Introduction

Life is a series of natural and spontaneous changes. Just like seasons, destiny, relations, life, systems, technology, governments and people changes too. You get things the way you like it, take it for granted and then all of the sudden, something beyond your control bumps you off.

“The Only Thing That Is Constant Is Change” ― Heraclitus

Keeping in mind the need to change as a Rule of Life, Central Board of Direct Taxes (CBDT) on 12 September 2019, notified the much talked about e-assessment procedure vide Notification no. 61/2019. The stakes were high, as it was expected to reduce the red-tapism in the country, during an assessment proceeding. This notification was quickly followed up by another notification no. 62/2019, giving effect to the Income Tax E-Assessment Scheme, 2019.

Executive Summary

E-Assessment Scheme, 2019 intends to change the entire system of:

> How notice & order was issued & served to assessee

> How assessee or his authorized representative used to respond to notice

> Time framework for issue & response to notice

> Manner of assessment

Star plus campaigns “Rishta Wahi, Soch Nayi” and now with the changing developments in Tax Laws, it’s the same “Rishta” of Assessee & Tax Department, but with the “Nayi Soch” of e-Assessment Scheme. The new system, in line with Government’s vision of ‘Digital India’ and promotion of ‘Ease of Doing Business’, is

> Faceless – No physical interface between the taxpayers and the tax officers

> Paperless – 100% electronic communication of notice, response & order

> Jurisdiction less – System based selection & assignment of Case by Nation level authority i.e. National e-Assessment Centre. It is team based assessment with dynamic jurisdiction.

Under the new system of faceless e-Assessment, tax payer will receive notice on his/her registered email and/or registered account on the web portal www.incometaxindiaefiling.gov.in with real time alert by way of SMS on his/her registered mobile number. The reply to the notice can be prepared at ease by the tax payer at own residence or office and be sent to the National e-Assessment Centre by uploading the same on the designated web portal.

Tax Deduction. Business Concept Cartoon Illustration.

Historical Background

The matter of ‘Service of notice’ has always been a debatable issue between the Assessee and the Income Tax Department since long. There are number of judgments which lay down that a valid service (not issue) is mandatory for a valid assessment proceeding.  It was seen in most of the assessment proceeding, the dispute of issue & service of notice in respect of timeline, manner & authority to issue the same was being challenged. Something finished, gone and never returns, is what it usually takes to mark the “End of an Era”. With the introduction of e-Assessment scheme, government has tried to end the Era of manner of manual assessment in erstwhile regime.

Authority to Make Scheme & Issue Directions

Section 143(3A) empowers the central government to make scheme of assessment u/s. 143(3) and issue directions u/s. 143(3B) for the purpose of giving effect to the said scheme. As per provisions u/s.143(3B),

“ The Central Government may, for the purpose of giving effect to the scheme made under sub-section (3A), by notification in the Official Gazette, direct that any of the provisions of this Act relating to assessment of total income or loss shall not apply or shall apply with such exceptions, modifications and adaptations as may be specified in the notification “

In exercise of the powers conferred by sub-section (3A) of section 143 of the Income-tax Act, 1961, the Central Government notified the E-assessment Scheme, 2019.

Concept of “Delivery of electronic record“ in the E-assessment Scheme, 2019

The provisions relating to service of notices, orders or any other communication by electronic mode are contained in paragraph 10 of the said Scheme which reads as under:

10. (1) Every notice or order or any other electronic communication under this Scheme shall be delivered to the addressee, being the assessee, by way of:

(a) placing an authenticated copy thereof in the assessee’s registered account; or

(b) sending an authenticated copy thereof to the registered email address of the assessee or his authorised representative; or

(c) uploading an authenticated copy on the assessee’s Mobile App;

and followed by a real time alert.

As per Para 10 (4) of scheme, Time and place of dispatch and receipt of electronic record shall be determined in accordance with the provisions of section 13 of the Information Technology Act, 2000 and this section 13 of IT act states as under:

” Time and place of dispatch and receipt of electronic record –

(1) Save as otherwise agreed to between the originator and the addressee, the dispatch of an electronic record occurs when it enters a computer resource outside the control of the originator.

(2) Save as otherwise agreed to between the originator and the addressee, the time of receipt of an electronic record shall be determined as follows, namely–

(a) If the addressee has designated a computer resource for the purpose of receiving electronic records,-

(i) Receipt occurs at the time when the electronic record enters the designated computer resource; or

(ii) If the electronic record is sent to a computer resource of the addressee that is not the designated computer resource, receipt occurs at the time when the electronic record is retrieved by the addressee;

(b) If the addressee has not designated a computer resource along with specified timings, if any, receipt occurs when the electronic record enters the computer resource of the addressee.

(3) Save as otherwise agreed to between the originator and the addressee, an electronic record is deemed to be dispatched at the place where the originator has his place of business and is deemed to be received at the place where the addressee has his place of business.”

Important Definitions in the Context of ‘Delivery of electronic record’

Let us now understand some of important definitions in the Context of ‘Delivery of electronic record’ as per E-assessment Scheme, 2019.

“computer resource” shall have the same meaning as assigned to them in clause (k) of sub-section (1) of section 2 of the Information Technology Act, 2000

“computer resource of assessee” shall include assessee’s registered account in designated portal of the Income-tax Department, the Mobile App linked to the registered mobile number of the assessee, or the email account of the assessee with his email service provider;

“real time alert” means any communication sent to the assessee, by way of Short Messaging Service on his registered mobile number, or by way of update on his Mobile App, or by way of an email at his registered email address, so as to alert him regarding delivery of an electronic communication;

“registered account” of the assessee means the electronic filing account registered by the assessee in designated portal;

“registered e-mail address” means the e-mail address at which an electronic communication may be delivered or transmitted to the addressee, including-

(a) the email address available in the electronic filing account of the addressee registered in designated portal; or

(b) the e-mail address available in the last income-tax return furnished by the addressee; or

(c) the e-mail address available in the Permanent Account Number database relating to the addressee; or

(d) in the case of addressee being an individual who possesses the Aadhaar number, the e-mail address of addressee available in the database of Unique Identification Authority of India ;or

(e) in the case of addressee being a company, the e-mail address of the company as available on the official website of Ministry of Corporate Affairs; or

(f) any e-mail address made available by the addressee to the income-tax authority or any person authorised by such authority.

“registered mobile number” of the assessee means the mobile number of the assessee, or his authorized representative, appearing in the user profile of the electronic filing account registered by the assessee in designated portal;

Exchange of communication ‘exclusively’ by electronic mode—

For the purposes of this Scheme-

(a) all communications between the National e-assessment Centre and the assessee, or

his authorised representative, shall be exchanged exclusively by electronic mode; and

(b) all internal communications between the National e-assessment Centre, Regional e-assessment center and various units shall be exchanged exclusively by electronic mode

Timeline for filing Response to Notice issued

Being familiarized with above definitions along with concept of Delivery of Electronic Record, now let’s see time framework as per scheme issued in Notification No. 61/2019 as per following paragraphs:

“ (i) the National e-assessment Centre shall serve a notice on the assessee under subsection (2) of section 143, specifying the issues for selection of his case for assessment;

(ii) the assessee may, within fifteen days from the date of receipt of notice referred to in sub-clause (i), file his response to the National e-assessment Centre; “

Thus, it is important to note that only 15 days are given to assessee to respond to the notice. It is surprising that the time limit which was not present in 143(2) has been imposed by way of scheme issued u/s. 143(3A).

Challenges for Assessee in e-Assessment

As per scheme introduced, registered account in Income Tax E-filing Portal as well as email ID registered in such account are considered as Computer resource for Delivery of Notice. This has come up the following challenges:-

a) Keeping track of his/her registered account on e-filing Portal is a major challenge for any person. Notice may be served in the portal & assessee being unaware about the same. When opening his shop for the day, a businessman goes through his holy rituals of sprinkling water, burning incense sticks and performing obeisance to deities. Henceforth, his rituals would have to include a daily visit to his “registered account’.

b) Assessee has to respond within Timeline of 15 days and non filing of reply comes up with the penal consequences and giving right to Tax authorities to decide the matter on the basis of the evidences available on the record.

c) None of the Assessee might have thought that a ‘registered account’ on the portal of the Income Tax Department’s website opened for the purpose of furnishing his Return of Income electronically would be used for service of scrutiny notice or order or any other communication by electronic mode by the Income Tax Department. The Assessee had no opportunity to agree or disagree to such an arrangement.

d) In majority cases, Email IDs & Mobile numbers are not updated by Assessee on e-filing Portal. As per provisions, Service of electronic records would be complete as soon as the same is uploaded thereon. There is no such provision to ensure by Tax Authorities, that assessee has retrieved the notice from E-filing Portal or not and whether the email on which notice was served, has been updated one for the assessee or not.

e) In India, most of the Tax Compliances are being done by Tax Professionals on behalf of Assessee. Keeping track of all the assessee’s e-filing Portal accounts is a big challenge for any Tax Professional.

Practices to ensure Timely Tax Compliance

In the light of recent developments in e-Assessment, following practices should be adopted by Tax Payers & Tax Professionals to ensure timely Tax Compliance.

1. Regularly check Income Tax e-filing registered account’s following tabs-

a) My Account> View e-Filed Returns/Forms> Select Income Tax Returns from options > Check the ‘Status’ of ITR Filed

b) My Account> View e-Filed Returns/Forms> Select Income Tax Returns from options > ‘click here to view your returns pending for e-verification’

c) My Account> Service Request> New Request > Refund Reissue

d) e-File>Response to Notice u/s 139(9)

e) e-File>Response to Outstanding Demand

f) e-Proceeding Tab

g) Compliance > View & Submit Compliance

2. Keep mobile number & Email ID updated in the e-filing Profile

3. Regularly update your e-filing Portal credentials

4. Keep your Bank account pre-validated under Profile Settings to get timely refund

5. Keep your PAN card, mobile number & Email ID updated in Bank Records

6. Timely file your Income Tax Return and response for the notice issued well before due date. Never wait for due date.

7. Regularly take back up of accounting & taxation records

8. Keep important Tax filing related documents in the scanned form

9. Ensure updated address, bank details, contact details & financials details while filing ITR.

10. If you receive any email from Income Tax, must check its validity by verifying Document Identification Number (DIN) from e-filing portal.

11. If you need the expert, hire the one. Don’t try to be the one i.e. Take assistance of Tax Professionals in case of any difficulty being faced.

Conclusion

To be fair to the Assessee, having regard for their rights upheld by judicial precedents, the Department should not take the position that delivery of an electronic record is complete in cases where the same has not been retrieved by the assessee. Mere placing an authenticated copy of the notice in the assessee’s registered account should not be considered conclusive for Service of Notice.

The provisions of the Scheme should be modified to provide that service of electronic record would be complete only upon retrieval by the person. Otherwise it would lead to disputes between taxpayer & tax authorities, similarly as in earlier manual tax assessment regime.

Please refer all the relevant section, rules, notifications, and amendments as applicable. The Author is not responsible for any losses incurred. Content is merely for sharing knowledge. Author can be reached at casagargambhir@gmail.com for any queries/recommendations.

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