17.06.2014
Tuesday
THE Government had in August 2013 constituted a Tax Administration Reform Commission TARC headed by Dr. Parthasarathy Shome and two former Members of the CBEC and CBDT as full time members and two former Chairmen of the two Boards as part time members. This predominantly IRS Commission has strongly recommended the abolition of the IAS post of Revenue Secretary - there was no IAS Member in the Commission.
The Commission has submitted its first report - a voluminous 550 pages report as Government reports are perhaps destined to be.
The Commission in its first report sought to review:
1. the existing organizational structure and recommend appropriate enhancements with special reference to deployment of workforce;
2. the existing business processes of tax administration including the use of information and communication technology;
3. the existing mechanism of dispute resolution, time involved for resolution, and compliance cost;
4. existing mechanism and recommend measures for improved taxpayer services and taxpayers education programme.
The Commission has cited various authorities including earlier Committees to suggest that we don't need a Revenue Secretary over the Chairmen of the two Revenue Boards. The Commission feels that before long both the Boards have to be merged.
For the last about fifty years IRS officers have been demanding a higher status for their Boards and Chairmen and they all resent reporting to the Revenue Secretary who they think is junior to the Chairmen and Members, considering the year of retirement. For example, the present Chairman of the CBEC is a 1977 batch officer while the present Revenue Secretary is a 1980 batch IAS officer. Even the junior most Member of the CBEC is a 1979 batch officer senior to the Revenue Secretary.
Only an IFS officer is appointed as Foreign Secretary and only a Railway officer heads the Indian Railways and they say even the Postal Secretary is a Postal Service officer - then why should the premier IRS officer report to a junior IAS officer at the fag end of his service?
These sentiments were best expressed by P. Satya Prasant, a Deputy Commissioner of Income Tax in his blog.
As far as the Indian administration is concerned, unless the hegemony of the IAS is done away with there is no hope in the hell for an honourable career for other services. One can only hope that realization will dawn upon the Government of India, read IAS.
The Revenue Secretary who heads the Department of the Revenue is usually an IAS officer. The entire problem lies here, in this age old and faulty setup. Both the CBDT and Central Board of Excise and Customs (CBEC), which governs the Customs and Central Excise Department, functions under the administrative control of the Department of Revenue. Till recently both these Boards did not even have independent financial powers. Before the Sixth Central Pay Commission, the Chairmen and Members of both these Boards were only ex-officio Additional Secretaries to the Government of India. The CBDT and CBEC are not completely independent in their functioning and are dependent on the Department of Revenue and through it on the Revenue Secretary. Even the regular and routine transfers of the Commissioners of Income Tax and above are routed through and done only after the approval of the Revenue Secretary, read IAS. The Revenue Secretary even writes the Annual Performance Appraisal Reports (APARs) of the Chairmen and Members of both these Boards. What is worse and more disgusting is the fact that most often than not the Revenue Secretary, an IAS officer, belongs to a junior batch than the IRS officers who man both these Boards. This means that all the Chairmen and Members of both CBDT and CBEC report to a person who is junior to them, which is a cause of great concern and heartburn among the IRS officers. This is when all the IAS, IPS, IFS and IRS officers are recruited through the same examination. These days even some of the top rankers in the Civil Services Examination are choosing IRS over IAS and IPS and quite definitely most of the lady candidates prefer IRS over IAS and IPS because of the least political interference, stable postings and postings to metros. This means that a higher ranked candidate in the Civil Services Examination who chooses IRS is forced to become a subordinate to a lower ranked candidate who chooses IAS in the same examination or even worse an IAS officer who is much junior to him in service. This faulty setup also robs the dynamism of the Income Tax Department and the IRS officers as everything is to be routed through the additional and unnecessary level of Revenue Secretary. The only and the best solution to this sad situation is to immediately upgrade the status of CBDT to that of a Department in the Government of India by renaming it as the ‘Department of Direct Taxes', with its Chairman and Members having the status of ex-officio Secretary to the Government of India (unlike the present status of ex-officio Special Secretary). This type of structure was recommended by the Wanchoo Committee (1971) and the Raja Chelliah Committee (1991) too.
What ails Revenue Departments?
THE Commission has listed some of the fault lines in the Revenue Departments. Though everybody knows these things, the Commission has done a good job in listing them - maybe somebody someday will read them and take corrective steps.
Routine placement of officials in the two Boards (with little relation to length of tenure): The selection of Chairs does not take into account the length of their remaining tenures prior to retirement. The selection is based almost entirely on seniority. As an indicator, in 2014 alone, there are likely to be four Chairs of CBDT and three Chairs of CBEC.
Board assignment has little relation to experience or link to specialized areas: the assignment of functions among Members does not necessarily reflect their work experience. Additionally, some areas that comprise crucial matters in modernizing tax administrations are given inadequate attention - for example, information and communication technology (ICT).
Members making policy have little policy experience: Members emerge primarily or exclusively from field functions while, at the Boards, they are expected to design policy. Introduced policies, therefore, are often unrepresentative of the best available and experimented policy options from across tax administrations internationally.
Members' risk aversion leads to low productivity or low motivation to provide guidance or clarity: positioned beneath a Revenue Secretary picked from another Service, the Boards have tended not to assume a leadership posture, their views and decisions increasingly revealing extreme risk aversion. The outcome is that the Boards' decisions or pronouncements in the form of legislative changes, binding circulars, clarificatory guidance notes or press releases are few and far between, and that too under external force, in contrast with other tax administrations elsewhere.
Risk aversion permeates down, and leads to, infructuous tax demands: The stance of inaction has permeated down to Chief Commissioners and even Commissioners who are averse to taking strong or even correct decisions that would counter infructuous demands made by lower level officers who have been given the role of a quasi-judicial authority.
Rude or arbitrary behaviour of officers with little assigned accountability in practice: The continuing impact on the taxpayer who has been relegated to a position of helplessness is unprecedented internationally. The confusing, if not arrogant, environment that they have to face on a daily basis was reported by high finance officials of major Indian corporations who are some of the largest Indian taxpayers.
Lack of use of Information and Communication Technology (ICT) based data by the Tax Policy and Legislation (TPL) Unit and the Tax Research Unit (TRU): The two departments on both direct and indirect tax sides have made impressive advances in the installation of ICT and its use in the process function. What has not occurred is data mining. The masses of data generated, for example through the expansion of electronic filing, remain essentially unutilized.
Adverse impact of revenue target on tax officer equilibrium: Revenue target is the sole criterion that is effectively used to assess performance. Targets are set in the Union Budget in a static context. No attempt has been made by the Boards to undertake any post mortem study that would analyse whether the projections were correct over a period of time when placed against the economic trajectory during the past year. Instead, the Boards pressure Chief Commissioners, who pressure Commissioners, who pressure lower level officers to meet fixed revenue targets, irrespective of the prevailing condition of the economy.
Defective formulation and implementation of tax law and rules to generate revenue: since the introduction of the "negative list" of services - only listed services are not taxed while all others are - has wreaked havoc among taxpayers due to poor management of change by the CBEC, reflecting lack of knowledge, preparedness or Board guidance to field officers leading to multiple interpretations combined with the usual lack of accountability for timeliness in clearing up confusion through circulars or guidance notes.
Escalation of disputes and poor recovery from demands: Lack of accountability in raising tax demands without accompanying responsibility for recovery has led to an unprecedented situation in India, which is experiencing by far the highest number of disputes between the tax administration and taxpayers with the lowest proportion of recovery of tax while arrears in dispute resolution are pending for the longest time periods.
Instances of egregious tax officer behaviour: Taxpayers are subjected routinely to rude and arrogant behaviour, are made to wait hours - being called to appear in the morning though met many hours later, sometimes even in the afternoon - are asked to make photocopies of information already sent to the administration again during the visit without availability of copying machines, CEOs of companies being asked to appear when the CFO or an accounts official from the company would suffice. These characteristics signify practice that has descended to unprofessional levels, to put it mildly.
No Retro Amendment - TARC Recommends.
THE Commission has recommended that Retrospective amendment should be avoided as a principle.
Retrospective amendments have further undermined the trust between taxpayers and the tax administration. Many seem to feel that it has become the order of the day. Many of the retrospective amendments have been introduced to counter interpretation in favour of the taxpayer upheld earlier by the judiciary. The most famous is the introduction of provisions for taxation of ‘indirect transfer' with effect from April 1, 1961, to overrule a Supreme Court judgment which held that Indian tax authorities did not have territorial jurisdiction to tax offshore transactions, and therefore, the taxpayer was not liable to withhold the taxes. An overnight change in the interpretation of a provision, which earlier held ground for decades, provides scope for tax officials to rake up settled positions. This approach to retrospective amendments has resulted in protracted disputes, apart from having deeply harmful effects on investment sentiment and the macro economy.
Laws must be simple and clear
THE TARC recommends:
1. Simplicity, clarity and ease of compliance - Laws must be simple and clear so that the taxpayers should be able to understand and know their rights and responsibilities
2. Consistency in application - Laws must be applied consistently across the tax administration and their interpretation should be consistent with legislative intent
3. Fairness, reasonableness, judiciousness and transparency - The taxpayer should perceive that the administration acts fairly and judiciously and respects taxpayers' rights and that transparency and openness informs all the actions of the administration
4. Trust-based approach, enablement and empowerment - The administration's approach is based on trust and focused on enabling, clarifying and helping the taxpayer to comply with his obligations. It should seek to reduce complexity and enhance simplicity.
5. Customer focus - Taxpayers' interests and concerns should be central to the efforts of the administration and they should have a voice in the design of policies and processes. The overall objective should be to enhance taxpayer convenience and reduce taxpayer costs. The process of interaction with the administration should be simple and convenient.
6. Integrity, courtesy and professionalism - The administration must ensure that employees act with integrity and possess the required professional knowledge, skills and competencies for their functions
7. Accountability - The tax administration must be accountable to people. The accountability framework should travel beyond the traditional financial accountability to the parliament and should encompass accountability at the organizational as well as employee level.
TARC Report - What will happen?
GOVERNMENT Government of India is the repository for hundreds of reports of Commissions lying under layers of dust after initial analyses in the media.
When the Commission was constituted DDT reported in DDT 2177-27.08.2013, "The life of the Commission is 18 months - the present Government does not have that much time left. It is doubtful whether the new Government would want recommendations from this Commission - maybe they hope to come back to power. Four out of the six members of the commission are retired Revenue officers and are we expecting to learn from the wisdom acquired by them after retirement?"
So, now we have a new Government which may not want the wisdom from a Commission appointed by the previous Government. And the four Revenue officers in the Commission should know that all the fault lines they reported were in glorious existence when they were leading the Departments. For the last seventy years we have been simplifying the excise laws and now the TARC says laws should be simple and clear. Eureka!
Anyway they have prepared a good report worthy of preservation - and this is only the first of the series - a few more are on the pipeline. The sheer size of the report is mind boggling - 550 pages.
Now who in the Government will read 550 pages of the report even if it contains the wisdom of the Gods? Certainly, the Finance Minister will not have the time to read such a long report. Will the Revenue Secretary read the report and advise the FM? But the Commission wants to see the RS unemployed! I asked my editorial colleague as to who will read the report. He said, "We will" - we have to for we have a reporting job to do.
Anyway there is the Executive Summary which everybody can read - even this is more than 50 pages!
First Report of TARC - Executive Summary
Show Cause Notices conclude?
PRESIDENT, CESTAT during his interaction with TARC on March 5, 2014, subsequently followed by a written communication dated 1 April 2014, stated that show cause notices often record conclusions, instead of allegations. He also stated that, "adjudication orders fail to critically appreciate the evidence on record, neutrally consider and analyse defences presented by an assessee and record conclusions rationally resulting from the processed evidentiary matrix and applicable legal principles."
He also suggested creation of a structurally independent adjudication service to function as a "specialist adjudication hub to decide all disputes/assessments" to "dissipate the fear psychoses" and "revenue target pressures".
Tell the FM
WE will start our Budget Run Up tomorrow. Please send in your suggestions. Please be brief and precise if you want the powers that be to read your views. We will try to take your suggestions to the FM and maybe you can help in making the Budget 2014. Rush your mails to editor@taxindiaonline.com
Jurisprudentiol – Wednesday's cases
 Service Tax
Business Support Service - appellant managing business of distillery and country liquor division by undertaking manufacturing activity as well as sale - no evidence on record to show that appellant had received any amount for providing any service in relation to business or commerce or manufacture and distribution of products: Appeals allowed: CESTAT
THE appellants entered into an agreement with M/s. The Kolhapur Sugar Mills Ltd. for managing the business of distillery division and country liquor division.
The CCE, Kolhapur issued SCNs demanding service tax on the ground that the appellants provided "Business Support Service" to M/s. The Kolhapur Sugar Mills Ltd.
The adjudicating authority confirmed the demands of Rs.4,39,66,593/- and Rs.85,40,423/- respectively along with interest & penalties.
The appellant is before the CESTAT.
Income Tax
Whether production of steam can be construed as generation of power and Sec 80IA benefits cannot be denied even if such steam is utilised for internal manufacturing process - YES: ITAT
THE assessee is a public Ltd Company. It is engaged in the business of manufacturing of paper boards and optic cables etc, it is also engaged in operation of wind mills at Tamil Nadu and generating powers. Assessee claimed deduction under section 80IA in respect of its power generating plant no 1-5 and also claimed deduction of 80-IA in respect of plant number 6 where the assessee was generating electricity with the help of steam. The AO denied the claim of the assessee vis-à-vis all the units mainly on the grounds that the power generated by the assessee was not sold to outsider and the units were captive power consumption based. Secondly, the generation of steam was not generation of power within the meaning of section 80-IA of the Act.
The issues before the Bench are - Whether production of steam can be construed as generation of power and Sec 80IA benefits cannot be denied even if such steam is utilised for internal manufacturing process and Whether market value of the goods transferred in cases, where provisions of section 80-IA(8) are applicable, has to be determined having regard to the price charged in uncontrolled transaction. And the verdict goes in favour of the assessee.
Central Excise
CENVAT - Non-mention of Registration number of Service providers on invoices on which credit availed - CCE, Raigad, as an adjudicating authority, unnecessarily chose to raise level of litigation by denying credit as if it is Tribunal's job to get verification done - he could have verified these details and arrived at a conclusion - Matter remanded: CESTAT
CENVAT credit of Rs.66.55 lakhs was denied by the Commissioner of Central Excise, Raigad Commissionerate on the ground that the credit was taken by the appellant on the strength of invalid/incomplete documents. Penalty and interest quantum have also been added in good measure.
It is submitted that the services were received by the Head Office which is registered as input service distributor and the Head Office issued ISD invoices for availment of credit. The first contention is that there is no short coming as the Credit was taken by the appellant based on the ISD invoices issued by the Head Office and secondly during the course of adjudication proceedings, they had submitted a list containing the service tax registration numbers of all the service providers. Therefore, the department could have verified whether these service providers were registered with the department or not and the service tax amounts indicated in the corresponding invoices issued by the service providers were in fact paid to the exchequer or not. Merely for the technical lapse of non-mentioning of the registration number, the substantive benefit of credit cannot be denied or disallowed to the appellant.
See our Columns Tomorrow for the judgements
Until Tomorrow with more DDT
Have a nice day.
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