Delhi High Court
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Delhi High Court: In a case, where petition was filed by a son against the assessment order and the notice for initiating scrutiny proceedings under the Income Tax Act, 1961 (Act) issued in the name of his deceased father, the Division Bench of Manmohan and Manmeet Pritam Singh Arora, JJ. held that the order and notices issued in the name of the deceased assessee were null and void and the scrutiny proceedings in the name of the deceased assessee without bringing on record all his legal heirs was declared to be wrongly conducted.

Background

The petitioner was the son of Late Virendra Kumar Bhatnagar (deceased assessee) who died on 10-03-2018 and upon demise of the deceased assessee, the petitioner filed an application for registration as a legal representative of the deceased assessee in the records of the Income Tax Department (ITD). The said application was accepted, and the petitioner filed an Income Tax Return (ITR) of the deceased assessee for assessment year (AY) 2018-2019 in the capacity as his legal representative. In the ITR, it was verified and declared that the ITR had been filed by the petitioner in his capacity as a representative of the deceased assessee. In 2019, a statutory notice was issued in the name of the deceased assessee under Section 143(2) of the Act by the Assessing Officer (AO) for the AY under consideration for limited scrutiny.

Submission on behalf of the Petitioner

Counsel for the petitioner contended that the said notice suffered from a fundamental jurisdictional error as it was issued in the name of a dead person and scrutiny proceedings were proposed in the case of a dead person. Further, the said notice had neither mentioned the name of the legal heirs nor the PAN of the said legal heirs and the AO had not taken any step to bring together all the legal heirs of the deceased assessee on record at the time of issuance of the notice.

In 2021, two more notices were issued by the AO in which even though the name of the deceased assessee was mentioned, the AO had added a suffix “through legal heir Vikram Bhatnagar”. Counsel contended that such an amendment was impermissible and adding a suffix could not cure the fundamental defect of not issuing notice to all the legal heirs of the deceased assessee.

Further, it was submitted that the AO concluded the assessment proceedings and passed the consequential assessment in September 2021 in the name of the deceased assessee bearing his PAN. The assessment had been completed for the complete financial year (FY) 2017-2018, irrespective of the fact that the deceased assessee expired on 10-03-2018 and the relevant period of previous year for assessment was from 1-04-2017 to 10-3-2018 and not the complete year.

Therefore, it was submitted that the notice issued in 2018 under Section 143(2) of the Act was in the name of the deceased assessee and bearing his PAN, without bringing on record the legal heirs of the deceased assessee, the consequential order passed in 2021 under Section 143(3) for the complete FY 2017-2018 and the accompanying notices of demand and penalty issued under Sections 156 and 270(A) of the Act respectively, were illegal and without jurisdiction.

Submission on behalf of the Respondent

Counsel for the Respondent submitted that there was no dispute in facts and agreed that the notice and the assessment order had been issued in the name of the deceased assessee and for the PAN of the said assessee.

Analysis, Law, and Decision

In relation to the issue of validity of the notice issued against a dead person and the validity of the proceedings held subsequent thereto, the Court relied on Savita Kapila v. CIT, 2020 SCC OnLine Del 2540, where this Court held that:

  1. The sine qua non for acquiring jurisdiction to reopen an assessment was that such notice should be issued in the name of the correct person. This requirement of issuing notice to a correct person and not to a dead person was not merely a procedural requirement but was a condition precedent to the impugned notice being valid in law.

  2. A notice issued against a dead person was invalid unless the legal representative submits to the jurisdiction of the AO without raising any objection. Therefore, notice issued in the name of the deceased assessee was null and void.

The Court noted that the death of the assessee was communicated by the petitioner and the ITR also disclosed that the same had been filed by the petitioner in his capacity of a legal representative of the deceased assessee. Hence, the Court opined that the scrutiny proceedings had been wrongly conducted in the name of the deceased assessee without bringing on record all his legal heirs as per the requirement of the law.

The Court held that the jurisdictional notice was issued against the dead person and the assessment order had also been passed against the dead person on his PAN without bringing on record all his legal representatives, therefore, the said assessment order and the subsequent notices were null and void and hence, were set aside.

[Vikram Bhatnagar v. Assistant Commissioner of Income Tax, 2022 SCC OnLine Del 3899, decided on 9-11-2022]


Advocates who appeared in this case :

For the Petitioner: Advocate Rohit Jain;

Advocate Aniket D. Agrawal;

Advocate Mansha Sharma;

For the Respondent(s): Senior Standing Counsel Ajit Sharma;

Advocate A. Renganath.

Legislation UpdatesRules & Regulations

On 19-09-2022, the Ministry of Finance has notified the Income-tax (31st Amendment) Rules, 2022 in order to amend Income-Tax Rules 1962 which will come into force from 01-11-2022.

The amendment inserts a new Rule 12AD providing return of income under Section 170A and a new form ITR-A for ‘successor entities’ to furnish their return of income u/s 170A of the Income Tax Act, 1961 consequent to business reorganisation.

Rule 12AD provides that the modified return of income to be furnished by a successor entity to a business reorganization, as referred to in section 170A, for an assessment year, shall be in the Form ITR-A and verified in the manner specified therein. The return of income shall be furnished electronically under digital signature.

If the assessment or reassessment proceedings for an assessment year relevant to a previous year to which the order of the business reorganisation applies have been completed or are pending on the date of furnishing of the modified return in accordance with the provisions of section 170A, the Assessing Officer shall, pass an order modifying the total income of the relevant assessment year determined in such assessment or reassessment, or proceed to complete the assessment or reassessment proceedings, as the case may be, in accordance with the order of the business reorganisation and the modified return so furnished.

 

Op EdsOP. ED.

Death and taxes in life are certain, knowing how to pay only your fair share is third.

                                                                                                                                       Yvette D.

Income Tax Return (‘ITR’), an annual record of income, enables a taxpayer to declare his income, expenses, tax liability, deductions, savings, investments, etc. during the applicable Fiscal Year [i.e. Financial Year (‘FY’) – a period from April 1 to March 31]. This annual record is to be mandatorily submitted to the Indian revenue authorities in a prescribed format, known as the ITR form. In India, tax on income for individuals, is levied at slab rates i.e. lower income is taxed at a lower rate and higher income at a higher rate. This is also known as vertical equity i.e. people with higher income are placed higher up the ladder and therefore are required to shell out more taxes compared to those with lower income who are placed at the lower end of the ladder. The Income Tax Act, 1961[1] (‘the Act’) and the related rules cast a legal obligation on every individual to file ITR, wherein the total income for the year exceeds the basic exemption limit of INR 2.5 lakhs, which is not chargeable to income tax as per the applicable provisions. However, in case of companies, there is no such basic exemption limit and it becomes mandatory to file the ITR annually.

An assessee, in simpler terms, means a person by whom any tax or any other sum of money is payable under the Act. The total income of an assessee for the FY/Previous Year (‘PY’) is taxable in the relevant Assessment Year (‘AY’). For example, the total income for PY 2019-20 (i.e. from
April 1, 2019, to March 31, 2020) is taxable in  AY 2020-21.

Why taxes are levied? Can the Government collect the taxes arbitrarily?

One of the primary reasons for levy of taxes in India, is that it constitutes the basic source of revenue for the Government, which is further utilised to meet the expenses for development purposes like
health care, infrastructure, provision of education, defence, etc. and public welfare.

  • Article 265 of the Constitution of India, lays down that “No tax shall be levied or collected except by authority of law”.
  • Parliament and State Legislatures are empowered to makes laws on the matters enumerated in the 7th Schedule by virtue of Article 246 of the Constitution of India.
  • The 7th Schedule to Article 246 contains 3 lists which enumerate the matters under which Parliament and the State Legislatures have the authority to make laws for the purpose of levy of taxes.
  • One of the 3 lists is the ‘Union List’, on the matters of which, only Parliament has the exclusive power to make laws.
  • Entry 82 of the ‘Union List’ has given the power to Parliament to make laws on taxes on income other than agricultural income.

Article 265 –> Article 246 –> 7th Schedule –> Union List –> Entry 82 –>Income Tax

Therefore, the Government derives its powers to frame laws on taxes directly from the Constitution of India.

IMPORTANCE OF ITR FILING

The ITR serves as an income proof and is very critical for the following reasons:

  1. Claiming refunds or deductions: Deductions are one of the ways to reduce the overall tax liability and save unnecessary tax leakage. By filing ITRs, a person can get refund of Tax Deducted at Source (‘TDS’) subject to certain conditions.
  2. Carry forward of losses: In situations wherein losses have been incurred for a particular year, even then the ITR should be filed so that the assessee can carry forward the losses to set off against the gains of the subsequent years, subject to certain conditions. This is one of the efficient ways to reduce the burden of tax in the forthcoming years.
  1. Visa Processing: Foreign consulates often ask for ITRs of past few years, at the time of visa process. Thus, it becomes an important document while travelling overseas.
  1. Government Tender: Individuals that plan to start their own business and are required to fill government tenders, have to furnish ITR of preceding years. It serves as a proof of financial status and acts as a check on timely payment of obligations.
  1. Fee/Prosecution for non-filing or late filing of ITR: Under the Act, non-filing or late filing of ITR can attract a fee of INR 1,000 if the total income does not exceed INR 5 lakhs. In other circumstances, a penalty of INR 5,000 or INR 10,000 is levied (as the case may be), leading to legal implications for the taxpayers who are mandatorily required to file as per the provisions. Further, a willful failure to furnish ITR in due time may lead to rigorous imprisonment of 3 months to 7 years and fine.

MODES OF TAX COLLECTION

Some of the important modes of collecting taxes from taxpayers are in the form of TDSAdvance Tax and Self-Assessment Tax. The taxes are deductible from the total tax due from the assessee. Additionally, every person whose estimated tax liability for the year is INR 10,000 or more shall pay tax in advance i.e. advance tax subject to few exceptions. Advance tax also known as ‘pay-as-you-earn’ refers to paying a part of the taxes before the end of the FY rather than paying the complete amount at the end of the FY. This helps the Government to get a constant flow of income throughout the year and is beneficial for the assessee to avoid any interest on taxes for late payment.

The assessee, while filing ITR, needs to pay Self-Assessment Tax under Section 140-A of the Act, if tax is due on the total income as per his ITR after adjusting, inter alia, TDS, relief of tax, tax credit, advance tax, etc. However, it is to be noted that a senior citizen of age 60 years or above who does not have any income chargeable under the head “Profits and Gains of Business or Profession” is not liable to pay advance tax and can discharge their tax liability (other than TDS) by payment of Self-Assessment Tax.

EXEMPTIONS VIS-À-VIS DEDUCTIONS: A CONUNDRUM

One of the common conundrum that exists among the taxpayers is the difference between deductions and exemptions. Not all that one earns is taxed in India. Yes! The Government provides exemptions which are applicable on certain types of income, such as agriculture income is exempt from income tax in India. The various items of income that are mentioned in Section 10 of the Act are excluded from the total income of an assessee and hence are known as exempted incomes.

Now, what if the income earned by the individual is not exempted? Is there still a ray of hope? Yes, of course. There are certain other incomes which are included in the Gross Total Income but are wholly or partly allowed as deductions while computing the total income.

Rent paid – claim exemption or deduction

One of the most common exemption/deduction claimed by an assessee is for the rent paid while filing ITR. This can be availed by using House Rent Allowance (‘HRA’) under Section 10(13-A) of the Act or deduction of rent paid under Section 80GG of the Act. HRA is an allowance granted by an employer to its employee towards payment of rent for residence of the employee. Tax exemption on HRA can be claimed on satisfaction of certain conditions. Whereas, Section 80GG of the Act provides relief to those individuals who do not receive HRA.

ITR FORMS AND THEIR APPLICABILITY

Certain sections of society consider the ITR process to be cumbersome. However, it is of significant importance to consider that people with different income levels/sources are required to file different ITR forms. Every individual is not required to provide detailed information and calculations. For example, a salaried employee who earns a modest salary and has no other source of income except salary, the government has provided a plain-vanilla ITR form which actually becomes a child’s play. The assessee has to judiciously ascertain the ITR form applicable as follows:

TABLE: ITR FORMS[2]

ITR 1

(Sahaj)

  • For individuals having income from salaries, one house property, other sources (interest etc.) and;
  • Having total income up to INR 50 lakhs;
  • It is not applicable to directors of a company or shareholders in an unlisted company.
ITR 2
  • For individuals and HUFs

[3] not carrying out business or profession under any proprietorship.

ITR 3
  • For individuals and HUFs having income from a proprietary business or profession.
ITR 4 (Sugam)
  • For presumptive income from Business and Profession;
  • Not for an individual who is either Director in a company or has invested in unlisted equity shares.
ITR 5
  • For persons other than:

(i) Individual,
(ii) HUF,
(iii) Company, and
(iv) Person filing Form ITR-7.

ITR 6
  • For companies other than those claiming exemptions under Section 11 of the Act.
ITR 7
  • For persons including companies required to furnish return under Sections 139(4-A) or 139(4-B) or 139(4-C) or 139(4-D) or 139(4-E) or 139(4-F) of the Act.

ITR can be filed either online or offline. The introduction of online or electronic filing (‘E-filing’) portal has made the ITR filing comparatively swifter and easier compared to earlier days making it a child’s play.

FORM 26 AS: A CONSOLIDATED FORM

Form 26AS is a consolidated annual tax statement that reflects details of TDS, Tax Collected at Source, Advance Tax, Self-Assessment Tax, against the taxpayer’s Permanent Account Number (PAN). Basically, it is the record of all the transactions (certain to some conditions) made or done against one’s individual PAN. The Budget for 2020-21 further revised Form 26AS with an aim to provide a more comprehensive profile of the taxpayer which would include all high value transactions like the details provided by banks and financial institutions too.[4] This is to enhance the flow of information between the taxpayers and the tax authorities. As a result, all the information is available and collected in a consolidated form that is Form 26AS. This in turn facilitates correct ITR filing as the assessee can cross-check the details of income and taxes, thereby making Form 26AS a very important document while filing ITR. For instance, if the employer quotes an incorrect PAN of any employee, TDS deducted will not be reflected in the employee’s Form 26AS. Further, certain high value transactions are also reported in Form 26AS now thus, bringing everything under the Government scanner now.

 CONCLUSION

 Filing ITR is a legal, moral and social duty of every citizen of the country. It provides a platform to the assessee to claim refund of taxes already paid, apart from other reliefs and act as a basis for the Government to determine the revenue generated in the country and accordingly form public welfare policies. The number of registered users on the Income Tax India E-filing Portal as of August 31, 2020 was 9.47 crores[5] out of approximately 138 crores of population. Now, any individual can easily file ITR by visiting www.incometaxindiaefiling.gov.in and creating own income-tax account simply using their PAN. Considering the Covid-19 pandemic and with a view to providing immediate relief to the business entities and individuals, in a press release dated July 17, 2020, the Ministry of Finance stated that the Income Tax Department refunded INR 71,229 crore to more than 21.24 lakh taxpayers. The last date to file ITR for AY 2019-20 was September 30, 2020 which has been extended to November 30, 2020[6] and for AY 2020-21 it was November 30, 2020, which has been extended till December 31, 2020[7]. It is observed that the citizens consider the whole procedure of ITR filing, to be tedious, however, it is undeniable that India is moving towards creating an easier, simpler and efficient tax system with the introduction of e-filing and newly introduced tax reforms.


*Author is an Economics graduate and also holds a Master’s degree in Economics. Currently, in her final year of LLB (Symbiosis Law School, Pune) wherein she secured merit scholarship for holding first rank in her batch. Author has undergone numerous internships with certain renowned law firms like Khaitan & Co. and L&L Partners, New Delhi. The views expressed in this article are solely of the author and does not relate to the views of any other person or firm.

[1] Income Tax Act, 1961

[2] incometaxindia.gov.in

[3]HUF stands for Hindu Undivided Family

[4] Union Budget 2020-21, Ministry of Finance, Government of India

[5] https://www.incometaxindiaefiling.gov.in/moreStatistics

[6] F.No. 225.150/2020-ITA-II, dated 30-9-2020

[7] CBDT issues Press Release for extension of due dates for filing Income tax Returns and Tax Audit Reports under the Income Tax Act, 1961 for AY 2020-21, dated 25-10-2020.

Hot Off The PressNews

The due date for filing of income tax returns by tax payers whose accounts are required to be audited under the Income Tax Act is the 30th September of the following year. The tax payers whose business receipts exceed Rupees one Crore or professional receipts exceed Rupees twenty-five Lakh during the previous year 2015-16 are required to file an income tax return accompanied by an audit report by the above-mentioned due date.

However, taking into consideration that the last date for making declarations under the Income Declaration Scheme 2016 is also 30th September, 2016, the Central Board of Direct Taxes (CBDT) has decided to extend the last date for such returns which were due on 30th September, 2016 to 17th October, 2016 in order to remove inconvenience and to facilitate ease of compliance.

                                                                                                                                                                                                                                                                     Press Information Bureau