Indore Branch of Central India Regional Council of The Institute of Chartered Accountants of India

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Indore Branch of Central India Regional Council of The Institute of Chartered Accountants of India NEWS LETTER September-2018 Vol.-22 No. 09 CA.

However, amid the busyness, the extension of dates for filing returns and tax audits which were due by 0th September to 15th October has provided unexpected respite from the

We may utilize this extension of time, as our interaction with the clients increases these days, to explain the benefits of the new provisions and advice the appropriate clients.

From this month, we are having series of festivals like Ganesh Chartuthi, Id and Onam to be followed by so many in coming month.

1 Indore Branch of Central India Regional Council of The Institute of Chartered Accountants of India NEWS LETTER September-2018 Vol.-22 No. 09 CA. Abhay Sharma Chairman, Dear Colleagues, We are in the busiest month of the year in attending audits and tax returns in full swing. However, amid the busyness, the extension of dates for filing returns and tax audits which were due by 0th September to 15th October has provided unexpected respite from the hectic schedule. We may utilize this extension of time, as our interaction with the clients increases these days, to explain the benefits of the new provisions and advice the appropriate clients. We need to strike a balance between personal and professional life and ensure that extra pressure of work does not take toll on our health. From this month, we are having series of festivals like Ganesh Chartuthi, Id and Onam to be followed by so many in coming month. I wish you all to enjoy these festivities with full zeal and warmth. On the occasion of teachers' day, I take opportunity to pay gratitude for all teachers in life, in any form like seniors, friends or whatever, who have taught me in any manner. I welcome all the new members in last one year, and thank all for active participation in regular meetings. Professionally yours, Member : CA. Anand Jain, CA. Garjana Rathore CA. Vipul Padliya Ex. Officio Member : CA. Kemisha Soni, CA. Churchil Jain, CA. Nilesh Gupta

Reminding the Rights: Empowering the Assessee in Assessments The Tax Authorities in the Assessment Proceedings exercise their quasi judicial powers and in doing so it is expected that they must act

2 Reminding the Rights: Empowering the Assessee in Assessments The Tax Authorities in the Assessment Proceedings exercise their quasi judicial powers and in doing so it is expected that they must act fairly and not in a partisan manner. Indeed it is their duty to ensure that no tax which is legally due from Assessee remains unrecovered but at the same time they should not act in a manner as might indicate that scales are weighed against the Assessee. When the authorities administer their powers with an evil eye and unequal hand the Assessee should respond and defend with the rights provided to it by the Constitution, Legislation and Judiciary. This article is devoted to the noble cause of reminding the cardinal rights and thereby empowering the Assessee to face Assessments in a careful manner. Assessee's right to inspect the records and obtain copies of Proceedings Every Assessee has fullest right to inspect all documents, records, correspondences in respect of his case and any limitation to such right to inspect is infringement of his Rights under Article 14 of the Constitution. Sometimes the inspection of records proves very helpful in case for eg. From the Inspection of Assessment records in a Reopening case, it can be seen that whether the notice was issued after necessary approval or not, whether the reopening is based on any audit objection or not. Therefore it is advisable that wherever it is felt that inspection of records would be helpful, it should be applied for. Wherever it is denied by the Assessing Officer, the higher authorities should be approached since inspection of his records is basic right of an Assessee. Similarly it is a right of Assessee to obtain copies of Assessment records, proceedings, documents, etc. The records in the assessment file constitute public documents within the meaning of section 74 of Indian Evidence Act as forming the acts or records of the acts of a public officer or of an official body. Opportunity of being heard It is a principle of natural justice that every person has a right of being heard before any prejudice is caused to him by way of Assessment or addition or disallowance. The Assessing Officer is supposed to give a show cause notice before making any disallowance and provide sufficient opportunity of hearing in absence of which the order becomes illegal and void. Similarly very short time provided by the Officer to furnish explanation or details would also be considered as denial of sufficient opportunity of hearing. Private enquiries made by Department Tax authorities are open to conduct enquiries and to collect materials to facilitate assessment even by private enquiry. But if they desire to use the material so collected then the Assessee must be informed of the material and must be given an adequate opportunity of explaining it. Further the Assessee has a right to cross examine and without allowing the opportunity of cross examination, adverse inference cannot be drawn though the evidence may be so strong Use of Affidavits in Assessment Proceedings An affidavit is a written sworn statement of fact voluntarily made by the person under an oath or affirmation administered by a notary. It may be noted that facts stated on Affidavits cannot be rejected in law unless the person has either been cross-examined or called upon to produce documentary evidence in support of the affidavit sworn by him. Further the tax officers cannot accept the facts stated in affidavit partly i.e. accepting the part in favour of revenue and ignoring the part in favour of assessee and therefore an affidavit has to be read as a whole. Therefore the Affidavits can be used in appropriate cases to shift the burden on the other side to a great extent. However one should be very careful before filing an affidavit since suppression or stating wrong facts would amount to fraud and has severe consequences under Section 195 of Indian Penal Code. Onus on Department Vis-à-vis Onus on Assessee The fact that assessee has any unaccounted income or income outside books has to be proved by the department since it is not possible for the Assessee to prove negative that he does not have any income outside books. However where an expense or deduction has been claimed by the Assessee the onus shifts to the Assessee to prove that all the necessary conditions for allowability have been complied with and all the material facts have to be brought on record for substantiating the claim. Preponderance of probabilities Normal presumption is in favour of good faith and in favour of treating the apparent as real unless otherwise proved. Transactions in books have to be taken and considered as they are appearing and presumed to be real and genuine unless there is any specific reason and material which indicates that there is sham or bogusness. However the taxing authorities are entitled to look into the surrounding circumstances to find out the reality and the matter has to be considered by applying the test of human probabilities.additions or disallowances can be made by the Assessing Officer after applying the test of human probabilities and concluding whether the transaction is

3 genuine or not. Indeed probabilities are a determining factor for making additions however it is also clear that no penalty can be levied on additions made on preponderance of probabilities. Estimation of Income or Disallowances Wherever the Assessing Officer wishes to proceed in estimating the income it is imperative on the Assessing Officer to provide an opportunity to the Assessee to rebut the basis of his estimate and in absence of such opportunity the estimation is not well founded. Further the estimation has to be based on certain logical basis like comparison with data of similar businesses. Where the estimation is based on comparable cases then it is the duty of Assessing Officer to confront the Assessee with such comparable and afford an opportunity to rebut such cases, any deviation from this procedure would make the estimation illegal. If an estimate is based partly on irrelevant material and partly on relevant material, it is difficult to sustain the estimate because it cannot be said as to what extent and which part of the figure of estimate depends upon the irrelevant portion of the matter. Moreover where the additions have been made or are sustained on estimate basis, penalty u/s 271(1)(c) cannot be levied. No addition or books rejection for Lower or Inadequate Profits One normally comes across in Assessment to rebut the allegation of inadequacy or low profits. The Assessing Officer may even try to give show cause for rejection of books of accounts on the allegation of lesser profits. Here one needs to appreciate that low profits may be attributable to the fact that the assessee may be incompetent or his method of business may be uneconomic. Unless any specific defect is demonstrated by the Assessing Officer the books cannot be rejected and no addition can be made for profits. Variation of yield and other factors are dependent on several factors therefore no adverse inference can be made on the basis of these indicators subject to the proper maintenance of all records. Innocent or Trivial Mistakes in Accounts 'To err is human' and there may be small and innocent mistakes in accounts which may come to notice during the scrutiny of books in Assessment. If these mistakes and omissions are unintended and due to inadvertence the accounts can still be acceptable as genuine and substantially correct. The effect of these trivial mistakes may be limited to the extent of adjusting the income as per correct data. Here it is important to note that penalty is not leviable for additions or disallowance in respect of mistakes or errors noticed in accounts. Rule of Consistency It is true that each assessment year is different and the principle of res judicata or estoppel by record, does not strictly apply to income tax proceedings but it is also true that consistency should be maintained for the purpose of finality in all litigations. Stand accepted by department on an issue or earlier decisions on the same questions should not be reopened unless some fresh facts are found in the subsequent year. If there is no material change in facts or then the department must follow rule of consistency. The principles of natural justice also require that if there is prior determination by the Income-tax department, ordinarily there should be no variation from that decision unless there are fresh circumstances to warrant a deviation from the previous decision Decision of Tribunal Binding on Assessing Officers The Assessing Officer cannot ignore the decision taken by the Tribunal in favour of the assessee and take a contrary view. Though the revenue tribunal is not a court of record and its decisions are not precedents per se but the decisions of tribunals are held to be binding by Supreme Court on all revenue authorities functioning under the jurisdiction of the Tribunal. Commercial Expediency Department cannot dictate the circumstances in which expenditure is to be incurred. It is not open to the department to prescribe what expenditure an assessee should incur and in what circumstances he should incur that expenditure. Every businessman knows his interest best. No question of reasonableness arises when it is found that expenditure has been incurred by the assessee wholly exclusively for the purpose of business. IT is also settled that wholly and exclusively does not mean 'necessarily' and any expense for the promotion of business is wholly and exclusively for the business. New Claim It is now settled that an Assessing Officer can only entertain a claim which was made in the return of income. Further there may be cases where a claim is first time lodged before the Appellate authorities. In such cases if the liability arises, then a claim can be made bona fide at any stage before any higher appellate authority, which is competent to grant relief. Whether a deduction was claimed or not before the ITO, is not of much importance. Method of Accounting Every Assessee is free to choose the method of accounting and the department cannot compel the Assessee to adopt the mercantile system of accounting. Moreover the assessee is free even to follow different methods of accounting for income from different sources. Also an Assessee An assessee can change the method of accounting in respect of a source of income without any requirement of approval from Tax Authorities. As regards method of valuation of closing stock, cost or at market value whichever is less is a generally accepted and established rule of commercial practice. The aforesaid are some basic principles which every member should know before representing the Assessee in Assessments. Awareness of Assessee's rights would help in combating the arbitrary actions and conclusion of a harmonious assessment.

MONTH OF SEPTEMBER 2018 ACTIVITIES Sr. No. Date Programme Topic Faculty Guest Venue CPE Fees 1 01.

Kirti Joshi 15.09.2018 on GST Shri Pawan Sharma, IAS ( Commissioner SGSR ) CA. Navneet Garg Shri.

4 MONTH OF SEPTEMBER 2018 ACTIVITIES Sr. No. Date Programme Topic Faculty Guest Venue CPE Fees Mergers Demerger and unlocking Value from it CA. Surli Mehta CA. Chinmay Naik on Critical issues under capital gain CA. Kirti Joshi on GST Shri Pawan Sharma, IAS ( Commissioner SGSR ) CA. Navneet Garg Shri. Mukul Sharma Retd CTO CA. S Krishnan Session Chairman

5 Indore Branch of CIRC of ICAI Plot No.19-B, SchemeNo.78,Part-II, INDORE (M.P.)Tel.: , Registered with the Registrar of Newspaper for India under No. MPBIL 0121/12/1/2008-TC Printed & Published by CA. Abhay Sharma Chairman on behalf of the Indore Branch of Central India Regional Council of The Institute of Chartered Accountants of India, Plot No.19-B, SchemeNo.78,Part-II, INDORE (M.P.)

NEWS LETTER. Indore Branch of Central India Regional Council of The Institute of Chartered Accountants of India. October-2018 Vol.-22 No.

NEWS LETTER. Indore Branch of Central India Regional Council of The Institute of Chartered Accountants of India. October-2018 Vol.-22 No. Indore Branch of Central India Regional Council of The Institute of Chartered Accountants of India NEWS LETTER October-2018 Vol.-22 No. 10 Dear Professional Colleagues, CA. Abhay Sharma Chairman, We celebrate