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J. B. NAGAR CPE STUDY CIRCLE Presented by: Manish Shah Chartered Accountant Practical Issues in Scrutiny Assessment.

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Presentation on theme: "J. B. NAGAR CPE STUDY CIRCLE Presented by: Manish Shah Chartered Accountant Practical Issues in Scrutiny Assessment."— Presentation transcript:

1 J. B. NAGAR CPE STUDY CIRCLE Presented by: Manish Shah Chartered Accountant Practical Issues in Scrutiny Assessment

2 Contents Scrutiny Assessments Pre- Assessment procedures Issues in Scrutiny Assessment Re-assessment Post- Assessment procedures TP Assessments; Protective Assessments, and Order Giving Effect to orders u/s. 263, 250 & 254 Nov 24, 2012Bansi S. Mehta & Co.2

3 Assessments Assessment generally includes all proceedings - S. Sankappa v. ITO (68 ITR 760)(SC) The word assessment is used in the Act in a number of provisions in a comprehensive sense and includes all proceedings starting with the filing of the return or issue of notice and ending with determination of tax payable by the Assessee Nov 24, 2012Bansi S. Mehta & Co.3

4 Assessments Covered 143(3): Scrutiny Assessment 144 : Best Judgement 147 : Reassessment proceedings 144C : Draft Orders in respect of Transfer Pricing Assessments Nov 24, 2012Bansi S. Mehta & Co.4

5 Pre-assessment Procedures Return of Income Annual Accounts and Tax Audit report – relevance in Scrutiny Assessments E-filing Scenario vis a vis aggressive and debatable claims Providing Disclosure and notes – How and when AIR information Nov 24, 2012Bansi S. Mehta & Co.5

6 Intimation u/s.143(1) AO only to process the return under section 143(1) in following manner : Make adjustment to total income for the arithmetical mistakes or incorrect claim which is apparent from any information in return; Compute Tax and interest on the basis of TO so computed; Determine Demand or Refund – After considering tax paid and reliefs claimed; Issue intimation for demand payable or refund due and grant refund, if determined Nov 24, 2012Bansi S. Mehta & Co.6

7 Intimation u/s.143(1) incorrect claim A claim made on the basis of an entry in the return which is inconsistent with another entry of the same or some other item in such return; A claim, in respect of which the information required to be furnished under this Act to substantiate such entry has not been so furnished; or In respect of deduction, where such deduction exceeds specified limit. Nov 24, 2012Bansi S. Mehta & Co.7

8 Intimation u/s.143(1) Intimation shall be sent within 1 year from the end of the financial year in which the return is made. Where, after making the above adjustments either no sum is payable by the assessee or no refund is due to him, the acknowledgment of the return shall be deemed to be intimation u/s 143(1). Section 143(1D) provides that processing of a return u/s 143(1) shall not be necessary, where a scrutiny notice has been issued to assessee under sub-section (2) (applicable from July 1, 2012). Is Intimation u/s. 143(1) is appealable? Nov 24, 2012Bansi S. Mehta & Co.8

9 Initiation of Scrutiny Assessment Issue of Notice under section 143(2) Where the return has been made u/s 139 or in response to notice u/s 142(1), the assessing officer shall if he considers it necessary or expedient to ensure that- The assessee has not understated the income; or Has not computed excessive loss; or Has not underpaid the tax in any manner serve a notice on the assessee u/s 143(2) requiring him to attend his office or to produce or cause to be produced any evidence on which the assessee may rely in support of the return on a date. Nov 24, 2012Bansi S. Mehta & Co.9

10 Notice u/s. 143(2) Time limit: Notice u/s 143(2) to be served within expiry of 6 months from the end of financial year in which the return is furnished. – Meaning of Service Notice u/s 143(2) cannot be served if no return has been furnished by the assessee. In such a case, notice u/s. 142(1) has to be first issued. If Notice u/s 143(2) is not served, an assessment cannot be made u/s 143(3). However, AO may take recourse of section 144. Impact of section 292B and section 292BB Besides serving notice u/s 143(2), the assessing officer normally also serves a notice u/s 142 for producing books of accounts, statement of assets and liabilities etc. Defects in Notice under section 143(2) – whether renders assessment invalid? Nov 24, 2012Bansi S. Mehta & Co.10

11 Inquiry - Notice u/s. 142(1) For the purpose of making an assessment, the Assessing officer may: When Return of income is not filed u/s 139(1) or before the end of the relevant assessment year- Serve a notice u/s 142(1)(i) for furnishing the Return of income When Return of income is already filed- Serve a notice u/s 142(1)(ii) to produce such documents or accounts as he may require, Serve a notice u/s 142(1)(iii) to call for information he may require including statement of assets & liabilities Nov 24, 2012Bansi S. Mehta & Co.11

12 Obtaining information For the purpose of obtaining full information in respect of income or loss of any person, the assessing officer may make such enquiry as he considers necessary. While section 142(1) empowers the assessing officer to collect the information from the assessee himself, section 142(2) empowers him to collect information from sources other than the assessee. The assessing officer shall not require the assessee to produce any accounts relating to a period more than three years prior to the previous year. Where the AO issues a notice calling for production of accounts relating to earlier years and one of those falls beyond the prescribed three-year time limit, the whole notice cannot be treated as bad, inasmuch as the illegal portion of notice as regards to one of the years is clearly several from the rest of the terms of the notice which are legal – Murlidhar Madanlal v. CIT (20 ITR 231 (Pat.). Nov 24, 2012Bansi S. Mehta & Co.12

13 Audit of Accounts - Section 142(2A) The assessing officer, if – o having regard to the nature and complexity of the accounts of the assessee and o in the interest of the revenue is of the opinion that it is necessary so to do, may, at any stage of the proceedings before him, direct the assessee to get the accounts audited by a Chartered Accountant nominated by the Chief Commissioner / Commissioner of Income Tax. The assessing officer can issue such direction only with prior approval of the Chief Commissioner/ commissioner of Income Tax [section 142(2A)]. Direction of audit can be given even if the accounts are already audited under the Income Tax Act or under any other law [Section 142(2B)]. Nov 24, 2012Bansi S. Mehta & Co.13

14 Sec.142 (2A) The direction to get accounts audited can be issued only in the course of pending assessment proceedings and not after the completion of assessment. The assessment also includes reassessment. No appeal is possible against order u/s 142(2A) for audit of accounts. Special audit cannot be ordered only on the basis of doubt regarding correctness accounts. Before an approval is sought for, the assessing authority must form an opinion regards the said twin conditions. There should be an honest attempt to understand the books of account of the assessee. There has to be an application of mind on the part of the assessing authority. Nov 24, 2012Bansi S. Mehta & Co.14

15 Quasi-judicial Proceedings – Indian & Eastern Newspapers Society v. CIT (119 ITR 996)(SC) Assessment to be based on material and information and on the basis of conjectures and surmises – Dhakeshwari Cotton Mills Ltd (26 ITR 775) (SC) Principle of natural justice applies (CIT v. Raja Ginning Udyog (268 ITR 383) (MP) Res judicata does not apply - Dwarkadas Morarka (44 ITR 529)(SC). However principle of consistency applies (208 ITR 872)(Raj) Principle of Estoppel does not apply to Department as well as to assessee. Mistake by one does not estopp another. CIT v. Thanthi Trust (137 ITR 735)Mad) & Balmukund Acharya (Bom)(HC ) Nov 24, 2012Bansi S. Mehta & Co.15 Assessment – General Principles

16 Assessment – Practical Aspects Manner and extent of furnishing details AIR Reconciliation Issue –wise Submissions Details to be self explanatory else supported by explanatory notes Additional Information Recurring Issues Fresh Claims and Deductions Without Prejudice claims Recourse to section 144A Nov 24, 2012Bansi S. Mehta & Co.16

17 Time limit to Complete Assessment From AY 2010-11 & onwards: An assessment u/s 143 shall be completed within 2 years from the end of the relevant assessment year; From AY 2009-10 & onwards: Where reference is made to Transfer Pricing Officer (TPO), the time limit for completion of assessment would be shall be 3 years. Nov 24, 2012Bansi S. Mehta & Co.17

18 Assessment Order The assessment order should determine not only the total income of the assessee but also the amount payable by him. Where the order determining the total income is passed within the prescribed time limit but the tax payable is not determined within the prescribed time limit, assessment would be time barred. The officer must assess the total income of the assessee in accordance with the provisions of the Act. It is not open to him to assess the income from one or more sources and leave the others undetermined. He cannot make piecemeal assessment nor can he make a provisional or tentative assessment - Debi Prasad Malviya v. CIT 22 ITR 539 (All.) Nov 24, 2012Bansi S. Mehta & Co.18

19 Best Judgement Assessment (S. 144) When can a best judgement assessment be made? (Sec. 144(1)) (a) Failure to file ROI u/s. 139(1) and u/s. 139(4)/(5); or (b) Fails to comply with all the terms of the notice u/s. 142(1) or direction u/s. 142(2A); or (c) Fails to comply with all the terms of notice u/s. 143(2) AND (d) Assessee is given an opportunity of being heard (issue of show cause notice) Nov 24, 2012Bansi S. Mehta & Co.19

20 Section 144 In addition to above, the assessing officer is empowered to make best judgment assessment in the following situation: Where the assessing officer is not satisfied about the correctness or completeness of the accounts of the assessee; [See: Madani Construction Corporation P. Ltd. V. CIT (296 ITR 45) (Gauh.)] Where the method of accounting u/s 145(1) has not been regularly followed; and Where accounting standards notified by the central government u/s 145(2) have not been regularly followed by the assessee. Nov 24, 2012Bansi S. Mehta & Co.20

21 Section 144…. Issue of Show cause notice: o Before proceeding with best judgement assessment, show cause notice u/s. 144 needs to be issued to the assessee. o No such notice be issued in case notice u/s. 142(1) is already issued. o No time limit specified upto which such notice needs to be issued. Time limit for passing 144 order - Sec. 153(1): Assessment u/s. 144 to be completed within 2 years from the end of the relevant assessment year Nov 24, 2012Bansi S. Mehta & Co.21

22 Issues related to section 144 144 Order needs to be a speaking order as regards: Reasons for conducting best judgement assessment Basis of determining the tax liability Caselaws: CIT V. Ranicherra Tea Co. Ltd. [207 ITR 979] (Cal.) Oceanic Industries (India) Pvt. Ltd. (34 STC 546) (Cal.) ACIT V. Roopchand Kharani (66 DTR 104) (Chattisgarh) AO needs to make an intelligent and well grounded estimate and thereby does not have an absolute arbitrary authority u/s. 144 Caselaws: S. N. Hasan V. New Gramophone House (AIR 1977 SC 1788) (SC) State of Orissa V. Maharaja Shri B. P. Singh Deo (76 ITR 690) (SC) Kanchwala Gems V. JCIT (288 ITR 10) (SC) Nov 24, 2012Bansi S. Mehta & Co.22

23 Issues related to section 144 Once books of accounts are rejected, then reliance on some entries in those books to make separate addition is not justified ACIT V. Renu Mukherjee (177 Taxmann 58)(Del.)(Trib.) Clause (a) to (d) - whether cumulative or alternative? Supreme Court in Buchiah Settys case (77 ITR 539) dealing under the 1922 Act held that the conditions specified are alternative Kerala HC in Mubarak Trading Co (174 Taxmann 339) dealing under the present Act has held that the conditions are cumulative Nov 24, 2012Bansi S. Mehta & Co.23

24 Income Escaping Assessment (Sec. 147) AO has to have a reason to believe that income has escaped assessment Obligatory to issue notice Reasons must be recorded in writing ITO should have reasons to believe and not reasons to suspect [ACIT vs. Rajesh Jhaveri Stock Brokers (P) Ltd.(2007) 291 ITR 500 (SC)] Limitation of issuing notice – 6 years from end of AY Approvals to be taken [sanctions] Types No Regular Assessment Regular Assessment, but within 4 years Regular Assessment, beyond 4 years [Failure cases] Cases where no time limit applies Special cases of agent U/s. 163 [2 year time limit] Assessment procedure Nov 24, 2012Bansi S. Mehta & Co.24

25 Tabular presentation of Provisions If no Regular Assessment 1 If less than 4 Years * NilNone If more than 4 years * Rs. 1.00 lacJCIT If Regular Assessment If less than 4 years * NilJCIT sanction [ITO] If more than 4 years * Rs. 1.00 lacCCIT / CITFailure of Assessee If Assessment as agent Overall time limit of 2 years from end of AY Nov 24, 2012Bansi S. Mehta & Co.25 1 Including Assessment under Section 147 * From end of the Relevant Assessment Year Overall time limit of 6 years from end of the relevant AY

26 Escapement of Income Explanation 2 to 147 [namely – but also] No ROI furnished though income exceeded maximum amount not chargeable to tax; Return filed, no assessment made and the AO notices that Assessee has understated income or has claimed excessive loss, deduction, allowance or relief in the return Assessment made, but Income under assessed, or Assessed at too low a rate or Excessive relief ; or Excessive loss or depreciation allowance or any other allowance Escapement is must Assessed for later year is not escapement [Hum Boldt Wedag India ltd. (236 ITR 845) (Cal)] Pendency of valid return bars reassessment [Deva Prasad Barua (75 ITR 18) (SC), Ranchhoddas Karsondas (36 ITR 569) (SC)] Pending Assessment proceedings [(51 ITR 557) (SC)] Nov 24, 2012Bansi S. Mehta & Co.26

27 Reasons to be recorded Absolute must and it has to be recorded before issuance of notice Forms foundation of the proceeding Recording it before issuance of notice is a must Smt. Narinder Kaur 144 Taxation 527 (Punj) IBM World Trade Corporation 216 ITR 811 (Bom) UOI Vs. Rai Singh 88 ITR 200 (SC) Johri Lal 88 ITR 439 (SC) Divekar 157 ITR 629 (Bom) Mechanically recording of reasons [Lokendra (155 ITR 629) / Agarwalla (189 ITR 786) Factually incorrect or misguiding [Suganchand (105 ITR 743(] Cannot be waived by the Assessee [Doshi (113 ITR 22) (Guj)] Nov 24, 2012Bansi S. Mehta & Co.27

28 Communication of the Reasons Reasons need not be communicated with the notice Law pronounced by the SC in the case of GKN DriveShafts (259 ITR 19) AO issues the notice Assessee files the returns and asks for copy of the reasons recorded [better if you file initial objections or denial of the validity] AO provides the copy of the reasons recorded Assessee filed the objections AO disposes off the objections by speaking order AO then proceeds with the assessment Whether the order by AO disposing off the objection is an appealable order? – Writ or appeal against normal assessment Nov 24, 2012Bansi S. Mehta & Co.28

29 Issue of Notice Concept is issue of notice and not Service The limitation applies to issuance of notice and not of service R. K. Upadhyaya Vs. Shanabhai Patel 166 ITR 163 However, service of valid notice is a must for reassessment Non-service of the valid notice is jurisdictional defect and cannot be cured T. R. Rajakumari 96 ITR 78 (Mad) If the notice is invalid for any reason or service is invalid the entire proceedings gets vitiated and becomes null and void [Y. Narayana Chetty 35 ITR 388 (SC) Notice could be invalid for the following reasons Vague [about assessment year / person / status, etc.] [Chandiprasad 119 ITR 340; Madablal 144 ITR 745; Adinaryana 65 ITR 607] Not served in accordance with law [Jayanthi 120 ITR 576] Incorrect Assessment Year [Kurban Hussain 82 ITR 821 (SC)] Not Signed [Gooyee 62 ITR 109 (Cal)] Nov 24, 2012Bansi S. Mehta & Co.29

30 Objections to the Reasons Change of Opinion 143 (1) Notice – No Opinion and therefore no question of change of opinion Bharat V. Patel [268 ITR 116 (Guj)] Mere Change of opinion does not entitle the AO to re-open the assessment – even within the period of 4 years [Kelvinator 256 ITR 1 (Delhi) (FB) Jindal Photo (234 ITR 170) No change of opinion if AO does not specifically apply his mind – Usha International Ltd (Delhi HC)(Full Bench) Pending Assessment Notice U/s. 148 cannot be issued when valid return pending Once the time limit for issuance of notice U/s. 143 (2) has passed, the 148 notice can be issued Nov 24, 2012Bansi S. Mehta & Co.30

31 Regular assessment > 4 Years Proviso to Section 147 Where an assessment U/s. 143 (3) or S. 147 made earlier No action under Section 147 beyond 4 years from end of the A.Y. unless, income has escaped assessment on account of failure on the part of the assessee to: File the return of income; or Fully and truly disclose all material facts necessary for the purpose of making an assessment Failure on the Part of the Assessee Material Facts Therefore, mere escapement of income is not sufficient Nov 24, 2012Bansi S. Mehta & Co.31

32 Scope of Re-assessment Need not restrict himself to the reasons recorded - Fishing enquiry – whether permissible When original reasons recorded are held to be invalid, the re-assessment cannot be confirmed on other grounds - [Chunnilal 160 ITR 141] o Reasons recorded on Grounds A and B o Grounds A and B no addition made; o Additions made on Ground C – Not Valid What is set-aside in the re-assessment is only the previous under- assessment and not the whole assessment. Assessee cannot re-agitate questions which had been decided in the original assessment - [Sun Engineering Works 198 ITR 297 (SC) However, the assessee can put forward his claim for expenditure relatable to escaped income [Caixa Economica 210 ITR 719 (Bom)] Reduction in originally assessed income, refund of tax, assessment of loss, etc. not permissible [Kasinath 4 ITC 472, Satyendra 4 ITC 447, Niranjan 52 ITR 882 Nov 24, 2012Bansi S. Mehta & Co.32

33 Section 292B and 292BB Effect on assessments Applicability of sec 292 BB – Assessment Year 2008-09 and onwards. For earlier A Ys – objections can be raised at any forum Kuber Tobacco Products P Ltd (117 ITD 273) ITAT Delhi Nov 24, 2012Bansi S. Mehta & Co.33

34 Other Aspects in assessments Scrutiny Assessment with reference to AIR (Sec. 285BA) Transfer Pricing Assessments and DRP Protective Assessments Order Giving Effect to 263, 250, 254 Nov 24, 2012Bansi S. Mehta & Co.34

35 Post Assessment Procedures Penalty Proceedings Stay Proceedings Filing of Appeals and Revision Applications Rectification Proceedings Additional Claims post assessment Nov 24, 2012Bansi S. Mehta & Co.35

36 Thank You Nov 24, 2012Bansi S. Mehta & Co.36

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