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Section 292BB will not protect all irregularities committed by tax officers. Tax Officers must be more careful to ensure timely and proper proceedings. |
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Section 292BB will not protect all irregularities committed by tax officers. Tax Officers must be more careful to ensure timely and proper proceedings. |
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2019 (8) TMI 660 - SUPREME COURT COMMISSIONER OF INCOME TAX VERSUS LAXMAN DAS KHANDELWAL 2018 (4) TMI 1734 - MADHYA PRADESH HIGH COURT COMMISSIONER OF INCOME TAX VERSUS LAXMAN DAS KHANDELWAL INCOME TAX APPEAL 97/2018 Dated: - 27 April 2018 Sections 143(2) , S.292BB of the Income-tax Act 1961. Some of earlier article on related subject on this website found with search of articles on S.292BB: Provisions to make tax officers careless ( by protecting them) We find that instead of making tax officers responsible and accountable, attempts have been made in some provisions to shield tax officers against their mistakes, omissions and careless ness while discharging duties even about ensuring proper and timely communication, issue and service of notices, other communications which are pre-conditions for assuming jurisdiction and compliance with principal of natural justice carelessness is found. For these reasons many proceedings are held void and many additions are deleted. In case of assessment related with additions and disallowances For example, S.68 relating to cash credits requires Assessing Officer to make enquiry and make an addition in a responsible manner. When there was large scale failures of AO in discharging duties in this regard, and making additions without doing ground work, and additions stood deleted in appeals . Then provisions have been made for deemed income in related S. 2, S.56 and S.68 etc. as to deem some type of receipts as taxable though they are in fact capital receipts. For failure of tax authorities to make proper enquiry and make valid additions in some cases, all public is in a way, statutorily consider tax evader and capital receipts are deemed as income. Though these provisions are unconstitutional but due to costly litigation, when mater need to be contested up to the Supreme Court of India, people cannot afford to litigate to challenge validity. In procedural aspects also protection has been lent to tax authorities against irregularity in procedures followed. Earlier tax authorities had also developed casual and careless approach with a confidence that any lacuna or short comings on behalf of tax authorities can be remedied even by way of retrospective amendments. In procedures also we find some provisions just to remove difficulties caused due to careless ness on part of Assessing Officers and to deem all deficiencies as regularized if the assesse has participated in procedures . Therefore, many times even unwillingly assessee has to participate in proceedings to avoid penalty proceedings and levy of penalty and also to avoid announce of AO which can lead to more harassment. Readers can refer to provisions related with issue and service of proper notices relating to proceeding under consideration to check whether notice was issued in time, in prescribe form and manner, whether it conveyed correct proceedings and related provision, whether it conveyed exact requirement or was issued in general way and included even inapplicable maters etc. Whether notice was issued by authority having jurisdiction is also important. As per author, proper signature of officers on original or copy served on assesse should also be considered important. If a notice or order is not signed by authority having jurisdiction or on his behalf by proper officer or assistant, it can be a material defect. S.292BB is considered by tax authorities as a common protection for most of short comings in proceedings, However, it is not so. If no notice issued or notice issued by authority is without jurisdiction, or it is not issued and / or served within limitation it can still be invalid leading to entire proceeding invalid. In valid proceedings: On search on this website , of case laws, with invalid proceedings , appearing anywhere, and under any law and judgment by the Supreme Court author found 2227 results and with any court number of results found are 14568. Search for cases under Income tax Act resulted into 207 numbers for the Supreme Court and 8034 for all Courts. A large number of these cases are due to careless approach by tax authorities. Some search results also include invalid provisions, Practice support for tax payers: On receiving any kind of notice, communication and orders from tax authorities, various aspects as to jurisdiction, limitation, proper form and content and proper service etc. must be examined. Original document received must be kept intact and scanned copy must be saved. Sometimes, technical aspects on these issues can be very important safeguards. Government authorities have several safeguards but tax payers have lest. For example, on Tax Officer, there is no penalty for most of additions deleted but tax payer can be penalised even if petty disallowance or addition remain. Therefore, on behalf of tax payers procedural and technical safe guards can still be useful. COMMISSIONER OF INCOME TAX VERSUS LAXMAN DAS KHANDELWAL - 2019 (8) TMI 660 - SUPREME COURT
By: CA DEV KUMAR KOTHARI - August 27, 2019
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