CERTIFIED COPIES OF ORDER SHEETS AND SOME INCIDENTAL MATTERS ABOUT ADMINISTRATION:

[DEV KUMAR KOTHARI]

Order Sheets:

In the order sheet there is recording about notices issued to assessee/ taxpayer or other concerned parties, communication to and between assessee/ parties, details of hearings and other matters with which the assessee / concerned party  is directly concerned. Even a departmental communication between two or more authorities, in connection with assessment, penalty , appeal, revision , audit and any other proceedings against the assessee/ concerned party  are relevant to assessee. The order sheet is a very vital part of assessment records/ or record of other proceedings and it is also a very vital evidence concerning proceedings taken in relation to assessment, penalty, appeals, revision, refunds, rectification etc. The evidence in form of order sheet can be used by the A.O. as well as the assessee in any proceedings up to the stage of CBDT and Supreme Court.

Circular of the Board:

The circular of the Board dt. 28.06.1965 No. 17 (XL-36), provides for inspection fees and fees for certified copies of assessment and other records. This circular clears that the assessee or his A/R are entitled to inspect as well as obtain certified copies of assessment and other records records.

The circular also states that normally request for inspection or copies of assessment or other records  must be complied with  within three days of their receipt. In case of urgency the same must be complied on the same day on payment of double of normal fees as provided in the circular.

Relevant provisions of the Indian Evidence Act, 1872:

Section 35. Relevancy of entry in public record, made in performance of duty - An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.

 Section 74. Public documents

The following documents are Public documents-

(i) Documents forming the acts, or records of the acts

(a) Of the sovereign authority,

(ii) Of Official bodies and the Tribunals, and

(iii) Of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country.

1. Public records kept in any State of private documents.

Section  75. Private documents

All other documents are private.

Section 76. Certified copies of Public Documents

 Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officers with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.

Explanation - Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents or parts of the public documents of which they purport to be copies.

Application in relation to order sheets under tax laws:

In view of the above provisions of Indian Evidence Act  the order sheets are relevant evidence in connection with any assessment, penalty, appeal, revision, rectification or any other proceedings taken against assessee or concerned parties.

The order sheets are public documents within the meaning of S.74 of the Evidence Act as reproduced above.

Inspection and copy:

Inspection of order sheets can be made by assessee or his A/R. Therefore as per Evidence Act, certified copies need to be provided by the A.O. as and when a request is made by assessee. Assessee as a  party to proceedings have every right to inspect them and obtain copy of the same duly certified by the concerned officer as true copy of original record.

Rejections of application on flimsy grounds:

Recently it has been noticed that applications for certified copy are being rejected on flimsy grounds. For example, an application was rejected for want of payment of fees. This is wrong because the concerned officer has to give intimation for the fees payable and also provide a challan to enable the assessee to pay the fees.

In one case an application filed with paid challan for fees paid on estimated basis in view of urgency, the officer did not respond to the application for a considerable period. When another application ( as a reminder) was made, it was rejected for want of fees. When fact of fees already paid was brought to his notice he rejected application stating reason on lines that 'order sheets are made for interdepartmental purposes and cannot be provided to assessee'.

Thus we find that there is no consistency in the stand taken by the officer. When at first instance he rejected application for want of payment of fees, (though he did not notify the amount of fees and provided challan), his reason of rejection clearly implied that on payment of fees certified copies shall be provided.

Rejection may be considered as non-cooperation and harassment:

In view of the above discussion about provisions of the Evidence Act and also the circular of the Board it is clear that an  assessing officer must take immediate steps to notify fees payable and provide relevant challan to the assessee. Inspection and certified copies should be provided within three days from the furnishing of the evidence of payment of fees. In case the assessee require them on urgent basis, then he should make application on that basis and the A.O. should issue challan of double of normal fees on the same day and the assessee must be provided certified copies on the day on which evidence of payment of fees is provided. If the officer fails in these, it will amount to failure to perform duties properly and also will amount to disregard and disobeying instructions of the Board. Undoubtedly, so far the assessee is concerned he will definitely feel a strong pinch of non-cooperation as well as harassment by a public servant who acts as a master of public. 

Commitment to tax payers:

Instructions issued by the highest authority like concerned Board (e.g. CBDT, CBEC, Board of Revenue) to authorities which are in nature of commitments made by the Board or the Finance Ministry in Circulars or through websites and public announcements or in any other manner, to the tax payers in relation to  compliance of procedural instructions for convenience of tax payers, must be regarded as commitment to the public and must be complied with the concerned officers. However, it is noticed that in spite of clear instructions, many officers are found to defy them at many of the occasion. In many of the cases the assesses have to chase their applications and claim for refund if they want disposal. Otherwise their matters may be kept pending for a long time, at least till the limitation period, if any. We find several cases being heard and reheard but not disposed off, the reasons are not made known to the assessee for keeping maters pending. All these are not as per Boards Circulars and commitments made on the websites and in advertisement in form of Citizen's Charter etc.  

Taxpayer service review and audit:

Records and orders should be reviewed by senior officers. In fact an audit about failure of officers and office staff in non compliance of boards circular, policy decisions and binding judgments should be conducted by a specially trained audit party to conduct and submit a report entitled  " AUDIT REPORT ABOUT COMPLIANCE OF COMMITMENT AND SERVICE TO TAX PAYERS ".

The report on such matters should be furnished to concerned Chief commissioner and the Board. Any officer who do not comply with the instructions to authorities which are in nature of commitments made by the Board or the Finance Ministry in Circulars or through websites and public announcements or in any other manner   to the tax payers in relation to  compliance of procedural instructions for convenience of tax payers, must be charged for disobeying instructions and binding judgments, disobedience, failure in conduct as public servant, and delinquency and immediate suitable  action against erring officers must be taken.

The biggest advantage of a government servant is that his job, promotions and increments are almost secured. Even some repeated  adverse remarks in his annual confidential reports makes hardly any substantial impact on his carrier and growth.  The officers and staff  take fullest advantage of the same. They are 'public servants', but they consider themselves as master of public. If a complaint is made against them to their senior officers or in grievance cell, they find more reasons to harass the complainant. Experience shows that even a complaint against a peon or notice server may attract strong wrath of the entire office, including the officer. That is the reason that people prefer not to make complaint and are compelled to pay bribes in nature of speed money or fees for co-operation.  

High time to enforce public accountability:

In view of recent substantial increase in salary of government officers, it is high time to make them accountable to comply with the commitments to the public. Higher salary should be paid with more productivity and work efficiency and no corruption. But the situation is opposite. As usual higher the salary higher will be demand of bribes making it very difficult to get work done from public servants honestly.