a) CBDT vide its notification 2/2016 dated 3-Feb-2016 has prescribed Procedure, Formats and Standards for ensuring secured transmission of electronic communication.
b) I am thankful to Sandeep for providing scope for a preliminary article on this topic at https://taxguru.in/income-tax/ready-email-assessment.html
c) An attempt is being made to trace the difference in manual or physical submissions and electronic submissions.
d) The two important differences are
e) Documents will be in electronic format as compared to printed format.
f) No or less opportunity for personal hearing.
Documents in electronic format -:
g) Firstly, to be very honest, physical printing and signing the submission is a critical process that acts as a strong control to verify the various characteristics of the submission.
h) We are accustomed to use email in much casual a manner as compared to submission at the time of assessment.
i) Now we will be using email as manner of communication which will act as a submission before a quasi-judicial authority.
j) Each document will have to be converted into pdf format, be it from pdf printer or saving the scan copy of a printed document into a pdf format.
k) The task is to inculcate the same degree of checks and balances while making an electronic submission.
l) The time gap from drafting of the submission to actually handing over to the assessing officer itself acts an opportunity for checks and balances.
Regarding personal hearing
m) A personal hearing has following characteristics which will not be there in case of scrutiny assessment on email.
Facial expression – Facial expression is integral when expressing emotions through the body. Combinations of eyes, eyebrow, lips, nose, and cheek movements help form different moods of an individual
Body postures Sitting or standing postures, head nodding, foot kicking
Gestures – Gestures are movements made with body parts (e.g. hands, arms, fingers, head, legs) and they may be voluntary or involuntary. Arm gestures can be interpreted in several ways.
Handshakes – Handshakes are regular greeting rituals and are commonly done on meeting, greeting, offering congratulations or after the completion of an agreement. They usually indicate the level of confidence and emotion level in people.
Oculesics – It is the study of eye movement, eye behavior, gaze, and eye-related nonverbal communication.
Haptics – is the study of touching and how it is used in communication. As such, handshakes, holding hands,back slapping, high fives, brushing up against someone or pats all have meaning.
Proxemics – the study of measurable distances between people as they interact with one another.
Tone of voice – Tone of voice is a combination of spoken language and body language. The manner in which something is said can affect how it should be interpreted. Shouting, smiling, irony and so on may add a layer of meaning which is neither pure body language nor speech.
n) For further details, one may refer https://en.wikipedia.org/wiki/Body_language
o) In this aspect, a relevant observation of supreme court is worth re-producing.
In Union of India Vs. Shiv Raj – [(2014) 6 SCC 564], a three-Judge Bench of the Supreme Court reiterated the principle laid down in Gullapalli Nageswara Rao’s case. This is evident from paragraphs 17 to 20 of the judgement, which are reproduced below : This Court in Gupllapalli Nageswara Rao, held : (AIR p. 327, para 31)
“31. …Personal hearing enables the authority concerned to watch the demeanor of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes and empty formality. We therefore, hold that the said procedure followed in this case also offends another basic principle of judicial procedure.”
p) At the outset, let me accept that, I do not have any experience of such email scrutiny.
q) But I have done interaction with people through skype call where personal hearing is / was not possible.
r) All the documents were exchanged / shared through email or cloud facility.
s) If I compare my experience with the future of scrutiny assessment or even appellate hearing, it may by summarized as follows.
t) In the place of 6-8 personal hearings, 2 personal hearings and 2 skype / online hearings will suffice.
u) Typically, first personal hearing will be required in very initial stages where the authorised representative will explain the nature and characteristics of the assessee.
v) One personal hearing will be required before closing the arguments.
w) The skype / online hearing will happen in between the personal hearings.
x) The electronic communication system will certainly bring down the requirement for number of personal hearings but can not eliminate it.
( Author CA. Yogesh S. Limaye can be reached at [email protected])