Dr. K. Shivaram, Senior Advocate, points out that while Courts are dutifully issuing directions and strictures with the sincere objective of putting the income-tax department on the right path, there is no feedback from the department as to whether these directions and strictures are being implemented by them. He submits that the Bar is under the bounden duty to be vigilant and play a proactive role to ensure that the department abides by its obligations and is made accountable for its misdeeds.
In public interest, time and again, High Courts have passed strictures against tax administration for failure to follow the due process of law in the course of assessment, recovery and quasi judicial-If directions of High Court are followed, it may be communicated by press release or by a circular – If not, then what remedial action has been taken?
Time and again, various High Courts have passed strictures against the Income-tax Department (the “Department”). Many times, in public interest, High Courts have to give directions to the Department to prevent harassment to assessees. Few such instances are as follows:
In Arun Ganesh Jogdeo v. UOI (www.itatonline.org), the Bombay High Court directed the department to follow directions of Delhi High Court in Court on its own motion v. CIT (2013) 352 ITR 273 (Delhi) and to be vigilant and ensure that the mistakes in issuing notice under sections 244 and 245 as pointed out by the Petitioner do not occur. Department was also directed to set up a self-auditing vigilance cell to redress taxpayers’ grievances.
In Shakari Khand Udyog Mandal Ltd. v. ACIT (2015) 370 ITR 107 (Guj.)(HC), the Gujarat High Court laid down guidelines to streamline the procedure for reopening of assessment in the State of Gujarat. It is desired that CBDT should direct all Assessing Officers irrespective of the state to follow the guidelines of the Gujarat High Court.
In CIT v. State Bank of India (2015) 375 ITR 20 (Bom.)(HC), the Bombay High Court held that the Department cannot arbitrarily pick and choose which orders of the ITAT should be challenged in the High Court. If ITAT has followed an order which is not challenged by the Department, then an affidavit must be filed explaining the distinguishing features which warrants a different view in a subsequent case with identical facts.
In Pirmal Fund Management Pvt. Ltd. v. DCIT (Bom.)(HC) www.itatonline.org, strictures were passed against high-handed and unfair approach of the AO in refusing to give an acknowledgement of stay application. The Chief CIT was directed to ensure such behaviour is not repeated. Department was directed to nominate another AO to hear stay application.
In A.T. Kearmey India Pvt. Ltd. v. ITO (2014) 363 ITR 172 (Delhi) (HC), the High Court warned the AO of contempt action for seeking to overreach ITAT’s stay order and directed the revenue to lift the attachment and ensure that the amounts recovered are deposited to the bank account of assessee. A copy of the order was also sent to the CBDT for information.
In CIT v. Reliance Infrastructure Ltd (Bom.)(HC) (www.itatonline.org), the High Court summoned the senior officials of the Department and strictures were passed for “irresponsible conduct” of filing an appeal on a point which was admittedly covered against the department by a judgment of the Supreme Court.
In CIT v. Harinagar Sugar Mills Ltd (2014) 226 Taxman 190 (Bom.)(HC), the High Court did not condone a delay of 117 days in filing appeal and of 1248 days in filing review petition. A copy of the order was forwarded to Chief Commissioner of Income-tax and to the Secretary Finance, Government of India for remedial action.
In Thermax Babcock & Wilcock Ltd v. CIT (Bom.)(HC) (www.itatonline.org), the High Court laid down zero–tolerance policy over adjournments. It was held that appeals may be dismissed, heard ex-parte and /or costs imposed if counsels are not prepared. The copy of the order was forwarded to Joint Secretary, Department of Law & Judiciary, Government of India.
In CIT v. Kirloskar Oil Engineers Ltd (2014) 364 ITR 88 (Bom.)(HC),the Department was given last opportunity and warned of heavy costs for wasting judicial time by filing appeals on covered matters.
In BBC World News Limited v. ADIT (2014) 362 ITR 577 (Delhi)(HC), proceedings of original records were not found. The High Court expressed alarm at the shoddy record keeping by the Department. Adverse remark was made because papers/documents on record were not serially numbered and indexed. A direction was given to keep proper records.
In UTI Mutual Fund v. ITO (2012) 345 ITR 71 (Bom.)(HC), referring to the judgment in KEC International v. B.R. Balakrishnan (2001) 251 ITR 158 (Bom.)(HC), the Court laid down the guidelines on how stay application should be dealt with. In Rajasthani Sammelan Sarvoday Balika Vidyalaya and Anr. v. ADIT (2013) 350 ITR 349 (Bom.) (HC), the High Court cautioned the Department and directed it to follow the settled guidelines for recovery of tax.
In Directorate of Revenue v. Uttamchand (2016) (333) E.L.T. 80 (Delhi) (HC), strictures were passed against the Revenue for condemnable lethargic attitude in pursuing prosecution matters. Where the petition was filed after eight months of order of the Trial Court, no reason was given as to why the trial was protracted at the Trail Court stage for more than 24 years.
It may also be appreciated that in recent time even ITAT has also passed strictures against the revenue officials for filing an appeal before the Tribunal without application of mind and directed the CBDT to take note and remedial action.
In Commissioner of Customs (Import) v. Do Best Infoway the CESTAT has commented adversely on the casual manner in which the matter was handled by the Adjudicating Authority and the Commissioner (Appeal). CESTAT has asked CBEC to issue appropriate guidelines to quasi judicial authorities to discharge their duties publicly keeping in view of the spirit of the ratio laid down by Apex Court in the case of Gordhandas Bhanji (1952) AIR 16 SC. In response, the Central Board of Excise and Customs vide Instruction No. 390 dt. 13-04-2016 (www.itatonline.org) issued the guidelines to all quasi Judicial Officers, as regards the manner in which the proceedings should be conducted by the public authority. The timely action of the CBEC deserves to be appreciated. We hope similar circular will be issued by the CBDT. The question to be asked is what action has been taken against such officers who do not follow the basic principle of law, are they fit to be discharge the function as quasi judicial authority?
While the Judiciary can only pass orders to address grievances and to improve administration, there is no mechanism by which the Judiciary is able to oversee the implementation of its orders. Therefore, I think it is the duty of the Bar to ensure proper implementation of the orders. While the above are few recent cases wherein strictures have been passed against the Department or certain directions issued, there could be many more such orders. It is my humbly appeal to all tax professionals to forward to the Federation, all such orders which could then be compiled and forwarded to the Hon’ble Finance Minister for remedial action. With the help of the Right of Information Act, the Federation and other professional organisation can play a proactive role in implementing the orders passed by High Courts.
It has been observed that even when the CBDT accepts the law laid down by various High Courts, the same is not communicated to the public at large. It is desired that the CBDT publishes a yearly circular or notification informing the tax payers of the judgments accepted by the CBDT. This will help in reducing the litigation in various High Courts as well as assist tax payers in planning their taxation issues.
In as early as in the year 1955, the CBDT vide Circular No. 14 (XL-35) dated 11th April, 1955, guided Assessing Officers as regards their duty to assist taxpayers in every reasonable way, particularly in the matter of claiming and securing reliefs. It is desirable that this instruction may be reiterated by the CBDT so as to assure tax payers of its commitment for fairness.
In the recent past, in order to reduce litigation, the CBDT has come out with instructions on various subjects such as taxability of surplus on sale of shares and securities as capital gains or as business income {[2016] 382 ITR (St.) 14}. Also, in order to address tax payer grievances, the CBDT has also issued instructions for passing of rectification orders in writing and within the prescribed time limit {[2016] 382 ITR (St.) 16/ 17}. The CBDT deserves credit for such tax payer initiatives.
Jai hind
Dr. K. Shivaram
Editor-in-Chief, AIFTP Journal
Reproduced with permission from the AIFTP Journal
I Dr. Advocate Arun Ganesh Jogdeo the petitioner of PIL/27/2014, wanted the Income Tax Department to implement SELF AUDITING MECHANISM becuase the computer itself will go on matching whether Amount entered in TDS (Traces) is exactly copied on 143(1) the 6th line of Demand notice.(Just as it occurs in bank for debit-credit matching) and the Grand total of overall TDS matches with grand total of 6th line 143(1) overall. If it does not match then there has to be error in copying which is almost impossible for the computer unless there is human intervention in the program coding.
INACTION OF INCOME TAX DEPARTMENT
Even after 1 1/2 Year of Orders of Hon’ble Bombay High Court, Income Tax Department is turning its deaf ears to implement the orders of Bombay High Court namely: (1) Setting up Vigilance cell to curb stupid Computer mistakes of non-match of 26AS amounts with 143(1) sixth line of TDS paid by Assessee. (2) Setting up of Self auditing mechanism to check up the tally of 26AS amounts with 143(1) demand notice sixth line printing for tax-payers all over India.
The Information Commissioner Mr. Bimal Julka has passed very strong and stricturing comments on this attitude of Income Tax Department of inaction of even responding to RTI about the same.
Please read the decision/Orders of Central Information Commission.
Appeal No. CIC/CCITM/A/2016/304296-BJ dated 16.06.2017. It is available on net.
It is more than year and yet CBDT is reluctant to execute the mandates of Bombay High Court namely (1) Establishment of vigilance cell and (2) Establishment of self auditing mechanism. Will this lead to contempt of Court?
FOR SHEET NO. 1, SINCE THE MATTER IS IN THE TABLE FORM, IT IS DIFFICULT TO UPLOAD, BUT THE SAME CAN BE SENT BY EMAIL TO THE INTERESTED PERSON FREE OF CHARGE, IF REQUESTED.
Email address: agjogdeo@rediffmail.com
SHEET NO. 2
ANNEXURE – “ A ”
( See Rule 3 )
Proforma of Application for Information Under Right to Information Act, 2005.
To,
The Central Public Information Officer (CPIO),
Mr. T. N. Ramamurthy
34(2)-3, Room No. 207, C-12, 2nd Floor,
Pratyakshakar Bhavan, Bandra Kurla Complex, Bandra (East),
Mumbai – 400051
1. Name of the applicant :- ARUN GANESH JOGDEO
2. Address :- 7/II, GAJANAN NIVAS,
LIBERTY GARDEN MAIN RD. NO. 2,
MALAD (WEST), MUMBAI – 400064
E-mail: agjogdeo@rediffmail.com
Mobile: 9969447560
3. Details of Information Required :-
a) Subject :- PIL/27/2014: Arun Ganesh Jogdeo Vs. Union of India, filed by me: Court Orders dated 28/08/2015, whether complied with 7 Mandates and 2 Orders of Bombay High Court.
b.) Duration :- As prescribed by RTI, 2005.
c.) Details of information required :-
i.) “All seven mandates ordered by Hon’ble Delhi HC should be complied to, with two more mandates (orders) by Bombay High Court namely
A. Establishment of vigilance cell to ensure that there is monitoring authority which would monitor various policy decisions which are taken
B. Establishment of self auditing mechanism.
Please find enclosed a short summery of Order passed by Bombay HC.
Kindly inform me:
I. Establishment of Vigilance cell:
1. The date of establishment of Vigilance cell by Income Tax Department.
2. The scope and the jurisdiction of Vigilance cell.
3. The Authorities / Governing members/composition of Vigilance cell, their duties and liabilites
4. If the Vigilance Cell is not formed by the I.T. Department, kindly inform me the “Practical Difficulty” to form the Vigilance cell.
5. Kindly inform me if the “Practical Difficulty” to form the Vigilance cell is identified then inform me the steps taken by the I.T. Department to solve/overcome those practical difficulties to form vigilance cell.
II. Establishment of Self auditing mechanism:
1. The date of establishment of Self auditing mechanism by Income Tax Department.
2. The scope and automated computerized process of Self auditing mechanism.
3. The Authorities / Governing members./composition of Self auditing mechanism.
4. If the “Self auditing mechanism” is not formed by the I.T. Department, kindly inform me the “Practical Difficulty” to form the “Self auditing mechanism”.
5. Kindly inform me if the “Practical Difficulty” to form the “Self auditing mechanism” is identified then inform me the steps taken by the I.T. Department to solve/overcome those practical difficulties to form “Self auditing mechanism”.
d ) Whether information required Personally :- No.
e ) If required by post kindly state whether by :- Speed Post / RPAD
4.) Whether applicant is a person below poverty line :- No
Note :- If this information does not pertain to your section / department, my application may please be forwarded to the concerned section / department within 5 days as per the provisions of Section 6 ( 3 ) of the R.T.I. Act, 2005, under intimation to the undersigned.
While disposing my appeal, the Name & Address of Appellate Authority should be mentioned. As per Section 7 (8) (iii).
If you want to deny me any of the above information please quote the exemption clause 8 (1) and a brief reason in writing why it applies. This is a requirement as per section 7(8)(i) read with section 19(5) of the RTI Act 2005.
Place :- Mumbai.
Date :- 09th March, 2016.
( Signature of Applicant )
SHEET 3
ADVOCATE ARUN G. JOGDEO, LL. B.;
B.Sc. & M.Sc. (Mathematics); B.Sc. & M.Sc. (Statistics)
Retired Post Graduate Teacher of M.C.A. (Master of Computer Applications)
Address: 7/II, Gajanan Niwas, Liberty Garden Main Road No. 2, Malad (West), Mumbai-400064 Call: (022) 28825995; Cell: 9969447560
E-Mail: agjogdeo@rediffmail.com
Date: 10th September, 2015.
To
The Chief Justice,
Supreme Court,
New Delhi.
Subject: Request to take up the matter as Suo Motu suit.
Reference: The Orders passed dated 28th August, 2015 by Bombay High Court in the case of PIL No. 27 of 2014. (Authenticated copy enclosed) [Certified copy will takle some more time].
AND
Orders by Delhhi High Court in case of
Synopsis: This is probably the case by Government Department to make misuse and Mischief through Revenue Department under Info. Tech. Act, 2000.
Violation of Law Section DETAILS OF CRIME COMMITED BY REVENUE DEPARTMENT
INFORMATION TECHNOLOGY ACT, 2000 (I.T. Act, 2000) 43
I.T. Act, 2000 65 Perversion of Software code – [Section mentions: Tampering with computer source documents: Whoever knowingly or intentionally conceals, destroys or alters or ____-: I.T. Department has altered the enormous Data – Admitted Fact of Human intervention
I.T. Act, 2000 74
INDAN PENAL CODE 190 False affidavit given – Case No.:
Affidavit states: Wrong Uploading odf the data.
The fact admiited in the Affidavit in Mumbai HC:
IPC 191 Giving false evidence – Revenue Department made false statement on oath, which the department was knowing to be false
IPC 192
193 (Punishment) Revenue Department made false entry in books, record and Electronic record, which has appeared in Judicial proceeding. (Case NO.: _______________).
IPC 197 Issuing or Signing false Certificate: Millions of Bogus demand notices u/s. 143 (1) of IT Act – (Admitted fact – Human Intervention) and collection of Unjust revenue.
IPC 199 False statement made in declaration which is by law receivable as evidence.
False information – Wrong uploading of Data
Fact admitted in Mumbai HC – Purposeful Human intervention
IPC 200 Using as true such declaration knowing it to be false – Issuance of false demand notices u/s. 143(1) of IT Act. to millions of Tax payers – Case:
IPC 201 Giving false information to screen offender –
False information – Wrong uploading of Data
Fact admitted in Mumbai HC – Purposeful Human intervention
Outcome of false affidavit:
Due to false affidavit Delhi HC remained under impression that Computer made a mistake (in fact it was Mischief by Revenue Department) and Technology is not a boon but a bane.
1. It is clear from paragraph No.3 of the Order of the Bombay HC that, instead of giving priority to the Issue of Bogus demand notices u/s 143(1) of Income Tax Act and unjust collection of about Rs.12 lakh crore from honest tax payers, it has mentioned that, “……in issuing incorrect notices under sections 244 and 245 of the Income Tax Act, thereby seeking recovery from number of income tax assessees.”
Now, the petitioner has never mentioned about Section 244 because it is about “Interest on refund where no claim is needed” and Section 245 is about “Set off of refunds against tax remaining payable”.
Though I iterated and reiterated number of times about (i) Issuance of “bogus demand notices” u/s 143(1) of Income tax act, (ii) Twisting the legal term of Section 245 that “set off ” has been changed to “Adjustment” for adjusting fictitious tax liability which was created by non-existent demand against actual refund to be paid (virtual reality) and (iii) Human intervention in software application code and generating imaginary liabilities in cases of about 10 million tax-payers all over India.(Of course it was deliberate act) (iv) Non-correction of all these blunders from Assessment years 2008 to 2012 i.e. for four years, The HC has not mentioned anything about
(a) Perversion in the software code, detrimental to millions of tax-payers. It is crime under Information technology Act because it mentions under Section 65 that “Tampering with computer source documents”: Whoever knowingly or intentionally conceals, destroys or alters or intentionally or knowingly causes another to conceal, destroy, or alter any computer source code used for a computer , computer programme, computer system or computer network, when the computer source code is required to be kept or maintained by law for the time being in force, shall be punishable….”. The Section 65 further explains “Computer source code” means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form”
Though it was admitted by Income Tax Department that there was human intervention and perversion in the software code, this fact is completely ignored by Bombay HC.
2. In paragraph No.5 of the Order of the Bombay HC it takes the help of directions passed by the Delhi High court. However the decision of Delhi High Court is based on the premise: “Wrong uploading of data”. However it has never thought that “how 143(1) notices in millions can be with “ZERO” TDS (Tax Deducted at Source) be printed even if there is wrong uploading of data!” because wrong uploading must print wrong TDS or mismatched TDS or some wrong numerical output, it is difficult to understand how computer on its own can print “ZERO” TDS even though it is clearly apparent on 26AS form of the Income tax Department itself.
It is clear that my contentions of (i) Human intervention in the software code to generate “ZERO” TDS figures uniformly on millions Demand notices u/s 143(1) and collection of unjust revenue is side-tracked though human intervention in the software application code at the Director’s level has been admitted by Income Tax Department. (Refer page No of the affidavit submitted by Income tax Department in Bombay HC.)
3. In paragraph No.6 of the Order of the Bombay HC, it does not give any deadline to form “Vigilance cell” nor it mentions about which irregularities detrimental to honest tax-payers should be monitored because irregularities are regarding (i) Fraudulously creating 143(1) notice publications as certificates. It is crime punishable under Section 74 of Information Technology Act, 2000. The Sections lays down that “Whoever knowingly creates, publishes or otherwise makes available a 1[Electronic Signature] certificate for any fraudulent or unlawful purpose shall be punished…..”
Printing “bogus demand” notices itself is fraud which has been done on enmass basis. Tax payer treats 143(1) notice as the certificate and those have been printed on bogus/fictitious/imaginary basis. Moreover this fact has been admitted in the Respondent’s affidavit on pages….. and it is ignored by the Bombay High Court.
Prayer:-
(i) Please admit this letter for suo-motu act by SC, against Revenue and give justice to the criminals involved in the “human intervention in the software code” which is detrimental to millions of tax payers and for collection of unjust impositions.
(ii) Please admit this letter for suo-motu act by SC for deliberate efforts to interpret the word “set off’ as “Adjustments” and twisting the legal word for vested interests rather than legal meaning of mutual actionable set off. Set off never means “Virtual-reality” as per the whims of Income tax Department.
CASE DETAILS OF ARUN GANESH JOGDEO V/S UOI
This was the PUBLIC INTEREST LITIGATION filed by Advocate Arun Ganesh Jogdeo. He stood as locus standi (in person) in High Court. Petition was lodged on 21/08/2013, Later admitted and numbered as PIL/27/2014.
PIL or Public Interest Litigation is that Litigation which can be filed under Article 226 of the Constitution in any of the High Courts or under Article 32 in the Supreme Court. PIL should clearly be for the general interest of public and not for the benefit of the petitioner or the person filing the petition. Injustices/atrocities/unjust enrichment/ unlawfulness/ arbitrariness/ cheating/ equity violation, by public authorities to public or masses should be clearly observed and confirmed before filing PIL.
The cause of this PIL
It was confirmed by the petitioner that in the Assessment Year 2007-08 and also in subsequent year 2008-09, in case of millions of tax-payers or for assessees, though they have paid TDS (Tax Deducted at Source) and though it was apparent in 26AS form i.e. it was clearly seen on Government Tax Deduction Certificate (now called TRACES), TDS was made “ZERO” by the then taxing authorities under the pretext of Income Tax Department’s Computer fault/programming fault and Demand notices in millions were sent u/s 143(1) to tax-payers with line number six (Title number six) of Demand Notice, printed as “ZERO” paid TDS. However, this was mischief because authorities wanted to collect money by hook or by crook. Hooking means all those tax payers who may have already paid their liabilities earlier by TDS, may get scared due to bogus imposition and purposeful liabilities created by Income Tax Department by sending bogus demand notices and made to pay the amount again, crooking means by forwarding the cause that “Fault” occurred in the Computer/Program of Income Tax Department so Income Tax Department itself was helpless and it was not able to correct the bogusness before printing final print out of 143(1): The Demand notice.
Moreover even after knowing about the fault and bogusness, Income Tax Department did not pull back the bogus demand notices but it tried to press, force and adjust this bogus demand against past, present and future refunds u/s 245 of Income Tax Act.
In what way this PIL and its outcome will help the tax payers?
Tax-payers will have to
(1) Check up whether they have paid TDS for the Assessment Years 2007-2008 and 2008-2009 and also in future years.
(2) Check up whether the same entries are in 26AS (now TRACES) form which can be seen on line. It is Income Tax Department’s site. Tally your payments of TDS with 26AS form.
(3) If your demand notice u/s 143(1) shows the entry on the sixth line of Demand notice that “ZERO” is the amount that you have paid in that Assessment Year, then it is clearly bogus demand entry under the pretext of Computer/Program fault of Income Tax Department and this can be brought to the notice of Income Tax authorities as well as this claim can be fought in the Court of Law.
(4) Obviously your imposition of the Tax is now due to non-accounting of your TDS payment and hence it will generate tax more than your speculated Tax payment to Income Tax Department.
(5) Thus, instead of your legal refund, you have been victim for tax liability, interest on it and also penalty due to “Bogus” imposition of tax and also because you have been cheated (The words used by Hon’ble Delhi High Court in its strictures) by showing that, “you have not paid any TDS”
The words “Bogus” is used by Hon’ble Delhi High court. Hon’ble Delhi High Court didn’t spare Income Tax Department for any of the strictures in its verdict dated 14/03/2013 WP(CIVIL) 2659/2012; 14/03/2013 WP(CIVIL) 5443/2012 and 31/08/2012 WP(CIVL)2659/2012. (All these available on internet) It has used the words and passed the strictures on Income Tax Department as under:
(1) Imposition of Fictitious Demands by Income Tax Department.
(2) Uploading of non-existing demands.
(3) Wrong and bogus demands by income Tax department.
(4) Incorrect record maintenance by Income Tax Department.
(5) Failure of administration fairness and arbitrariness regarding performance of Income tax Department or Revenue (Equity violation).
(6) Bogus and wrong demands/arrears or incorrect record maintenance.
(7) The problem posed was apparent, real and enormous.
(8) The issue was general governance, failure of administration, fairness and arbitrariness (Equity violation).
(9) The magnitude and the number of assessee adversely affected, can be appreciated from the figure of Rs. 2.33 lac crore,……. 23 lacs adjustments (Given figures are only from Delhi jurisdictions, for all India its estimate which was never disclosed by Income Tax Department even after RTI enquiries, is about Rs 12 lac crores (Rs.12,00,00,00,00,00,000)). Please check up that you may be one of the victim of bogus taxing and bogus adjustment of past, present and future. For the purpose of claiming refund check up mandates/orders of Hon’ble Delhi High Court. I have summarized them and enclose as sheet No.1.
(10) Uploading of wrong or fictitious data
(11) In spite of the said efforts and directions, the CBDT/Board accepts and admits the position that incorrect and wrong demands have been uploaded.
(12) Adjustments of refund contrary the mandate of Section 245 of the Income Tax Act. (Check up whether you have been made victim of such bogus adjustment and for claiming refund please refer sheet no.1 enclosed which is in summary form)
(13) Assessee cannot be made to suffer for the incorrect and wrong uploading of arrears and wrong and incorrect adjustments of the refund on the part of the Respondents (i.e. Income Tax Department)
(14) It is matter of serious challenge and a matter of grave concern (that was the reason for which the Petitioner has filed PIL/27/2014 in Hon’ble Bombay High Court)
(15) the response purports to express complete helplessness of the part of the Revenue to take steps and seek to absolve them from any responsibility.(that is the reason for which the petitioner has again presently filed RTI dated 14/03/2016 (Copy enclosed) (Sheet No.2) to enquire whether the Mandates/orders of Hon’ble Bombay High Court are followed and whether necessary steps have been taken by Income Tax Department to from (i) Vigilance cell to curb all the irregularities and (ii) Self auditing mechanism to confirm whether the entries of 26AS are exactly taken in the Demand notice and they tally and also to confirm whether the mandates of Hon’ble Delhi High Court are complied with.
(16) The deductee feels cheated (Thus Income Tax Department has committed an offence which is squarely falling under IPC 415 and 420 of cheating masses, and thus liable for Criminal Writ Petition)
(17) It is unfortunate that the Board did not take immediate steps even after noticing lacuna and waited till finance Act, 2012.
(18) It would be unfortunate and a matter of regret if an assessee does not get credit, in spite of payment of Tax.
All above strictures are serious because payments by assessee were clearly apparent in 26AS form of Income Tax Department and yet bogus Demand notices were issued by making the TDS entries “ZEROS” in 143(1): Demand notices and adjustments of the same.
What transpired in the Court, in case law: Arun Ganesh Jogdeo v/s UOI?
But it is more surprising that, while submitting the affidavit in Hon’ble Bombay High Court by Income Tax Department in response to the Petition by the Petitioner, the Income Tax Department has admitted in its affidavit that:-
(1) It is admitted 11 (Eleven) times that “There was an error in the software application coding” (i.e. programming error- in fact the program is always written by the human, thus it is not the error made by the Computer itself, but purposeful act of Income Tax Department to fleece money and gather revenue by illegal and unconstitutional means).
(2) It is admitted on page 9 of the affidavit that “The Department has already acknowledged the software error in the DT-01 system…..”. thus, the purposeful software coding error is admitted.
(3) It is admitted on page 32 and 38 of affidavit that, “In a certain batch of processing at DT01 alone, an inadvertent error in code occurred.”
(4) It is admitted on page 39 of affidavit that, “The DT-01 system during this period was skipping certain tax paid while processing in bulk mode.” (It should be noted that, it is not the system which skips certain tax paid, but it is the program writer who is instructed to do so while program coding) ( I am the Petitioner, is rather doubtful whether the Court will understand such technically intrigued mischief)
(5) On page 45 of the affidavit it has admitted that, “The error was in the software provided by the Directorate of Systems……”. Thus, the Income Tax Department was careless to implement and execute the computer program with errors/blunders, detrimental to the masses and society.
(6) Finally on page 58 of the affidavit, income tax authorities have admitted that, “Human intervention is there in software coding, but the same is at the level of the service provider who writes software under the supervision of the System directorate.”
Clearly mischief in software application coding is admitted undoubtedly and this mischief was caught by one of the smart Justices in Hon’ble Bombay High Court. I am using the word smart Justice because, while the Petition moved on at five Divisional Benches in five Court Rooms, one of the Justice asked me, “What petitioner has to say, if none of the tax-payers want their refund?” by these words of the Justice the entire Court Room was stunned and I had to check my consciousness and to confirm that I was not in the gathering of clowns and it took some time in the Court Room to calm down the strong commotion of Advocate community. However, I was lucky that my Petition moved in the next Court in the next hearing. But I was more surprised that one of the Justice even did not know the meaning of TDS, in the circumstances it was difficult to expect from him the meaning of 26AS! I hope salary-sheet given every month to every employee deducts and indicates TDS in his salary-sheet. Moreover the Income tax Return filed by Tax-payer also mentions and indicates TDS entry as well as 26AS entries and yet the meaning of TDS was unknown to that salaried.
Though the crime has also been committed which is squarely falling under Information Technology Act, 2000, Sections 43, 65, 1[66 and 73 (Because Demand Notice u/s 143(1) is a certificate) read with meaning assigned u/s 24 and 25 of IPC, it was difficult for me to make it to understand to the Justices who have meagre knowledge of modern and contemporary Information Technology because as described earlier I , came across a Justice who did not know the meaning of TDS nor 26AS though he is taking salary paid by the Government and his salary-sheet must be showing these deductions for Income Tax purpose, however I did not dare to open this issue of violation of Information technology Act-2000. In the circumstances I shall wait till that date when Courts will know little bit of modern, contemporary Computer Science, Information Technology Act and the concerned terms like TDS, 26AS, etc.
Thus, the statements made about “Wrong uploading of data”, “No human intervention in the software code”, etc. were all hoax and eyewash and fooling the Courts as well as common concerned man and people and also authorities connected with Courts. The Income Tax Department has tendered “False affidavit” before Hon’ble Delhi High Court by mentioning that, “Wrong uploading of data” (Because Computer does not have a sense for uploading of wrong data. Computer would have shouted otherwise for uploading of wrong data. It is human being who generates wrong data intentionally, and that is the reason for which Information Technology Act-2000 has been enacted). It is clearly crime under IPC, 1872 to generate fraud and detrimental data to masses and computer illiterate people and tax-payers.
In the circumstances, even after the decision/order/mandate by Hon’ble Bombay High Court dated 28/08/2015 (It is available on internet: Refer PIL/27/2014), I had no otherwise but to apply to the Supreme Court (Application enclosed) (Sheet No.3), so that the innocent tax payers will get relief from the atrocities committed under Information technology Act-2000, by Income Tax Department and also mal-practices under IPC followed by Income Tax Department.
Now, I want to confirm whether, the Income tax Authorities, even after eight months, are implementing the mandates and orders viz. (i) instituting vigilance cell and (ii) establishing self auditing mechanism ordered by Hon,ble Bombay High Court and therefore I have also filed RTI dated 14/03/2016 to verify the same (The copy of RTI enclosed) (Sheet No.2).
I am sure, that you all readers, the law abiding citizens of India will staunchly support me in this fight against the atrocities, unlawfulness and mis-deeds of Income Tax Department. This will definitely create a forum to fight out Government torts and criminal acts which are shamelessly admitted by Government Departments. I am willing to help to all, for technical problems, legal problems and complications and Information Technology details, because I was Post Graduate Teacher for Computer Technology for Master Computer Applications (MCA: PG Course) at VJTI and now vigilant Computer literate tax-payer and Indian.
SHEET No.1
Summary of mandates/orders by Bombay High Court
SHEET No.2
RTI which is presently filed, dated 14/03/2016 filed by Adv. Arun Ganesh Jogdeo to know implementation, execution and compliance of Mandates/orders by Hon’ble Bombay High Court.
SHEET No. 3
Application to Hon’ble Supreme Court to take cognizance of bogusness, Computer-fraud and Computer-detrimental performance by Income Tax Department.
A commendable effort by the editor in chief of the AIFTP journal.
I appreciate the blog’s effort to help out the revenue-men and the govt . In fact, nothing works on these ‘logs’; I wonder how UPSC selected such intellects in great in such great recruitment.
I think it is high time, UPSC replaced by some Boston recruiting or McKinseys, taxpayers cannot afford this luxury any longer
I am in complete agreement with Wadhwa Saheb and request our National President to please ask the Taxation Committee to make a representation before CBDT / MOF regarding above. Simultaneously individually we shall be writing to CBDT to take stock of the effectiveness of the circulars / notifications in the working of officers.
An idea that strikes me is that our National President of AIFTP should write to the Chairman CBDT for effective action with a copy to all of us.
We could then individually also write similar letters to Chairman, CBDT including from Chairman, Direct Tax Representation Committee.
Please give your suggestions
I think that we professionals must raise voice before the higher authorities on case to case basis in addition to raising voice before the concerned officer.
It is general comments that whether because of raising issue in one case, situation will change? and because of this general feeling we did not raise voice despite we know that officer is violating provisions of ACT/ CIRCULAR/ JUDICIAL DECISIONS.
It is my personal experience that irrespective of the fact that higher authority did not communicate personally to the person raising grievance, but, they communicate with concerned officer on the basis of grievance raised.
Presently we can raise grievance through platforms like http://pgportal.gov.in/. Such platform is systematic and the action taken on the grievance can be monitored by the petitioner.
On ground there is no visible change . Business is as usual. The Board continues to sit on files .
It would be futile to keep finding and punishing the corrupt unless “fresh inflow” of such corrupt lot is not stopped from entering the system from the starting point . The better way would be to stop the fresh inflow of such corrupt minds entering the system. How ? Redraft the IRS & IAS Acts, redraft the government servants rules, which currently gives unlimited powers to dictate and extort money with such powers, which allows them to harass those who do not obey or surrender to them. We all know by now, how the exams are conducted in “some” states. Then we must understand what “quality ” of people are taking up the high positions in government posts. Redraft the rules in such a manner that only those with real intention to “serve” would join the government services and not with intention to “make money by extortion”. The word may be harsh but we all would agree with the fact. Once the fresh inflow is stopped, it would be easier to clean those existing with a”iron hand “. Sir try & compare the scenario with pre-independent era – nothing but misuse of powers which is programmed in the minds of IRS & IAS brass with the help of the same ACTS & RULES DESIGNED BY THE BRITISH. These were devised in those times to help British Officers to SUPPRESS people. IRS & IAS ACTS dates back to more than 100 years. They are still being enjoyed in the same format even after 100 years. Its time present government to have a re-look at those ACTS and modify them as “rules to administer” from the existing “rules to RULE” – till then it would just be same “leaving” with a comment !
Earlier itself I commented that all these are like a drop of water on a bull. The Board on its part feels it is enough if they issue a Circular or instruction. But there is no mechanism to check whether the executive follow it or not. Even to day number of cases are there where proceedings u/s.147 are initiated contrary to several judicial pronouncements. Assessments under CASS being scrutinised thoroughly though directed to be restricted to issue for which it is selected. Even today letters addressed to department are being refused to be taken thereby forcing to send them by RPAD. There are cases where the AO does not follow the order of the appellate authority and pass orders contrary to the decision adverse to the tax payer. All are being carried in appeal thereby creating additional work to appellate authorities. Accountability is lacking and Board is functioning like a post man just issue circulars and forget. My personal experience is a letter addressed to Chairman by name in a case where injustice is meeted out to a Government tax payer it was not replied at all.
A comprehensively written letter requesting the CBDT to follow the directions / guidleines issued by different courts from time to time. I would only add that punitive punishment must also be imposed on the erring Officers for blatantly violating the judicial discipline.