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CBDT PROVED TO BE VERY UNREASONABLE TOP AUTHORITY EVEN DURING REGIME OF NAMO GOVERNMENT - Part 2

CBDT PROVED TO BE VERY UNREASONABLE TOP AUTHORITY EVEN DURING REGIME OF NAMO GOVERNMENT - Part 2 - Income Tax - Direct Tax Code - DTC - By: - CA DEV KUMAR KOTHARI - Dated:- 6-10-2015 Last Replied Date:- 7-10-2015 - Even after directions from various High Court s action of CBDT is not only very delayed but also half-hearted, incomplete and wrong- it requires to be rectified and clarified by a new Circular or addendum to Circular dated 01.10.2015 for extension of due date u/s 139 (1) in clear term .....

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09.2015. By the time of writing of the article CBDT had extended time only for few states and not for all states, in spite of instruction from some other High Courts. Unjust and High handed approach by CBDT: The above situation created by CBDT was totally unjust and high handed approach of CBDT. When the highest administrative authority of direct tax department had such an approach, attitude and mentality, what public can expect from lower authorities. This approach of CBDT can be considered an .....

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at the orders issued are without proper application of mind and are not in accordance with provisions and intent. These circulars can be again a big point of controversy and litigation. As discussed latter analysis of Circulars by way of highlighting added, circulars need to be amended and clarified. Order-Instruction - Income Tax F.No.225/207/2015/ITA.II Government of India Ministry of Finance Department of Revenue Central Board of Direct Taxes North Block, ITA.II Division New Delhi dated the 1 .....

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etary to the Government of India Xxxx New Delhi dated the 30th of September, 2015 Order under Section 119 of the Income-tax Act, 1961 The Central Board of Direct Taxes, in compliance to the order of Hon'ble Punjab and Haryana High Court dated 28.09.2015 in case of Vishal Garg & Ors. vs. Union of India & Anr.; CWP 19770-2015 and in exercise of powers conferred under section 119 of the Income-tax Act, 1961 ('Act'), hereby orders that the returns of income due to be E-filed by 3 .....

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order of Hon'ble Gujarat High Court dated 29 .09.2015 in case of All Gujarat Federation of Tax Consultants vs. CBDT; Special Civil Application No. 15075 of 2015 and in exercise of powers conferred under section 119 of the Income-tax Act, 1961 ('Act'), hereby orders that the returns of income due to be E-filed by 30th September, 2015 may be filed by 31st October, 2015 in cases of Income-tax assessees of the State of Gujarat. 2. This order shall be subject to the outcome of any further .....

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r lines for the state Punjab and Haryana and Union Territory of Chandigarh. In both the orders, the Board has also stated that This order shall be subject to the outcome of any further appeal/SLP which the CBDT may file against the said judgment The final Circular was issued on the day next after original due date that is on 01.10.15. This circular says that it is: In supersession of orders under Section 119 of the Income-tax Act, 1961 ('Act') dated 30th September, 2015 vide file of even .....

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he circular dated 01.10.15 applies to whole of India including the states of Gujarat, Punjab and Union Territory of Chandigarh for which earlier two circulars were issued. The ultimate circular dates 01.10.15 does not contain anything about appeal before the Supreme Court and is not subject to outcome of such appeal, if any. Therefore, extended date is not subject to any appeal before the Supreme Court against judgments of High Courts. There should be no appeal before The Supreme Court-appeal if .....

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due date from 30.09.2015 to 31.09.2015 in cases where last date fixed for filing of ROI and / Or TAR (or any other similar report) was 30.09.2015. And that this circular or instruction is meant to achieve this purpose to extend the due date for all purposes. It is needless to mention that even in absence of such circular any assessee could have filed e- ROI and e- TAR at any time within 31.03.2016. However, in such a case the return would be a belated return filed under S. 139 (4) and not withi .....

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sirable in public interest to do so or it is in interest of tax administration to do so. Any reason is also not given for exercise of such authority as is given vide section 119. Section 119 is reproduced below with highlights added for relevant portions: [Instructions to subordinate authorities. 119. (1) The Board may, from time to time, issue such orders, instructions and directions to other income-tax authorities as it may deem fit for the proper administration of this Act, and such authoriti .....

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rejudice to the generality of the foregoing power,- (a) the Board may, if it considers it necessary or expedient so to do, for the purpose of proper and efficient management of the work of assessment and collection of revenue, issue, from time to time (whether by way of relaxation of any of the provisions of sections 4[115P, 115S, 115WD, 115WE, 115WF, 115WG, 115WH, 115WJ, 115WK, 139, 143, 144, 147, 148, 154, 155 6[, 158BFA], 7[sub-section (1A) of section 201, sections 210, 211, 234A, 234B, 234C] .....

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is necessary in the public interest so to do, be published and circulated in the prescribed manner for general information; (b) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order, authorise 9[any income-tax authority, not being a 10[***] Commissioner (Appeals)] to admit an application or claim for any exemption, deduction, refund or any other relief under this Act after the expiry of the perio .....

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on for claiming deduction thereunder, subject to the following condi­tions, namely:- (i) the default in complying with such requirement was due to circumstances beyond the control of the assessee; and (ii) the assessee has complied with such requirement before the completion of assessment in relation to the previous year in which such deduction is claimed : Provided that the Central Government shall cause every order issued under this clause to be laid before each House of Parliament.] Relev .....

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ibed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed : Explanation 2.-In this sub-section, due date means,- (a) where the assessee 65[other than an assessee referred to in clause (aa)] is- (i) a company 60[******]; or (ii) a person (other than a company) whose accounts are required to be audited under this Act or under any other law for the time being in force; or (iii) a working partner of a firm whose accounts are required to be audited .....

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ection 74A], he may furnish, within the time allowed under sub-section (1) [***], a return of loss in the prescribed formand verified in the prescribed manner and containing such other particulars as may be prescribed, and all the provisions of this Act shall apply as if it were a return under sub-section (1). [(4) Any person who has not furnished a return within the time allowed to him under sub-section (1), or within the time allowed under a notice issued under sub-section (1) of section 142, .....

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of income for AY 2015-16 by 31.03. 2017 or before completion of assessment, if it is earlier. The Circular only says that E-return or E- TAR can be filed by 31.10.15 instead of by 30.09.15. There is nothing stated that if the return is filed or report is uploaded by 31.10.15 than it will be in compliance of filing within due date as required u/s 139 (1) of the Income-tax Act. This clarity is very much essential because of many advantages associated with filing of return within due date which ar .....

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authority is given to the Board in terms of and subject to condition laid down in the following words: Clause (a) is for directions to lower authorities and it contains the following conditions: (a) the Board may, if it considers it necessary or expedient so to do, for the purpose of proper and efficient management of the work of assessment and collection of revenue, issue, from time to time (whether by way of relaxation of any of the provisions of sections ….. 139 …. Clause (b) i .....

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g such application or claim and deal with the same on merits in accordance with law; Thus as per clause (a) board can authorise tax authorities (namely the Assessing Officers or Centralised receiving centers) to receive returns and reports. Vide clause (b) Board can make relaxations. Return of income to be filed by a particular date is also in nature of claim for deductions and relief, refund, anc benefits for carry forward of loss etc. In both clauses language used require that the Board will i .....

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larity a new circular complete in all respect may be issued in supersession of Circular dated 01.10.2015. Request to the Board: Though the Courts have already directed to CBDT to issue relevant forms of returns, and reports and make available facilities for e-filing of the same on the first day of assessment year, it is requested to the Board that forms and facilities should be made available as soon as possible so that assesses and tax practioners can start working for preparation of details an .....

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