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Income Tax Basics
Every taxation system requires assessment. So does the Income Tax Laws of India. Assessment simply means determination of Tax. This tax is determined as per Taxation laws existing in that particular Assessment Year.
What constitutes income is a very dynamic concept – as that is determined through mix of legislation, court judgement, custom, business practice etc. Many times, there are retrospective amendments in law that leads to change in amount of income for particular assessment year (AY), and consequently change in tax liability.
Here we may remember that the process of Assessment comes when income has already been earned or accrued. Consequently first the income year comes and the year next to income year is the assessment year. For example the Assessment Year 2009-10 would relate to income year 2008-09. Here in common parlance, the income year might be called ‘financial year’. However, the Income Tax Act of India prefers to call it ‘Previous Year’.
Person – One who earns Income
The ‘Person’ who is under assessment is called the Assessee. The Person / Assessee can be an Individual / HUF / Firm / LLP / Cooperative / Company / AOP / BOI / Artificial Juridical Person.
Types of Income
Tax is assessed (ie. determined) under the following heads of income:
2) House Property
3) Business / Profession
4) Capital Gain
5) Other Sources
Now it is understood that these heads of income would be applicable depending on type of assessee. For example a Company or Firm etc cannot earn salary. – only an individual can earn it.
Types of Assessment
Here we focus on the various procedures of assessment. Under Income Tax Act 1961, there are the following types of assessment:
1) Sec 140 A – Self Assessment
2) Sec 143 (3) – Regular / Scrutiny Assessment
3) Sec 144 – Best Judgment Assessment
4) Sec 147 – Assessment / Reassessment of Income Escaping Assessment
Here we shall not deal with search and seizure situations.
Normal Procedure of Taxation
The usual process of Taxation is:
1) The assessee earns income
2) He deposits tax – based on self calculation – or as determined by his Tax Consultant
3) The assessee fils Income Tax Return (ITR)
Income Tax Return (ITR)
Here it may be noted, that just paying tax is not enough. The ultimate thing is the ITR. This ITR can be called a self declaration of information containing various sources of income earned and tax paid. The Government requires ITR because, in absence of that, it would not be able to understand as to what amounts and from what sources the assessee has earned in the year, and what taxes has to been paid by the assessee.
Here without going into details, it might be added, that the ITR under normal course should be filed u/s 139(1). This section describes the normal time limit of filing the ITR – which is for non-audit cases is July 31 of the Assessment year, and for audit cases September 30 of the Assessment year.
Generally, a person who has income above the minimum exemption limit (without giving effect of any sections of IT Act) is obligated under law to file ITR. However assessee eg a Company has to file ITR compulsorily whether it earns profit or not.
Also, a person, who has income below the minimum exemption limit, though not required by law, is not barred from filing ITR. Often people having income below the minimum exemption limit also file ITR – and the motivation for filing it varies – it can be that someone wants a Credit Card or a loan from some Bank or NBFC, or has to produce the ITR for getting some contract. Many of those who return such income are genuine cases.
However, there are others who would try to manipulate law for their ends. For example, some people who are in receipt of black money – file ITR in name of their wives or other relatives – showing that these relatives have earned it through some activity like coaching or teaching or sewing center! This way they make some of it white – without paying any tax!
It is even possible that such an assessee is not in receipt of the amount that is being shown in ITR – it is just to get benefit of Credit Card or a personal loan that they file ITR.
Also, sometimes, ITR is filed for the purpose of getting refund of TDS. Had there been no TDS, the person might not have required filing ITR.
Legally one should return only that much income which s/he earns. However our Income Tax laws are so complicated – that people would take advantage of it in different ways and sometimes in a wrong way.
Need for Checking by IT Dept
Often people may think that IT Dept would not be concerned if any person files ITR showing income of Rs. 85,000 – when the exemption limit is Rs. 150,000. But I have seen that even Assesses returning such low level of income as Rs. 83,000 come under net of scrutiny assessment!
Then there are also mal-practice in case of many assesses who earn high income. The usual tendency is to show less income so as to pay less tax. This is quite prevalent among Company assesses and Trusts. Often, such malpractice of returning less income is deliberate. But sometimes, it can even be due to ignorance of law or mis-application of law.
Given this situation – where the culture of honesty is not there in society – whether deliberate or by design or by ignorance of law – the IT Department has come out with its own ways and procedures of assessement. Every year it comes out with a list of assesses – which is a certain percentage of assesses – of which it does detailed scrutiny. The list is generated by computer (Computer Assisted Scrutiny System (CASS)) based on certain pre-defined criteria, as determined by the IT Dept from time to time.
Examples of such criteria:
1) All returns where deduction claimed under Chapter VIA of the Income tax Act is Rs. 25 lakhs or above in stations other than the cities on computer network.
2) All cases where total value of International Transactions (as defined u/s 92 B of the Income tax Act) exceed Rs.15 crores) etc.
Usually every year, the IT Dept comes out with number of such criteria – which it considers fit cases for detailed scrutiny.
Here it may also be added that u/s 2(7) Assessee means a person by whom income tax or any other sum of money is payable under this Act, and includes
(a) every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person ;
(b) every person who is deemed to be an assessee under any provision of this Act ;
(c) every person who is deemed to be an assessee in default under any provision of this Act ;
Consequently the department can issue assessment notice to any person – including non-asessees and non residents – if in opinion of department such person is liable to tax.
The other thing is that the above-mentioned types of assessments are assessment under different conditions or (legal) situations or stages. It would be even more appropriate to call them different procedures of assessment. Because ultimately – and simply stated – assessment is determination of tax. One cannot determine different tax for same income at different times (till one is following the same law for the particular AY). It is basically the kind of information that the IT Dept has with itself that it undertakes to assess the tax liability under the different provisions.
1) Self Assessment u/s 140 A: This simply means that the person is calculating his own tax liability and thereafter filing ITR after payment of self-calculated tax. Since assessee himself calculates the tax and income returned – it is called self-assessment. However, the system of self-assessment is only to make the work of IT Dept easier – it is not the end of assessment. It is simply paying tax and filing of Return by the assessee. The IT Dept only gives an acknowledgement / intimation u/s 143(1). The assessee can file ITR as Self assessment under the different sections of 139 (Return within due date / Belated Return / Return of Loss etc.) or in response to notice u/s 142(1) or 148 or 153A
The Self Assessment also covers case where one has filed IT Return – and some Refund is due. Then when the IT Dept processes the Return and sends the Refund Cheque (Income Tax Refund Order) – it is sent under cover of ‘Intimation u/s 143(1)’
There is no assessment order by the Dept. under Self Assessment simply because, the assessment is not being done by the department. In my opinion the self-assessment should only be considered an exercise in filing of ITR – and just – the first step in the process of assessment(s) that are undertaken by the department. If the Dept does not take up the case for any further assessment – then there is nothing else to do. Since the assessment is not being done by the IT Department, for legal purpose the acknowledgment / intimation by IT Department is not considered as ‘Assessment’.
2) Regular / Scrutiny Assessment u/s 143(3): For this notice is issued u/s 143(2). The salient features are:
This notice can be issued only when the assessee has furnished Return of Income u/s 139(1) or 142(1)
The notice u/s 143(2) has to be served on the assessee within six months of expiry of financial year in which the return was furnished.
Only 3% to 5% cases are taken for scrutiny assessment
The Assessing Officer (AO) is not required to possess any ‘reason to believe’. In this assessment AO is charged with the duty to ensure that the assessee:
– has not understated income
– has not computed excessive loss
– has not under paid taxes
Also, the AO may require documents / proof from the assessee – on which the AO would make his assessment and calculate the tax liability. Sometimes, AO may also wish to physically verify the Creditor etc!
Also while the scrutiny assessment is in process, the assessee can also put forth claims that he had not done in the ITR – and these have to be considered by the AO.
Consequently, in his assessment u/s 143(3) the AO can even reduce income below the returned income or assess loss higher than the returned loss.
The assessment u/s 143(3) is completed with an assessment order in writing – which should contain the tax computed under the signature of AO.
Under this AO can also do protective assessment – ie. assess the same income in hands of more than one person till it becomes clear in whose hand the income should be assessed. Protective assessment is undertaken so that there is no loss to Revenue.
If assessment u/s 143(3) is done on basis of invalid return – the assessment order continues to operate – till it is invalidated by the court.
On remand (ie. if the cases goes to ITAT on some points, and ITAT sends it back to AO for reconsideration or correction on question of fact or law) only the specific point can be dealt by the AO. On remand, the AO cannot bring in new sources of income or open new issues.
Assessment made under this section would be final and the department cannot open the case again – unless there are valid reasons (‘reasons to believe’). These are dealt in reassessment proceedings.
Best Judgment Assessment
3) Best Judgement Assessment u/s 144: Conditions:
– Assessee fails to furnish ITR u/s 139(1) and has not furnished it u/s 139(4)
– fails to comply with all terms of notice u/s 142(1)
– fails to comply with direction issued u/s 142 (2A)
– fails to comply with terms of notice u/s 143(2)
Then the AO to the best of his judgment can determine the income and tax payable by assessee based on records possessed by AO.
Prior to proceeding on assessment u/s 144, the AO should give a show cause notice to the assessee. However if the AO has already issued notice u/s 142(1)(i) and the assessee has not complied with its terms, then AO can go ahead with assessment and no show cause notice is required.
U/s 144 AO cannot assess income below returned income and cannot assess loss higher than the returned loss. Even in case there is no return for the year, the AO has to base his calculation on certain logical/rational/scientific and reasonable ways viz. based on ratios, growth rate of industry / sector. The assessment order should therefore be a speaking order.
Assessment u/s 144 can also be resorted to if AO is not satisfied with the correctness / completeness of Books of Accounts.
Also the AO can reject Books of accounts u/s 145 if assessment proceedings are in process u/s 143(3) / 144 / 147 / 153A – and in such case, the AO shall assess the income and tax to the best of judgement (ie. as per the requirements / procedure of sec 144) and complete assessment proceedings under the particular section under which the proceedings are going on.
4) Assessment / Reassessment of Income Escaping Assessment u/s 147:
To undertake assessment u/s 147, notice has to be issued u/s 148. Before issuing notice u/s 148 the AO shall ‘record his reasons’ for issuing the notice. The notice has to be issued separately for each AY for which proceedings are to be taken up u/s 147. The assessee has to file Return in response to notice u/s 148 – even if he has filed the return previously within due date. Also, the AO is duty bound to provide the assessee the reasons recorded by him – if the assessee requests for it after filing Return of Income in response to the notice. If on request the reasons are not supplied – then the AO cannot proceed u/s 147.
If there has been no previous assessment u/s 143(3) or 144, then proceedings u/s 147 is called assessment, else it is called re-assessment. Also assessment / re-assessment u/s 147 cannot be undertaken for any AY, if assessment proceedings are already underway under any other section of IT Act.
In this the most important thing is that the AO should have ‘reasons to believe’ that income chargeable to tax has escaped assessment. In proceeding under this sections, the AO can also consider any other income under any head of income that comes to his detection subsequent to issue of notice u/s 148. However, u/s 147 can only relate to issues of underassessment – and unlike assessment u/s 143(3), the AO cannot reduce income or increase losses..
This assessment can be undertaken whether the Assessee has filed return or not – or whether any assessment has been undertaken previously or not. This is because, the section 147 speaks both of assessment and also reassessment.
Reasons to believe includes:
1) There has been retrospective change of law – either by legislation or due to court order (usually Supreme Court)– and the AO finds that the assessee needs to be re-assessed in light of the new law / rule that is to be applied retrospectively.
2) Evidence that has come to notice of AO. This evidence can be from any source – including any other assessment proceedings or information received from revenue intelligence etc.
3) Mistake apparent from records
The interesting thing is that it is only necessary that there is prima facie some material on basis of which the case can be reopened. The sufficiency or even correctness of material is not to be considered at the stage of opening / reopening of caseu/s 147. However reasons to believe does not include – rumors, gossips, suspicion or change of personal opinion of AO.
Now, the assessment u/s 147 and 143(3) (and also 144) is sort of linked. After all, any assessment can be done only on scrutiny of records. Now as previously mentioned – to take up assessment u/s 143(3) – notice u/s 143(2) has to be served on the assessee within six months of expiry of financial year in which the return was furnished.
Now take an example – the assesse “X” has filed Return for AY 2006-07 based on income for the FY 2005-06 within due date of 31-July-2006. For doing scrutiny assessment u/s 143(3), Notice u/s 143(2) can be issued upto 30-Sept-2007.
Now suppose there is no action by the department and no assessment proceedings are undertaken by the department. Now suppose, in the May 2009, the AO concerned while doing assessment of some other case comes to understand that for “X”, for the AY 2006-07, certain amount of income has escaped assessment. Now in May 2009, the AO cannot issue “X” notice u/s 143(2) for doing assessment u/s 143(3).
But now he can do the assessment u/s 147.
So, he would issue him notice u/s 148 on 30-May-2009 for opening assessment proceedings u/s 147. Now in response to this notice – “X” files return in 5-June-2009. Now this return is treated as return u/s 139. Now AO can issue him notice u/s 143(2) till 30-Sept-2010 to call for various documents and records and undertake to scrutinize the documents and compute/recomputed assessable income and tax. The assessment shall be considered to have been carried out u/s 147. If the AO issues notice u/s 143(2) after 30-Sept-2010, then the proceeding u/s 147 would be void.
Now consider, that in the above case – in response to notice u/s 147, the assessee “X” does not file any return. Then AO shall proceed u/s 147 to the Best of his Judgment to assess the income and tax. In doing assessment as per Best Judgement, the AO shall be bound by the procedures of Sec 144.
U/s 148 notice can be issued till the end of six years from the end of relevant AY. There are various criteria laid down as to whose sanction is required and the monetary limits etc. But suffice here to say that notice u/s 148 cannot be issued after expiry of 6 years from the end of relevant AY – whatever may be the income escaping assessment.
What has been described above is to explain how the assessment procedure works in Income Tax Law. There are also assessment procedures relating to cases under search / seizure. But that has not been dealt here – that would take up another article to write about.
As such, for any case that is undertaken for assessment by the department– there are various issues relating to date of issue / receipt of notice, assessee approaching CIT (Appeals) or filing writ petition in High Court, changes happening in IT laws/ regulations through Court proceedings in other similar cases, and various circumstantial ‘ifs and buts’. All these tend to complicate the assessment proceedings. And that is apart from – at times – illegal gratification for ‘satisfaction’ of AO – which at times happen (In one of the seminars, a popular Income Tax author commented that the ‘satisfaction’ of AO was more important than the correctness of accounts!). All these things tend to influence a case under assessment. However, in matter of illegal demands by AO, I would say, that in one of the case I saw (as trainee) u/s 143(3), the AO was ‘asking’ for certain ‘large’ amount. The Assessee initially was ready to pay upto Rs. 5000 – but refused to pay more. As no bargain could be struck, the Assessee did not pay anything. And thereafter the assessee struck to his point that he would not pay anything – even telling the AO that he could do whatever assessment he wished to do! Finally the assessment happened without any exchange of money – and the assessment order made tax demand of around Rs. 850 (only!). So if one is correct in his stand and has disclosed his income properly – then there is nothing to fear. Also, as such, there are honest officers in IT Department. It is just another department of government (or just another organisation) having mix of good and bad.
The assessment is feared by people who hide income, and it is they who try to bribe IT officials to get a favourable assessment. Sometimes ‘black-sheep’ AOs can also demand money – but then one should not pay up if one is correct. To be honest does cause some procedural harassment – but end result is usually in favour of the honest.