Mum HC -
Taxation of Income and Levy of Tax twice over ?
On Writ of 'Mandamus' (?)>
2. Excerpts from Del. HC Order @SG >
33. The second grievance of the assessee is with regard to the uncommunicated intimiations under Section 143(1) which remained on paper/file or the computer of the Assessing Officer. This is serious challenge and a matter of grave concern. The law requires intimation under Section 143(1) should be communicated to the assessee, if there is an adjustment made in the return resulting either in demand or reduction in refund. The uncommunicated orders/intimations cannot be enforced and are not valid. Respondents in the counter affidavit have not dealt with this problem on the assumption that the Assessing Officer who had manually processed the returns and passed the order/intimations under Section 143(1) would have necessarily followed the statute and communicated the said orders/intimations. In case the said orders/intimations under Section 143(1) were communicated or dispatched to the assessees, the directions given by us below would not be a cause for any grievance and will not be a matter of concern for the Revenue. We also accept the contention of the Revenue that where an order under Section 143(1) was sent and communicated to the assessee but could not be served due to non-availability/change of address or other valid reasons, should not be treated at par with cases where there is no communication or no attempt is made to serve the order whatsoever. But when there is failure to dispatch or send communication/intimation to the assessee consequences must follow. Such intimation/order prior to 31st March, 2010, will be treated as non est or invalid for want of communication/service within a reasonable time. This exercise, it is desirable should be undertaken expeditiously by the Assessing Officers. CBDT will issue instructions to the Assessing Officers.
34. The onus to show that the order was communicated and was served on the assessee is on the Revenue and not upon the assessee. We may note in case an order under Section 143(1) is not communicated or served on the assessee, the return as declared/filed is treated as deemed intimation and an order under Section 143(1). Therefore, if an assessee does not receive or is not communicated an order under Section 143(1), he will never know that some adjustments on account of rejection of TDS or tax paid has been made. While deciding applications under Section 154, or passing an order under Section 245, the Assessing Officers are required to know and follow the said principle. Of course, while deciding application under Section 154 or 245 or otherwise, if the Assessing Officer comes to the conclusion and records a finding that TDS or tax credit had been fraudulently claimed he will be entitled to take action as per law and deny the fraudulent claim of TDS etc. The Assessing Officer, therefore, has to make a distinction between fraudulent claims and claims which have been rejected on ground of technicalities but there is no communication to the assessee of the order/intimation under Section 143(1). In the later cases, the Assessing Officer cannot turn around and enforce the demand created by uncommunicated order/intimation under Section 143(1). This is the fifth mandamus which we have issued.
The related Notification and some Circulars are reproduced below:: >>>>
B.SECTION 143 OF THE INCOME-TAX ACT, 1961 - ASSESSMENT - PROCESSING OF RETURNS FOR A.Ys. 2010-11 & 2011-12 GETTING TIME-BARRED ON 31-3-2013 ON ONLINE TMS IN ITD APPLICATION
The returns can be entered by AO having return of income, although the PAN is lying in some other jurisdiction.
The returns with PAN out of Jurisdiction, deleted PAN, PAN under de-duplication, PAN under restoration etc. can be processed on this System.
The AO having return of income can process returns till the command for integration of this data to AST is given by the jurisdictional AO. Once data has been integrated with AST, all future actions can be performed by the AO having PAN jurisdiction.
PAN under migration
PAN is deleted in de-duplication process
PAN is under de-duplication or restoration.
<>Clues for an independent Study:
Provided above is a synopsys of material requiring a conscious note to be made; these concern the ongoing deliberations re the TDS woes (or blues !), largely faced by inter alia the 'salaried' class , numbering lakhs, constituting a significant section of the honest taxpayers.
As one views it, the Delhi HC has fairly gone into and insightfully dealt with the enormity of the injustice the deductees have been involuntarily confronted with, thanks to the nationwide electronic network (computerization) and the CPC set up. However, if critically studied, it appears that, the mess up of the TDS regime as spoken of and covered in the court verdict is primarily attributable to a fatal mistake made by the tax administration in using the CPC for processing of, not only the e'filed returns, but also the manually filed returns with no 26 AS online. In one's conviction, in doing so, the scheme of the applicable newly introduced new provisions for accomplishing the computerised system of tax administration in the realm of TDS regime have been unethically departed from, unwittingly or otherwise.
More importantly, it is noteworthy, in the proceedings before the HC, one very vital and clinching aspect that ought to have been raised and dealt with, but as is observed, has been strikingly over sighted. That has some thing to do with the implications of, bsides section 200A, the ageold mandate in section 205.
It is observed that,the article of Delhi CA, Muralidharan publ-ished in BL, besides in the HC Order, those areas hinted out above, albeit being of every relevance, do not seem to have been focussed on or dwelt upon.
Hence, it might be worthwhile to have a useful interaction, aimed at an intelligent deliberation and incisive introspection, in an attempt for having one's own independent thoughts shared and clarified for the benefit of the harassed deductees at their wits' end.
Other Cir. >>>