INCOMETAX OMBUDSMAN GUIDELINES, 2010 - AN OVERVIEW

[Mr. M. GOVINDARAJAN]

INTRODUCTION:

Generally the Ombudsman scheme is introduced to redress the grievances at the earliest possible. The Income Tax Ombudsman Guidelines, 2010 ('guidelines' for short) are introduced with the objective of enabling the resolution of complaints relating to public grievances against the Income tax department and to facilitate the satisfaction or settlement of such complaints. The guidelines shall come into force from 01.05.2010. The guidelines contain V Chapters.

ESTABLISHMENT:

The Central Government may appoint one or more persons as Ombudsman on the recommendations of a Committee consisting of -

* the Secretary, Department of Revenue in the Ministry of Finance,

* the Chairman, Central Board of Direct Taxes; and

* the Member (Personnel), Central Board of Direct taxes.

The Ombudsman shall be a person who has held a post in the Government of India in the HAG scale of pay on regular basis for at least one year and shall preferably be a resident of the city where he/she is proposed to be appointed. He/she shall be a serving officer preferably of the Indian Revenue Service. If a suitable officer from the service is not available, officers of equivalent grade of any other Group A service of the Central Government may be appointed. The Officer, when appointed as Ombudsman, if he/she is still in service under the Government of India, shall seek retirement from Government service before entering upon the office as an Ombudsman.

The tenure of the Ombudsman shall be 2 years extendable by one year or till the incumbent attains the age of 63 years whichever is earlier based on performance appraisal as made by the Committee constituted above. There is no reappointment for them.           

JURISDICTION:

The Ombudsman shall be independent of the jurisdiction of the Income tax Department. The Central Government shall specify the territorial jurisdiction of such Ombudsman. The Offices of Income tax Ombudsman shall initially be located at New Delhi, Mumbai, Chennai, Kolkatta, Bangalore, Hyderabad, Ahmedabad, Pune, Lucknow, Bhopal and Kochi. The Government may notify additional locations and appoint an Ombudsman for each location.

COMPLAINTS:

Clause 9 provides that complaint may be filed on any of the following grounds alleging deficiency in the working of the Income Tax Department with the Ombudsman:

* delay in issue of refunds beyond time limits prescribed by law or under the relevant instructions issued from time to time by the Central Board of Direct Taxes;

* sending envelopes without refund vouchers in cases of refund;

* non adherence to the principle of 'First come first served' in sending refunds;

* non acknowledgement of letters or documents sent to the department;

* non updating of demand and other registers leading to harassment of assesses;

* lack of transparency in identifying cases for scrutiny and non communication of reasons for selecting the case for scrutiny;

* delay in disposing cases of interest waiver;

* delay in disposal of rectification applications;

* delay in giving effect to the appellate orders;

* delay in release of seized books of account and assets, after the proceedings under the Income Tax Act in respect of the years for which the books of account or other documents are relevant are completed;

* delay in allotment of permanent account number;

* non adherence to prescribed working hours by Income tax officials;

* unwarranted rude behavior of Income tax Officials with assesses;

* any other matter relating to violation of the administrative instructions and circulars issued by the Central Board of Direct Taxes in relation to Income Tax administration.

The Central Board of Direct Taxes may include any other ground on which a complaint may be filed with the Ombudsman.

POWERS AND DUTIES:

The Ombudsman shall have the powers as detailed below:

* to receive complaints from taxpayers on any matters specified in the above para;

* consider such complaints and facilitate their satisfaction or settlement by agreement, through conciliation and mediation between the Income tax Department and the aggrieved parties or by passing an 'award' in accordance with the Guidelines;

* require the income tax authority complained against or any other related income tax authority to provide any information or furnish certified copies of any document relating to the subject matter of the complaint which is alleged to be in its possession;

* in the event of failure of such authority to comply with the requisition without any sufficient cause, the Ombudsman may, if he deems fit, draw the inference that the information, if provided or copies if furnished, would be unfavorable to the concerned income tax authority;

* suggest remedial measure for redressal of grievances; and

* report his findings to the Secretary, Department of Revenue, Government of India and the Chairman, CBDT for appropriate action against erring officials.

The Ombudsman shall have the following duties:

* to exercise general powers of superintendence and control over his office and be responsible for the conduct of business in his office;

* to maintain confidentiality of any information or document coming into his knowledge or possession in the course of discharging his duties and not disclose such information or document to any person except with the consent of the person furnishing such information or document;

* to protect individual taxpayer's rights and reduce taxpayers' burden;

* to identify issues that increase the compliance burden or create problems for taxpayers, and to bring those issues to the attention of the CBDT and the Ministry of Finance;

* to send a monthly report to the Chairman, CBDT and Secretary, Department of Revenue in the Ministry of Finance recommending a appropriate action. The report shall specially highlight cases where action needs to be taken against erring income tax authorities for their failure to redress the grievance. The report will be accompanied with primary evidence needed to initiate action against the delinquent persons;

* to furnish a report every year containing a general review of activities of the office of the Ombudsman during the preceding financial year to the Secretary, Department of Revenue, Ministry of Finance and the Chairman, CBDT along with such other information as may be considered necessary by him. In the annual report, the Ombudsman, on the basis of grievances handled by him, will review the quality of the working of the Income tax Department and make recommendations to improve the tax administration; and

* to compile a list of 'awards' passed by it between April and March of each financial year in respect of every income tax authority complained against, by name, and report it to the controlling Chief Commissioners of the officers concerned and the Chairman, Central Board of Direct Taxes before the end of April.

PROCEDURE:

Any person, who has a grievance against the Income Tax Department, may, himself or through his authorized representative, make a complaint against the Income Tax official in writing to the Ombudsman. The term 'complaint' means a representation in writing or through electronic means containing and administrative grievance alleging deficiency in the working of the Income Tax Department as mentioned in Clause 9 of the guidelines.

The terms 'income tax authority complained against' means the junior most income tax officer not below the rank of an Income Tax Officer who has given the cause of grievance to the complainant. If the grievance has been caused by an official lower in rank than an Income tax Officer, then the term shall mean the officer in the rank of an Income tax officer who is in charge of the official.

No complaint to the Ombudsman shall lie unless:

* the complainant had, before making a complaint to the Ombudsman, made a written representation to the Income tax authority superior to the one complained against and either such authority had rejected the complaint or the complainant had not received any reply within a period of one month after such authority had received his representation or the complainant is not satisfied with the reply given to him by such authority;

* the complaint is made not later than one year after the complainant received the reply of the Department to his representation or, in case, where no reply is received, not later than one year and one month after the representation to the Income tax authority;

* the complaint is not in respect of the same subject matter which was settled through the Office of the Ombudsman in any previous proceedings whether or not received from the same complainant or along with any one or more complainants or any one or more of the parties concerned with the subject matter; and

* the complaint is not frivolous or vexatious in nature.

No complaint shall be made to the Income tax Ombudsman on an issue which has been or is the subject matter of any proceeding in an appeal, revision, reference or writ before any Income tax Authority or Appellate Authority or Tribunal or Court.

The procedure involved in filing the complaint is as follows:

* The complaint shall be duly signed by the complainant and his authorized representative, if any, and, shall state clearly the name and address of the complainant, the name of the office and official of the Income tax Department against whom the complaint is made, the facts giving rise to the complaint supported by documents, if any, relied on by the complainant and the relief sought from the Ombudsman;

* A complaint made through electronic means shall also be accepted by the Ombudsman and a print out of such complaint shall be taken on the record of Ombudsman;

* A printout of the complaint made through electronic means shall be signed by the complainant at the earliest possible opportunity before the Ombudsman take steps for conciliation or settlement;

* The signed printout shall be deemed to the complaint and it shall relate back to the date on which the complaint was made through electronic means;

* The Ombudsman shall not be bound by any legal rules of evidence and may follow such procedure that appears to him to be fair and proper. In short the proceedings before the Ombudsman shall be summary in nature.

* As soon as it may be applicable so to do, the Ombudsman shall cause a notice of the receipt of any complaint along with a copy of the complaint to be sent to the income tax authority complained against the try to promote a settlement of the complaint by agreement between the complainant and such authority through conciliation or mediation;

* The Ombudsman may follow such procedure as he may consider appropriate for the purpose of promoting a settlement of the complaint;

* If it is not settled by agreement within one month from the date of receipt of complaint or such further period as the Ombudsman may consider necessary, he may pass an award after affording the parties reasonable opportunity to present their cases.

* The Ombudsman shall be guided by the evidence placed before him by the parties, the principle of income tax law and practice, directions, instructions and guidelines issued by the Central Board of Direct Taxes or the Central Government from time to time and such other factors which in his opinion are necessary in the interest of justice.

AWARD:

The award shall be a speaking order consisting of the following components:

* Directions to the concerned income tax authority such as performance of its obligations like expediting delayed matters, giving reasons for decisions and issuing apology to complainants etc., except a direction affecting the quantum of tax assessment or imposition of penalties under the Income tax Act;

* A token compensation amount not exceeding Rs.1,000/- for the loss suffered by the complainant;

* Designation of the Income tax officer to whom the letter of acceptance of the award is to be communicated;

* A copy of the award shall be sent to the complainant and the income tax authority complained against;

* The award shall be binding on the income tax department and on the complainant provided that an award shall not be binding on the income tax department unless the complainant furnishes to it, within a period of 15 days from the date of receipt of copy of the award, a letter of acceptance of the award in full and final settlement of his complaint. If the complainant does not accept the award passed by the Ombudsman or fails to furnish his letter of acceptance within the said period of 15 days or within such time, not exceeding a period of 15 days that may be granted by the Ombudsman, the award shall lapse and be of no effect.

* Any token compensation given as a part of the award shall be paid by the Income Tax Department out of the budget allocated under the head 'Office Expenses' of the office of the income tax authority complained against. Such payments shall take priority over any other expenditure from this allocation.

* The income tax authority complained against shall, within one month from the date of the award, comply with the award and intimate compliance to the Ombudsman.