Key notes under Implementation of Right Claim under Income Tax Act, 1961 in respect of Association under THE CONSTITUTION OF INDIA

An Assessee has not claimed and /or overlooked some deductions / exemptions in return of Income before the authority, subsequently the Assessee awarded that additional claim for deductions /exemptions could have been made for a particular deduction/exemption on account of / Retrospective amendments  / Judicial pronouncements delivered and other reasons after the filing of return of income.

 In this situations, Assessee filled a revised claimed before the Authority when the time limit for filing revised returns has expired or cases where Returns cannot be revised, then Assessee make a fresh application for additional  / Revised claims for deductions / exemptions before the Authorities at various levels for granting the benefit of deductions/exemptions.

Here, one important question raised that the authority shall accept or not, in this situation, it should be followed the Preamble of THE CONSTITUTION OF INDIA.

Every persons have fundamental right, as PART III FUNDAMENTAL RIGHT of THE CONSTITUTION OF INDIA  under the Article 19 (1) (c ) read with (4) refers that the Protection of certain rights regarding freedom of speech, etc All citizens shall have the right to form associations  shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

Article 265 of the Constitution of India lays down that no tax shall be levied except by authority of law. Here, tax shall be recovered where justifying / conforming to the law or to rules and even that a preferential allowance or rate given by a tax-payer does not give authority to the tax collector to recover more than what is due from him under the law.

Article 265 of the Constitution mandates that no tax shall be levied or-collected except by the authority of law. It provides that not only levy but also the collection of a tax must be under the authority of some law. 

Extract of Article 265 of Constitution of India

“265. Taxes not to be imposed save by authority of law No tax shall be levied or collected except by authority of law” 

Tax laws are highly complex, complicated and beyond understanding of a tax-payer, in the consequently the revenue authority guided / directed to implanting authority issued circular / notification time to time for sake justice.

CBDT Circular on Assessee’s Rights 

There is an old Circular issued by the Central Board of Direct Taxes Circular No: 14 (XL-35) dated April 11, 1955. It states:

 “Officers of the Department must not take advantage of ignorance of an assessee as to his rights. It is one of their duties to assist a taxpayer in every reasonable way, particularly in the matter of claiming and securing reliefs and in this regard the Officers should take the initiative in guiding a taxpayer where proceedings or other particulars before them indicate that some refund or relief is due to him. This attitude would, in the long run, benefit the Department for it would inspire confidence in him that he may be sure of getting a square deal from the Department. Although, therefore, the responsibility for claiming refunds and reliefs rests with assessee on whom it is imposed by law, officers should

 (a) Draw their attention to any refunds or reliefs to which they appear to be clearly entitled but which they have omitted to claim for some reason or other;

 (b) Freely advise them when approached by them as to their rights and liabilities and as to the procedure to be adopted for claiming refunds and reliefs.”

Under these facts, it has confirmed that a overlooked the provision of the section/s even wrong section/s was mentioned by an  assessee in the return of income, it was the noble duty of the Assessing Authority to proper advised / directed  the tax payer in a reasonable way and to provide the relief if due to assessee. This attitude rather will help the Revenue in assessing the income correctly. A correct advice by the Department would inspire the confidence of public at large.


Disclaimer: The information contained in the above article are solely for informational purpose after exercising due care. However, it does not constitute professional advice or a formal recommendation. The author do not owns any responsibility for any loss or damage caused to any person, directly or indirectly, for any action taken on the basis of the above article.

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September 2021