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  1. 1. Recovery of Income tax –Provisions and ProceduresPresented byShankar BoseInspector of Income-taxMSTU, Puri
  2. 2. Primary duty of collection ofthe demand is with theAssessing Officer who hasraised the demand
  3. 3. Planning Collect all the details of assets duringthe course of assessment Make provisional attachment u/s281B with the approval of the CIT, ifrequired Serve the demand notice as early aspossible
  4. 4. Precautiono Study from records whetherallowing full 30 days will bedetrimental to the revenue
  5. 5. Proviso to Sec. 220(1) Record the reason to believe. Obtain approval from Addl. CIT Allow reduced period for payment ofthe demand Take recovery measures as early aspossible
  6. 6. RESPONSESAssessee has paid the demandwithin due dateAssessee has filed an applicationwithin due date for extension oftime/installmentAssessee has filed an appeal andhas applied for stay of the demandNeither has paid the demandnor prayed for stay
  7. 7. Section 220(3)Extension oftime or stay ofdemandGranting Installment
  8. 8. Conditions u/s 220(3) Application must be made within the duedate Reasonable opportunity is to be given Each case should be judged on merit Security/bank guaranty may be obtainedin suitable cases Do not allow much time to pay and in nocase, more than 18 installments begranted
  9. 9. Order u/s 220(3) Make a speaking Order mentioningtime allowed and terms of payment Mention the amount to be paid andthe date of payment Review the position after a certainintervals Maintain the installment register
  10. 10. Non- complianceHas not paid withinthe extended timeCommits default inpayment of any of theinstallments within fixedtimeTreat the assessee as deemedto be in default and take measuresto collect the demand
  11. 11. Installment petition rejectedAssessee makes part paymentFate?
  12. 12. Stay petition- Sec. 220(6) Where the assessee has presented anappeal u/s 246 The AO has the discretion to granttime He may impose conditions as hethinks fit He may treat the assessee not beingin default
  13. 13. Instruction No.96 dated21.08.69 Where the income determined onassessment was substantially higherthan the returned income, say, twicethe latter amount or more , thecollection of the tax should be heldin abeyance till the decisions inappeal.
  14. 14. Instruction No-1914Stay petitions have to be dealt within accordance with the guidelinesstipulated in Instruction No-1914dated 02.12.1993 and it supersedesearlier instructions
  15. 15. Merit of the case Points of dispute relate to facts or are aconsequences of different interpretation oflaw. The additions have been made as a resultof detailed investigation. They are based on materials gatheredthrough enquiry/survey/search & seizureoperation
  16. 16. Important pointsMere filing of appeal is not a criteria forgranting stay.Opportunity must be given beforerejecting the petition . Stay petitions shall always be dealt withutmost care
  17. 17. Issues to be consideredPoints of dispute have been decided in favourof the assessee in an earlier order by theCIT/ITAT/High CourtThe disputed point arises because the AOhas taken an interpretation of law in respect ofwhich there exist conflicting decisions
  18. 18. Conditions Stay only the demands attributable todisputed points Require the assessee to offer suitablesecurity Require the assessee to pay areasonable amount in lump sum or ininstallment
  19. 19. Further ConditionsReserve a right to review the order passedafter a reasonable time to consider thedevelopment during the period.Require an undertaking from the assesseethat he will cooperate in early disposal ofappealMention that if any refund becomes payableby the Depptt. will be adjusted against thedemand stayed
  20. 20. Other measures When the demand is more than 1lakh the AO will intimate the detailspending appeal, the quantum demandstayed and conditions imposed to theJCIT. The JCIT will request the CIT to writeto the concerned CIT(A) for earlydisposal of appeal
  21. 21. Authorities who can stayStay should normally be entertained by theAO/JCITCIT can interfere when the assessment isunreasonably high or there will be genuinehardship of the assessee
  22. 22. Power of CIT(A)The CIT(A) is also vested with the powersof granting stay order, which is not onlynecessary but also expedient for effectiveadjudication of appeal.Prem Prakash Tripathi vs CIT [1994]208 ITR 461 (All)
  23. 23. Demand should be stayed when It isunreasonably highAllahabad agriculturalInstitute (2007)VsUOI291 ITR 116(All)MGM Transport (Madras)(P) Ltd.(2007)VsITO207 CTR (Mad) 90
  24. 24. A demand of Rs 66 lakh was raised u/s158BC.The assessee has Rs 24 lakh in the bankaccount. On a stay petition, the AO asked topay Rs 5 lakh initially and pay the balance in 10fortnightly installments.The High court treated the order as harsh It directed to make an initial payment of Rs 15lakh and to obtain a security for the balancepayment
  25. 25. Important phrasesAssesseedeemed tobe in defaultAssessee indefaultAssessee notbeing indefault
  26. 26. Recovery measuresPersuasive measures Coercive measures
  27. 27. Penalty u/s 221 When the assessee is in default ordeemed to be in default Issue show cause letter giving anopportunity May not be imposed when there isgood or sufficient reason Quantum of penalty is discretionarybut it should not be more than taxarrear
  28. 28. • Imposition of penalty is not arecovery measure, it is merely apunishment for the default of thetaxpayer• Default must be willful and notmerely accidental
  29. 29. Penalty order Penalty cannot be imposed for non-payment of interest Penalty can not be imposed for nonpayment of penalty. The order imposing the penalty should bespeaking and clearly specify the amount ofpenalty payable
  30. 30. Example• Assessee became in default on 31.3.2009• Penalty notice u/s 221 was issued on15.05.2009• Demand paid on 20.05.2009 i,e, beforethe date of hearingCan the penalty be imposed in thiscase?
  31. 31. Attachment of salary-Section226(2)• AO can require the employer to remita portion of salary towards the arrearsof tax due• Portion exempt u/s 60 of CPC can notbe attached.
  32. 32. Exempted itemsPensionProvident Fundgratuity
  33. 33. Example• The assessee is due to receive anhonorarium of Rs 50,000/ from All IndiaRadioIs it attachable u/s 226(2)?
  34. 34. Attachment u/s 226(3)When money is due or may become dueto the assesseeAny person holds or may subsequentlyhold on account of the assesseeAO will issue the notice to pay the moneyto him forthwith or within the time specifiedin the notice.
  35. 35. Scope of attachment Debtors Bank Accounts Rent receivable Retention money of a contractor Security money/Deposit Compensation receivable
  36. 36. Attachment of Fixed DepositsVysya bank/ Global Trust Ltd vs JointCIT [2000] 241ITR 178 (Kar)ANDAdministrator, Unit trust of India vsB.M.Malani[2007] 164 Taxman 463(SC)
  37. 37. CAUTIONThis power must be exercised withutmost care and circumspectionNot to exercise this power hastily,indiscriminately and capriciouslyThe AO must be in possession of primafacie informationJagannath Bawri vs CIT [1998] 234ITR464( Gauhati)
  38. 38. Service of notice• A copy of the notice to be served to theassessee to his last address• In case of joint holders, notice is to beserved to all the joint holders to their lastknown addresses
  39. 39. Compliance of the persono To whom a notice is issued is bound tocomply with the noticeo When a notice is issued to a post office,banking company or insurer , it is notnecessary to produce the pass book,deposit receipt , policy or any documento When a person objects , a statement onoath is to be recorded
  40. 40. Personal liability A false statement is given on oath Discharges any liability to theassessee after receipt of the notice
  41. 41. Deemed to be in default• When the person fails to pay evenafter the notice shall be treated asdeemed to be in default• Proceedings may be taken againsthim in the manner provided in section222 to 225
  42. 42. A question• Can the salary of the third party debtor beattached for non-compliance?
  43. 43. Example• The AO attached the bank account of theassessee showing the demand as Rs 5lakh but it was found subsequently that thedemand is actually Rs 6.5 lakh.Will the notice be void?
  44. 44. Money in custody of court-226(4)• Money belonging to the assesse is incustody of any court• The AO shall apply to the court forpayment of the money sufficient todischarge the tax
  45. 45. Attachment• At the time of attachment the money mustbe at custody of the court• Where the court has already passed arateable distribution order , the moneycannot be attached
  46. 46. Priorities Govt. dues get priority over unsecuredcreditors As for the Govt. dues not secured byany charges, the first Depptt attachesthe property will get precedence overothers.
  47. 47. Distraint and saleThe AO may recover the arrears of taxdue by distraint and sale of movableproperty of the assesseeThe AO should be authorized by the CITIt should be done as per procedure laiddown in Third schedule
  48. 48. Procedure• First verify, whether any rectificationpetition, stay petition or appeal effect ispending.• A notice must be given indicating theamount due• Issue the distraint warrant in the name ofInspector• The Inspector will make a discreet enquiryabout the time the assessee will availablein the premises
  49. 49. Execution of the warrant• The inspector will enter the premisesalong with team members• He will serve the warrant on the assesseeto make the payment forthwith.• If the assessee makes the payment, hewill issue the cash receipt• If he does not make payment withinreasonable time he will make attachmentof the movable properties
  50. 50. Attachment attachment means taking possession byway of actual seizureHe should first seize the cashThen attach all other movable assets asper requirement and make inventories.It should be done in presence of twowitnesses and a panchnama be prepared.
  51. 51. Others Seizure should not be done inexcessive Seized items should be kept insafe custody Arrangement of sale is to bemade as early as possible.
  52. 52. Section 281During pendency of any proceeding, afterCompletion but before service of notice u/r 2 of2ndscheduleTransfers by way of sale ,mortgage,Gift, exchange or any other modeBecome void
  53. 53. ExceptionWhen transferred for adequate considerationand without notice of pendency of suchproceeding or demandWith the permission of the AO
  54. 54. Applicable• This section is applicable only when thedemand payable is more than Rs 5000/and the asset transferred is more than Rs10000/
  55. 55. Assets -illustrationLandBuildingPlantMachinerySharesSecuritiesFixed deposits in bank
  56. 56. Whether automaticTRO VS Gangadhar Biswanath Ranade234 ITR 188 (SC) (1998)
  57. 57. Recovery survey The idea of recovery survey wasintroduced in the action plan in theyear 1996-97 It is like other survey u/s 133A
  58. 58. PlanWhen there is no visible asset of theassessee .He has a businessThis can be done by TRO alsoThis can be done jointly with the TRO.
  59. 59. Cash• Make an inventory• Request the assessee to deposit in thebank account and attach the bank account• If there is huge amount of cash may beconverted to search an seizure• If it is a certificated case, the TRO mayauthorize his inspector to attach andseize
  60. 60. Bank accountThere may be bank accounts in thename of assessee or his benamidarsMake an inventoryAttach the bank accounts, if possible
  61. 61. FD/NSCMake inventory of FD/NSC foundVerify whether shown in the returnAttach wherever possible
  62. 62. DOCUMENTS Examine the documents to find outany information regarding any asset Take extract or impound
  63. 63. Immovable property• Examine the purchase deeds oragreements found during the survey, if any• Whether these are in the names of anybenamidar
  64. 64. Legal representative• When a person dies, his legalrepresentative is liable to pay any sumwhich the deceased would have beenliable to pay.• Legal representative can not transfer anyasset when the liability is undischarged.
  65. 65. Who is a legal representative• Besides administrator, executors andheirs-in-law, a stranger taking possessionof deceased’s estate is liable to beproceeded against as legal representative.An agent holding power of attorney froman executor of the deceased is a legalrepresentative.James Anderson vs CIT (1960) 39 ITR(sc)
  66. 66. How to proceed• In the case of death of assessee afterservice of demand notice, make aninvestigation to find out the legalrepresentative. Keep them on record.• Issue fresh demand notices to each of thelegal representatives.
  67. 67. liability• The legal representative is liable only tothe extent of estate or property of thedeceased which has come to his handsand not been duly disposed of.
  68. 68. Firm -188A• Every person who was the partner duringthe previous year shall be jointly andseverally liable along with the Firm for theamount of the tax.• Legal representative of such partner whois deceased shall also be liable.
  69. 69. Dissolved Firm-189(3)In the case of discontinuance ordissolution of the Firm, the partners of thefirm of the relevant period or legalrepresentative in respect of the partnerwho is deceased will be liable
  70. 70. An example• A Firm which had two partners, had ademand of Rs 5.5 lakh for the AY 2004-05.The business of the firm was taken over byone of the partners on 01.04.2004 andmade it a proprietorship concern.Who will be liable to pay the demand?
  71. 71. Company in liquidation• Every liquidator within 30 days ofbecoming liquidator give a notice of hisappointment to the concerned AO• The AO will notify to the liquidator withinthree months of the receipt of informationthe amount which will be payable by thecompany
  72. 72. Duty of the liquidator• Shall not part with any asset without thepermission of the CIT/CCIT beforenotification by the AO• Set apart an amount equal to the amountnotified by the AO.
  73. 73. PERSONAL LIABILITY• If the liquidator fails give notice to the AO• Fails to set apart the amount notified bythe AO• Parts with any asset of the company in hishand in contravention of provisionsHe will be personally liable.
  74. 74. PriorityPriority of Govt dues over unsecured creditorshas been accepted by Hon’ble Supreme CourtBuilders Supply Corporation vs UOI 56 ITR91
  75. 75. Important Case lawImperial Chit Fund vs ITO 219 ITR 499(SC)
  76. 76. Companies Act- ContradictorypositionSection 529A has been introduced in theyear 1985 to give priority to the paymentto workmen and secured debts
  77. 77. RECENT JUDGEMENTS• Strait India Ltd vs CIT 242 ITR 247(Bom)• Syndicate bank vs CIT 242 ITR 281 (Bom)
  78. 78. Private Company-Sec 179• The private company the demand of which cannot be recovered .• Every person who were directors during therelevant year will be jointly and severally liable topay the tax• No action can be taken against the director if hecan prove that non-recovery can not beattributed to any gross neglect, misfeasance,breach of provision on his part.
  79. 79. ProcedureBe sure that norecovery can bemade from thecompanyMake investigationto make the directorsliable
  80. 80. Order u/s 179First part of the order will contain the detailsof the actions taken to recover the demandfrom the company.Second part will contain what investigation/enquiries have been made to make thedirector liable jointly and severallyThird part will be the decision.
  81. 81. Receiver• Property in the hand of the receiver cannot be attached without the permissionfrom the court which has appointed thereceiver.
  82. 82. Declared insolvent-1Assessee received income and filed returnDeclared insolvent before filingAO assessed and raised demandInsolvent is liable to tax
  83. 83. Declared insolvent-2Assessment made in his nameAdjudicated insolvent after assessment butBefore collection of demandAO can claim it as a debt against the estate ofthe assessee from official assignee
  84. 84. Declared insolvent-3Adjudicated insolventOfficial assignee has received income after thator carries on businessTax will be collected from the official assignee
  85. 85. BIFR An Industrial undertaking whichhas filed reference in BIFR underthe provisions of SICA 1985 for itsrevival, IT demand against suchcompany can not be recovered.
  86. 86. Exception- for recovery Showing that despite the claim ofsickness the company has resourcesto meet the dues Revealing through evidences that thisis a case of diversion of fund/assetstripping by the directorsAll petitions before BIFR are to bemade through DGIT (Admn) who isthe nodal agency
  87. 87. DRAWING UP CERTIFICATE The procedure of drawing upcertificate has been modified w,e,f,01.04.1989 U/S 222, the TRO will draw upcertificate when the assessee is indefault or deemed to be in default inmaking the payment of tax
  88. 88. GuidelineNew guideline regarding drawingup certificate has been has beengiven in CBDT letter inFNo.396/3/90-ITCC dated13.02.1990
  89. 89. Procedure The AO will first exhaust the actionsu/s 221 and 226 He will obtain an approval from theJCIT to that effect. He will prepare a statement of assetsand fill up the relevant columns ofForm No 57 Send these to the TRO for drawingup certificate
  90. 90. Quarterly reviewThe AO will make quarterly review ofthe cases to be referred to the TROThe TRO and the AO will meet after acertain interval to review the position ofcertificated casesJCIT will monitor the cases
  91. 91. Time limitThere is no time limit of drawing upcertificate as section 230 has beenomitted w.e.f. 01.04.1989
  92. 92. Thank You
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