An interactive meeting of the members of Ombudsman
November, 29th 2007
Meeting with Income-Tax Ombudsman
Bombay Chartered Accountants' Society Conference Hall.
An interactive meeting of the members of BCAS was held with
Mr. Hardayal Singh, Ombudsman, Mumbai, at BCAS Conference Hall, where 25 members were present.
Some of the Questions which were put forth to the ombudsman and his replies to the same are as follows:
Q 1. We would be glad to know the statistical data of number and nature of complaints filed so far and the satisfactory disposal or settlement thereof.
Ans. Till today, we have received 181 complaints, out of which only 30 complaints properly speaking come within the ambit of the scheme. Out of those 30 complaints, 6 complaints have been totally resolved.The balance being very recent were being looked into and would be resolved very shortly. A large number of complaints were not as per scope of the guidelines. Some of the complaints were directly sent to the ombudsman, instead of following the procedure laid down in the guidelines ie., of sending it first to the assessing officer and then to his superior, and then to the ombudsman,. In such cases, the concerned persons were directed to approach the superior and come back to the ombudsman if the grievance was not resolved.A copy of the said grievance was nevertheless sent to the concerned officer to look into the matter in order to save time. In many cases, the complaints had been resolved even before the matter came back to the ombudsman.
Q 2. Could the application to the authority be informal, handwritten, in any language? Will office of the authority assist an applicant in formulating an application ? Will the authority grant personal interview to the taxpayers, to guide them?
Ans: Yes, The application can be handwritten and informal, but should be in duplicate.It can be in any language. However, one should give full details of the concerned officer and the file that is, where it is located in order to resolve the problem with speed. The office of the authority will assist an applicant in formulating an application. The Authority will also help in all ways to solve the problem.
Q 3.Para 10III(a) provides that no complaint shall lie before the ombudsman, unless a written representation is made to the Income-tax authority superior to the one complained against. How would one interpret the term 'Superior'?Does it mean immediate superior?
Ans: Normally the representation should have been made to the immediate superior officer.However, even if the complaint is made before any other superior officer having jurisdiction over the assessee's case, the complaint will be considered.
Q 4.Usually it takes time in getting reply from a superior. Can there be some time limit fixed, up to which one can wait to get redressal from the superior authority?
Ans: One should wait for a month.After that, one can approach the office of the ombudsman.
Q 5.Is ombudsman part of the Income-tax Department?
Ans: No. The ombudsman reports only to the Revenue Secretary the office of the ombudsman is totally autonomous.
Q 6.Can the ombudsman take up any grievance or give any redress on a suo motu basis? Does he have a right to monitor matters listed in para 9 of guidelines on a self-motivated basis?
Ans:Yes if the matter is of general importance and a large number of taxpayaers are affected by any particular grievance, then the ombudsman can take up such matter for redressal on suo motu basis.
Q 7.What are the instances of complaints which are frivolous or vexatious in nature ?
Ans:Fortunately, no frivolous or vexatious complaints have been received so far. The ombudsman will have to follow the guidelines issued by the ministry.
Q 8.How should a tax payer complain, if he does not know the identity of individual, but merely knows the designation of the officer ?
Ans:The complainant is not required to know the identity of the individual officer. He should know the designation of the officer to enable the officer to redress the grievance.
Q 9.What is the logic behind providing that the independent authority viz. ombudsman cannot be approached unless complaint against erring officer is first processed by his superior?
Ans:It is for smooth functioning of the matter. The Department should be given an opportunity to redress the problem.Ultimately the aim is redressal of the problem who solves the problem is not important.
Q10. How would you compare effectiveness of ombudsman procedure vis--vis effectiveness of relief in matters like refunds under RTI Act?
Ans:Both the authorities are acting as per their guidelines and both are independent authorities. It is ultimately the assessee who has to decide which option is preferable.
Q11.Are we right in understanding that the ombudsman can assist in speedier disposal of rectification or waiver petition, but has no role to play in the quality or merits of disposal?
Ans:Yes.Theoretically the ombudsman has no role to play in quality or the merits of the disposal, but at the same time, the whole process is passed through a senior and independent responsible officer, which will deter the concerned officer from acting in a manner which is not merited.
Q12.The guidelines in Para 8 II refer to the duties of the ombudsman. Clause (c) provides that the ombudsman shall have duties to protect individual taxpayers 'rights and to reduce taxpayers' burden.
Does this mean that the ombudsman has wide powers to entertain any grievance that affects taxpayers 'rights or increases his burden and it is not restricted to only the matters prescribed in Para 91 clauses (a) to (o) of the guidelines?
Ans:Yes.The ombudsman has wide powers to deal with all types of complaints.
Q13. Para 91(a) allows taxpayer to complain to the ombudsman in case of delay in issuing refund. Please clarify whether refund would include refund arising due to non grant of interest on excess payment of tax or interest on delayed issue of refund?
Ans:As stated above, the ombudsman can take up any complaint where the assessee is subjected to harassment in any form or the assessee is denied his right to received the correct amount of refund. The office of the ombudsman can take up the case and issue direction to the assessing officer.
Q14. Para 9 I (o) permits a taxpayer to complain on any matter of violation of administrative instructions and circulars issued by the CBDT. Now, all the instructions issued by the CBDT are not available in public.How should the taxpayer be aware of the same ?Can the ombudsman make all the instructions issued by the CBDT available to the public?
Ans:At present, there is an administrative difficulty. But slowly and gradually all the instructions will be made available to the public, especially if the officer is relying on them.The ombudsman will try to see that the instructions are made available to the public. However, as stated above, the administrative difficulties will have to be resolved.The instructions are supposed to be on the Income-tax Department's website under the RTI Act.
Q15. If there is a complaint for non-transparency in the selection of the case for scrutiny, and in the authority finds that the selection was not correctly made, can it result in cancellation of the scrutiny?
Ans: This is a subjective matter.However, if it is very clear and apparent that the selection was made contrary to the guidelines issued by the Department, it may possibly result in cancellation of the selection.
Q16. Can a complaint be admitted against any issue arising from the Charter issued by the Department ?
Ans: These are the instructions or guidelines issued by the Department. Therefore a complaint can be admitted against any issue arising from the charter.
Q17.If the taxpayer has made a representation earlier to the announcement of the 'ombudsman guidelines', will he have to made a fresh representation again or will the earlier application suffice to approach the ombudsman?
Ans: If the complaint is made in reasonable time (say, within the course of a year), then the same can be considered. However, if the time gap is long, it is advisable to make another representation to redress the grievance.
Q18. Para 10 II(a) requires authorized representative, if any, to sign the complaint. Is the authorized representative, who has not signed the complaint, disqualified from appearing before the ombudsman to clarify any issue that may arise from the complaint? Is there any repercussion if the authorized representative does not sign the complaint? It may be noted that if the complaint is filed through electronic means, signature of the authorized representative is not required.
Ans: The whole objective of the ombudsman is to help redress the complaints. However, if there is any lapse in following the prescribed procedure, the same can be rectified at a later date and the process can then be taken forward from there, to redress the grievance.
Q19. Will the ombudsman be empowered to make award on rejection of stay petition or forceful recovery of tax arrear?
Ans: Not in an ordinary case.However, if the case shows that patently and blatantly the instructions have not been followed, in such cases the ombudsman can come in the picture. However, since grant of stay is a quasi-judicial matter, where the officer has refused to grant stay by exercise of his discretion by following the instructions and court decisions, the ombudsman cannot make an award.
Q20.Is there any remedy, if the Income-tax authority does not comply with the award?
Ans: The ombudsman has the authority to give an award, which is always an effective deterrent against abuse of power by an officer. He would generally comply with the award.Non-implementation of the award may lead to disciplinary proceedings that are likely to affect his career, as the ombudsman reports all awards made by him to the Revenue Secretary. Therefore it is believed that the Income-tax officers will comply with the award.
Q21. How to remove the apprehension of a taxpayer that no vindictive action would be taken against him if he approaches the ombudsman?
Ans: There is nothing to fear as the complainant is seeking redressal of his problem. He is not complaining, against any particular officer.