CA. Pankaj G. Shah

Condition requiring manual filing of audit report by 30.09.2013 in notification dated 26.09.2013 is ultra vires and Void

Notification issued on 26.09.2013 has mandated that the Audit report must be furnished manually to the jurisdictional Assessing Officer by 30.09.2013. However the condition in notification is contrary to the Rules which have not been consequently modified.

Rule 12(2) of Income tax Rules provides that the return of income required to be furnished in Form SAHAJ (ITR-1) or Form No. ITR-2 or Form No. ITR-3 or Form SUGAM (ITR-4S) or Form No. ITR-4 or Form No. ITR-5 or Form No. ITR-6 14a[or Form No. ITR-7, shall not be accompanied by form or report of audit required to be attached with the return of income under any of the provisions of the Act

Further proviso to Rule 12(2) of Income tax Rules inter alia provides that where an assessee is required to furnish a report of audit specified under section 44AB, he shall furnish the same electronically.

As can be seen from above that the Provisions under Rules and under Notification are contrary to each other. In this regard attention is invited to the decision in case of V.K. Ashokan v. Asstt. Excise Commnr. and Ors.[2009 (4) SCALE 225] it was held that that rules framed or other terms and conditions imposed under an Act should not be contrary to the other provisions of the Act and must not be framed in contravention to the constitutional or statutory scheme.  Accordingly the Notification mandating additional condition of manual filing without modifying the existing Rules is Ultra-vires, Void and invaild.

Further the Notification requiring altogether new requirement of manual filing by 30.09.2013 has been introduced on 26.09.2013 which is very short and unreasonable period and is against the principles of natural justice. In State of Orissa v. Dr. (Miss) Binapani Dei and Ors, it was held that when by reason of an action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. In case of denial of principles of natural justice in a particular statute, the same may also be held ultra vires to Article 14 of the Constitution.

What for all this? There is no loss to the revenue on extending the uploading date. The requirement of manual filing with the jurisdictional A.O. has caused undue hardship, double jeopardy.

Double Standards of the Department is more noticeable from the fact that this notification will hit small and medium enterprises and common man assessee and not Larger Assessee’s as in case of Bigger Assessee’s where Domestic and International Transfer Pricing is applicable an extra two months period is granted to file Income Tax Return and Audit Reports.

(The author can be reached at pankajgshah@gmail.com or on +91 96918 93040 for any queries)

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0 responses to “Condition requiring manual filing of audit report by 30.09.2013 is ultra vires and Void”

  1. prabhat says:

    the department should have to notify that manual filing of tax audit report to those ca, who is incapable to upload electronically. If a person file manually they cannot be required to file the same thing electronically.
    But as regards current notification the word used may also never be treated mandatory and the well settled law that lesislature create any if and but, the benifit goes to the assessee not to the departent

  2. chanakya maurya says:

    The rampant ad-hoc-ism and frequent changes &/or introduction of new forms,etc. from the boss is very confusing even to the professionals. However, the boss is always right. So follow the boss however tough it may be. Without bothering for ultra virus or fultra vires or null full void.

  3. chanakya maurya says:

    The rampant ad-hoc-ism and revisions of various forms and procedures confuse even the professionals. However, the boss is always right !!! Follow the boss.

  4. Jayant L Aasher says:

    I am surprised that Ms Rekha Shukla , Commissioner of Income Tax and official spokesperson states that an assessee is REQUIRED to manually file the Tax Audit Report , when the Notification itself states “may also”. The Notification uses the words “should however” in case of electronically filing. The person of such a respectable designation is requested to look into the wordings again.

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