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ę Indirect Tax »
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In an exemplary judgement, Bombay HC exposes Income Tax departments tax terror
July, 31st 2014

The Court has imposed a fine of Rs1 lakh for filing frivolous appeal asking the department to recover it from the officials involved and also take disciplinary action against them

Dismissing an appeal filed by Income Tax (I-T) department, the Bombay High Court levied a penalty of Rs1 lakh on the department and directed it to recover this from the official responsible for filing such a frivolous appeal.

In an exemplary order passed on 10 July 2014, the Bench of Justices BP Colabawalla and SC Dharmadhikari, said, "The Revenue officers must realize that just like other powers a executive power conferred in them is in the nature of a Trust. They hold office as trustees of the public at large. They deal with public revenue and public money and that cannot be wasted in such frivolous litigation. We, therefore, dismiss these appeals with costs quantified at Rs1 lakh­ each".

The case related with an appeal filed by Commissioner of I-T (CIT-2) against Larsen & Toubro Ltd (L&T). The I-T department had levied a penalty on L&T, which was set aside by the Tribunal. This was challenged by the I-T department in the High Court.

The Bench said, "We are surprised if not shocked that such appeals are being brought before us and precious judicial time is being wasted that too by the Revenue. We have found that merely expressing displeasure orally is not serving any purpose. The least and minimum that is expected from the Revenue officers is to accept and abide by the Tribunal's findings in such matters and when they are based on settled principles of law."

"We do not understand why higher officials do not have the courage to take bold decisions particularly of not pursuing such matters up to this court or higher. Because the Assessee is a leading Public Limited Company should not act as a deterrent for them to take an informed, rational decision and subserving larger Public Interest. The biggest litigant, namely, the State ought to be aware of the Pendency of Cases in High Courts of Bombay, Madras, Calcutta and Allahabad for example. If their policies particularly on litigations are not aimed at reducing frivolous and speculative litigations, then, the least that can be said is that the State has failed to act for public good and in Public Interest," the High Court added.

The HC said, “It would be open for the superior/ competent authority to recover the costs personally from the officer responsible and equally take disciplinary action against him if the power to decide about filing such appeals is abused or the decision making authority is utilized to harass innocent Assessees. Every case must be dealt with on its merit and no routine exercise ought to be undertaken merely because the Revenue impact is higher or the status or financial position of the Assessee is influential and strong. That cannot be the only yardstick or criteria.”

The Income Tax department, in trying to meet its steep “collection” targets have been terrorising tax payers indiscriminately.

An ‘Office Memorandum’ dated 20 March 2014 issued by the under secretary to the government of India, ministry of finance, following a video conference held on the same day. The memorandum appears to be addressed to the officers of the income-tax department and highlights the following:

“There is a shortfall of more than Rs50,000 crore in net revenue collection for the current year that will end on 31st March, 2014.

An analysis with reference to collections in respect of each CCIT (CCA), the growth trend till date and the growth trend with reference to minor heads suggested that the target could be reached provided there is no slacking of efforts. In order to achieve the Budgetary Targets, all officers across the country should show commitment to work 24 X 7 hours for remaining 11 days of the financial year.

Assessing officers/Addl. CIT/CIT/CCIT involved in assessment work and collection of taxes shall not leave headquarter up to 31.03.2014. In case of any emergent requirement, permission for leaving Headquarter by any officer mentioned above is to be taken from respective Zonal Members.”

Another example of the kind of pressure that is exerted on the tax officers which forces them to adopt high-handed tactics is a letter from by the chairman of the Central Board of Direct Taxes (CBDT) to the highest-ranking officers of the tax department on 7 February 2012.

In that letter, the then chairman, CBDT, Laxman Dass, told senior officials that their career prospects would depend on their success in meeting targets for tax collection, emphasising the government’s desperation to raise revenues to plug the rising fiscal deficit. He sent out a clear message to the top 100 officials that tax revenue targets are ‘non-negotiable’.

In one of the recent tax terror cases, a transfer-pricing related issue involving Bharti Airtel, the income-tax officer disallowed a sum of Rs57,39,60,05,089 (to make it simple for you—it means Rs5,739 crore!). This was done, despite the fact that it was obvious that there was no need for such a disallowance. To get into the details of the case would entail a special issue of Moneylife.

Suffice it to say that the disallowance was, prima facie, absurd and unwarranted. The officer who passed the order would definitely be aware of this. His boss would also be aware as well, since such a large order could not have been issued without the knowledge of the higher authorities. While hearing the appeal, the members of ITAT have come out heavily against the officer who passed the order.

The tax officers of the country have become so brazen and insensitive because of the policies of the finance ministry. If the chairman of the CBDT can tell his officers that their appraisal depends on how much tax they collect, one need not be a nuclear scientist to understand why taxpayers find themselves in the condition that they are today.

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