CA Dev Kumar Kothari
Reasonable time for preparation of case by taxpayer must be kept in mind while issuing any notice. While fixing time interval between date of notice and date of hearing at least the following factors must be considered by the authority issuing the notice:
a. Time taken in posting and delivery of notice. We find that in physical notices, 5-10 days are normally taken in such process due to normal procedures, holidays and off days etc. Even in case of notices by emails a time gap of more than 5 days is noticed, time gap of 3 days is very common when there is no holiday in between.
b. Nature of proceedings and quantum of details and evidences asked for.
c. How old is matter is also relevant because furnishing of information for old matters require more time. Similarly when case is fixed for first time, and lengthy details are required more time is required.
d. Reasonable time required by notices. In case of large organisation, receiving of notice, putting the notice to concerned person, action by concerned person to assign work to team for preparation etc. take considerable time. In case of mall organisations, services of outsiders is generally availed and this require time in decision making and then preparation of matter.
e. Minimum time- at least in any proceeding minimum thirty working days should be allowed in case of first opportunity and thereafter at least ten working days should be allowed.
f. Merely because officer is sitting in a power full position should not be a reason to exert un-necessary pressure on others. He must have a sense of being a good human being and an efficient officer who want to work in a reasonable manner.
Short notices are unfair as reasonable opportunity is denied, and is not in accordance with principal of natural justice. Short notices causes wastage of valuable time of tax payer and tax official. This is because in such cases adjournment need to be sought and officer has to consider adjournment petition, record it and pass an order.
Sometimes notices are served after appointed days, and some authorities have habit to issue show case notice for penalty also in such situations. Therefore, un-necessary proceedings take place.
Sometimes it is observed and experienced that even when adjournment is sought for a reasonable time, authorities allow very short time without considering complexity and volume of documents required for preparation and difficulties faced by assesse or his authorised representatives.
Cases have come to notice in which the authority is not likely and in some cases will definitely will not hear the case on the date appointed, still short notice is given. For example, while fixing cases for assessment year 2017-18 short notices are given , even though officer knows that he is busy in time barring cases, and will not hear the case for AY 2017-18.
It can be said that even in matter of allowing adjournments, highhanded approach is being adopted by tax authorities just to harass assesse and his representatives.
Recently author has come to notice of such situations in many cases where notice was received after the appointed day / time for hearing.
For example, information from few notices:
|Date of notice
|Date of hearing
|Whether requisition provided?
|Time between date of notice and date of hearing days
|081018 served on 121018 by email on 111018 in evening.
|S.133.6 for FY 2010-11
|111018 at 11AM
|Yes- requiring details and documents for three years of seven year old period
|By email 4 days by post 5 days. Both served after appointed time.
|200918 served on 250918
|Five days. Served after appointed time and day.
|110918 served on 280918 at about 5PM
|First notice of hearing by ITAT
|280918 at 10:30AM
|17 days served after time of hearing.
Similar are many other notices for example many notices of hearing of appeals from CIT(A), many from AO for other hearing on different matters like giving appeal effect, penalty hearing have been received by clients of author / clients of friends in which either notice was received after the date fixed for hearing or time allowed / available was hardly one or two working days.
Information which are already in record, and which are not at all applicable in case of notice should not be called. However, notices are issued without proper application of mind and un-necessarily information are called which assesse had to furnish again, though the same are available in records and some are not at all applicable. This also increases paper work and loss of paper which lead to increased environmental damages also.
In many notices for hearing warning for penalty for non- compliance on appointed day is also given even if the notice is first notice for hearing on the matter. This also causes extensive pressure on concerned persons and the taxpayer. This can also lead to another proceeding for penalty – notice, hearing, order , appeal etc.
At present most of assesse concerned staff and professionals are busy in matter related to filing of Return for which last date is 31.10.18.
Even websites of Income-tax Department are heaving heavy load due to uploading of ITR and various reports.
Therefore, even if an adjournment petition is to be filed, it will cause un-necessary load on all concerned including the AO and the website.
Author see no purpose in fixing date of hearing just few days from date of notice. In some cases, even notice is not served within such short time. Even emails of department are posted after few days from the date of notice and sometimes after date of hearing. In case of email notices, also some time is to be allowed because all concerned are not still in habit of checking emails frequently and even otherwise it may not be possible to check emails in all email addresses.
If at all one find purpose in such short period allowed is TO HARASS ASSESSEE AND TAX PROFESSIONALS.
If assesse physically file documents it is likely that when hearing will be started during January 2019 or thereafter, the AO may not find documents in his records or difficult to trace and assesse will need to file again.
While issuing notice under section 143(3) for initiation of scrutiny assessment, long time should be allowed – when hearings are likely to take place. Therefore, for AY 2017-18 vide notice u.s. 143(2) date of hearing can be fixed after February 2019. This will help all concerned.
Department can also ensure that before the date of hearing is fixed vide notice u/s 143(2)another procedural notices (e.g. u.s. 142) calling for information and documents can be issued and date of hearing can be fixed on the same date as fixed vide notice u/s 143(2).
This will reduce un-necessary paper work, un-necessary submissions of documents online or physically.
Author is a member of ICAI and he can be reached at firstname.lastname@example.org