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Act Rules Income Tax
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Savings on repeal preserve procedural and substantive continuity for matters tied to earlier tax years under the repealed regime.
The repeal provision preserves continuation of rights, obligations and proceedings relating to tax years beginning before the statutory cut-off by deeming prior actions, elections, penalties, refunds, recovery, carry-forwards of losses, credits and depreciation to remain effective and by allowing pending and certain later-initiated proceedings to be conducted under the repealed procedural rules; it invokes the General Clauses Act for repeal effect and specifies fallback mechanics for schemes where no corresponding provision exists in the new Act.
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Presumption of ownership and authenticity expands to electronic records, increasing evidentiary weight in tax proceedings.
The provision establishes rebuttable presumptions in proceedings under the Income tax enactment that items found in a search or survey-or delivered to a requisitioning officer-belong to the person in whose possession or control they are found and that books, documents, signatures and executions are true/authentic; the enacted text expressly extends those presumptions to electronic information and computer systems and adds a specific presumption that recorded electronic exchanges are exchanged between the purported parties.
Act Rules Income Tax
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Authorised representative rules limit who may represent taxpayers, set disqualification grounds, and preserve appeal rights.
The provision permits an assessee to attend proceedings before income tax authorities and the Appellate Tribunal through an authorised representative drawn from an enumerated list, subject to written authorisation and exclusions; personal attendance is required where examination on oath or affirmation is mandated. The definition of authorised representative and of "accountant" contains specific exceptions to prevent conflicts of interest, while disqualification rules-based on dismissal from service, insolvency, specified convictions or prior penalties-apply with procedural safeguards including opportunity to be heard and a one month appeal to the Board. Several qualifications and categories are to be determined by subordinate prescription, and transitional cross references to prior statutes determine legacy practitioner recognition.
Act Rules Income Tax
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Country-by-country reporting requires Indian resident entities to notify authorities and file consolidated international group reports.
Section 511 establishes a country by country reporting regime requiring Indian resident constituent entities with non resident parents to notify the prescribed income tax authority regarding designation as an alternate reporting entity and to provide parent/alternate details, while Indian resident parent or alternate reporting entities must furnish consolidated reports in the prescribed form and manner; fallback filing applies where foreign jurisdictions do not file or exchange reports or where a systemic failure is intimated, and exemptions apply if consolidated group revenue falls below a prescribed threshold.
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Information-furnishing obligation: Indian concerns must produce prescribed documents when foreign interests derive value from India assets.
An information-furnishing obligation requires an Indian concern to provide prescribed information or documents to the prescribed income-tax authority when a foreign company's or entity's shares or interests derive substantially their value from assets located in India and those assets are held, directly or indirectly, through the Indian concern; specific documents, the authority, the period and the manner of furnishing are to be specified by subordinate prescription.
Act Rules Income Tax
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Reporting obligation for liaison offices: annual statement to tax authorities subject to deadlines and particulars as prescribed.
Non-residents with RBI/FEMA authorised liaison offices must annually prepare and deliver to the Assessing Officer a statement of the office's activities for the tax year in such form, containing such particulars and within such period as may be prescribed, with the deadline and particulars to be specified by subordinate legislation rather than fixed in the statute.
Act Rules Income Tax
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Provisional attachment protects revenue during assessments, requiring competent authority approval and revocation on provision of bank guarantees.
Clause 500 permits an Assessing Officer, with prior Competent Authority approval and by written order, to provisionally attach property during assessment, reassessment of escaped income or specified penalty proceedings; attachment follows the statutory attachment procedure and valuation by a Valuation Officer. Attachment is revocable on furnishing a scheduled bank guarantee generally equal to fair market value (or a lower guarantee if accepted); guarantees may be invoked on default. Temporal limits apply (initial six months with limited extensions) and proceeds are adjusted against existing demands with balances deposited in designated accounts.
Act Rules Income Tax
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Presumption as to assets extended to electronic information and computer systems when tendered as prosecutorial evidence.
The statute extends the evidentiary presumption applicable to assets, books of account and documents found in searches or taken into custody to include information in electronic form and computer systems, applying the presumptive framework when such items are tendered in evidence and qualifying that application by the phrase "so far as may be, apply"; the Act cross-references statutory definitions for electronic information and computer systems to ensure consistent meaning.
Act Rules Income Tax
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Karta liability and member culpability: members can be prosecuted regardless of Karta's due diligence defence under the revised provision.
The provision deems the Karta guilty for offences committed by an HUF unless he proves absence of knowledge or that he exercised all due diligence; members are separately liable if the offence was committed with their consent or connivance or is attributable to their neglect, and the Act clarifies that such member liability applies irrespective of both the Karta's deemed guilt and his due-diligence defence.
Act Rules Income Tax
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Corporate vicarious liability tightened: personal liability now operates notwithstanding due diligence where consent, connivance or neglect is shown.
Section 487 creates both a deeming rule treating companies and those in charge as guilty for corporate tax offences and a separate personal-liability route making directors, managers, secretaries, officers, partners and controlling members individually culpable where an offence is committed with their consent, connivance or attributable to their neglect; a statutory defence allows persons deemed guilty to avoid liability by proving lack of knowledge or that they exercised all due diligence, but the enacted text makes the personal-liability route operate irrespective of the deeming rule and the due diligence defence.
Act Rules Income Tax
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Abetment of false return: two-tier custodial penalties and fine where tax impact determines higher or lower sentencing.
Abetment of false return criminalises abetting or inducing another to make a false tax-related account, statement or declaration where the abettor knows it is false or does not believe it to be true, and prescribes a two tier sentencing regime based on the monetary magnitude of tax, penalty or interest evaded or wilfully attempted to be evaded; textual differences between the Bill and the enacted section are limited to phrasing around liability to fine and an editorial sentence, with no observable change to imprisonment ranges or threshold.
Act Rules Income Tax
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Falsification of books: criminalises willful false entries to enable another's tax evasion, allowing prosecution without proving actual evasion.
Section 483 proscribes falsification of books or other documents when a person wilfully makes or causes a false entry or statement, knowing it to be false or not believing it to be true, with intent to enable another to evade tax, interest or penalty; the offence carries rigorous imprisonment and fine, and it is not necessary to prove that the other person actually succeeded in evading tax.
Act Rules Income Tax
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Failure to furnish tax returns: criminal penalties with tiered custody and limited safe harbour for late filing.
Criminal liability is imposed for wilful failure to furnish a required return of income, with a two-tiered custodial and fine regime linked to the amount of tax evaded. A limited bar to prosecution exists where the return is subsequently furnished within the procedural time references or, for non-companies, where the residual tax shortfall after qualifying payments falls below a de minimis threshold. The scope of the safe harbour depends on the timing rules in the cross referenced procedural subsection.
Act Rules Income Tax
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Wilful attempt to evade tax: criminalises deliberate falsification and omissions, with tiered imprisonment and fines.
Section 478 criminalises a wilful attempt to evade tax and wilful under reporting by prescribing tiered rigorous imprisonment and fines, and it lists illustrative acts-false entries, omissions, possession of falsified books and conduct enabling evasion. The Act relocates and rephrases fine and penalty preservation language into a standalone non prejudice clause and tightens causation wording in an illustrative sub clause. Definitions of key terms and procedural or evidentiary standards are not provided in the text.
Act Rules Income Tax
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Failure to remit tax collected at source criminalised, exposing collectors to imprisonment and fine; exception for timely remittance.
Failure to remit to Government the tax collected at source is a penal offence punishable by imprisonment and fine, targeting persons who collect tax at source and imposing personal liability for payment to Government credit. A narrow temporal exception excludes application where payment has been made on or before the time prescribed for filing the relevant statement, and the provision contains no mitigating grounds, mens rea gradation, or procedural compounding mechanisms.
Act Rules Income Tax
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Failure to remit withheld tax attracts criminal liability including imprisonment and fine; safe harbour if credited before filing deadline.
Failure to remit taxes deducted under Chapter XIX-B or required by specified Notes to the Table in section 393 constitutes a criminal offence punishable by rigorous imprisonment and fine; the offence applies where a person fails to pay amounts to the credit of the Central Government, subject to a temporal safe harbour if payment is made or credited on or before the time prescribed for filing the relevant statement.
Act Rules Income Tax
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Fraudulent disposition of property to frustrate tax execution now criminalised, tied specifically to a certificate drawn under section 413.
The offence criminalises anyone who fraudulently removes, conceals, transfers or delivers any property or interest therein with intent to prevent such property or interest from being taken in execution of a certificate drawn u/s 413; punishment is rigorous imprisonment up to two years and a fine. The enacted text replaces the Bill's broader "as prescribed" formulation with a direct reference to section 413, clarifying the instrument whose execution the offence seeks to frustrate. The clause contains no exceptions, definitions of "fraudulently," or evidentiary rules.
Act Rules Income Tax
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Reasonable cause defence prevents penalties when a taxpayer proves it, expanding protection in the enacted provision.
Section 470 bars imposition of penalties under the listed provisions where a person or assessee proves there was reasonable cause for the failure; it frames the exception as prevailing irrespective of anything in those provisions and places the burden of proof on the person, while not defining "reasonable cause" or prescribing standards, procedures, or timing for such proof.
Act Rules Income Tax
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Discretionary penalty waiver: voluntary pre-detection disclosure and cooperation enable administrative leniency, subject to prior approval thresholds and safeguards.
Section 469 empowers the Principal Commissioner or Commissioner to reduce or waive penalties under section 439 where there is voluntary, pre detection disclosure, good faith cooperation and payment or satisfactory arrangements for tax and interest; sub section (2) contains a deeming rule for "full and true disclosure." Prior approval from a specified senior authority is required where multi year income/disclosure crosses the statutory threshold or where aggregate penalties to be waived under the hardship route exceed the threshold; once discretionary relief is granted for a person no further relief is available for other tax years. Procedural safeguards and a twelve month disposal timeline apply.
Act Rules Income Tax
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Tax penalties for procedural non-compliance impose fixed and daily monetary sanctions and designate imposing authorities by statute.
Clause 465 distinguishes fixed penalties for discrete refusals or omissions from continuing daily penalties for delays or failures to furnish returns, statements, certificates or allow inspections, caps certain penalties by reference to deductible or collectible tax, allocates specified income tax officers to impose such penalties, and defines "income tax authority"; it cross references multiple substantive provisions and contains no express procedural safeguards, appeal route, or mitigation mechanism.

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Reopening of assessment - Substance over Form - Failure to disclose material fact - Duty of the AO to make an enquiry to test the correctness of the disclosure made even if the statutory forms signed and certified by the Chartered Accountant

10 July, 2019

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2019 (7) TMI 415 - MADRAS HIGH COURT

2018 (10) TMI 442 - MADRAS HIGH COURT

Reopening of the assessment for the year 2010-2011. - Whether ingredients of Section 147 r.w.s 148 are satisfied?

Facts of the case

In the present case, deduction u/s 10B of Income Tax Act, 1961 was allowed to assessee (100% EOU) on the basis of Form No.56G. In the said Form in Column No.8 it is mentioned as 10th year of claim, but, in Column No.7, the date of commencement of manufacturing is mentioned as 28.03.2000. Thus the Assessing Officer stated that the year under consideration happens to be 11th year. The Assessing Officer also referred to the copy of the Form 56G for the assessment year 2001-2002. Accordingly the Assessing Officer informed the assessee that the assessee has exclusively extended its 10B holiday period to the 11th year and hence become ineligible for deduction under Section 10B.

Submission of the assessee

There was no opening stock as on 1.4.2000. The first invoice was raised only on 31.05.2000 to UNICEF, New Delhi. With regard to the date of commencement of manufacturing activity, the assessee stated that the firm came into existence on 20.03.2000, registered as an EOU on 29.03.2000 and has commenced manufacturing activity only after 01.04.2000.

With regard to the discrepancy pointed out by the Assessing Officer in the notice dated 25.01.2017, the assessee stated that the substance over Form is required to be taken into consideration and mere reporting of the date in the Form 56G does not give a conclusive picture as to the date of starting of manufacturing activity which is only in the month of April or which only in the assessment year 2001-02 which has been clearly claimed as the first year of exemption. Therefore, the assessee requested to drop all the assessment proceedings and reopen the assessment.

Single member bench [2018 (10) TMI 442 - MADRAS HIGH COURT], while entertaining the writ petition, has observed that:

Every non disclosure of material facts will not or cannot be a justifiable reason for reopening sustainable under judicial scrutiny.

On the other hand, such non disclosure of a material fact must be of such nature that, but for such non disclosure, the income, relatable to such material fact, would not have escaped assessment. In other words, it should lead to an irrebuttable conclusion that by the conduct of the assessee, either by providing wrong or incorrect particulars or by not providing the full and correct particulars, he should have made the Assessing Officer not to bring a particular income to tax, which is otherwise liable to be taxed. If this test is applied to the present case, I am of the view that the Revenue has to fail.

Revenue took the matter before the division bench of the High Court [2019 (7) TMI 415 - MADRAS HIGH COURT] wherein it was observed that:-

There can be no escape from this fact and the assessee should accept this mistake.................It may be true that the assessee can now take a stand that substance over form is to be considered but what is important is that the assessee at the first instance had a duty to give proper and correct details. We may say that the assessee failed in doing so. Be that as it may, what is required on the part of the Assessing Officer is not to go mechanically by the details disclosed by the assessee in the statutory form and or for that matter signed and certified by the Chartered Accountant. The Assessing Officer being cast with a statutory duty an enquiry is required to test the correctness of the disclosure made in such statutory forms. This is why the concept of substance over form was always preferred by Courts while dealing with such matters.

The second mistake which the assessee committed, which had invited the problem, was not mentioning the correct date of commencement of commercial production in its reply dated 02.02.2007 and this again was submitted through the very same Chartered Accountant. In the reply, there is a vague statement with regard to the commencement of manufacturing activity and what has been stated is that the assessee commenced manufacturing activity only after 01.04.2000. Thus, we are of the view that the assessee appears to have not been very seriously contesting the matter at the relevant point of time. Wisdom dawned upon the assessee only after the appellant passed the order dated 13.02.2017. It is thereafter the assessee through their Chartered Accountant gave the exact date of production/manufacture as 25.05.2000.

Keeping aside all these issues, we have examined the correctness of the order passed by the learned Single Bench and we note with approval the findings of the learned Single Bench in paragraphs 16 and 17 of the impugned order. The above finding rendered by the learned Single Bench is just and proper.

As pointed out by the learned Single Bench every non-disclosure of material facts will not or cannot be a justifiable reason for reopening an assessment. We reiterate that what was required to be considered is that, substance over form.

Therefore, we are of the considered view that the learned Single Bench was perfectly right in allowing the writ petition which had been done after thorough examination of the facts and the legal position. In our considered view the revenue has not made out any grounds to interfere with the order passed by the learned Single Bench.

 


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2019 (7) TMI 415 - MADRAS HIGH COURT

2018 (10) TMI 442 - MADRAS HIGH COURT

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Acts Income Tax