INSTRUCTION NO.4/2013 , DATED 5-7-2013

Hon’ble Delhi High Court vide judgment in case of Court On its Own Motion vs. UOI and j Ors- in W.P. (C) 2659/2012 dated 14.03.2013 has issued Seven Mandamus for necessary action by income-tax Department one of which is regarding non-enforcement of Demand where no intimation under section 143(1) of Income-tax Act,1961 was sent by field-authorities in refspect of returns which were processed prior to 31.03.2010.

2. On this issue, Court has observed as under:

“33. The second grievance of the assessee is with regard to the uncommunicated intimations under Section 143(1) which remained on paper/file or the computer of the Assessing Officer. This is serious challenge and a matter of grave concern. The law requires intimation under Section 143(1) should be communicated to the assesses, if there is an adjustment made in the return resulting either in demand or reduction in refund. The uncommunicated order/ intimations cannot be enforced and are not valid. Respondents in the counter affidavit have not dealt with this problem on the assumption that the Assessing Officer who had manually processed the returns and passed the order/intimations under Section 143(1) would have necessarily followed the statute and communicated the said orders/intimations. In case the said orders/intimations under Section 143(1} were communicated or dispatched to the assessees, the directions given by us below would not be a cause for any grievance and will not be a matter of concern for the Revenue, We also accept the contention of the Revenue that where an order under Section 143(1) was sent and communicated to the assessee but could not be served due to non-availability/change of address or other valid reasons, should not be treated at par with case where there is no communication or no attempt is made to serve the order whatsoever. But when there is failure to dispatch or send communication/intimation/ to the assessee consequences must follow. Such intimation/order prior to 31st March, 2010, will be treated as non est or invalid for want communication/service within a reasonable time- This exercise, it is desirable should be undertaken expeditiously by the Assessing Officers. CBDT will issue instructions to the Assessing Officers.

34. The onus to show that the order was communicated and was served on the assessee is on the Revenue and not upon the assessee. We may note in case an order under Section 143(1) Is not communicated or served on the assessee, the return as declared/filed is treated as deemed intimation and unorder under Section 143(1), Therefore, (fan assessee does not receive or is not communicated on order under Section 143(1). he will never know chat some adjustments on account of rejection of TDS or tax paid has been made. While deciding applications under Section 154, or passing an order under Section 245, the Assessing Officers ore required to know and follow the said principle. Of course, while deciding application under Section 154 or 245 or otherwise, if the Assessing Officer comes to the conclusion and records a finding that TVS or tax credit had been fraudulently claimed he wilt be entitled to take action as per law and deny the fraudulent claim of TDS etc. The Assessing Officer, therefore, has to make a distinction between fraudulent claims and claims which have been rejected on ground of technicalities, but there is no communication to the assessee of the order/intimation under Section 143(1). In the later cases, the Assessing Officer cannot turn around and enforce the demand created by uncommunciated order/intimation under Section 143(1). This is fifth mandamus which we have issued.”

3. In view of the direction of Hon’ble Court, I am directed to convey that the exercise desired by the Hon’ble High Court in respect of intimations/orders prior to 31.03,2010 as mentioned in Para 33 above may be carried out by 31st August, 2013 positively. Further, the observations made by Hon’ble High Court in Para 33 and Para 34 mentioned above relating to intimations u/s 143(1) and disposal of applications u/s 1S4 and also passing of order u/s 245r as applicable, may be strictly kept in mind by the Assessing Officer while dealing with such matters.

4. This may be brought to notice of all Officers working under your jurisdiction for necessary and strict compliance within the time-frame prescribed above.

 [F.NO.225/76/2013/ITAT.II]

Rohit Garg

Deputy Secretary to Government of India

IT (A.II)CBDT

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Category : Income Tax (24907)

0 responses to “CBDT – Not to enforce demand if intimation u/s 143(1) undelivered for returns Processed prior to 31-3-2010”

  1. P.K.Kundu, Advocate says:

    Very good and timely judgement. It is a timely decision by Honourable Court.
    All the I.T.authorities and CPC, Bangalore should clearly informed the assesses. They must withdraw the figures as reflected in their website wherever the intimation is not send to the assesees concerned.

  2. rajendra goel says:

    the meaning, effect and the action to be taken by the assesses regarding intimation u/s 143(1) should be highlighted as more n more people r filing their returns themselves without any expert professional.

  3. Akhilesh Srivastava says:

    Order of the Hon’ble court is just and proper but without rectification application the AO is not able to treat acknowledgements as deemed intimation u/s 143(1)

  4. Jagadeesh Bharadwaj says:

    This is a just and timely decision by the Honourable Court. As a matter of fact, several lakhs of assessees are being herrassed by the I.T. Department by reflecting as arrears of Income-tax in TRACES (Website of the I.T. Department) without serving the intimation Under Section 143 (1) by the I.T. Department. Further, the CPC only reflects the arrears due without serving the Intimation. Any number of letter to I.T. Department requesting for Intimation have not yielded any desired results.

    All the concerned authorities in the I.T. Department and the Centralised Processing Centre should be clearly informed and they should not immediately withdraw whatever the figures they reflect in their website wherever the Intimation is not served.

  5. vswami says:

    To Repeat (albeit in an altered vein):

    “C.4. The order ‘under section 154 of Income-tax Act MUST FULFILL ALL THE LEGAL REQUIREMENTS, SHOULD BE A SPEAKING ORDER and has TO BE INVARIABLY COMMUNICATED to the taxpayer immediately after its disposal.” (Capital Supplied)

    The issuance of instructions by the Ministry, this time for a change with more clarity of purpose in mind, is a timely step and welcome. Can be no denying that the gullible taxpayers have been suffering helplessly but patiently the innumerable woes in the face of inter alia the demonstrably chaotic TDS regime for too long to be justified; but since given fresh hopes.

    A couple of aspects worth a double underlining:

    1. The “contents” of the Circular, addressed to the two top heads, with CCs to certain others,would require to be , in turn, necessarily passed on and reached to the ATTENTION of each one of the field authorities’ desk, addressed to personal name. All the more imperative, to be made clear that any failure to strictly adhere to and comply with any of the instructions, not only in letter but also spirit, would invite personal action on the ‘presumptive’ ground of not having acted “in the performance of his duties”, as warranted by the law (same way as in the case of any other “public servant”); and that all the attendant consequences to follow.

    2, The field authorities are, no doubt, even in the normal course, expected to be fully aware, and also MADE A CONSCIOUS NOTE OF / bear in mind the purport and true import of the words / expressions highlighted in the above extracted portion of the Circular for their purposes / in their own interest. Even so, it might be worthwhile for the Ministry / CBDT to follow up by making those more than clear and sufficiently impressed. Especially, having noted that similarly worded circulars / directives issued in recent times have, by and large, not served the intended objects, by making an impact and change in the field reality. All the more important for the Ministry / CBDT is to keep closely monitoring the outcome, with a sincerity of purpose in the profound sense.

    Now, over to the Experts, the self-professed ‘social activists’ among them in particular; in the fervent expectation of useful contribution, aimed at accomplishing the ultimate objective of “public interest” (-in the same sense as made out by the Delhi High Court in Court on Its Own Motion vs. UOI 352 ITR 273).

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