BL
A. SESHAN Monetary policy for the aam aadmi The RBI should assess inflation on the basis of consumer rather than wholesale prices. »
".....the difficult task of choosing between growth and price stability."
Aam aadhmi is sure to have been left extremely bewildered ! He is reminded of a street dog foolishly gyrating in a never successful attempt to bite a flea (fly!) sitting pretty on its own tail-end,- kind of a vicious circle!
Point worth pondering : Is it not the very same 'growth', patently of a cancerous type largely being experienced, in the ultimate analysis, directly responsible for the adverse impact and impairment of the ideology of ‘price stability’ , despite being stressed and aspired for, day-in and day-out, unwittingly or otherwise, by the so called experts- let alone the rest be they the commonly come-across literates or illiterates, not excluding the neo modern day wonders - illiterate literates? (Sorry for ‘NO’ BREAK!)
Amendment by Lok Sabha to Finance Bill, 2013SG
Posted: 29 Apr 2013 08:32 PM PDT
Import of challan file (.csi file): Import of challan file downloaded from the TIN website (Challan Status Inquiry) has been made mandatory at the time of validating the quarterly TDS/TCS statement, if the TDS/TCS is deposited through challan. This will be applicable in case of regular statement...
Taxmann
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Tuesday, April 30, 2013
BL >"Aam Aadmi yet again remembered ! Taxmann > 'Finance Bill 2003- Changes, et al !
Monday, April 29, 2013
ICL - After LLP, one more like novel idea, proposed and waiting for enactment >>
Update
TG
One Person Company – a still-born, half-baked concept?
<> Sporadic:
OPC, for obvious reasons, makes a non-sense of not just one but more than one basic concept, historically known, followed and for a good measure, accepted under the law on corporate. Ostensibly,the brain(s) behind the half-baked idea has chosen to take cues from and mostly been influenced by the extant practice in place across borders.It is an attempt which by any 'logic' is deplorable. To bring about and give a statutory recognition and acceptance to such a drastic and violent conceptual change, making a mockery of the age-old concepts of 'company', 'shareholder', so on, are certain to robbing them of the underlying fundamentals. To be precise, there is a contradiction in terms to call a sole owner a holder of 'SHARE' (-literally and grammatically implying a second person, to share with, not a sole and lone absolute owner).
While there has been globally a cry, a loud and unmistakably hoarse one, for 'governance' , that too with 'good' for an ideological prefix, particularly in relation to the affairs of the corporate world, it is incomprehensible , rather unintelligible, why the masters of the novel idea first of all even happened to conceive of such an idea. And done so, knowing fully well that it could only spell disaster, impacting the valuable rights and interests of the public at large; that is, those who would be fated to have any dealing with such a OPC, if it were to be born /take off.
(unedited- left to right minded experts to do so, then deliberate in-depth and at least share with the concerned rest for the common welfare)
Perceptibly, the write-up is one-sided . In that, it has thrown up certain plus and minus points of concern, but only from the viewpoint of a person already engaged or a new business enterprise; and on as to whether OPC would find favour as a preferred choice of a form of entity for carrying on any trade or business. In other words, the other side of the coin- namely, the more important aspect of its advantages or otherwise, or shortcomings, from the viewpoint of the persons at large who may have dealings with it has been oversighted, not even touched upon.
The considerations coming into play wrt dealings with a LLP , another form of entity mooted not long ago, again a concept likewise imported from abroad, but already given statutory recognition and in place for some time now. would, in many respects,be no different but be of equal relevance and application to this yet another latest novelty i.e. OPC .
For a critique, one may read the two published articles -
TG
One Person Company – a still-born, half-baked concept?
<> Sporadic:
OPC, for obvious reasons, makes a non-sense of not just one but more than one basic concept, historically known, followed and for a good measure, accepted under the law on corporate. Ostensibly,the brain(s) behind the half-baked idea has chosen to take cues from and mostly been influenced by the extant practice in place across borders.It is an attempt which by any 'logic' is deplorable. To bring about and give a statutory recognition and acceptance to such a drastic and violent conceptual change, making a mockery of the age-old concepts of 'company', 'shareholder', so on, are certain to robbing them of the underlying fundamentals. To be precise, there is a contradiction in terms to call a sole owner a holder of 'SHARE' (-literally and grammatically implying a second person, to share with, not a sole and lone absolute owner).
While there has been globally a cry, a loud and unmistakably hoarse one, for 'governance' , that too with 'good' for an ideological prefix, particularly in relation to the affairs of the corporate world, it is incomprehensible , rather unintelligible, why the masters of the novel idea first of all even happened to conceive of such an idea. And done so, knowing fully well that it could only spell disaster, impacting the valuable rights and interests of the public at large; that is, those who would be fated to have any dealing with such a OPC, if it were to be born /take off.
(unedited- left to right minded experts to do so, then deliberate in-depth and at least share with the concerned rest for the common welfare)
Perceptibly, the write-up is one-sided . In that, it has thrown up certain plus and minus points of concern, but only from the viewpoint of a person already engaged or a new business enterprise; and on as to whether OPC would find favour as a preferred choice of a form of entity for carrying on any trade or business. In other words, the other side of the coin- namely, the more important aspect of its advantages or otherwise, or shortcomings, from the viewpoint of the persons at large who may have dealings with it has been oversighted, not even touched upon.
The considerations coming into play wrt dealings with a LLP , another form of entity mooted not long ago, again a concept likewise imported from abroad, but already given statutory recognition and in place for some time now. would, in many respects,be no different but be of equal relevance and application to this yet another latest novelty i.e. OPC .
For a critique, one may read the two published articles -
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Published (as modified): The write-up has thrown up certain plus and minus points of concern, but from the viewpoint of a person already engaged in, or a new, business enterprise; and focusing on as to whether OPC would find favour as a preferred choice of a form of entity for carrying on any trade or business. In other words, the other side of the coin- namely, the more important aspect of its advantages or otherwise, or shortcomings, from a societal angle,- i.e. from the viewpoint of the persons at large who may have dealings with it -has to be necessarily not lost sight of. What requires to be specially noted is that, the same considerations coming into play, wrt dealings with a LLP , another form of entity mooted not long ago, again a concept likewise imported from abroad, but already given statutory recognition, rightly or wrongly, and in place for some time now. would, in many respects, be no different but be of equal relevance and application to this yet another latest novelty of OPC . For a critique, one may read the two published articles on - LIMITED LIABILITY PARTNERSHIP - (2005)128 Comp.Cas1 - (2006) 65 SCL 42 Another article,- INVESTOR PROTECTION, A MYTH, (2005) (3) KLJ 17 brings to bear serious disadvantages and exposure to high risks of a similar nature in case of having a contract agreement with a partnership firm, e.g. realty sector chosen for commonly known reasons. | |||||||||||||||||||||||||||||||||||||||||
Saturday, April 27, 2013
ICL Banking related topic !
27 Apr 2013
<>Second Para -which is the third of the 3 classes referred to ?- unless 'interest' spoken of under 'honour fee'is a class by itself?
In this context, one remembers to have come across instances in which an overdraft facility-which is normally granted for 'working capital', also on the condition that all business receipts /collections should routed through the same overdraft account-being misused. Say,used for an extraneous or unauthorized purpose- e.g. investment in tax free bonds; despite banks being supposed to keep monitoring closely such accounts. What the law/case law says, or practice is ?- in other words, will the consequence be a mere 'penalty' or withdrawal and revocation once for all of the facility itself ?
A closer study of such intricate facets by law experts may be worth an attempt.
<>Second Para -which is the third of the 3 classes referred to ?- unless 'interest' spoken of under 'honour fee'is a class by itself?
In this context, one remembers to have come across instances in which an overdraft facility-which is normally granted for 'working capital', also on the condition that all business receipts /collections should routed through the same overdraft account-being misused. Say,used for an extraneous or unauthorized purpose- e.g. investment in tax free bonds; despite banks being supposed to keep monitoring closely such accounts. What the law/case law says, or practice is ?- in other words, will the consequence be a mere 'penalty' or withdrawal and revocation once for all of the facility itself ?
A closer study of such intricate facets by law experts may be worth an attempt.
Going by one's limited knowledge /understanding, the concept of 'equity' is simply as old as the 'common law'. And in a manner of speaking , equity itself is a common law doctrine evolved later, not separate or identifiable by any clear line of demarcation. Should that be so, some of the observations made wprt the Australian case law will require a further study in proper light and with due focus.
In the public domain, one finds any number of useful material; for instance,- @http://www.britannica.com/EBchecked/topic/128386/common-law/40227/Bracton-and-the-influence-of-Roman-law#toc40229
CD -World is of what shape ?
Everything Is Rigged: The Biggest Price-Fixing Scandal Ever
The Illuminati were amateurs. The second huge financial scandal of the year reveals the real international conspiracy: There's no price the big banks can't fix
vswami
Friday, April 26, 2013
SG Piara Singh still haunting ->>Vodafone and Like Cases - Not Yet out of the Woods !
itatonline
on TP
Hon’ble Dr. Justice Vineet Kothari, Judge, Rajasthan High Court
The question whether the TPO is entitled to rely on secret comparables whilst determining the ALP of an international transaction has been the subject matter of great controversy. The learned Judge, who is also a qualified CA and CS, has carefully analyzed the entire law on the subject and explained it with great clarity. He has also provided perspective on the proper procedure that the TPO has to follow while determining the ALP
Seems worth a study !
<><>
<><>
Even on a first reading, one is left with a genuine impression that the study is quite a painstaking analysis by an eminent person of his stature; hence, a must- not merely a read, but a careful and purposeful one – for all interested alike. The purpose must be to try and understand that TP is an area replete with nothing but unscientific principles to go by, hence requiring such an ideally appropriate outlook and approach, in order to strive and most intelligently decide on a pragmatic application of the ‘most appropriate method’ – in the sense that would have , of course again expectantly, the least scope for any more further controversy, once such an uniformly satisfactory and acceptable decision , be it for or against either contesting party, is taken in a given case.
Intentionally a long winding comment attempted-in the hope of driving home the point that how complex and taxing the branch of law i.e. TP has proved thus far; and most likely to continue to prove, to infinity/eternity.
Intentionally a long winding comment attempted-in the hope of driving home the point that how complex and taxing the branch of law i.e. TP has proved thus far; and most likely to continue to prove, to infinity/eternity.
With the same breath, in an attempt to add spice (with borrowed thoughts from NAP):
Over the decades gone by, no denying that, tax evasion has been the national sport, nay international pastime. The poser eluding a righteous answer for too long to brush aside, however, is- is it not high time now, if not before, the law makers wake up and realize,- so as to change the course (by way of rationalizing and moderating policies, formulations, prescriptions, so on), – that when the law comes into conflict with the basic forces of human nature, especially if it is undeniably riddled with complicity / complexities of such a nature- as say, TP law, – the law is engaged in a losing battle.
Tax evasion has come to stay as a worldwide phenomenon. No country is known to have been able to eradicate the evil. In the quoted words of Lord Denning, ” No one would wish that any of those who defraud the Revenue should go free. They be found out and brought to justice. But it is fundamental in our law that the means which are adopted to this end should be lawful means. A good end does not justify a bad means...."
In the context herein, the point for consideration and serious deliberation by eminent law men is, – whether the numerous regulatory rules in place could be rightly regarded as the foolproof means which do not offend against the very basic principles of commercial practice, not judging or being influenced necessarily by so called ‘ideologies’.
Over to those law / tax experts, however in minority be, for further impartial thoughts- who, in principle, are convinced that prolonged but inconclusive litigation ought to be avoided or obviated at any cost, keeping in mind that ‘litigation’ has come to increasingly prove a major cause of drain on human faculties, time and energy, – besides its inherent potential to breed the most dreaded of all evils- viz ‘corruption’, hence requiring to be eschewed in the larger public interests.
Over the decades gone by, no denying that, tax evasion has been the national sport, nay international pastime. The poser eluding a righteous answer for too long to brush aside, however, is- is it not high time now, if not before, the law makers wake up and realize,- so as to change the course (by way of rationalizing and moderating policies, formulations, prescriptions, so on), – that when the law comes into conflict with the basic forces of human nature, especially if it is undeniably riddled with complicity / complexities of such a nature- as say, TP law, – the law is engaged in a losing battle.
Tax evasion has come to stay as a worldwide phenomenon. No country is known to have been able to eradicate the evil. In the quoted words of Lord Denning, ” No one would wish that any of those who defraud the Revenue should go free. They be found out and brought to justice. But it is fundamental in our law that the means which are adopted to this end should be lawful means. A good end does not justify a bad means...."
In the context herein, the point for consideration and serious deliberation by eminent law men is, – whether the numerous regulatory rules in place could be rightly regarded as the foolproof means which do not offend against the very basic principles of commercial practice, not judging or being influenced necessarily by so called ‘ideologies’.
Over to those law / tax experts, however in minority be, for further impartial thoughts- who, in principle, are convinced that prolonged but inconclusive litigation ought to be avoided or obviated at any cost, keeping in mind that ‘litigation’ has come to increasingly prove a major cause of drain on human faculties, time and energy, – besides its inherent potential to breed the most dreaded of all evils- viz ‘corruption’, hence requiring to be eschewed in the larger public interests.
<previous
SG
On a reading of the tribunal's order, one is left with an indelible impression that the arguments on assessee’s behalf, so also the discussion, and conclusions reached, have gone on merrily on the dotted lines as on prior occasions, - on the beaten track so to say- as laid by case law, with origin traced back to the historically leading Piara singh's case.
One of the aspects which, however, attracts special attention is the finding of fact by the Customs, as upheld by the CEGAT (also, not disturbed by the HC). That is to the effect that the assessee’s claim to have purchased silver from 18 NRIs was not proved hence not accepted, leading to seizure of the confiscated commodity. Al beit, that is not readily reconcilable by one, with the observation of / view taken by the itat that “the stock of silver under consideration was very much a part of the stock shown in the regular books of account” ; and “therefore, no addition is possible under s. 69/69C of the Act. “
One of the aspects which, however, attracts special attention is the finding of fact by the Customs, as upheld by the CEGAT (also, not disturbed by the HC). That is to the effect that the assessee’s claim to have purchased silver from 18 NRIs was not proved hence not accepted, leading to seizure of the confiscated commodity. Al beit, that is not readily reconcilable by one, with the observation of / view taken by the itat that “the stock of silver under consideration was very much a part of the stock shown in the regular books of account” ; and “therefore, no addition is possible under s. 69/69C of the Act. “
Be that as it may, some of the finer points with regard to the entire scheme of related provisions i.e. of sections 69, 69A, 69B and 69C came to be lucidly explained but in a different light by the High court of Gujarat in Fakir Mohmed Haji Hasan,s case (2002) 120 Taxman 11. That case is not seen to have been even cited or relied on by the Revenue in the instant case. For a detailed analysis and elucidation of those points, refer the published article – (2006) 156 Taxman 121 (also be read, - (2007) 160 Taxman 145)
<previous
Share valuation: MNCs feel the heat of transfer pricing orders
Vodafone, too, files writ petition in Bombay HC »
Sporadic Reactions:
The write-up is somewhat unintelligible to a non-expert. The basic point of contest, as stated, is, - whether share subscriptions, being capital receipts could at all be regarded as covered under transfer pricing rules.
One’s guess is that, intended reference must be to a case of shares ‘transfer’, not shares ’subscriptions’, - which is the anterior stage simply involving ‘allotment’ hence no ‘transfer’- by any sound logic or sane reasoning.
Again, to one’s understanding, the ‘Tolerance Band’ spoken of could , in any case, be of relevance and application to Vodafone and other like cases, provided the final ruling /verdict on the mentioned basic proposition /issue eventually turns out to be against .
For elucidation, over to the Experts at large!
Wednesday, April 24, 2013
ICL top-up - good faith?TG ; itatonline - harassment of taxpayers ! ;Taxmann RENT ? concept explained !, et al
Top-Up
ICS
On concept of 'Good Faith' -?!
One more feather to the 'cap'; not a jewel to the crown !
Delay caused due to administrative mechanism of Government not condonable
April 26, 2013
The excuse /explanation given by the concerned tax authority for such a long delay of over 3 years is bound to go down in the history of tax administration as a monumental blunder of all times. By paradoxically attributing it to so called ‘administrative mechanism’ there has been a tacit admission , rather self betrayal, of the gross in-built deficiencies or systemic failure in the tax administration.
That such delays continue to occur, with no let-up, despite the warnings and directions of the courts, so also of the higher ups –in the department and the ministry, -bear testimony to the fact that the officers entrusted with the duty of timely filing of such petitions (also appeals) have nothing but scant respect to what the law requires even in such simple matters . Notwithstanding that, as has been in the instant case, such delays, having no reasonable cause, entail costly consequences to the Revenue; an irreparable / irretrievable loss to the exchequer.
According to a view, perhaps, the only solution/resort to put an end to the recurrence of such uncouth events would be for the courts to fix the personal responsibility of compensating for the loss to the Treasury, on the guilty officer (s). Another strong reason, – even small delays in the filing process itself , in turn, go to add up and heavily contribute to delayed administration of justice.
On the inordinate delays in the administration of justice prevailing for long, Nani A Palkhivala, an eminent and erudite scholor-lawyer of our times, said, with a mild but sharp touch of sarcasm:
“… We as a nation have some fine qualities, but a sense of the value of time is not one of them. Perhaps there are historical reasons for our relaxed attitude to time. Ancient India had evolved the concepts of eternity and infinity. So what do ..years, wasted in a litigation, matter against the backdrop of eternity? Further, we believe in reincarnation. What does it matter if you waste this life? You will have many more lives in which to make good.”
(Source: “WE, the Nation THE LOST DECADES”)
itatonlne>
Another Story unfolded !
Vijay Prakash Agrawal vs. CIT (Allahabad High Court)
The observations of the court in the instant case, just as in a series of reported cases of the kind , especially in recent times, are, from the viewpoint of the taxpaying community, required to be read and understood in proper light. For such purpose, it is not but imperative to keep focused on the inescapable but glaringly obtaining supervening realities.
The law on income-tax is just one of the many; besides and same way as on any other subject , of every concern to the ‘subjects’ (the people). Lately, the judiciary has, by way of meeting the crying need of the hour, rather to say in modern terms, - exhibiting sense of judicial activism , (that is, its courage of conviction), off and on, more often than ever before, been compelled to, without mincing words, pinpoint the ongoing worrisome irregularities, in the implementation and administration of the tax law, strictly both in its letter and spirit. Some of the recently reported cases have brought to surface the alarmingly growing actual factuality that the lower authorities have been acting in blatant disregard of the specific directions, advice, so on, of their own superiors; unwittingly or otherwise, without hardly realising that such a conduct is , besides being a dereliction of duty (ies) , is tantamount to ‘insubordination’ of a grave and serious nature /highest order. The recently reported Delhi HC Order on a closely related topic (TDS Woes /Blues) (Ref. HC issued guidelines to end TDS credit & refund adjustment harassment of Assessee by CPU (a rare instance of court actiing in exercise of ts epistolary jurisdiction) ; also, the article @ Take up TDS problems with deductors, Delhi High Court tells taxmen ) is clarificatory and revealing enough to import the message/moral of the story!
The detailed Order, it may be noted, bears on its sleeves the unfortunate scenario; the harsh indisputable fact that both the AOs and the in-charges of CPC, not to speak of others to be blamed, have not taken seriously even the court’s ‘diktats’ (in the form of ‘mandamus’), thereby holding themselves out as directly responsible for the varying types of hardships and harassment meted out to the taxpayers; including the salaried class, who by any yardstick, could only be regarded to have invariably been honest ; in comparison, more so than any other category.
As rightly remarked by the court in the instant case, -“Time has come for the heads of the departments to keep a strict vigil on such shirkers and to fix their responsibility”. One is tempted to add that, the quoted words of caution are necessarily to be regarded as primarily addressed to the CBDT, it being the highest empowered executive authority, in control and hence ultimately responsible or entitled to commends, for a profoundly proper administration and implementation of the law, of which it is a creature, and, as such, answerable to every action or inaction of its subordinates, which is not strictly within the frame work, or runs counter to the mandates, of the law.
One has remained wondering for long, why certain provisions of the Act namely, section 293 and section 280, though pushed to the tail end/ an obscure corner of the enactment, have remained to be even looked at , much less the objective and implications thereof, obvious or hidden, to be explored and invoked as appropriate in a given case. To put it differently, it has been one’s longstanding conviction that , those provisions being very much part and parcel of the Act itself, if construed in the true spirit, do seem to hold the effective but ultimate solution to improving upon the largely prevailing deplorable state of affairs. This is an aspect which might be worth exploring by, not barring the Government / Revenue, by the so called advising tax experts and their aggrieved hapless clientele, alike. The individual viewpoints on this unique vital aspect as brought out in the published article, – (2008) 169 Taxmann (journal) 14-21 (para 2.1), may be of help for a grass root grip of the whole matter.
(Above being one’s own sporadic thoughts/reactions, still shared, are open to be edited by experts having field exposure/hand-on experience!)
< Honest tax-payer should not be subjected to unnecessary harassment – HC
Should the ongoing battle (turned war!) of wits be perceived insightfully and analysed incisively, it will be realised that the instant court case, so also several related others recently reported/narrated (one of them being – “HC issued guidelines to end TDS credit & refund adjustment harassment of Assessee by CPU”) go to succinctly bear out a basic fallacy; in that, by any logic or sound reasoning,to project it as case (s) of ‘harassment’ is too mild a description to qualify as a fitting reprimand or reproach in the eyes of even the common law and in the context of principles of natural justice. For, these are clearly instances, where a ‘public servant’, actng in disregard or disobedience of, or failing to act strictly according to, the diktats (mandates) of the law, so also the repeated judicial pronouncements, departmental directives and binding instructions,so on.To be precise,if strictly viewed, it is, indisputably, tantamount to disobedoience or insubordination of the gravest kind /venial order, by any standard unexpected of a ‘public servant’; so grave that he cannot be regarded to qualify and avail of the otherwise possible defence namely,-as anything done ‘in good faith’ or ‘intended to be done under this Act’, -as envisaged by the law (in particular, in section 293 of the Act). If that be the right, nay righteous, premise, then all the lawful consequences must unquestionably follow.
Key Note: Deliberately left open to be commented/elaborated, after a devoted study and intellligent deliberation, by right minded experts at large; also to sincerely take on, for the common good,the confronting problems with an impartial but multidimentional approach, have a free and frank discussion with the people in governance, to the end of a lasting solution.
For a few thoughts on the facets hinted at above, one may refer the published article- (2008) 169 Taxmann (journal) 14-21 (para 2.1); which may be of help for having a grass root grip of the whole matter.
ICS
On concept of 'Good Faith' -?!
Good faith in Contract Law >> WHAT about its implications/significance under a STATUTE?!
25 Apr 2013
IMPROMPTU (intent to provoke more thoughts)
"..English contract law does not recognise a general duty of good faith......"
May be so, but with all those usually trailing "ifs and buts" ; perhaps, even under the Indian contract law. Provided that, one is concerned with a contract of the kind in which the impact/effect is confined to only the rights and interests of merely /solely the 2 parties to the contract agreement; And in one's conviction, however, certainly not of the kind involving the rights and interests of 'third' parties (e.g. stakeholders).
Incidentally, an interesting point, but for wrong reasons, has surfaced , centered on the very concept of 'good faith' in relation to performance of his duties by an officer under the I T Act; with partcular reference to his entitlement to claim immunity/protection from pesonal action against- ref. section 293 (may be, within the ambit of section 280 as well) .
If interested,attention is invited to the lately reported and discussed tax cases in which the lakhs of taxpayers' woes / grouses have come to be exposed, consequent upon the tax officers not acting strictly in accordance with but in violation /disregard/disobeyance of the mandates of the law, so also of the mandamus issued by courts; in the result, causing hardships/harassment to lakhs of taxpayers, of such a magnitude as never ever heard of before.
To get a glimpse, one may begin with a reading of the court case in front line @Taxguru, titled - "HC issued guidelines to end TDS credit & refund adjustment harassment of Assessee by CPU" ; and the BL article @ "Take up TDS problems with deductors, Delhi High Court tells taxmen" as well.
For more, suggest to read individual's viewpoints aired through the related blogs @ swamilook.
TGIMPROMPTU (intent to provoke more thoughts)
"..English contract law does not recognise a general duty of good faith......"
May be so, but with all those usually trailing "ifs and buts" ; perhaps, even under the Indian contract law. Provided that, one is concerned with a contract of the kind in which the impact/effect is confined to only the rights and interests of merely /solely the 2 parties to the contract agreement; And in one's conviction, however, certainly not of the kind involving the rights and interests of 'third' parties (e.g. stakeholders).
Incidentally, an interesting point, but for wrong reasons, has surfaced , centered on the very concept of 'good faith' in relation to performance of his duties by an officer under the I T Act; with partcular reference to his entitlement to claim immunity/protection from pesonal action against- ref. section 293 (may be, within the ambit of section 280 as well) .
If interested,attention is invited to the lately reported and discussed tax cases in which the lakhs of taxpayers' woes / grouses have come to be exposed, consequent upon the tax officers not acting strictly in accordance with but in violation /disregard/disobeyance of the mandates of the law, so also of the mandamus issued by courts; in the result, causing hardships/harassment to lakhs of taxpayers, of such a magnitude as never ever heard of before.
To get a glimpse, one may begin with a reading of the court case in front line @Taxguru, titled - "HC issued guidelines to end TDS credit & refund adjustment harassment of Assessee by CPU" ; and the BL article @ "Take up TDS problems with deductors, Delhi High Court tells taxmen" as well.
For more, suggest to read individual's viewpoints aired through the related blogs @ swamilook.
One more feather to the 'cap'; not a jewel to the crown !
Delay caused due to administrative mechanism of Government not condonable
April 26, 2013
The excuse /explanation given by the concerned tax authority for such a long delay of over 3 years is bound to go down in the history of tax administration as a monumental blunder of all times. By paradoxically attributing it to so called ‘administrative mechanism’ there has been a tacit admission , rather self betrayal, of the gross in-built deficiencies or systemic failure in the tax administration.
That such delays continue to occur, with no let-up, despite the warnings and directions of the courts, so also of the higher ups –in the department and the ministry, -bear testimony to the fact that the officers entrusted with the duty of timely filing of such petitions (also appeals) have nothing but scant respect to what the law requires even in such simple matters . Notwithstanding that, as has been in the instant case, such delays, having no reasonable cause, entail costly consequences to the Revenue; an irreparable / irretrievable loss to the exchequer.
According to a view, perhaps, the only solution/resort to put an end to the recurrence of such uncouth events would be for the courts to fix the personal responsibility of compensating for the loss to the Treasury, on the guilty officer (s). Another strong reason, – even small delays in the filing process itself , in turn, go to add up and heavily contribute to delayed administration of justice.
On the inordinate delays in the administration of justice prevailing for long, Nani A Palkhivala, an eminent and erudite scholor-lawyer of our times, said, with a mild but sharp touch of sarcasm:
“… We as a nation have some fine qualities, but a sense of the value of time is not one of them. Perhaps there are historical reasons for our relaxed attitude to time. Ancient India had evolved the concepts of eternity and infinity. So what do ..years, wasted in a litigation, matter against the backdrop of eternity? Further, we believe in reincarnation. What does it matter if you waste this life? You will have many more lives in which to make good.”
(Source: “WE, the Nation THE LOST DECADES”)
itatonlne>
Another Story unfolded !
Vijay Prakash Agrawal vs. CIT (Allahabad High Court)
The observations of the court in the instant case, just as in a series of reported cases of the kind , especially in recent times, are, from the viewpoint of the taxpaying community, required to be read and understood in proper light. For such purpose, it is not but imperative to keep focused on the inescapable but glaringly obtaining supervening realities.
The law on income-tax is just one of the many; besides and same way as on any other subject , of every concern to the ‘subjects’ (the people). Lately, the judiciary has, by way of meeting the crying need of the hour, rather to say in modern terms, - exhibiting sense of judicial activism , (that is, its courage of conviction), off and on, more often than ever before, been compelled to, without mincing words, pinpoint the ongoing worrisome irregularities, in the implementation and administration of the tax law, strictly both in its letter and spirit. Some of the recently reported cases have brought to surface the alarmingly growing actual factuality that the lower authorities have been acting in blatant disregard of the specific directions, advice, so on, of their own superiors; unwittingly or otherwise, without hardly realising that such a conduct is , besides being a dereliction of duty (ies) , is tantamount to ‘insubordination’ of a grave and serious nature /highest order. The recently reported Delhi HC Order on a closely related topic (TDS Woes /Blues) (Ref. HC issued guidelines to end TDS credit & refund adjustment harassment of Assessee by CPU (a rare instance of court actiing in exercise of ts epistolary jurisdiction) ; also, the article @ Take up TDS problems with deductors, Delhi High Court tells taxmen ) is clarificatory and revealing enough to import the message/moral of the story!
The detailed Order, it may be noted, bears on its sleeves the unfortunate scenario; the harsh indisputable fact that both the AOs and the in-charges of CPC, not to speak of others to be blamed, have not taken seriously even the court’s ‘diktats’ (in the form of ‘mandamus’), thereby holding themselves out as directly responsible for the varying types of hardships and harassment meted out to the taxpayers; including the salaried class, who by any yardstick, could only be regarded to have invariably been honest ; in comparison, more so than any other category.
As rightly remarked by the court in the instant case, -“Time has come for the heads of the departments to keep a strict vigil on such shirkers and to fix their responsibility”. One is tempted to add that, the quoted words of caution are necessarily to be regarded as primarily addressed to the CBDT, it being the highest empowered executive authority, in control and hence ultimately responsible or entitled to commends, for a profoundly proper administration and implementation of the law, of which it is a creature, and, as such, answerable to every action or inaction of its subordinates, which is not strictly within the frame work, or runs counter to the mandates, of the law.
One has remained wondering for long, why certain provisions of the Act namely, section 293 and section 280, though pushed to the tail end/ an obscure corner of the enactment, have remained to be even looked at , much less the objective and implications thereof, obvious or hidden, to be explored and invoked as appropriate in a given case. To put it differently, it has been one’s longstanding conviction that , those provisions being very much part and parcel of the Act itself, if construed in the true spirit, do seem to hold the effective but ultimate solution to improving upon the largely prevailing deplorable state of affairs. This is an aspect which might be worth exploring by, not barring the Government / Revenue, by the so called advising tax experts and their aggrieved hapless clientele, alike. The individual viewpoints on this unique vital aspect as brought out in the published article, – (2008) 169 Taxmann (journal) 14-21 (para 2.1), may be of help for a grass root grip of the whole matter.
(Above being one’s own sporadic thoughts/reactions, still shared, are open to be edited by experts having field exposure/hand-on experience!)
< Honest tax-payer should not be subjected to unnecessary harassment – HC
Should the ongoing battle (turned war!) of wits be perceived insightfully and analysed incisively, it will be realised that the instant court case, so also several related others recently reported/narrated (one of them being – “HC issued guidelines to end TDS credit & refund adjustment harassment of Assessee by CPU”) go to succinctly bear out a basic fallacy; in that, by any logic or sound reasoning,to project it as case (s) of ‘harassment’ is too mild a description to qualify as a fitting reprimand or reproach in the eyes of even the common law and in the context of principles of natural justice. For, these are clearly instances, where a ‘public servant’, actng in disregard or disobedience of, or failing to act strictly according to, the diktats (mandates) of the law, so also the repeated judicial pronouncements, departmental directives and binding instructions,so on.To be precise,if strictly viewed, it is, indisputably, tantamount to disobedoience or insubordination of the gravest kind /venial order, by any standard unexpected of a ‘public servant’; so grave that he cannot be regarded to qualify and avail of the otherwise possible defence namely,-as anything done ‘in good faith’ or ‘intended to be done under this Act’, -as envisaged by the law (in particular, in section 293 of the Act). If that be the right, nay righteous, premise, then all the lawful consequences must unquestionably follow.
Key Note: Deliberately left open to be commented/elaborated, after a devoted study and intellligent deliberation, by right minded experts at large; also to sincerely take on, for the common good,the confronting problems with an impartial but multidimentional approach, have a free and frank discussion with the people in governance, to the end of a lasting solution.
For a few thoughts on the facets hinted at above, one may refer the published article- (2008) 169 Taxmann (journal) 14-21 (para 2.1); which may be of help for having a grass root grip of the whole matter.
Passing On To >
Taxmann
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Tuesday, April 23, 2013
BL Today >bsr, et al
Applying peer pressure against graft
Not one Association or Union of public servants has come out with an unequivocal condemnation of corruption. »
EDITORIAL
Case of oversight
‘Contagion’ risk in the financial services industry is not just about operational failure of one entity spreading to others but bad reputation as well. »
Monday, April 22, 2013
TOI - Lok Sabha' s abysmal 'turn over' ... ! BL @ Parliament - Normalcy X Ab..
Top-up
TOI
Present Lok Sabha could be the least productive in history
click here.
This has come closely on the heels of the just days old media report: PM appeals to Opposition to allow Parliament function normally !
Mrs Grundy is aghast, rather extremely perturbed and perplexed; wonderingly asks (with a different stroke): Has it EVER been any different ; adding,-especially should the measure of 'productivity' were to be 'qualitative', not quantitative' ?!
< previous
TOI
Present Lok Sabha could be the least productive in history
click here.
This has come closely on the heels of the just days old media report: PM appeals to Opposition to allow Parliament function normally !
Mrs Grundy is aghast, rather extremely perturbed and perplexed; wonderingly asks (with a different stroke): Has it EVER been any different ; adding,-especially should the measure of 'productivity' were to be 'qualitative', not quantitative' ?!
< previous
PM appeals to Opposition to allow Parliament function normally
"Prime Minister Manmohan Singh has expressed his Government’s intention to reach out to the Opposition on key legislations scheduled to be taken up for approval in Parliament, which... »
It all sounds, even to the lowliest of common men, prima facie ridiculous. It is a tragedy that the Nation has been gradually and increasingly veering round to reach such a stage. A stage in which their own chosen heads of the governments and of the legislative bodies (the speakers) have had to keep on reminding endlessly, to make ‘eternity’ intelligible, about the ideal concept of 'normalcy' in the functioning of legislative bodies.. And as to why, in the larger interests of the nation (to be precise, the people who have elected them and supposedly represent), it is imperative for them, selves being the makers of the 'laws' , ought to eschew the diagonally opposite unlawful trait of - 'abnormality' in every respect, particularly in its functioning.
Independent judiciary and interest groups
Impromptu>
To remorsefully recall, Nani Palkhivala, a truly great legal luminary and a devout expert on Constitutional Law said:
“The Constitution is not a structure of fossils like a coral reef and is not merely to enable politicians to play their unending game of power. It is meant to hold the country together when the raucous and fictitious voices of today are lost in the silence of the centuries.”
May be worthwhile to add: It might no longer be apt to call it a ‘game’; instead of, quite fittingly, calling it a ‘gamble’ (of power)-which, in any case, after all, is the supervening and dominant ORDER of the day.
The other aspect of equal relevance and societal importance touched upon, rightly so, has impliedly underlined the need of the hour, for a proactive judiciary, in order to fill in the gaping void in the realm of justice. In support, the recent Delhi High Court Order in the tax case (refer the report @the Link -HC issued guidelines to end TDS credit & refund adjustment harassment of Assessee by CPU ; also the article @ Take up TDS problems with deductors, Delhi High Court tells taxmen) is noteworthy.
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