Category: Miscellanea

Income-tax Department has come under sharp criticism from the
Delhi High Court for filing appeal against Tax Tribunal decisions in which issue
of law is well-settled.

A Bench comprising Chief Justice Dipak Misra and Justice
Manmohan said that the judicial capital is extremely limited and should not be
wasted in needless litigations.

“In our view, appeals should not be filed in matters where
either no question of law arises or the issue of law is a settled one. We give
this direction because the ‘judicial capital’ in terms of manpower and resources
is extremely limited,” the Court said. The Court’s direction came on a petition
filed by the Revenue Department challenging an order of Tax Tribunal ITAT.

The Court, which was inclined to impose cost on the
Department, refrained by warning it to be careful in future before filing appeal
against ITAT.

(Source : Internet – www.forum4finance.com dated
10-8-2010)

The Comptroller and Auditor General of India (CAG)
has come down heavily on the Tax Department for fostering “a perception that it
has a tendency to opt for appeals even when it is on a weak wicket” and this “appealititis
is more detrimental when applied on small taxpayers constituting a large chunk
of appellants.” In a first-of-its-kind holistic study of appeals, the CAG report
on the Appeal Process, tabled in the Parliament on Friday, minced no words when
it said point-blank that the proliferation of appeals decisions were prompted by
counsels of Income-tax Appellate Tribunal. They could also be fuelled by the
Assessing Officers (AOs) deciding to play safe “rather than judge a case on its
merits and save the system of the strain that weak cases place on it.”

Stating that the dimensions of disputes in
income-tax remain ‘staggering,’ the report said the aggregate amount locked up
in appeal at various levels is `2.2 lakh crore, which could almost wipe off the
revenue deficit of the Union Government in 2008-09. It said that for the span
2006-09, the audit analysed data and 48% of the demands raised by AOs remain
uncollected with disputes accounting for 45% of the uncollected demands, and 22%
of the demands raised in assessments at disputes by taxpayers. Even as the
implementation of Appellate orders is placed low in the AOs priorities,
inadequate attention on correctness in implementation of Appellate orders led to
mistakes amounting to `1,456 crore in 385 cases, it said, adding that 97% of
these mistakes led to under-assessment of tax benefitting the taxpayer which
“raises doubts on the integrity of the process.”

The audit also highlighted the constraints under
which it had undertaken this study in the absence of a centralised database on
appeals at the State level which hampered the selection of the audit samples.
“Poor maintenance of records across the assessment and judicial wings of the
Department is an area of concern,” it said, adding that the Department produced
only 49% of the records it requisitioned for audit and it was as low as 5% in
the case of Delhi office. Despite a steady reduction in the number of appeals
referred to the Commissioners of Income-tax (CsIT), the inventory of appeals
with CsIT was building up because of low disposal of appeals which was one-third
of the targeted level, it said. At the current levels of disposal, the CsIT
(Appeals) would take 2.4 years to clear the inventory. The average time taken
for disposal of a case is 14 months, which is substantially longer than the
global norms. It further said low-end appeals (with demand less than Rs.1 crore),
constituted 66% of the total appeals. Hence, CAG suggests hiving off of small
taxpayers’ disputes and such segregation would promote greater focus on the ‘big
ticket’ appeals with rationalisation of workload of the CsIT (A). Stating that
the assessment process is evidently unable to satisfy the small taxpayer, the
category which is least equipped to bear the cost of litigation, the CAG said
that this must be viewed alongside the fact that the success rate of the
Department at various levels of appeals is “low and appeals go decidedly in
favour of the taxpayers.” Even as there are some provisions in the Act such as
imposition of penalty that lead to disputes, it said deviations from prescribed
procedures by AOs have also contributed to rows. It also excoriated the tendency
to escalate the disputes to higher levels and “instances of inaction in such
cases where a second appeal would have safeguarded revenue.” There is lack of
consistency while considering a case for second appeal with divergent actions
weakening the Departmental stand in appeals. “The absence of independent
evaluation of decisions for escalation creates unchecked avenues for arbitrary
exercise of discretionary powers by the AOs,” it said, and added that there is a
need to remove ambiguities in the provisions of the Act to reduce the use of
discretion by the AOs. It said the penal provisions of the Act calls for a
relook, since “the deterrent edge to these provisions is being blunted due to
inability to sustain the penalty orders in appeals.”

(Source : The Hindu Business Line, dated 13-8-2010)

It’s been in print for over a century, but in
future the Oxford English Dictionary — the authoritative guide to the English
language — may only be available to peruse online. Publisher Oxford University
Press said that burgeoning demand for the dictionary’s online version has far
outpaced demand for the printed versions. By the time the lexicographers behind
the dictionary finished revising and updating the latest edition — a gargantuan
task that will take many more years — publishers are doubtful there will still
be a market for the printed form.

The online Oxford English Dictionary now gets 2
million hits a month from subscribers. The current printed edition — a hefty
20-volume, £ 750 set published in 1989 — has sold about 30,000 sets in total.

The first instalment of the Oxford English
Dictionary was published in 1884, and it kept growing for decades until the
complete text went out in 1928. It was the first comprehensive English
dictionary since Samuel Johnson’s ‘A Dictionary of the English Language’
published in 1755, and has evolved to become the accepted authority on the
meaning and history of words.

(Source : The Times of India, dated 30-8-2010)

The iPhone could soon replace the doctors’ best
friend, the traditional stethoscope, thanks to a free application created by a
University College London researcher.

Peter Bentley invented the ‘iStethoscope’
application which monitors heartbeat through sensors in the iPhone as just a bit
of fun. And, more than three million doctors across the world are signing up for
the free application.

(Source : The Hindu, dated 1-9-2010)

Tax deducted at source (TDS) has become a
problematic issue with the Income-tax Department, as in more than 50% TDS refund
cases, it is facing an uphill task in matching the data provided in the
assessee’s income-tax returns with the TDS deductor’s information available with
the NSDL.

And the mismatch is resulting in the assessee
running from pillar to post to get back the refund due to him from the
Department.

“It’s a pan-India problem; the Government wants the
system to be fully computerised so that things are streamlined,” said Jamshedpur
Commissariat DCIT (TDS) S. M. S. Tauheed recently.

(Source : The Financial Express, dated
10-8-2010)

The Government plans to redefine the functions of
the National Advisory Committee on Accounting Standards (NACAS) to convert it
into an independent regulatory entity to monitor the quality of audit undertaken
across the corporate sector in the country.

The proposal, made by the Corporate Affairs
Ministry to the Parliamentary Committee on Finance that looked into the
Companies Bill, 2009, says the revamped NACAS should be allowed to oversee and
monitor the performance of standard-setting bodies for the accountancy and audit
professions.

Autonomous institutions such as the Institute of
Chartered Accountants of India (ICAI) and the Institute of Company Secretaries
of India, under the administrative control of the Corporate Affairs Ministry,
are the standard-setting bodies for accountancy and audit professions.

The Ministry response came after the Parliamentary
Committee, which submitted its report last week, expressed concerns over the
global economic crisis and the failure of big companies and suggested the
formation of an independent regulator to recommend standards for corporate
financial reporting, corporate audit and the quality of service of professionals
associated with ensuring compliance with such standards. It also wanted this
body to oversee, monitor and supervise the bodies involved in setting such
standards.

(Source : Internet www.taxguru.in, dated
10-9-2010)

(Source : www.taxindiaonline.com, dated
8-9-2010)

It’s a truism that corruption is pervasive in
India. An equally troubling aspect is that our leaders, administrators and civil
society are aware of the problem. And in spite of a plethora of laws to control
the problem, it only continues to grow.

Now the Central Vigilance Commission (CVC) has
issued a national anti-corruption strategy that it hopes will make a difference.
There is much to be said in favour of the report : It high-lights the issue very
well and makes a series of thoughtful solutions. But that is just about what CVC
can do. The levers that can ameliorate the problem lie elsewhere.

The matter is clearly highlighted in section III
of the report where CVC talks about the strategy to address political and
administrative corruption. The problem of funding electoral and other
expenditures of political parties is highlighted clearly. Insensitivity of civil
servants and their remoteness from citizens at large is also discussed.

The CVC’s solution to these problems is threefold.
One, strengthening political will to confront corruption; two, building ethical
competence in public officials; and finally, strengthening administrative
reforms. This is like putting the cart before the horse. If political will did
exist, then the matter would have been sorted out a long time ago.

By putting a large part of the onus on
strengthening of political will, CVC has taken the problem in a different,
psychological, direction. That is a different and intractable issue.

The solutions are fine on paper, as is the
Prevention of Corruption Act, 1988. The reality is very different and altogether
nasty.

(Source : The Mint, dated 30-8-2010)

Here’s the cruel underbelly of modern India :
Villagers in Rajasthan’s Tonk district are paid `1 per day for work under the
Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), and a State
Minister justifies it as consistent with the work done.

The political apathy and corruption that cause such
incidents are well known. But at issue are MGNREGS’ structural weaknesses which
make rooting corruption out a tough task. Why was the work not supervised for
quantity and quality ? Perhaps because, as a recent report suggests, village
leaders in the state discourage third-party supervision of MGNREGS.

Supervision is also required at higher levels — not
even the smallest amount of work justifies a wage of `1 per day. The problem is
little political will exists to undertake the high cost of monitoring
corruption. The results are conflicting responsibilities and interests for the
administration, and a cruel joke for the poor.

(Source : Quick Edit in The Mint Newspaper,
dated
30-8-2010)

The Income-tax Department has proposed a national
e-management system for quick disposal of tax disputes, with more than `75,000
crore, an amount close to a fifth of the Government’s annual direct tax
collections, locked in litigations.

The new system will allow the Tax Department to
make optimum use of its workforce, reduce painful wait for the disposal of tax
appeals and free up resources quickly.

The system would track the entire life cycle of
appeals to ensure expeditious settlement through a more equitable distribution.

More than 1.78 lakh appeals were pending with the
Commissioner Appeals (Income-tax), the first level of litigation, as on February
1, 2010, with amounts locked-up running into several thousands of crores.

(Source : The Economic Times, dated 30-8-2010)

Today we mourn the passing of a beloved old friend,
Common Sense, who has been with us for many years. No one knows for sure how old
he was, since his birth records were long ago lost in bureaucratic red tape. He
will be remembered as having cultivated such valuable lessons as :

The Supreme Court has admitted a petition, filed by
a retired Chief Commissioner of Income-tax, which suggests that a legislation be
made to make it mandatory for taxpayers to declare offshore bank accounts while
filing annual returns. The premise behind the suggestion is to enable the
Government to take effective measures to seize wealth parked in Swiss and other
offshore bank accounts by Indian residents.

The petitioner is KVM Pai, retired Chief
Commissioner of Income tax, Mumbai and the suggestion it contains is in
consonance with the recent legislation passed in the US making it compulsory for
US residents to declare their offshore bank accounts, even if such declarations
do not yield any tax revenue. Mr. Pai also pitches for the setting up of an
intelligence unit under the auspices of the Income-tax administration to help
detect those who have illegal deposits in offshore banks and corroborate the
data with the information furnished in their tax returns.

Quoting a 1980 study carried out by International
Monetary Fund (IMF), Mr. Pai pointed out that Indians hold the largest share of
deposits in Swiss banks. Referring to other studies quoted in the petition, he
points out that there are deposits worth $ 11.6 trillion in tax havens. One such
reference relates to Raymond Baker’s ‘Capitalism’s Achilles Heel’ which holds
that half the world’s slush money lying in tax havens belongs to Indians. Mr.
Baker has recently estimated the annual capital flight to tax havens at $1
trillion per year.

Mr. Pai also states in his petition that the
governments of France and the US have been successful in securing the release of
huge unreported funds from Swiss banks belonging to US residents but the Indian
Government did not make any such serious effort except for scheduling meetings
with Swiss authorities.

Recently, due to pressure from the US and the UK,
the Swiss government agreed to disclose the names of account holders, but only
if the respective governments formally ask for it. It is understood that the
Swiss government has agreed to provide France the details of 3,000 French
customers who have deposits worth $ 4.3 billion in Swiss accounts and the US
government with details of 4,450 customers having $ 18 billion in deposits.

(Source : The Economic Times, dated 30-8-2010)

We have come a long way from the ‘Great Panic of
2008’, but there’s a long road ahead to robust growth, confident consumer
spending and lower unemployment. That was the essence of US Federal Reserve
Chairman Ben Bernanke’s speech at this year’s Jackson Hole conference last week.
It was a rather subdued Mr. Bernanke who sought to reassure his audience, by all
accounts. Confessing candidly that “central bankers alone cannot solve the
world’s problems”, Mr. Bernanke exuded guarded
optimism about the sustainability of the ongoing recovery in the US economy. He
conceded that the recovery “appears somewhat less vigorous than we expected”,
and did not rule out the possibility of deflationary tendencies reasserting
themselves. The thrust of Mr. Bernanke’s statement, which his critics have
attacked as “Nero fiddling while Rome is burning”, was to suggest that the good
news from the US economy was not good enough. Based on the latest national
income growth data for the US, released last week, US authorities have revised
downward the annual estimated rate of growth from the more optimistic initial
number of 2.4% to a significantly lower 1.6% in the quarter ending June 2010.
Export growth is near zero, unemployment levels are high and consumer spending
is still weak. “The prospect of high unemployment for a long period of time,”
said Mr. Bernanke, “remains a central concern of policy.”

Mr. Bernanke’s prognosis suggests that the spectre
of double-dip recession continues to haunt US policy-makers. It is now clear
that the economic slowdown the US faces is more structural than cyclical. This
means there are limits to monetary policy, a fact that Mr. Bernanke openly
confessed even as he assured his audience that the US Federal Open Market
Committee (FOMC) would be open to using all the weapons in its monetary policy
arsenal to stimulate growth, prevent deflation and ensure price stability.
Ending his speech, Mr. Bernanke said, rather chillingly, “Although what I have
just described is, I believe, the most plausible outcome, macroeconomic
projections are inherently uncertain, and the economy remains vulnerable to
unexpected developments.” That is more than a sobering thought. Are Mr. Bernanke
and his Jackson Hole companions being more cautious than necessary or more
optimistic than warranted ? Perhaps the Jackson Hole audience was trying to make
up for past hubris or is afflicted by the paranoia of failed magicians. The
problem for the US is that while monetary policy is unlikely to make much of a
difference, there isn’t much room for fiscal policy either, though the Barack
Obama administration has done more than most developed country governments to
use fiscal policy to stimulate demand. The US needs a boost of confidence in
itself and an investment in its capabilities.

(Source : The Business Standard, dated
30-8-2010)

The Government gave out some interesting numbers.
The Revenue Secretary told a news conference that nearly 96% of the 32.5 million
who pay income-tax reported a taxable income of under `5 lakh; and only 2.2% (i.e.,
715,000 people) reported taxable income of over `8 lakh. Why is this
interesting ? Because when you match these with the income numbers put out by
the National Council of Applied Economic Research (NCAER), on the basis of its
household surveys, some numbers make sense while others don’t. For instance,
NCAER projected for 2009-10 that some 32.3 million households would have annual
incomes of over `2 lakh — which is a reasonably good fit with the total number
of people paying income-tax (the threshold being taxable income of Rs.1.6 lakh).

When you look at the high-income category, however,
the numbers diverge hugely. NCAER says that in 2009-10, there should have been
3.8 million families with annual income of over Rs.10 lakh, a figure that is
more than five times the 715,000 people who report income over `8 lakh (on the
plausible assumption that taxable income of `8 lakh is broadly compatible with
total income of Rs.10 lakh, because of the various tax exemptions available).
Admittedly, some households have more than one income earner, so it could be a
case of clubbing the incomes of husband and wife. Still, it would appear that,
while there is probably not much tax evasion by the middle class, those in the
upper class continue to be predominantly tax evaders.

The good news is that the extent of evasion may be
coming down — sharply. Back in 2004-05, only 122,000 people reported taxable
income of over Rs.10 lakh, whereas nearly six times that number now report
taxable incomes of over Rs.8 lakh. While incomes have been rising rapidly at the
top of the pyramid, few would have expected that India’s highest earners would
multiply so rapidly over five years. In other words, tax compliance has improved
dramatically — but even then, the scope for much greater compliance exists.

That conclusion would be contested by Surjit Bhalla,
who has argued that the rich are the most tax compliant group in the country
(with only 50% practising evasion !). He has used National Sample Survey data to
contend that there were 250,000 people with incomes over Rs.10 lakh in 2004-05
(when there were only 122,000 people reporting that amount of tax income), and
that the population of high-income earners would have gone up to 360,000 in
2006-07. On that kind of track, the number by 2009-10 should have been about
620,000. But since we have 715,000 reporting taxable income of `8 lakh and more,
it looks like 100% tax compliance by the high-rollers —which strains credulity.

Still, if compliance is improving, thank the spread
of tax deduction at source, and the cross-matching of computerised data with
regard to credit card spends, mutual fund investments and the like. But if one
were to assume that three-box cars are bought by only those in this income
bracket, there is another data point worth looking at — because 350,000
three-box cars were sold in the country last year. On the assumption that most
people buy a new car after five years, this figure too suggests many more
high-income people than exist in the tax records.

The point of focussing on this group is that 60% of
all income-tax revenue (or Rs.72,000 crore) comes from these 715,000 people ! If
the number coming into this category were to double, income-tax collections
would go through the roof.

The Centre today sought the Supreme Court’s intervention in
deciding the constitutional validity of the Finance Act, 2007 that empowers the
Government to impose service tax on rental income from commercial properties.

A Bench headed by Justice B. N. Agrawal while seeking reply
from Retailers’ Association of India, Confederation of Real Estate Developers’
Associations of India and Multiplex Association of India
on the transfer petition filed by the Centre also stayed proceedings before
various High Courts.

The Centre through the Department of Revenue has sought
transfer of petitions pending before the High Courts of Bombay, Madras, Kolkata,
Punjab and Haryana and Kerala on the ground that there was a likelihood of
conflicting decisions.

According to the petition, retailers, real estate developers
and multiplex owners had filed writ petitions before various High Courts
challenging levy of service tax on leasing, letting, renting or any other
similar arrangement in respect of immovable property for use in furtherance of
business or commerce.

It further said that they had challenged the constitutional
validity of the Finance Act, 2007 on the ground that it was beyond the
legislative competence of the Union and thus Parliament cannot levy
such a tax.

(Source : Internet, 19-8-2008 —

Also widely reported in print media)

The Supreme Court has asked the Central Board of
Direct Taxes (CBDT) and other tax authorities to get help of technical experts
while deciding income-tax liability of cellular service providers.

The order came after a batch of appeals by
income-tax authorities against the ruling of the Tribunal favouring Bharti
Cellular Ltd. and other service providers. The question was whether manual
intervention was involved in the technical operations by which cellular service
providers were given the facility by BSNL/MTNL for interconnection.

A related question was whether TDS was to be
deducted by service providers when they paid interconnect charges/access/port
charges to BSNL.

“The problem which arises in these cases is that
there is no expert evidence from the side of the Department to show how human
intervention takes place, particularly, during the process when calls take
place,” the order passed by a Bench headed by Chief Justice S. H. Kapadia said.
“We are only highlighting these facts to emphasise that these types of matters
cannot be decided without any technical assistance available on record.”

The Supreme Court underlined “with the emergence of
our country as one of the BRIC countries and with the technological advancement,
matters like the present one will keep on recurring and hence, the time has come
when the Department should examine technical experts so that the matters could
be disposed of expeditiously and further it would enable the Appellate forums,
including this Court, to decide legal issues based on factual foundation.”

(Source : The Business Standard, dated
23-8-2010)

The Delhi High Court convicted senior advocates R.
K. Anand and I. U. Khan in the BMW expose case for obstructing administration of
justice. “They are senior advocates and they did not tender either conditional
or unconditional apology for their conduct in the BMW case,” a Division Bench of
Justices Manmohan Sarin and Madan B. Lokur said, in their 112-page verdict in
the contempt case relating to the expose.

Recommending that they be stripped of their
designation of senior advocate, the Court asked them not to appear in the Delhi
High Court and its subordinate Courts for the next four months as punishment.

(Source : Internet, 21-8-2008

— Also widely reported in print media)

Taxmen will now be able to keep a closer tab on
income exempt under foreign tax treaties. The Central Board of Direct Taxes (CBDT)
has said that any income arising in India, but exempt from the country’s tax
laws, because of a double tax avoidance treaty, must be first reported to the
Tax Department before availing the exemption.

Even if the income is taxable outside India, the
assessee must include it in the total income chargeable to tax in India, the
board has said in a recent notification. “Relief will be granted in accordance
with the method for elimination or avoidance of double taxation provided in such
agreement,” the Notification added.

With a large number of foreign companies operating
in India, the Department has found that there are many cases where either they
are not reporting their exempt income or underreporting it.

While the assessee can avail the same foreign tax
credit even now, the Tax Department will get a much better understanding of his
earnings, a Finance Ministry official explained.

The Department’s missive, however, only relates to
earnings of resident companies and individuals. Tax experts are of the view that
with increased movement of workers and the cross-border nexus between companies,
the Notification will help the Department get a better understanding of the
income of such assessees.

“It looks like the Department’s intention is to get
a complete picture of a person’s global earnings regardless of the benefits
under the tax treaties,” Amitabh Singh, partner Ernst and Young said. The
clarification is the latest in the CBDT’s efforts to plug loopholes in the
country’s international tax laws given that a large number of MNCs have set up
shops in India through back offices and subsidiaries and are availing benefits
under tax treaties.

(Source : Internet, 8-9-2008)

In order to provide brand protection and curb
duplication of products, IT, pharma, electronics, telecom and electrical goods
manufacturing giants are approaching private detectives to safeguard them
against Intellectual Property Rights (IPR) violation.

Detective agencies have also been approached by
national and international industry associations to extend help for safeguarding
their products.

(Source : Business Standard, 25-8-2008)

The Asian Crisis in the 1990s made the world sit up
and recognise the need for corporate governance as a mechanism to safeguard
investments in public enterprises and heightened the importance of having a
global Generally Accepted Accounting Principles (GAAP) for comparability and
transparency of financial information across continents. The US accounting
scandals of Enron, Worldcom, Adelphia or the European scandals of Ahold or
Parmalat enforced the view that a framework of governance and global GAAP needs
to emerge to safeguard capital in companies, which in the digital age is without
the protection of political or physical borders.

Credit market turmoil has driven the US into a
recession and may topple some of the nation’s biggest banks, said Kenneth Rogoff,
former chief economist at the International Monetary Fund.

(Source : Bloomberg, Singapore — Business
Standard, 20-8-2008)

Two out of every three United States corporations
paid no federal income taxes from 1998 through 2005, according to a report
released by the Government Accountability Office, the investigative arm of
Congress.

The study, which is likely to add to a growing
debate among politicians and policy experts over the contribution of businesses
to Treasury coffers, did not identify the corporations or analyse why they had
paid no taxes. It also did not say whether they had been operating properly
within the tax code or illegally evading it.

(Source : Business Standard, 14-8-2008)

CBDT has noticed that nearly 50% of the officers
transferred are not relieved so far and so have not joined their new places of
posting. This is non-compliance of Government’s order and has been viewed
seriously by the Competent Authority.

Board notices that many officers are not being
relieved by CCIT (CCAs)/DGsIT on the pretext that their representations are
pending before the Board. Board wants the field to note that as per Para 11 of
Transfer Policy, further representations from the officer would be considered
only after the officer joins his place of posting and applies through proper
channel and such petition shall not confer any right whatsoever on the officer
to continue on their previous post in defiance of Government’s orders. Failure
to comply with the Governments orders would lead to actions both against the
non-complying officer as well as their Controlling officer.

Now the CBDT directs that, all officers under order
of postings may be relieved immediately and a consolidated report of their
relieving as well as joining dates may be sent to the Board by 18th August 2008
without fail. [CBDT F.No.A-35015/44/2008-Ad.VI, dated 13th August, 2008]. This
is today — we are almost sure that disobedience will continue. How can these
disobedient officers instill any discipline in their subordinates ?

(Source : Taxindiaonline.com)

The State’s regressive omerta code, was never
notified. It isn’t actually a law !

Here’s the untold story of the Official Secrets Act
(OSA) 1923: It was passed in April 1923 by the Legislative Council. The Act was
never notified in the Gazette of India.

(Source : An article by Saikat Datta, Outlook
India

— From Internet)

In another instance of Indian tax authorities
adopting a hard-nosed stance to prevent abuse of tax avoidance treaties, the
Revenue Department recently opposed a proposal of a Cyprus-based company to
increase its stake in an Indian telecom services company from 40% to nearly 74%.

The Foreign Investment Promotion Board (FIPB)
rejected the proposal on security concerns and the Revenue Department is saying
the source of funds is not clear.

(Source : Business Standard, 19-8-2008)