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TMI BlogHarassment and forcing taxpayers- even for copy of order sheets taxpayer has to approach High CourtX X X X Extracts X X X X X X X X Extracts X X X X ..... Harassment and forcing taxpayers- even for copy of order sheets taxpayer has to approach High Court - By: - CA DEV KUMAR KOTHARI - Income Tax - Dated:- 3-7-2017 - - References and links: The circular of the Board dt. 28.06.1965 No. 17 (XL-36), Shankarlal Khaitan Versus Assistant Commissioner of Income-Tax and others 2017 (5) TMI 682 - ORISSA HIGH COURT Other Citation: [2017] 393 ITR 484 Copy of order sheets refused: Assessee sought copy of entire order sheet in a written application. However, tax authority refused to provide copy of order sheets. There is no reason for rejection because now-a-days it is very easy to provide Xerox copy of order sheets. In fact department can provide it and it should be provided free of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost because after all the department is financed by taxed paid by public. Xerox machines are provided to officers and they can easily provide copy. In fact order sheets can be scanned and emailed to assessee. Experience shows that reason for rejection are generally flimsy and not tenable. Usually, when estimation is possible, applicant pays in advance estimated fees. In case of shortfall, authority can ask to pay more. But it seems that tax authorities including top authority having charge of jurisdiction take hardly any care to provide copy of order sheets. Rather experience shows that refusal is made on flimsy grounds. Recent experience is that applications with payments of fees made is advance have been made with several authoriti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es including CIT, CIT(A) and AO. Applications have been submitted physically and also by way of email. In spite of many reminders copy of order sheets have not been provided. Is it that to obtain copy of order sheets, the assessee / tax payer has to approach High Court to seek directions as happened in case of Shri Shankarlal Khaitan (supra.) High Court s directions sought to provide copy of order sheets : in case of Shri Shankarlal Khaitan (supra.) the authority refused to provide copy of order sheets. The applicant / assessee had to file Writ Petition. The department contested through counsel. In fact fees is to be determined and intimated by authority to assessee. When assessee had applied for entire order sheets, there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case for providing further details. Therefore, objections raised by authority was incorrect and not proper. The standing counsel before High Court, also re-iterated and raised same objections as authorities below had raised that is details not provided and fees not paid. This shows that Counsels are also interested in litigation- they also want to promote litigation. And do not like to avoid un-necessary litigation. High Court directed to issue certified copy of order sheets. The observations and order are analysed below: a. It is the right of every assessee to seek for the certified copy of entire order sheet of any assessment proceeding. b. Since the entire order sheet has been sought for, it is open for the authorities to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpute whatever is the amount payable for providing such certified copies and issue notice and demand the petitioner to deposit the same. c. On such deposit, the certified copies as entitled shall be handed over forthwith. d. In such background, we direct opposite party No. 1 to act in tune with the above observation/direction of ours. This shows that how tax authorities are not following law and even instructions of Board and as a result causing harassment and litigation. After discussing the recent judgment the following discussions are considered necessary to complete study on the subject: Order Sheets: Order sheet contain details and recording about notices issued to assessee/ taxpayer or other concerned parties, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmunication to and between assessee/ parties, details of hearings and other matters with which the assessee / concerned party is directly concerned. Order sheets also bear signature of officers and assessee and other parties who appeared before the authority in connection with proceeding. 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. These are also found in order sheets as notings by authority and supporting documents are placed in the file. Therefore the order sheet is a very vital part of assessment records/ or record of other proceedings and it is also a ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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- inspection, copies and fees payable etc: 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. The circular also states that normally request for inspection or copies of assessment or other records mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (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 doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument 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, revisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 commitm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 noncompliance 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 instruc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - - Scholarly articles for knowledge sharing authors experts professionals Tax Management India - taxmanagementindia - taxmanagement - taxmanagementindia.com - TMI - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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