referring to Dr. Vijay Kelkar’s Committee recommendations to institute a transparent procedures for appointment of Members and Chairman of the Central Board of Direct taxes [(2012) 258 ITR (Journal) 1 (45)], We are of the opinion that the appointment of Members of the Commission, being a quasi-judicial body, must be done in a manner as transparent as possible. It can be similar to that of the Tribunal and there is no reason to deviate from a well-established procedure. This will help gain confidence of the taxpayers in the Institution.

The AIFTP had conducted a survey on various issues, including the appointment of Members of the Commission, the findings of which were released at the 12th National Convention at Mumbai on December 24, 2012. (Souvenir, P. No. 149). 97 percent of the professionals surveyed opined that the Government should appoint at least few members from the profession. In order to achieve the desired results in settlement proceedings, it is imperative that the benches of the Commission consist of persons of diverse backgrounds. An ideal combination of a bench would be a Member each from the Department, law profession and accountancy profession. The Members should ideally have tenure of at least five years and the Chairman of at least two years, so that he/she can take important decisions relating to regulation of its procedures.

As  per the amended Service Rules applicable to the Members of the Customs, Excise and Service Tax Appellate Tribunal and the ITAT, a Member cannot practice before the same forum after retirement. Introduction of such a provision for the Members of the Commission would undoubtedly elevate the stature of the Institution.

3. Prosecutions

3.1. One-time settlement of prosecution matters before various Magistrate Courts.

Under the present system, it takes more than 20 years to decide prosecution matters relating to Direct Taxes. Hence, the deterrent provisions fail to achieve the desired object due to the delay in disposal of cases by the trial courts. Substantial matters of prosecutions are launched for technical defaults for delay in depositing the tax deducted at source though the tax deducted was paid along with interests. The compounding fees fixed are very high. It may be fixed reasonably so that the assesses can settle the disputes by paying compounding fees. The tax administration may consider one-time compounding application.  As per the guide lines dated December 23, 2014,Compounding application will not be entertained if the application is filed after 12 months of the filing of complaint, however, as per the new Circular dated June 14, 2019, CBDT has relaxed the period to 24 months. There are instances where the accused has received the intimation of the filing of complaint after 12 months of the filing of the complaint. In few cases the application for compounding was not entertained only on technical grounds. As per the Act and judicial decisions there is no limitation for filing of compounding application. The same can be filed even after the Court holds the accused guilty of the offence. It is desired that the restrictions imposed in the circular may be withdrawn.  When a show-cause notice is issued, the assessee submits their reply thereafter no intimation is received by the assessee as to whether the submission is accepted or not accepted by the department. It is the duty of concerned officer to inform the assessee in writing whether the prosecution is launched or not. 

3.2. Setting up of special courts to deal with prosecution in relation to Direct and Indirect taxes

Income-tax being a specialized subject, the prosecution cases may be heard by a special court of two judges, similar to the Tribunal, and, thereafter, an appeal may lie directly to the Jurisdictional High Court. This will help in speedy disposal of matters. In fact, speedy prosecution will have great deterrent effect.  One may consider whether two Judicial Members of the ITAT having more than 10 years of experience in the ITAT, can be constituted as a special Court to deal with prosecutions relating to direct taxes.

4. Tax deduction at Source

At present there are more than 25 sections under which the assessee is required to deduct tax at source and file the returns. Many a times there is no clarity on various issues. It is desired that one may consider having concept of passbook and only one return for all Tax deducted at source. The assessee may deposit the amount as advance or may adjust against   various taxes to be deducted. This will help to reduce the compliance provisions.

5. E-Bench of the Supreme Court to deal with direct and indirect taxes

E-bench of Supreme Court can be an effective alternative for having regional benches of Apex Court. The E-Bench of Apex Court will help render speedy justice to the litigants thereby saving huge cost incurred on travelling back and forth to New Delhi

A common man of our country cannot even think of approaching the Apex Court for justice as it is beyond his reach. The minimum cost for single adjournment costs about 1 lakh rupees. Thus, one can imagine how expensive it would be for the citizens to approach the Supreme Court for justice. One may consider constituting e-bench of the Supreme Court. The hearing of the matter before the Apex Court can be done by linking various High courts and affording facilities for arguing the matter before the Apex Court from the respective High Courts. An E-bench of the Supreme Court can take up state wise matters, e.g. One day could be for matters of Mumbai, another day could be for matters from Chennai or other places, etc. Initially, an option may be given to the parties to hear the matters through e-Bench or regular Bench.

The ITAT has started the e-Court at Mumbai through which the matters of Nagpur are heard by members sitting at Mumbai. The experience has been very satisfactory and both the tax payers and the Department have found the functioning of this bench satisfactory. The E-Bench of Supreme Court may initially be started with SLP, relating to direct and indirect tax matters. One Court room from respective High Court may be converted in to an E-Court.    

6. Arbitration in tax matters (Lok Adalat)

The Government may consider the proposal of constituting a committee consisting of representatives from legal and accountancy profession and from the tax department of the rank of Principle Chief Commissioner of Income-tax for arbitration in tax matters. The assessee may refer the matter to such committee within 30 days of receipt of the order from the assessing officer and the committee should pass an order within six months from the receipt of application. The order passed by such committee may be made binding on both the parties. To begin with the matters like technical defaults, refunds, etc. may be referred for resolution. The concept of Lok Adalat may be introduced. The Government may consider the services of retired members of Tribunal. The proposal will benefit the tax payers as well as the tax department.

7. Ombudsman

The Concept of income tax ombudsman was introduced to redress public grievances and improve tax payer service. Income tax ombudsman guidelines were issued in 2010. Though it has been around 10 years for this concept, the outcome has hardly been satisfactory. Most of the times, the chair is vacant as no appointments are made. As per the Guidelines an ombudsman should have been serving officer preferably from IRS (Income tax). According to us, ombudsman should be an independent person and could be a retired ITAT member.

The guidelines also define the “income tax authority complained against” as junior most income tax officer.   Many a times income tax officers act as per the directions of their seniors and hence it should include all officer below Commissioner level.

The guidelines further states that ombudsman would be located at various locations. Instead Ombudsman can be centrally located and all applications and documents should be allowed to be filed online. The ombudsman need not necessarily be located at several places but can use technology to their advantage. This would also reduce costs.

The Guidelines further state that award shall be binding on the department only if the complainant furnishes its acceptance in full and final settlement of his complaint. This creates unnecessary burden and hardship on the complaint. It has to be binding on the department irrespective of complaint accepting or not submitting its acceptance.

The Ombudsman has to report to Secretary, Department of Revenue, GOI and Chairman CBDT for appropriate actions against erring officials. However, there is no statistics as to what actions have been taken after such reports. If not individual names, atleast quarterly statistics should be made public, which acts as a deterrent for erring officials and may reduce malpractices.

It is also seen that there are various parallel procedures which are in place simultaneously. For e.g. there is a Grievance Redressal Mechanism, there are separate toll-free numbers, there is Ombudsman system. In our view this creates lots of confusion and hence it should be merged under one roof. There has to be uniform system across country.

8. Separate allocation of fund for judiciary

The Judiciary is one of the pillars of democracy. There must be a separate allocation of funds for the judiciary in each budget. The procedure for disbursement of funds to the judiciary must be simplified. It is worth considering that Finance Ministry may make it a point to meet the concerned Officials of the judiciary and hold discussions about the funds required for modernisation and allocate the required funds to the Judiciary from time to time.

As per the newspaper report dated August 3, 2019 (Times of India, Saturday), it has been highlighted that more than half of the District Courts in the Country do not have functional washrooms and other amenities. In Mumbai, there is only one special court designated to deal with prosecution matters of Direct taxes as well as other economic offenses. There are more than 10,000 cases pending to be heard. There are matters pending for framing charges since more than 15 years. Unless some remedial measures are taken, entire system may collapse. The need of the hour is to have proper infrastructure for the Judiciary. This is possible only when proper allocation of funds for the judiciary is done.Government  should consider  the problems of the Judiciary at the same priority as the National Security of the Country and accordingly  should take  bold steps to provide proper infrastructure to the Judiciary . The All India Federation of tax Practitioners have, from time to time suggested that there should be separate allocation of funds for the Judiciary in the budget proposal similar to the budget allocation made for the defence of the Country.  The need of the hour is allocation of separate fund for the Judiciary.

9. Tax service

It is desired that the mind set of tax officials must be changed from tax collection to tax services. As per the Circular No. 14 (XL-35), dt. 11/04/1955, board stated that a duty is cast upon the Assessing Officer to assist and aid the assessee in the matter of taxation. Assessing Officers are supposed to advise the assessee and guide them and not take advantage of any error or mistake committed by the assessee or of their ignorance. The function of the Assessing officer is to administer the statute with solicitude for public exchequer with an inbuilt idea of fairness to taxpayers.  However, it is not happening in practice.If mindset of tax officials is changed from tax collection to tax service voluntary compliance will increase a greater number of assesses will file the return voluntarily.

10. National Tax Court of Direct and Indirect taxes

One of the reasons which affects the investments and taking decisions on investments are delay in disposal of the tax matters which results in to uncertainty. As per the recent  directive  dated December 27, 2019 issued by the CBDT to CIT(A) shows more than  31,325 appeals which  are pending for disposal for more than  five years, only 7597 appeals have been disposed of till November 3, 2019. For disposing the appeals before theTribunal, it takes minimum of two years. In Mumbai, appeals admittedin the High Court in the year 2002 onwards are still pending for final disposal.  Just for admission of an appeals it takeson an average a minimum period of two years. There are more than 5000 appeals which are pending for final disposal and more than 5000 appeals for admission in Bombay High Court itself. There are number of writ petitions which are admitted and waiting for final hearing. Assuming High Court decides the mattermay be taken before Supreme Court for admission of SLP, the same will take another two years to get admitted and after admission another three years to be heard. Thus, where for getting finality in tax matters it takes minimum 30 years after filing of the return,how can a businessman can decide the tax liability of their investment. Delay in disposal of the matters before various High Courts are mainly on account of delay in appointing the judges. For Mumbai which is the commercial capital of India, it requires at least three tax Benches, one for direct taxes appeals, one for Indirect taxes and one for final hearing of writ and final disposal of writ petition admitted.Unless the Govt takes steps to appointment of the judges at the earliest the tax payers may have to wait at least 30 years to get the issue decided in tax matters by Apex Court.  An appeal under section 260A is provided to decide only a substantial question of law. It is desired that the “National Tax Court” may be set up to deal with direct and indirect tax matters having multiple benches.   The said court has to be managed by the Judges who are possessing requisite competence, exceptional ability and expertise can ensure a prompt resolution of controversies. There are good number of judges in different High Courts who are well conversant with tax laws, however due to shortage of judges in various courts their expert knowledge is not able to be utilized to decide the tax matters. Establishment of such courts can be constitutionally justified under Article 323B of the Constitution of India. The establishment of National Tax Tribunal was quashed mainly due to power of appointment, qualification of members and control of the Government. If  proper care is taken to give trappings of a Court similar to High Court, then the National Tax Court can serve to deliver justice to the tax payers effectively and efficiently. A thought for debate.        

Specific sections dealing with administrative issues

1. S. 23(5) of the Act: Relief to Real Estate Sector

It is a known fact that, the Real Estate Sector has been sluggish over the last few years. The burden of rent on unsold stock in trade units could result in severely handicapping the whole sector. It is advised to consider giving relief from the provision of notional rent on unsold stock in trade units with retrospective effect from Financial Year ended 2017.

2. S.80C of the Act:  Increase in monetary limit

The monetary limit under section 80C was increased to Rs. 1.5 lakhs from 1 lakh via Finance Act, 2014. This amount has never been adjusted against inflation. Further, with removal of long-term capital gains exemption on sale of listed shares, tax payers do not have much incentive to save money or invest it. It is urged to revise this limit accordingly.

3. S.154 of the Act: Rectification of mistake

As per section 154(8) the Ld. Assessing Officer has to pass the order on rectification application with in a period of six months from the end of the month in which the application is received. However, under Citizens Charter of 2010, the service delivery standard in respect of deciding rectification application has been fixed as 2 months.It has been brought to our notice that in number of matters the AOs are not passing the order within the statutory time line.  An amendment may be brought in the section that if the order is not passed by the AO the application is deemed to have been allowed. As regards S.154(7) the CBDT has issued circular that the AO may dispose the application even after expiry of the statutory time limit. Whether the ratio of circular is applicable to S.154(8) is debatable.   In the case of Sultan Leather Finishers Pvt Ltd v. CIT (1991) 191 ITR 179 (All) (HC), the court held that when rectification application is pending the Assessing Officer cannot proceed with recovery proceedings. However, the ratio of High Court judgement is being ignored.

4. Proper monitoring of rectification application
There should be proper monitoring of all Rectification Applications filed. There should be proper reporting of the number of applications filed, disposed and pending disposal and concerned officer should be answerable for long pending rectifications.

5. Section 199 of the Act: Credit for tax deducted 

The case of Yashpal Sahni v. ACIT (2007) 293 ITR 539 (Bom) (HC) has noted the difficulty faced by taxpayers in the matter of credit of TDS and held that even if the deductor had not issued a TDS certificate, still the claim of the assessee has to be considered on the basis of the evidence produced for deduction of tax at source. The Revenue is empowered to recover tax from the person responsible if he had not deducted tax at source or after deducting failed to deposit with Central Government.  When there was mismatch of the TDS and giving the credit for tax deduction at source  the Honourable le Delhi High Court in  on Its Own Motion v. CIT (2013) 352 ITR 273(Delhi)(HC) directed the department to ensure that credit is given to the assessee even where the deductor had failed to upload the correct details in Form 26AS on the basis of evidence produced before the department.  Even to day there are number of issues while giving credit for tax deducted at source. When an assessee followscash system and payer follows mercantile system there is a mismatch, similarly when the assessee follows the percentage completion method there is mismatch, when advance is received the deductor may deduct tax at source and the recipient will offer the income in the year of income offered. However, the technology has not able to meet these types of challenges which has generated unintended litigation. It is desired that the TDS proceeding unit should interact with tax professionals across the country and try to find out the solution.

6. S.246 of the Act: Appealable orders

Every order passed by Income tax authority, i.e. Assessing Officer / tax recovery officer, etc. which has the effect of adversely affecting an assessee in any manner may be made appealable before the Commissioner (Appeals). 

7. S.250 of the Act: Time lines for passing orders by CIT(A)

Though there are time lines for AO to pass order, there are no timelines for appellate authorities. Hence there should be some time line to pass orders for CIT(A) and also there has to be time limit for sending remand report to the CIT(A). The CIT(A) may be directed to pass order with in prescribed time, from conclusion of the hearing, not later than 90 days from the end of the month of the hearing. Concept for time barring can be brought at CIT(A) level stage as well. This concept is already prevailing under the DRP route and can be brought for CIT(A) route as well.

The CBDT has issued a directive dated 27.12.2019 in which it is stated that 31,325 appeals pending which are more than five years old and only 7597 appeals have been disposed-off till 30-11-2019.  The CBDT has directed that all such appeals must be disposed-off without fail by 31st March, 2020. Similar directive was issued last assessment year as well and this seems to be a year on year trend.

It is requested to consider a statutory time line for Commissioner of Income Tax (Appeals) to dispose of an appeal. A time line of 1 year from the end of the month in which appeal was filed would be more than sufficient and should suffice. 

8. S.253 of the Act: Appeals to the Tribunal

There are a number of orders of the Commissioners of Income-tax against which no appeal can be filed. E.g. orders under section, 264 and 273A of the Act for waiver of interest charged under sections 234A, 234B, and 234C of the Act orders under section 179 of the Act, denial of approval under section 10(23C) of the Act and other approvals by Chief Commissioner, etc. The only remedy available to the taxpayer is to approach the Jurisdictional High Court in its writ jurisdiction. A simple amendment in the Income-tax Act may be made stating that all orders of the Chief Commissioner, Commissioner and Commissioner (Appeals) are appealable to the Tribunal. This would save substantial time of the higher judiciary and the taxpayers would get speedy justice from the Tribunal.

Further, in cases of re-assessment where the jurisdiction of the issuance of Notice under section 148 of the Act is challenged, the same should be brought directly before the Tribunal.

9. S.253(3) of the Act: Single Member

As per section 253(3) of the Act, a single member of the ITAT can decide the matter if the assessed income is up to Rs. 50 lakhs. It is seen that many times the assessed income may be more than 50 lakhs but the disputed amounts would be less than 50 lakhs. Hence matters should be decided on the basis of disputed amount instead of assessed income.

Further, in cases of penalties or interest, even if the amount in only Rs. 10,000/-, still it has to be decided by a division Bench. It is desired that an amendment may be made in the Act wherein, if the penalty or interest is up to Rs. 10 lakh, it may be decided by a single member of the ITAT, which will help in speedy disposal of the matters. It may also be considered that instead of “assessed income” the wordings “tax / penalty / interest in dispute”, the same may be decided by the Single Member Bench.

For appeals relating to tax deduction at source, if the amount of subject matter in dispute is less than Rs. 2 lakhs, the same may be heard by Single Member Bench.

Sometimes even in cases where the loss assessed is more than Rs. 50 lakhs is heard by single member Bench. The law may be amended so that, when the loss assessed is more than Rs. 50 lakhs, the matter may be referred to division Bench 

10. S.257 of the Act: Direct appeal to the Supreme Court to attain finality on important issues

Earlier Section 257 of the Income-tax Act provided for direct reference to Supreme Court, which was applicable to orders passed before 1-10 1998. No such provision is incorporated after the insertion of section 260A. The Income-tax Appellate Tribunal refers the matters to a special bench when there is a conflicting decision of a co-ordinate bench. In the meantime one of the High Courts may have taken a contrary view. In such a case the decision of High Court will be binding. Though the Income–tax Act is an all India statute, the Tribunal sitting in a particular State is bound by the decision of respective High Court of a particular State. This brings uncertainty in tax law. To avoid all these controversies, the Tribunal may be given power to refer the matter to Supreme Court either on its own, or by an application made by the assessee or department. If this process is followed, there will be certainty in tax law which will also help to reduce pendency of cases before various High Courts and finality may be attained on some of the important issues within a reasonable time.

11. S. 260A of the Act: Appeal High Court.

By increasing the monitory limits up to 1 crores tax effect substantial appeals pending before the High Court of the department is reduced which was a welcome move. However as per the letter dated August 20, 2019 bearing number [F.NO.279/MISC.142/2007-ITJ (PT)] certain exceptions were provided. i.e. Reassessment information from various authorities etc. There are matters which involve tax effect of less than Rs. 5 lakhs and it may not be recurring. The Revenue has filed the appeal before the High Court. It is desired that when the tax amounts are very small and the Tribunal has decided the appeals on merit, and not on interpretation. It may desirable not to pursue such appeals before the High Courts. It will be wasting the tax payer’s time unproductively. In most of the cases the appeals are filed due to fear of audit and investigation. It may be desirable to constitute a panel of independent lawyers or panel of retired members of the ITAT to decide whether an appeal is desired or not. If the panel takes the view that the issue is decided by the Tribunal on facts,one may not file an appeal before the High Court.  As on today 80 % of the appeals before the High Court are dismissed only the grounds that there is no substantial question of law. 

When an appeal is filed before the High Court, one copy is always served on the respondent. In direct tax matters the revenue is always either appellant or respondent.  The region wise list may be prepared for the issue involved in the appeal and a consolidated list may be prepared at CBDT level on section wise or issue wise. This will help in grouping of the matters and improve litigation management of the revenue 

The Honourable Bombay High Court,vide their order  dated July 12, 2016  CIT v TCL Ltd ( (2016) 241 Taxman 138/ 288 CTR 34 (Bom) (HC)  directed the income tax department Mumbai to host all the judgements  of the Bombay High Court which are admitted , rejected  and accepted  by the revenue in the website of the department called “Legal Corner” . The tax department filed an affidavit stating that they will comply the direction of the Bombay High Court. Unfortunately, till date no progress is done. It is desired that CBDT may publish the list of judgements which are accepted by the department from time to time. This will help for brining clarity on the issues which will help the assesees to take decision in respect of issues pending before High Courts and also Apex Court.      

Further, section 260B of the act which provides that an appeal filed under section 260A of the act has to be heard by a division bench.  It is proposed that section 260B of the act may be suitably amended to provide that writ petitions arising under direct tax laws may also be heard by a division bench of the High Court. This is because in some of the High Court the writ jurisdiction pertaining to petitions under the direct tax laws is exercised by a single judge and in other High Courts the writ petitions are heard by the division bench hence the proposed amendment will bring uniformity.

Section 260A of the act does not provide for cross objection. It is well settled that a cross objection stands independent of the appeal. However, there is a controversy about the time when the cross objection has to be filed. Some High Courts have taken the view that it is to be filed upon service of the appeal while other High Courts have taken a view that it is to be filed after the appeal is admitted and notice is issued. It is proposed that sec 260A of the act may be suitably amended to provide for procedure for filing the cross objection.

12. Section 263 of the Act: Revisional powers – E. Assessment

As per the e-assessment scheme the assessment is completed by the taking in to consideration from various technical teams. If this is the case there is no reason for the Commissioner to revise the order passed by the Assessing Officer as per the e-assessment scheme, as there are several units looking into a particular assessment. The powers of revision under section 263 of the Act would require to be curtailed.

Vision-2022

1. Co-Ordination Committee headed by the Honourable Finance Minister

It is desired that a Co- Ordination Committee headed by the Honourable Finance Minister may be constituted similar to the GST Council. An independent Committee consisting of representatives from profession, tax administration, taxpayers, judiciary, etc. may scrutinise suggestions received from various bodies in an ongoing basis. After examining in detail, they may suggest amendments which should be made available to the public and debated. If this process is followed, we are sure 90% of litigation will be reduced automatically.

2. Research in taxation.

There needs to be a continuous research on the taxation for increasing the   tax base, and to understand the types of litigation. If one analyses the reported judgements of High Court and Tribunal one will be in a position to analyze the issues and reasons. Even today, when an issue is decided by the High Court or Apex Court after more than 10 years or matter is set aside to the Tribunal, there is no mechanism to find out whether appeal effect is given or not. In a representation made to the then Chairman of the CBDT, the AIFTP has brought this to the notice of the CBDT.  There has to be inbuilt mechanism wherein as soon as the order is passed by the Higher forum to find out the status and remedial measures taken.

3. Tax litigation cell of the department.

More than 60 % of tax litigation in direct taxes are of the department. The AIFTP has suggested that there has to be separate legal cell of the Income tax department. In Bombay High Court number of matters of revenue are dismissed mainly because the advocate on record was not present in spite of adjourning the matters from time to time. Advocate on record may not be appeared because of demise or he or she may not be in the panel when the matters taken up for hearing after a lapse of 10 years. There has to be some mechanism to find the solutions for such situations. It is the tax payers money is wasted due to number of adjournments and non-appearances. Due to digitalization one can find easy solution. We hope the concerned department will act positively.

The suggestions are made objectively the readers may send their views to the aiftp@yhoo.co in so that the representative committee of the AIFTP may take up the issues with appropriate authorities

 

17 comments on “Finance Bill 2020 – Suggestions Of Tax Consultants – Reform In Tax Law And Tax Administration – Ease Of Doing Business
  1. Nikita R. Badheka, National President, AIFTP says:

    20-01-2020
    To,
    Mrs. Nirmala Sitharaman
    The Hon’ble Finance Minister
    Ministry of Finance,
    Government of India, North Block,
    New Delhi – 110001

    Sub.: Suggestions to Income-tax Act 1961 and reduction in tax litigation.

    Respected Madam,

    Madam, we would take this opportunity to wish you a Happy and Prosperous New Year.

    All India Federation of Tax Practitioners (AIFTP) is an Apex body of Tax Practitioners of India. It has more than 8500 members across the Country and 150 associations as its members. One of the main object of the AIFTP is to make representation for better administration of tax laws.
    Madam, AIFTP has already sent detailed suggestions earlier. In this presentation the AIFTP is restricting the suggestions only to issues relating to better tax administration, dispute resolution and appellate proceedings. Our suggestion are divided in to, three parts i.e.
    I. Conceptual;
    II. Specific;
    III. Procedural

    These are discussed as under:
    I. Conceptual
    1. Authority for Advance Rulings (AAR)
    1.1. Delay in passing the orders
    One of the brilliant provisions under the Income-tax Act, 1961 (Act) is under Chapter XIXB of the Act viz. Advance Rulings, i.e. Sections 245N to 245V of the Act.
    As per section 245R(6) of the Act, the Authority shall pronounce its advance ruling in writing with in six months of the receipt of application. When the AAR was initially constituted the parties concerned were being served by a Ruling within the time frame of six months of the receipt of the application. However, recently it is observed that it takes more than two years to get a hearing for reasons best known to the administration. Unless a remedial action is taken at war footing, the entire purpose of constituting an AAR is defeated. We hope our Honurable Finance Minister will look in to this matter. This is a stepping stone in ease of doing business in India.
    1.2. Lowering of Transaction value
    The Central Government vide Notification no. 73 of 2014 dated November 28, 2014 clarified that, a resident can approach the AAR, in relation to his tax liability arising out of one or more transactions valuing rupees one hundred crore or more in total which has been undertaken or proposed to be undertaken.
    It is suggested that this value of 100 Crore rupees is exorbitant, there are numerous cases where clarifications are required especially in matters of deduction of tax at source. Reduction of this amount will immensely help tax payers and consultants.
    1.3. Advance Ruling power may be given to Income Tax Appellate Tribunal.
    We are of the view that the Income tax Appellate Tribunal (ITAT) is more competent to decide the issues relating to Advance Rulings. The ITAT has benches in more than 26 locations and a robust infrastructure. The pendency of appeal before ITAT is only 95,000 appeals. The ITAT has the ability to decide the issue within three months of the filing of the application. It is urged that our recommendation may be considered for residents intending to have an advance ruling.
    2. Settlement Commission (STC) – Settlement Commission: Transparency in appointment of Members of Settlement Commission – Professionals to be appointed
    Income-tax STC was established in the year 1976 with a view to expeditiously settle disputes between the assessees and the Revenue. The STC is one of the most high-powered commissions under Direct Tax laws. Section 245B(3) of the Act, in express terms, requires the Central Government to appoint the Chairman, Vice-Chairman and its other members “from amongst persons of integrity and outstanding ability, having special knowledge of, and, experience, in problems relating to direct taxes and business accounts”.
    Unfortunately, at present, there is no transparency in for procedure followed for appointment of the Members of STC. There is complete transparency as regards manner of appointment of Members of the ITAT. The applications for the posts of Members of the ITAT are invited from professionals and Commissioners of Income-tax who are selected by a Committee headed by the senior most Judge of the Supreme Court, the Law Secretary and independent professionals (Additional Advocate General or member of the Law Commission) and the President of the ITAT.
    Referring to Dr. Vijay Kelkar’s Committee recommendations to institute a transparent procedures for appointment of Members and Chairman of the Central Board of Direct taxes [(2012) 258 ITR (Journal) 1 (45)], We are of the opinion that the appointment of Members of the Commission, being a quasi-judicial body, must be done in a manner as transparent as possible. It can be similar to that of the Tribunal and there is no reason to deviate from a well-established procedure. This will help gain confidence of the taxpayers in the Institution.
    The AIFTP had conducted a survey on various issues, including the appointment of Members of the Commission, the findings of which were released at the 12th National Convention at Mumbai on December 24, 2012. (Souvenir, P. No. 149). 97 percent of the professionals surveyed opined that the Government should appoint at least few members from the profession. In order to achieve the desired results in settlement proceedings, it is imperative that the Benches of the Commission consist of persons of diverse backgrounds. An ideal combination of a Bench would be a Member each from the Department, law profession and accountancy profession. The Members should ideally have tenure of at least five years and the Chairman of at least two years, so that he/she can take important decisions relating to regulation of its procedures.
    As per the amended Service Rules applicable to the Members of the Customs, Excise and Service Tax Appellate Tribunal and the ITAT, a Member cannot practice before the same forum after retirement. Introduction of such a provision for the Members of the Commission would undoubtedly elevate the stature of the Institution.
    3. Prosecutions
    3.1. One-time settlement of prosecution matters before various Magistrate Courts.
    Under the present system, it takes more than 20 years to decide prosecution matters relating to Direct Taxes. Hence, the deterrent provisions fail to achieve the desired object due to the delay in disposal of cases by the trial courts. Substantial matters of prosecutions are launched for technical defaults for delay in depositing the tax deducted at source though the tax deducted was paid along with interests. The compounding fees fixed are very high. It may be fixed reasonably so that the assesses can settle the disputes by paying compounding fees. The tax administration may consider one-time compounding application. As per the guide lines dated December 23, 2014, Compounding application will not be entertained if the application is filed after 12 months of the filing of complaint, however, as per the new Circular dated June 14, 2019, CBDT has relaxed the period to 24 months. There are instances where the accused has received the intimation of the filing of complaint after 12 months of the filing of the complaint. In few cases the application for compounding was not entertained only on technical grounds. As per the Act and judicial decisions there is no limitation for filing of compounding application. The same can be filed even after the Court holds the accused guilty of the offence. It is desired that the restrictions imposed in the circular may be withdrawn. When a show-cause notice is issued, the assessee submits their reply thereafter no intimation is received by the assessee as to whether the submission is accepted or not accepted by the department. It is the duty of concerned officer to inform the assessee in writing whether the prosecution is launched or not.
    3.2. Setting up of special courts to deal with prosecution in relation to Direct and Indirect taxes
    Income-tax being a specialized subject, the prosecution cases may be heard by a special court of two judges, similar to the Tribunal, and, thereafter, an appeal may lie directly to the Jurisdictional High Court. This will help in speedy disposal of matters. In fact, speedy prosecution will have great deterrent effect. One may consider whether two Judicial Members of the ITAT having more than 10 years of experience in the ITAT, can be constituted as a special Court to deal with prosecutions relating to direct taxes.
    4. Tax deduction at Source
    At present there are more than 25 sections under which the assessee is required to deduct tax at source and file the returns. Many a times there is no clarity on various issues. It is desired that one may consider having concept of passbook and only one return for all Tax deducted at source. The assessee may deposit the amount as advance or may adjust against various taxes to be deducted. This will help to reduce the compliance provisions.
    5. E-Bench of the Supreme Court to deal with direct and indirect taxes
    E-bench of Supreme Court can be an effective alternative for having regional benches of Apex Court. The E-Bench of Apex Court will help render speedy justice to the litigants thereby saving huge cost incurred on travelling back and forth to New Delhi
    A common man of our country cannot even think of approaching the Apex Court for justice as it is beyond his reach. The minimum cost for single adjournment costs about 1 lakh rupees. Thus, one can imagine how expensive it would be for the citizens to approach the Supreme Court for justice. One may consider constituting e-bench of the Supreme Court. The hearing of the matter before the Apex Court can be done by linking various High courts and affording facilities for arguing the matter before the Apex Court from the respective High Courts. An E-bench of the Supreme Court can take up state wise matters, e.g. One day could be for matters of Mumbai, another day could be for matters from Chennai or other places, etc. Initially, an option may be given to the parties to hear the matters through e-Bench or regular Bench.
    The ITAT has started the e-Court at Mumbai through which the matters of Nagpur are heard by members sitting at Mumbai. The experience has been very satisfactory and both the tax payers and the Department have found the functioning of this bench satisfactory. The E-Bench of Supreme Court may initially be started with SLP, relating to direct and indirect tax matters. One Court room from respective High Court may be converted in to an E-Court.
    6. Arbitration in tax matters (Lok Adalat)
    The Government may consider the proposal of constituting a committee consisting of representatives from legal and accountancy profession and from the tax department of the rank of Principle Chief Commissioner of Income-tax for arbitration in tax matters. The assessee may refer the matter to such committee within 30 days of receipt of the order from the assessing officer and the committee should pass an order within six months from the receipt of application. The order passed by such committee may be made binding on both the parties. To begin with the matters like technical defaults, refunds, etc. may be referred for resolution. The concept of Lok Adalat may be introduced. The Government may consider the services of retired members of Tribunal. The proposal will benefit the tax payers as well as the tax department.
    7. Ombudsman
    The Concept of income tax ombudsman was introduced to redress public grievances and improve tax payer service. Income tax ombudsman guidelines were issued in 2010. Though it has been around 10 years for this concept, the outcome has hardly been satisfactory. Most of the times, the chair is vacant as no appointments are made. As per the Guidelines an ombudsman should have been serving officer preferably from IRS (Income tax). According to us, ombudsman should be an independent person and could be a retired ITAT member.
    The guidelines also define the “income tax authority complained against” as junior most income tax officer. Many a times income tax officers act as per the directions of their seniors and hence it should include all officer below Commissioner level.
    The guidelines further states that ombudsman would be located at various locations. Instead Ombudsman can be centrally located and all applications and documents should be allowed to be filed online. The ombudsman need not necessarily be located at several places but can use technology to their advantage. This would also reduce costs.
    The Guidelines further state that award shall be binding on the department only if the complainant furnishes its acceptance in full and final settlement of his complaint. This creates unnecessary burden and hardship on the complaint. It has to be binding on the department irrespective of complaint accepting or not submitting its acceptance.
    The Ombudsman has to report to Secretary, Department of Revenue, GOI and Chairman CBDT for appropriate actions against erring officials. However, there is no statistics as to what actions have been taken after such reports. If not individual names, atleast quarterly statistics should be made public, which acts as a deterrent for erring officials and may reduce malpractices.
    It is also seen that there are various parallel procedures which are in place simultaneously. For e.g. there is a Grievance Redressal Mechanism, there are separate toll-free numbers, there is Ombudsman system. In our view this creates lots of confusion and hence it should be merged under one roof. There has to be uniform system across country.
    8. Separate allocation of fund for judiciary
    The Judiciary is one of the pillars of democracy. There must be a separate allocation of funds for the judiciary in each budget. The procedure for disbursement of funds to the judiciary must be simplified. It is worth considering that Finance Ministry may make it a point to meet the concerned Officials of the judiciary and hold discussions about the funds required for modernisation and allocate the required funds to the Judiciary from time to time.
    As per the newspaper report dated August 3, 2019 (Times of India, Saturday), it has been highlighted that more than half of the District Courts in the Country do not have functional washrooms and other amenities. In Mumbai, there is only one special court designated to deal with prosecution matters of Direct taxes as well as other economic offenses. There are more than 10,000 cases pending to be heard. There are matters pending for framing charges since more than 15 years. Unless some remedial measures are taken, entire system may collapse. The need of the hour is to have proper infrastructure for the Judiciary. This is possible only when proper allocation of funds for the judiciary is done. Government should consider the problems of the Judiciary at the same priority as the National Security of the Country and accordingly should take bold steps to provide proper infrastructure to the Judiciary . The All India Federation of tax Practitioners have, from time to time suggested that there should be separate allocation of funds for the Judiciary in the budget proposal similar to the budget allocation made for the defence of the Country. The need of the hour is allocation of separate fund for the Judiciary.
    9. Tax service
    It is desired that the mind set of tax officials must be changed from tax collection to tax services. As per the Circular No. 14 (XL-35), dt. 11/04/1955, board stated that a duty is cast upon the Assessing Officer to assist and aid the assessee in the matter of taxation. Assessing Officers are supposed to advise the assessee and guide them and not take advantage of any error or mistake committed by the assessee or of their ignorance. The function of the Assessing officer is to administer the statute with solicitude for public exchequer with an inbuilt idea of fairness to taxpayers. However, it is not happening in practice. If mindset of tax officials is changed from tax collection to tax service voluntary compliance will increase a greater number of assesses will file the return voluntarily.
    10. National Tax Court of Direct and Indirect taxes
    One of the reasons which affects the investments and taking decisions on investments are delay in disposal of the tax matters which results in to uncertainty. As per the recent directive dated December 27, 2019 issued by the CBDT to CIT(A) shows more than 31,325 appeals which are pending for disposal for more than five years, only 7597 appeals have been disposed of till November 3, 2019 http://itatonline.org/info/cbdt-directs-csita-to-speedily-dispose-off-old-appeals/. For disposing the appeals before the Tribunal, it takes minimum of two years. In Mumbai, appeals admitted in the High Court in the year 2002 onwards are still pending for final disposal. Just for admission of an appeals it takes on an average a minimum period of two years. There are more than 5000 appeals which are pending for final disposal and more than 5000 appeals for admission in Bombay High Court itself. There are number of writ petitions which are admitted and waiting for final hearing. Assuming High Court decides the matter may be taken before Supreme Court for admission of SLP, the same will take another two years to get admitted and after admission another three years to be heard. Thus, where for getting finality in tax matters it takes minimum 30 years after filing of the return, how can a businessman can decide the tax liability of their investment. Delay in disposal of the matters before various High Courts are mainly on account of delay in appointing the judges. For Mumbai which is the commercial capital of India, it requires at least three tax Benches, one for direct taxes appeals, one for Indirect taxes and one for final hearing of writ and final disposal of writ petition admitted. Unless the Govt takes steps to appointment of the judges at the earliest the tax payers may have to wait at least 30 years to get the issue decided in tax matters by Apex Court. An appeal under section 260A is provided to decide only a substantial question of law. It is desired that the “National Tax Court” may be set up to deal with direct and indirect tax matters having multiple benches. The said court has to be managed by the Judges who are possessing requisite competence, exceptional ability and expertise can ensure a prompt resolution of controversies. There are good number of judges in different High Courts who are well conversant with tax laws, however due to shortage of judges in various courts their expert knowledge is not able to be utilized to decide the tax matters. Establishment of such courts can be constitutionally justified under Article 323B of the Constitution of India. The establishment of National Tax Tribunal was quashed mainly due to power of appointment, qualification of members and control of the Government. If proper care is taken to give trappings of a Court similar to High Court, then the National Tax Court can serve to deliver justice to the tax payers effectively and efficiently. A thought for debate.
    11. Independent Committee to suggest amendments in Tax Laws
    An independent Committee consisting of representatives from profession, tax administration, taxpayers, judiciary, etc. ongoing basis may scrutinise suggestions received from various bodies. After examining in detail, they may suggest amendments which should be made public and debated. If this process is followed we are sure 90% of litigation will be reduced automatically.
    II. Specific sections .
    1. S. 23(5) of the Act: Relief to Real Estate Sector
    It is a known fact that, the Real Estate Sector has been sluggish over the last few years. The burden of rent on unsold stock in trade units could result in severely handicapping the whole sector. It is advised to consider giving relief from the provision of notional rent on unsold stock in trade units with retrospective effect from Financial Year ended 2017.

    2. S. 80C of the Act: Increase in monetary limit
    The monetary limit under section 80C was increased to Rs. 1.5 lakhs from 1 lakh via Finance Act, 2014. This amount has never been adjusted against inflation. Further, with removal of long-term capital gains exemption on sale of listed shares, tax payers do not have much incentive to save money or invest it. It is urged to revise this limit accordingly.
    3. S. 154 of the Act: Rectification of mistake
    As per section 154(8) the Ld. Assessing Officer has to pass the order on rectification application with in a period of six months from the end of the month in which the application is received. However, under Citizens Charter of 2010, the service delivery standard in respect of deciding rectification application has been fixed as 2 months. It has been brought to our notice that in number of matters the AOs are not passing the order within the statutory time line. An amendment may be brought in the section that if the order is not passed by the AO the application is deemed to have been allowed. As regards S.154(7) the CBDT has issued circular that the AO may dispose the application even after expiry of the statutory time limit. Whether the ratio of circular is applicable to S.154(8) is debatable. In the case of Sultan Leather Finishers Pvt Ltd v. CIT (1991) 191 ITR 179 (All) (HC), the court held that when rectification application is pending the Assessing Officer cannot proceed with recovery proceedings. However, the ratio of High Court judgement is being ignored.
    4. Proper monitoring of rectification application
    There should be proper monitoring of all Rectification Applications filed. There should be proper reporting of the number of applications filed, disposed and pending disposal and concerned officer should be answerable for long pending rectifications.
    5. Section 199 of the Act: Credit for tax deducted
    The case of Yashpal Sahni v. ACIT (2007) 293 ITR 539 (Bom) (HC) has noted the difficulty faced by taxpayers in the matter of credit of TDS and held that even if the deductor had not issued a TDS certificate, still the claim of the assessee has to be considered on the basis of the evidence produced for deduction of tax at source. The Revenue is empowered to recover tax from the person responsible if he had not deducted tax at source or after deducting failed to deposit with Central Government. When there was mismatch of the TDS and giving the credit for tax deduction at source the Honourble le Delhi High Court in on Its Own Motion v. CIT (2013) 352 ITR 273(Delhi)(HC) directed the department to ensure that credit is given to the assessee even where the deductor had failed to upload the correct details in Form 26AS on the basis of evidence produced before the department. Even to day there are number of issues while giving credit for tax deducted at source. When an assessee follows cash system and payer follows mercantile system there is a mismatch, similarly when the assessee follows the percentage completion method there is mismatch, when advance is received the deductor may deduct tax at source and the recipient will offer the income in the year of income offered. However, the technology has not able to meet these types of challenges which has generated unintended litigation. It is desired that the TDS proceeding unit should interact with tax professionals across the country and try to find out the solution.

    6. S.246 of the Act: Appealable orders
    Every order passed by Income tax authority, i.e. Assessing Officer / tax recovery officer, etc. which has the effect of adversely affecting an assessee in any manner may be made appealable before the Commissioner (Appeals).
    7. S. 250 of the Act: Time lines for passing orders by CIT(A)
    Though there are time lines for AO to pass order, there are no timelines for appellate authorities. Hence there should be some time line to pass orders for CIT(A) and also there has to be time limit for sending remand report to the CIT(A). The CIT(A) may be directed to pass order with in prescribed time, from conclusion of the hearing, not later than 90 days from the end of the month of the hearing. Concept for time barring can be brought at CIT(A) level stage as well. This concept is already prevailing under the DRP route and can be brought for CIT(A) route as well.
    The CBDT has issued a directive dated 27.12.2019 in which it is stated that 31,325 appeals pending which are more than five years old and only 7597 appeals have been disposed-off till 30-11-2019. The CBDT has directed that all such appeals must be disposed-off without fail by 31st March, 2020. Similar directive was issued last assessment year as well and this seems to be a year on year trend.
    It is requested to consider a statutory time line for Commissioner of Income Tax (Appeals) to dispose of an appeal. A time line of 1 year from the end of the month in which appeal was filed would be more than sufficient and should suffice.
    8. S. 253 of the Act: Appeals to the Tribunal
    There are a number of orders of the Commissioners of Income-tax against which no appeal can be filed. E.g. orders under section, 264 and 273A of the Act for waiver of interest charged under sections 234A, 234B, and 234C of the Act orders under section 179 of the Act, denial of approval under section 10(23C) of the Act and other approvals by Chief Commissioner, etc. The only remedy available to the taxpayer is to approach the Jurisdictional High Court in its writ jurisdiction. A simple amendment in the Income-tax Act may be made stating that all orders of the Chief Commissioner, Commissioner and Commissioner (Appeals) are appealable to the Tribunal. This would save substantial time of the higher judiciary and the taxpayers would get speedy justice from the Tribunal.
    Further, in cases of re-assessment where the jurisdiction of the issuance of Notice under section 148 of the Act is challenged, the same should be brought directly before the Tribunal.
    9. S. 253(3) of the Act: Single Member
    As per section 253(3) of the Act, a single member of the ITAT can decide the matter if the assessed income is up to Rs. 50 lakhs. It is seen that many times the assessed income may be more than 50 lakhs but the disputed amounts would be less than 50 lakhs. Hence matters should be decided on the basis of disputed amount instead of assessed income.
    Further, in cases of penalties or interest, even if the amount in only Rs. 10,000/-, still it has to be decided by a division Bench. It is desired that an amendment may be made in the Act wherein, if the penalty or interest is up to Rs. 10 lakh, it may be decided by a single member of the ITAT, which will help in speedy disposal of the matters. It may also be considered that instead of “assessed income” the wordings “tax / penalty / interest in dispute”, the same may be decided by the Single Member Bench.
    For appeals relating to tax deduction at source, if the amount of subject matter in dispute is less than Rs. 2 lakhs, the same may be heard by Single Member Bench.
    Sometimes even in cases where the loss assessed is more than Rs. 50 lakhs is heard by single member Bench. The law may be amended so that, when the loss assessed is more than Rs. 50 lakhs, the matter may be referred to division Bench
    10. S. 257 of the Act: Direct appeal to the Supreme Court to attain finality on important issues
    Earlier Section 257 of the Income-tax Act provided for direct reference to Supreme Court, which was applicable to orders passed before 1-10 1998. No such provision is incorporated after the insertion of section 260A. The Income-tax Appellate Tribunal refers the matters to a special bench when there is a conflicting decision of a co-ordinate bench. In the meantime one of the High Courts may have taken a contrary view. In such a case the decision of High Court will be binding. Though the Income–tax Act is an all India statute, the Tribunal sitting in a particular State is bound by the decision of respective High Court of a particular State. This brings uncertainty in tax law. To avoid all these controversies, the Tribunal may be given power to refer the matter to Supreme Court either on its own, or by an application made by the assessee or department. If this process is followed, there will be certainty in tax law which will also help to reduce pendency of cases before various High Courts and finality may be attained on some of the important issues within a reasonable time.

    11. S. 260A of the Act: Appeal High Court.
    By increasing the monitory limits up to 1 crores tax effect substantial appeals pending before the High Court of the department is reduced which was a welcome move. However as per the letter dated August 20, 2019 bearing number [F.NO.279/MISC.142/2007-ITJ (PT)] http://itatonline.org/info/cbdt-dilutes-applicability-of-low-tax-effect-circular/ certain exceptions were provided. i.e. Reassessment information from various authorities etc. There are matters which involve tax effect of less than Rs. 5 lakhs and it may not be recurring. The Revenue has filed the appeal before the High Court. It is desired that when the tax amounts are very small and the Tribunal has decided the appeals on merit, and not on interpretation. It may desirable not to pursue such appeals before the High Courts. It will be wasting the tax payer’s time unproductively. In most of the cases the appeals are filed due to fear of audit and investigation. It may be desirable to constitute a panel of independent lawyers or panel of retired members of the ITAT to decide whether an appeal is desired or not. If the panel takes the view that the issue is decided by the Tribunal on facts, one may not file an appeal before the High Court. As on today 80 % of the appeals before the High Court are dismissed only the grounds that there is no substantial question of law.
    When an appeal is filed before the High Court, one copy is always served on the respondent. In direct tax matters the revenue is always either appellant or respondent. The region wise list may be prepared for the issue involved in the appeal and a consolidated list may be prepared at CBDT level on section wise or issue wise. This will help in grouping of the matters and improve litigation management of the revenue
    The Honourable Bombay High Court, vide their order dated July 12, 2016 CIT v TCL Ltd ( (2016) 241 Taxman 138/ 288 CTR 34 (Bom) (HC) directed the income tax department Mumbai to host all the judgements of the Bombay High Court which are admitted , rejected and accepted by the revenue in the website of the department called “Legal Corner” . The tax department filed an affidavit stating that they will comply the direction of the Bombay High Court. Unfortunately, till date no progress is done. It is desired that CBDT may publish the list of judgements which are accepted by the department from time to time. This will help for brining clarity on the issues which will help the assesees to take decision in respect of issues pending before High Courts and also Apex Court.
    Further, section 260B of the act which provides that an appeal filed under section 260A of the act has to be heard by a division bench. It is proposed that section 260B of the act may be suitably amended to provide that writ petitions arising under direct tax laws may also be heard by a division bench of the High Court. This is because in some of the High Court the writ jurisdiction pertaining to petitions under the direct tax laws is exercised by a single judge and in other High Courts the writ petitions are heard by the division bench hence the proposed amendment will bring uniformity.
    Section 260A of the act does not provide for cross objection. It is well settled that a cross objection stands independent of the appeal. However, there is a controversy about the time when the cross objection has to be filed. Some High Courts have taken the view that it is to be filed upon service of the appeal while other High Courts have taken a view that it is to be filed after the appeal is admitted and notice is issued. It is proposed that sec 260A of the act may be suitably amended to provide for procedure for filing the cross objection.
    12. Section 263 of the Act: Revisional powers – E. Assessment
    As per the e-assessment scheme the assessment is completed by the taking in to consideration from various technical teams. If this is the case there is no reason for the Commissioner to revise the order passed by the Assessing Officer as per the e-assessment scheme, as there are several units looking into a particular assessment. The powers of revision under section 263 of the Act would require to be curtailed.

    III. Procedural
    1. Monitoring tax appeals – National tax litigation Cell
    Though the I.T. Department is the single biggest litigant in the higher judiciary across India, it appears that the Income-tax Department does not have a centralized wing to effectively monitor its appeals from the stage of inception until its final disposal. It is advisable for the Department to have an independent National Tax Litigation Cell to monitor the tax appeals before various High Courts and Apex Court. This will help the Department for quantitative and qualitative disposal.

    2. Acceptance of orders of High Courts
    Earlier, whenever the Department would accept a decision of a particular High Court on interpretation of law, the Central Board of Direct taxes used to issue a circular stating that interpretation has been accepted. This practice seems to have been discontinued now. If this process is adopted and instructions /circular are published, the litigation will be reduced considerably. Hon’ble Bombay High Court in CIT v. TCL Ltd. (2016) 241 Taxman 138 (Bom.)(HC) has passed a detailed order asking the Chief Commissioner of Income tax to host details of the matters admitted before the Bombay High Court, matters accepted by the Revenue, etc. online. Though the assurance was given by filing an affidavit, however, no action seems to have been taken by the tax administrative authorities in this regard.
    3. Mechanism to discuss and take action on suggestions made by the Apex Court, High Courts and other Judicial authorities
    It has been observed that various High Courts make several recommendations to CBDT to look into certain matters and take appropriate measures. However, it appears, there is no mechanism to find out whether the issue is actually brought to the notice of the Ministry concerned and what action has been taken. It is therefore, advisable to put up such suggestions on their website for public domain and after considering various suggestions, appropriate action can be taken. This will bring transparency in the functioning of the Ministry and will also bring accountability.

    4. Instructions and statements
    All Instructions may be made available to the public. As soon as statement of an assessee is taken in course of search and survey, a copy thereof may be made available to the deponent. In search cases, the appraisal report may also be made available to the assesses. This will bring more transparency and also accountability.

    5. Appeal effects are not given in time
    It is too difficult to get timely appeal effect, though section 153 provides for the same. It is desired that there has to be internal reporting system to monitor whether appeal effect is given or not.

    6. Proper monitoring of rectification application
    There should be proper monitoring of all Rectification Applications filed. There should be proper reporting of the number of applications filed, disposed and pending disposal and concerned officer should be answerable for long pending rectifications.

    7. Prosecution and compounding fee
    In number of matters, notices for prosecution are issued though the matters are pending before fist appellate authority and in some of the cases, even penalty appeals are pending before the Tribunal. This has resulted in unnecessary harassment to honest tax payers which may be avoided. Compounding Fee may be liberalised. The matters pending before the Courts, which are pending for more than 15 years, may be compounded by taking nominal compounding fees.

    8. Tax deduction at Source.
    At present there are more than 25 sections under which the assessee is required to deduct tax at source and file the returns Many a times there is no clarity on various issues. It is desired that one may consider having concept of passbook and only one return for all Tax deducted at source. The assessee may deposit the amount as advance or may adjust against various taxes to be deducted. This will help to reduce the compliance provisions.

    9. Tax Benches in High Courts
    It may be noted that the pendency before ITAT is only 90000 appeals and the matters are heard within two years of filing of appeals and in some of the Benches within six months of filing of appeals. However, in some of the High Courts due to shortage of judges the tax matters are not heard within reasonable time. In cities like Mumbai for admission it takes around two to three years and where as if admitted for final hearing it takes another 10 years. It is desired that a court should have a continuous and dedicated tax bench where the tax litigation. If revenue prepares the list of pending cases which are admitted and to be admitted and the question of law involved, it may help quick disposal of pending matters before various Courts and also APEX Court. In tax matters it is the department which is always a party either as petitioner or respondent hence, it may be easy to prepare the list. Once the list is prepared it can be published in the website which can also help the assesses as well as the department. This project can be done with the Co–operation of the tax Bar of the respective State. All India Federation of Tax Practitioners, will be ready to help the tax administration if an opportunity is given to them.

    Vision-2022
    1. Co -Ordination Committee headed by the Honourable Finance Minister
    It is desired that a Co- Ordination Committee headed by the Honourable Finance Minister may be constituted similar to the GST Council. An independent Committee consisting of representatives from profession, tax administration, taxpayers, judiciary, etc. may scrutinise suggestions received from various bodies in an ongoing basis. After examining in detail, they may suggest amendments which should be made available to the public and debated. If this process is followed, we are sure 90% of litigation will be reduced automatically.
    2. Research in taxation.
    There needs to be a continuous research on the taxation for increasing the tax base, and to understand the types of litigation. If one analyses the reported judgements of High Court and Tribunal one will be in a position to analyze the issues and reasons. Even today, when an issue is decided by the High Court or Apex Court after more than 10 years or matter is set aside to the Tribunal, there is no mechanism to find out whether appeal effect is given or not. In a representation made to the then Chairman of the CBDT, the AIFTP has brought this to the notice of the CBDT. There has to be inbuilt mechanism wherein as soon as the order is passed by the Higher forum to find out the status and remedial measures taken.
    3. Tax litigation cell of the department.
    More than 60 % of tax litigation in direct taxes are of the department. The AIFTP has suggested that there has to be separate legal cell of the Income tax department. In Bombay High Court number of matters of revenue are dismissed mainly because the advocate on record was not present in spite of adjourning the matters from time to time. Advocate on record may not be appeared because of demise or he or she may not be in the panel when the matters taken up for hearing after a lapse of 10 years. There has to be some mechanism to find the solutions for such situations. It is the tax payers money is wasted due to number of adjournments and non-appearances. Due to digitalization one can find easy solution. We hope the concerned department will act positively.
    Madam, we request you to kindly consider the afore-mentioned suggestions.

    Thanking you,
    For All India Federation of Tax Practitioners

    Mrs. Nikita Badheka
    National President

  2. Nikita R. Badheka says:

    20–01–2020
    To,
    Hon’ble Mr. Justice Sharad Arvind Bobde
    The Chief Justice of India,
    Supreme Court,
    New Delhi.

    Sub: Suggestions to reduce tax litigation before various Courts.

    My Lord,

    My Lord, we would take this opportunity to wish you a Happy and Prosperous New Year.

    All India Federation of Tax Practitioners (AIFTP) is an Apex body of Tax Practitioners of India. It has more than 8200 members across the country and 150 associations as its members. One of the main object of the AIFTP is to make representation for better administration of tax laws.
    My Lord, for reducing the tax litigation we request your lordship to consider our following suggestions:
    1. E-bench of Supreme Court can be an effective alternative for having regional benches of Apex Court. E-Bench of Apex Court will help render speedy justice to the litigants thereby saving huge cost incurred on travelling back and forth to New Delhi.
    A common man of our country cannot even think of approaching the Apex Court for justice as it is beyond his reach. The minimum cost for single adjournment costs about 1 lakh rupees. Thus one can imagine how expensive it would be for the citizens to approach the Supreme Court for justice. One may consider constituting e-bench of the Supreme Court. The hearing of the matter before the Apex Court can be done by linking various High courts and affording facilities for arguing the matter before the Apex Court from the respective High Courts. An e-bench of the Supreme Court can take up state wise matters, e.g. One day could be for matters of Mumbai, another day could be for matters from Chennai or other places, etc. Initially, an option may be given to the parties to hear the matters through e-Bench or regular Bench.

    The Income-tax Appellate Tribunal has started the e-Court at Mumbai through which the matters of Nagpur are heard by members sitting at Mumbai. The experience has been very satisfactory and both the tax payers and the Department have found the functioning of this bench satisfactory. The e-Bench of Supreme Court may initially be started with SLP, relating to direct and indirect tax matters. One Court room from respective High Court may be converted in to an E-Court.

    2. Tax Benches in High Courts
    The pendency before ITAT is only 90000 appeals and the matters are heard within two years of filing of appeals and in some of the Benches within six months of filing of appeals. However, in some of the High Court’s due to shortage of judges the tax matters are not heard within reasonable time. In cities like Mumbai for admission it takes around two to three years and where as if admitted for final hearing it takes another 10 years. Bombay High court around 5200 matters are pending for admission and around 5600 matters which are admitted are pending for final disposal. It is desired that a court should have a continuous and dedicated tax bench where the tax litigation. If revenue prepares the list of pending cases which are admitted and to be admitted and the question of law involved, it may help quick disposal of pending matters before various Courts and also APEX Court. In tax matters it is the department which is always a party either as petitioner or respondent hence, it may be easy to prepare the list. Once the list is prepared it can be published in the website which can also help the assesses as well as the department. This project can be done with the Co–operation of the tax Bar of the respective State. All India Federation of Tax Practitioners, will be ready to help the tax administration if an opportunity is given to them.
    3. Elevation of members to High Court – Institutionalisation of the process of elevation of Members to the High Court
    Income Tax Appellate Tribunal (ITAT) was set up on 25 January 1941, and it was the first experiment in Tribunalization in the history of India. It is considered to be a very successful experiment in Tribunalization and is often cited to justify more steps in this direction. However till date very few Members of the ITAT have been elevated to the High Courts. Deserving Members of the ITAT due to their specialised knowledge and experience in ‘taxation’ and ‘commercial transactions’, would be able to understand and decide the issues involving both the subjects in a better manner. The speed of disposal would also increase. This will also attract young bright lawyers to join the Income Tax Tribunal. Not only members be elevated to the High Court but also this process be institutionalised, to be more systematic and transparent in elevating the Members. My Lord, though the resolutions was passed in the Chief Justice Conference which was held on September 2002 as well as April 2016, not much progress has taken place till date.

    We request your Lordship to kindly consider the afore-mentioned suggestions.
    Thanking you,
    For All India Federation of Tax Practitioners

    Mrs. Nikita Badheka
    National President

  3. Nikita R. Badheka, National President, AIFTP says:

    20-01-2020
    To,
    Shri Ravi Shankar Prasad
    Hon’ble Minister of Law and Justice,
    Government of India
    New Delhi.
    Sub: Suggestions to reduce tax litigations.
    Respected Sir,

    Sir, we would take this opportunity to wish you a Happy and Prosperous New Year.

    All India Federation of Tax Practitioners is an Apex body of Tax Practitioners of India. It has more than 8500 members across the country and 150 associations as its members. One of the main object of the Federation is to make representation for better administration of tax laws.
    Sir, AIFTP has already sent detailed suggestions earlier. In this presentation the AIFTP is restricting only few suggestions to reduce to tax litigations:
    1. E-bench of Supreme Court can be an effective alternative for having regional benches of Apex Court. E-Bench of Apex Court will help render speedy justice to the litigants thereby saving huge cost incurred on travelling back and forth to New Delhi.
    A common man of our country cannot even think of approaching the Apex Court for justice as it is beyond his reach. The minimum cost for single adjournment costs about 1 lakh rupees. Thus one can imagine how expensive it would be for the citizens to approach the Supreme Court for justice. One may consider constituting e-bench of the Supreme Court. The hearing of the matter before the Apex Court can be done by linking various High courts and affording facilities for arguing the matter before the Apex Court from the respective High Courts. An e-bench of the Supreme Court can take up state wise matters, e.g. One day could be for matters of Mumbai, another day could be for matters from Chennai or other places, etc. Initially, an option may be given to the parties to hear the matters through e-Bench or regular Bench.

    The Income-tax Appellate Tribunal has started the e-Court at Mumbai through which the matters of Nagpur are heard by members sitting at Mumbai. The experience has been very satisfactory and both the tax payers and the Department have found the functioning of this bench satisfactory. The e-Bench of Supreme Court may initially be started with SLP, relating to direct and indirect tax matters. One Court room from respective High Court may be converted in to an E-Court.

    2. Tax Benches in High Courts
    It may be noted that the pendency before ITAT is only 90000 appeals and the matters are heard within two years of filing of appeals and in some of the Benches within six months of filing of appeals. However, in some of the High Courts due to shortage of judges the tax matters are not heard within reasonable time. In cities like Mumbai for admission it takes around two to three years and where as if admitted for final hearing it takes another 10 years. It is desired that a court should have a continuous and dedicated tax bench where the tax litigation. If revenue prepares the list of pending cases which are admitted and to be admitted and the question of law involved, it may help quick disposal of pending matters before various Courts and also APEX Court. In tax matters it is the department which is always a party either as petitioner or respondent hence, it may be easy to prepare the list. Once the list is prepared it can be published in the website which can also help the assesses as well as the department. This project can be done with the Co–operation of the tax Bar of the respective State. All India Federation of Tax Practitioners, will be ready to help the tax administration if an opportunity is given to them.

    3. Elevation of members to High Court – Institutionalisation of the process of elevation of Members to the High Court
    India’s Income Tax Appellate Tribunal (ITAT) was set up on 25 January 1941, and it was the first experiment in Tribunalization in the history of India. It is considered to be a very successful experiment in Tribunalization and is often cited to justify more steps in this direction. However till date very few Members of the ITAT have been elevated to the High Courts. Deserving Members of the ITAT due to their specialised knowledge and experience in ‘taxation’ and ‘commercial transactions’, would be able to understand and decide the issues involving both the subjects in a better manner. The speed of disposal would also increase. This will also attract young bright lawyers to join the Income Tax Tribunal. Not only members be elevated to the High Court but also this process be institutionalised, to be more systematic and transparent in elevating the Members. Sir, though the resolutions was passed in the Chief Justice Conference which was held on September 2002 as well as April 2016, not much progress has taken place till date.

    4. Increase in age limit of judges and members of the Appellate Tribunal from 62 to 65 years.
    There seems no logical reasoning to have differential age limits for judges and members. If a person can be President and lead the institution from his/her age at 62 to 65 then even the members can be part of the same institution till the age of 65 to perform their regular work. Parliament had constituted a committee headed by Smt. Jayanti Natrajan as Chairperson for considering the increase in age limit of Judges of High Courts from 62 to 65. The Committee observed as under:
    “Taking into account the justifications given by the secretary, Department of Justice, and the statement of objects and reasons appended to the bill, the committee supports the proposal for increase in the retirement age of judges of the High Courts from sixty two years to sixty five years and to be at par with the retirement age of the judges of the Supreme Court. The Committee also acknowledges that the Bill has been brought forth in pursuance of the recommendation made by the Committee in its earlier reports”

    Though the committee has made the above recommendation on 7th December, 2010, the recommendation have not been followed till date.

    The then Hon’ble Law Minster, Mr. H. R. Bhardwaj, while addressing the Member’s conference at Mumbai on 4th November, 2006, stated that the Government will increase the age limit of all Members from the present age of 62 years to 65 years. A similar representation has also been made by the AIFTP for increasing the retirement ages of High Court judges. We are of the opinion that the knowledge and experience of a Judge/Member is an intangible asset of a precious nature, and therefore it should be used for justice delivery efficaciously. We are of the considered opinion that increasing the age limit will help in reducing the pendency of cases substantially.

    5. Setting up of special courts to deal with prosecution in relation to Direct and Indirect taxes
    Under the present system, it takes more than 20 years to decide prosecution matters relating to Direct Taxes. Hence, the deterrent provisions fail to achieve the desired object due to the delay in disposal of cases by the trial courts. Income-tax being a specialized subject, the prosecution cases may be heard by a special court of two judges, similar to the Tribunal, and, thereafter, an appeal may lie directly to the Jurisdictional High Court. This will help in speedy disposal of matters. In fact, speedy prosecution will have great deterrent effect.

    We request your Honours to kindly consider the afore-mentioned suggestions.

    Thanking you,
    For All India Federation of Tax Practitioners

    Mrs. Nikita Badheka
    National President

  4. vswami says:

    To ADD: Attention may be drawn to the personal thoughts and viewpoints shared on Linkedin on the mentioned inter- related topics, -Interpreation of CHAPTER III X CHAPTER X and Sec 144C rtw sec 246A.

    over ..

  5. vswami says:

    Better late THAN NEVER

    No gainsaying that a mindful and comprehensive REFORM, to strive to and improve upon the procedural aspects concerning both in the realms of administration and adjudication of the tax law calls for a top prority.Improvement of the functioining and of quality of the ITAT as the quasi -judicial authority should great help in minimising ‘court’ litigation; thereby the long obtaining tragedy of ‘bad cases driving away good cases’- its rigour- could be at least softened/mitigated to some extent.

    Ways and means might not be far to seek should a conscious note be made of the field reality as borne out by some of the ‘land mark’ Orders passed by ITAT bristling with inherent potential to proliferation and procrastination of court litigation, also on grounds of constitutional validity/ propriety.

    For an insight, if time and mind permits, anyone may look up say, the order of the itat (Ahm) on transfer pricing issue and of the itat (Del) in re. Hitatchi on the quality / efficacy – want of it- in the functioning of DRP , a dispute resolution mechanism of a recent origin.

    courtesy

  6. Shantkumar Hegde says:

    Today’s Ecomonic Times i.e.23/01/2020 stated that, “Govt Mulls Mediation to solve I-T Issues with co’s

    https://economictimes.indiatimes.com/news/economy/policy/govt-mulls-mediation-to-solve-tax-issues-with-companies/articleshow/73537586.cms

    The learned Senior Advocate also suggested Arbitration in tax matters (Lok Adalat). it is worth considering.

  7. SOLITAIRE says:

    HON FM PLEASE PLEASE ACCEPT ALL ALL SUGGESTIONS IT WILL DEFINATELY EASE THE DAILY ADMINISTRATIVE LIFE OF ALL TAX PAYERS

  8. Dr. Kanhayalal Sharma says:

    The suggestions are indeed salutary but concerns of small tax payers and consultants should also be borne in mind. One major issue is levy of Late Fee u/s 234F.
    The time for filing returns has been reduced from 2 years to One year. Further Late fees are levied from 1st August in most cases . In practice the TDS forms are notified late and even otherwise at times the banks and other deductors upload TDS Statenments as late as upto 15th July.
    In case of tax advocates, CAs and other consultants how many returns can they file in 15 days?
    As such the Revenue charges Interest u/s 234A for late filing of return.
    WHY THIS DOUBLE JEOPADY?

    The Late fees should be removed and time for return filing restored to 2 years.

  9. Ajay Singh says:

    In prosecution cases govt should bring out a better compounding scheme which will enable one time settlement. This will reduce unwanted litigation and harrasment to assessee who are being prosecuted for technical defaults.

  10. Neelam Jadhav says:

    It is desired that, the Government should considered the suggestions made by the learned Author to simplify the tax provisions.
    https://economictimes.indiatimes.com/news/economy/policy/govt-taking-steps-to-simplify-taxation-curb-harassment-of-honest-taxpayers-fm/articleshow/73141756.cms?from=mdr

  11. M. Subramanian says:

    I also agree with this Suggestion of the learned author to provide appeal to ITAT in respect of all orders passed by the Pr. CIT / CIT and giving power to ITAT to decide the issues relating to ADVANCE Ruling in respect of resident Assessee are very good suggestions. If it implemented it will help to reduce the burden of High Courts and finality of the issue with in reasonable time.

  12. Dr.P. Daniel Advocte says:

    Suggestion of the learned author to provide appeal to ITAT in respect of all orders passed by the CIT and giving power to ITAT to decide the issues relating to ADVANCE Ruling in respect of residence Assessee is very good suggestion . If it implemented it will help to reduce the burden of High Courts and finality of the issue with in reasonable time.

  13. Romil K Jain says:

    In many cases, AO has determined refund to be payable to assessee and has uploaded online on ITBA module for CPC to process it online and issue the refund. However, CPC takes 9-12 months in issuance of refund despite refund computation being verified and signed by an authority, i.e. Assessing Officer. How can an autonomous body, i.e. CPC being given right over the Jurisdictional Assessing Officer and retain the refund on its own whims and fancies. Further, if CPC is contacted, they deny to reply on the common ground that they do not have any information about such orders uploaded by Jurisdictional Assessing Officer and retention of any such refund.A time line should be prescribed for CPC to follow the instructions given by Jurisdictional Assessing Officer

  14. SUBHASH BAJPAI says:

    Respectfully I want to draw your kind attention towards CPC processing, CPC process the return without appreciating the response submitted by the assessee and there is no mathod given in CPC portal where you can file rectification application. In rectification, you can only for tax mismatch, reprocessing and wrong calculation of section 234C, wherein there are mistakes occurs by CPC which are not rectifiable in CPC portal. So assessee have to approach to AO where applications of 154 not entertained timely. So This problem should be corrected by CBDT in CPC portal.

  15. Shashi Bekal says:

    Economic Times in an editorial titled “Tax certainty matters, not just tax rates”, dated January 2, 2020.

    It is stated that a decision of the APA takes on an average of 30 – 40 months & an AAR decision takes around 5 to 6 years. As suggested by the author it is advisable to give the power of the AAR to the Tribunal.

    Refer:

    https://economictimes.indiatimes.com/blogs/et-editorials/tax-certainty-matters-not-just-tax-rates/

  16. do u really think Modi govt is sensible? for eg. if Art 25 is religious freedom while rt 44 is for uniform civil code , is it viable? so articles advocate contradictions. if Art 370 is one, Art 25 supports, how could Modi remove?

  17. V SANTHOSHKUMAR says:

    NeAC AND ReACs are very much appreciable moves.But the centres should provide adequate time and space to submit the details before finalising an e-assessment. Sufficient opportunities should be provided for the submissions.

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