DIRECT TAX VIVAD SE VISHWAS BILL 2020 - SOME SUGGESTIONS

[CA DEV KUMAR KOTHARI]

Honorable Finance Minister,

Respected Madam,

I append below an article on Vivad se Viswash – some suggestions.

My suggestions are:

The name should be like VIVAD SE NIZAT.

There should be wider scope to cover cases for which appeals can be filed within original limitation at any time before the last date for making declaration.

Cases in which appeal can be filed by assesse or revenue and assesse want to pay under scheme then filing of an appeal should not be a precondition.

In write-up, I had  attempted to draft  changes in meaning of “appellant” and “specified date” so that declaration can be filed when any appealable order is passed before  last date to make declaration or some other cut-off date can be fixed.  

 VIVAD SE NIZAT SHOULD BE TARGET EVEN WITHOUT FILING OF APPEAL.

 

Yours sincerely,

Dev Kumar Kothari

 

THE  DIRECT  TAX  VIVAD  SE  VISHWAS  BILL, 2020 is available on many of websites and a detailed articles titled Know about the proposed ‘Direct Tax Vivad se Vishwas Bill, 2020 has also been webhosted on  www.taxmann.com and similar articles are available on other websites. Therefore to avoid repetition further analysis is not made .

The name of enactment, scheme, Rules etc.

The Bill is designed to settle disputes under the Income-tax Act, 1961 only. Therefore use of phrase Direct Tax seems  not proper.

Vivad that is disputes will be settled, therefore, there is no case of vishwas or trust improving by implementation of the enactment.

The government of India and tax payers both will settle disputes so there will be relief or NIZAT from litigation to the extent settlements are achieved.

 Government shall also get NIZAT from disputes initiated mostly by government and contested by tax payer to save their existence.  Empirically we can find several cases, in which if tax payer did not protest huge demands raised by tax authorities, there was no option but to close the business after paying against huge demands raised in high pitched assessments.

The Government will be gainer, because even in cases where there is very high probability of tax payer ultimately winning, government will realise tax, and save litigation costs.

Honourable Finance Minister has in her budget speech stated as follows:

“   Sir, in the past our Government has taken several measures to reduce tax litigations. In the last budget, SabkaVishwas Scheme was brought in to reduce litigation in indirect taxes. It  resulted in settling  over 1,89,000  cases…..

“I hope that taxpayers will make use of this opportunity to get relief from vexatious litigation process”

Unquote:

Mounting number of tax appeals are  due to:

          high pitched assessments made by tax authorities forcing tax payer to indulge in litigation to save themselves from being ruined. And

          Filing of appeals by revenue where there should not be appeal as per settled legal position, low tax effect,  and also as per reasonable view and by applying a view in favour of tax payer.

In past,  important policy decisions were taken from time to time and many times  and were  implemented  to withdraw appeals and not to file appeals by revenue in cases where tax effect was less than prescribed limit.

This has reduced litigation considerably. However, in implementation of any such scheme we find that tax authorities are not working in tune with the objective. And therefore, appeals are being filed, and are not being withdrawn and Tribunal and Courts and tax payers have to take initiative to identify such appeals for dismissal of  appeals with low ax effect.

Tax officers and departmental representatives and departmental counsels must also work in accordance with policy decision and should withdraw appeals with low tax effect and should not file appeals with low tax effect. Then only litigation will reduce.

Let us hope that the proposed scheme shall be implemented in reasonable manner to achieve its purpose.

Suggestions:

Author suggest that the name of Bill,  enactment and Rules can suitably be changed to incorporate phrases like:

             “ AAYAKAR  VIVAD SE NIZAT” 

             OR

             INCOME TAX DISPUTES RELIEF SCHEME.

Specified date:

As per bill the specified date is 31^st January, 2020. This is apparently for the reason that the Finance Bill 2020 was presented on 1^st February, 2020.

There were cases pending as on 31^st January, 2020 many of which were heard but order or judgment was not passed till 31^st January,2020. Therefore these cases are eligible under scheme even if an order or judgment is passed on or after 1^st February 2020. This need a clarification.

There were many appealable  orders / judgments were passed or can be passed before closure of the present scheme, against which appeal can be filed by assessee or revenue. The limitation period is available to assesse as well as revenue. In such cases, there may not be point that first of all litigation should be initiated by revenue or assesse. In such cases the assesse can be permitted to avail the scheme even without filing an appeal himself or without waiting revenue to file a further appeal before higher forum.

Therefore, the scheme should also be open in cases where:

1.  Where appeal was pending as on 31.01.2020, but order or judgment has been passed after 31.01.2020, e.g. say judgment is pronounced by Tribunal or High Court or order is passed by CIT(A) on or after 01.02.2220 but before the last date for filing of declaration under the scheme, the benefit of filing declaration should be extended.
2. Appealable order or judgment is passed after 31.01.2020, but before last date for filing of declaration , time to file appeal is available against assessment order, order of CIT(A), judgment of Tribunal and High Court. In such cases declaration should be allowed , even without filing of appeal by assessee himself or further  appeal by revenue.

This will be a case of Vishwas because assesse will pay due amount under scheme with confidence that he need not to indulge in further litigation and he also need not to file an appeal but can pay tax under the scheme to keep his liability restricted.

Therefore , appellant and specified date can be re-defined  on the following lines:

             "appellant" includes the following;

               (i)  the person or the income-tax authority or both who has filed appeal before the appellate forum and such appeal is pending on the specified date;

                (ii)   the person  who has received any  appealable order but has not yet filed appeal  but can file an appeal , or tax authority can file further appeal before higher forum, within originally allowed limitation to file such appeal by the person or tax authority.

 "specified date" means the 31st day of January, 2020 in relation to  case pending  as on that day before  any appellate forums ,and

The last date for making a declaration under this Act, in relation to appealable orders against which assesse has time available to file appeal or the concerned tax authority has time available to file further appeal.