Unanswered FAQs on Direct Tax Vivad se Vivadh Act 2020- Part I

In this Article, the Authors briefly deliberated on the issues arising out of FAQs answered by the Board and also fresh questions that need to be answered soon for the tax payers and the administrators to be clear in their approach.  The Act is referred to as VsV Act or the Act and the Designated Authority as DA.

Also Read- FAQs on Vivad Se Vishwas – Questions Unanswered- Part II

PART A on FAQs:

FAQ 1: The Board has clarified that Cases where the order has been passed but the time limit for filing appeal under the Income-tax Act, 1961 (the Act) against the order has not expired as on the specified date are also covered.

However, as per the Section 2(1)(a)(ii) of the Act, a person in whose case an order has been passed by the Assessing Officer, or an order has been passed by the Commissioner (Appeals) or the Income Tax Appellate Tribunal in an appeal, or by the High Court in a writ petition, on or before the specified date, and the time for filing any appeal or special leave petition against such order by that person has not expired as on that date;

As per the provisions of the Act, order passed in an appeal by the High Court pending appeal to Supreme Court or a review petition before the High Court and the Supreme Court are not included and hence not eligible for the scheme.

The question for consideration is whether the FAQ’s can traverse beyond the scope of the legislation. Such unintended scope can be cured only by an amendment by the Act to be placed before both the houses of the parliament.

FAQ Needed: For the purpose of Section 2(a)(v), “a person who has filed an application for revision under section 264 of the Income-tax Act and such application is pending as on the specified date” is an eligible appellant.

However, the definition of appellate forum in Section 2(1)(b) does not include the authority before whom the proceedings under section 264 are initiated or lodged.

The Board to clarify that the appellate forum for the purpose of this Act should include the Principal Commissioner of Income tax or the Commissioner, as the case may be.

FAQ 6: The Board has clarified who can avail the benefit of VsV in the case of search assessment and the clarification was furnished with respect of provisions for the Act contained in Section 9(a)(i) which excludes search assessments if the disputed tax exceeds five crores.

It is not clear whether an appellant, in whose case order under section 143(3) or 144 is passed without reference to Section 153A or 153C of the Income Tax Act and who have not received notices under section 153A / 153C of the IT Act exceeding disputed tax more than 5 Crore is eligible or not. The assessments were completed in these cases by issue of notice u/s 143(2) under CASS Scheme or without specifying reasons as search by CPC and for the said assessment years without notice u/s 153A or 153C.

FAQ 11: In FAQ involving qualifying and non-qualifying tax arrears, the Board clarified that there are no provisions under Vivad se Vishwas to settle part of a pending dispute in relation to an appeal or writ of SLP for an assessment year. For one pending appeal, all the issues are required to be settled and if any one of the issues makes the declaration invalid, no declaration can be filed.

On a similar analogy, in FAQ 38, it is understandable that on two issues, appeal is filed for only one addition, giving a room for disputing only one issue that is pending in appeal.

Attention is also invited to FAQ 14 where the Board clarified that picking and choosing issues for settlement is not allowed. In the light of contradicting FAQs No. 11, 14 and 38, the Board should further clarify FAQ 38 read with FAQ 11 and 14.

FAQ 22: A remarkable difference is made between initiation of prosecutions and instituting prosecutions. In the latter case, the appellant is not eligible, while in the former case, the appellant is eligible if the tax arrears are paid. However, in FAQ, the Board clarified that, where only notice for initiation of prosecution has been issued with reference to tax arrears, the taxpayer has a choice to compound the offence and opt for Vivad se Vishwas.

FAQ 29: In a question involving, whether credit for earlier taxes paid against disputed tax will be available against the payment to be made under Vivad se Vishwas, the Board clarified that credit for taxes paid against the disputed tax before filing declaration shall be available to the declarant.

The question for consideration is whether the credit for taxes paid in relation to disputed tax are available or credit for taxes against the disputed tax before filing declaration shall be available to the declarant.

More clarity is required whether credit is available for all prepaid taxes such as TDS, TCS as available in Form 26AS, amount paid for stay application, cash seized, recoveries made through garnishee order, MAT Credits, refund adjustments, refunds determined and not issued.

Further clarity is also required whether refunds of earlier years or later years will also be available to adjust against tax arrears in one of the assessment years.

FAQ 30: In a case where assessee settles TDS appeal or withdraws arbitration (against order u/s 201) as deductor of TDS, will credit of such tax be allowed to deductee, the Board clarified that the credit will be allowed as on the date of settlement of dispute by the deductor.

It is not clear what is the meaning of settlement of dispute. It is with reference to Section 5(i), where an order is passed by the designated authority and granting a certificate to the declarant determining the amount payable or the date on which the declarant paid the tax arrears, intimating the designated authority and the DA passing an order that the declarant has paid the amount.

In other words, is the date of settlement the day on which determined or the day on which paid?

In the same FAQ 30, the Board has not made clear what is the interest and who shall pay. It is unreasonable to expect the deductee to pay in view of the protection available pursuant to the provisions of Section 205 of the Income tax Act and for no fault of the deductee, the deductee cannot be called upon to pay the interest. Under the VsV Scheme, having settled the TDS appeal, deductor is obliged to claim relief of interest and hence the deductor cannot be called upon to pay.

The Board should also take note of practical difficulties of the deductee having filed the return of income in an earlier year offering the income to tax and tax on such income paid with interest under Section 234C and 234B of the Income Tax Act and having closed the proceedings, cannot again be called upon to pay the interest. However, if the deductee is allowed the credit on the basis of settlement of TDS appeal, it amounts to taking credit for TDS in the year of settlement without offering corresponding income to tax in contrast to the provisions of section 198 and 199 of the IT Act.  It is settled in law that tax credit needs to be given in the year in which the income is assessed [Sec 199].

FAQ 31: In a case where assessee settles TDS liability as deductor of TDS under Vivad se Vishwas (i.e. against order u/s 201), when will he get consequential relief of expenditure allowance under proviso to section 40(a)(i)/(ia), the Board clarified that, the deductor shall be entitled to get consequential relief of allowable expenditure under proviso to section 40(a)(i)/(ia) in the year in which the tax was required to be deducted.

The issues arising out of the FAQ are discussed and need more clarifications interplay with the provisions of the Income Tax Act.

The first proviso to Section 40(a)(ia) states that

“Provided that where in respect of any such sum, tax has been deducted in any subsequent year, or has been deducted during the previous year but paid after the due date specified in sub-section (1) of section 139, thirty per cent of such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid :”

While the Act allows for deduction of the expenditure in the year in which the tax has been paid, however the FAQ clarifies that consequential relief on settlement of TDS liability is an allowable expenditure under proviso to section 40(a)(i)/(ia) in the year in which the tax was required to be deducted.

It is not clear what is the meaning of settlement of dispute. It is with reference to Section 5(1), where an order is passed by the designated authority and granting a certificate to the declarant determining the amount payable or the date on which the declarant paid the tax arrears, intimating the designated authority and the DA passing an order that the declarant has paid the amount.

The issue becomes more complex when settlement is done on the basis of the declaration but the tax is not paid before the due date.

The question for consideration is whether and how the assessments for the previous years, in which disallowance u/s 40(a)(ia) of the IT Act has been already suffered and tax along with or without interest as the case maybe had been paid in full, shall be reopened and if so at whose instance for granting of the refund.

Is the refund arising out of tax earlier paid or refund of the TDS credit given consequent to settlement of TDS appeal? The Board should give more clarity on this issue.

FAQ 36 and 40: In a case where the assessee got relief in an appeal for some issues and confirmed the other issues. The time for filing the appeal has not expired. Under such circumstances, the Board clarified that the appellant can file declaration for the issues in favour of the Revenue and also for the issues in his favour or both. The disputed tax has to be calculated at 100% of the tax in dispute of the appellant and 50% in cases of Revenue appeals.

But however, the appellant will have to factor in mind prior to making declaration whether the Revenue appeal is sustainable in view of the monetary limit as prescribed by the CBDT, which has not been made clear in the FAQ 36 and 40.

FAQ 49: In a case where once declaration is filed under Vivad se Vishwas, and for financial difficulties, payment is not made accordingly, will the declaration be null and void?

The Board clarified that it will be void. However, the Board did not clarify on the status of the appeals. Once the declaration is void ab initio, the declaration was never deemed to have been made and the appeals never deemed to have been withdrawn under section 4(2). This should be read with the provisions of Section 4(6) which states that

“and in such cases, all the proceedings and claims which were withdrawn under section 4 and all the consequences under the Income-tax Act against the declarant shall be deemed to have been revived.”

In other words, the declarant will end up with the litigations and the consequential penal provisions under the IT Act.

FAQ 50: In a case where the demand in case of an assessee has been reduced partly or fully by giving appeal effect to the order of appellate forum, how would the amount payable under Vivad se Vishwas be adjusted?

The Board clarified that in such cases, after getting the proof of payment of the amount payable under Vivad se Vishwas, the AO shall pass order under the relevant provisions of Vivad se Vishwas to create demand in case of assessee against which the amount payable shall be adjusted.

The first issue is that there is no enabling provision under the VsV Act for the AO to pass an order under the VsV Act to create a demand. The power under the VsV Act to create a demand is vested with the designated authorities only, not below the rank of the Commissioner of Income Tax. A situation of appeal order reducing the demand of an assessee after filing declaration under VsV Act does not arise since post withdrawal of appeal only, the declaration under VsV Act is filed.

FAQ’S TO BE ANSWERED:

1. In a case of disputed income by way of disallowance of expenditure in appeal and such expenditure being in the nature of capital expenditure or expenditure carried to the balance sheet directly by way of capitalizing / inventorising not resulting in tax effect in the year of disallowance how is the tax effect calculated.

2. In the case of Individuals and HUF having multiple slab rates and surcharges, how the tax on disputed income to be calculated. Should it be on the basis of average rate of tax or on the basis of slab rate applicable.

3. It is not made clear whether the said Act is a Special Act or not withstanding any thing contained to the contrary in the Income Tax Act, 1961.

4. The higher amount is applicable if the payment is after 1^st April 2020 and before last date and the last date is defined u/s 2(l) means such date as may be notified by the Central Govt in the official Gazette. However, in the campaign mail with the power point presentation, the department already stated 30^th June 2020 as the last date [End date].

PART B. OTHER COMMENTS

1.0 Person

Appellant means a “Person” in the Income tax Act, to include all types of assessees as contemplated under the Act.  It is may be noted that where an Assessee ceased to exist, expired subsequent to assessment order and during the Appeal proceedings, the settled law is that the Appellant is to be represented by a Legal Heir or a Representative.  It is a settled law that no order can be passed in the name of a non-existent person and it still holds good even under VVS.  The categories of the Appellants are HUFs subsequently partitioned, Firms subsequently dissolved, Companies struck off by the ROC,

Dissolved Trusts, Dissolved AOPs, Firms and LLPs converted into Companies, Amalgamated companies in whose case, the declarations, orders and certificates necessarily have to be documented in the name of legal heirs and representatives.

2.0 Eligibility of Appeals

2.1 During the pendency of the Appeal, if the assessment order is set aside by the CIT u/s 263, the appeal filed and pending becomes infructuous.  The Appellate Authority should dismiss such an Appeal and further should not decide the matter and such matter cannot be treated as pending appeal for the purpose of VsV.   [ Ramesh Beekay & Co vs  CIT 1994 72 Taxmann 71, 72  Allahabad].

2.2 In the cases, where Appeal is posted for hearing and the Authorized Representative failed to appear, the Appellate Authorities should not dismiss the Appeals and will have to pass the orders on merits.  Such dismissal of Appeals is not tenable.  [Rafiq vs Munshilal AIR 1981 SC 1400]. Under these circumstances, the Appellate Authorities exercising their powers should recall the order and maintain the Appeal to decide on merits. Such Appellants should be permitted to avail the VsV.

2.3 The controversy could be whether filing of an appeal by itself can be complete and be pending as on 31-1-2020.  Whether admission of an appeal filed by the Appellant is a criterion to decide.   For an Appeal to be admitted there are various criteria laid down as per the procedural requirements of the Appellate Authorities. Merely filing an Appeal with frivolous grounds for the sake of availing VVS could be a matter taking high risk.  For an Appeal to be pending before an Appellate Forum, it should meet the criteria that the matter is subject of adjudication, but not the admission is to be adjudicated.  An appeal subsequently dismissed lacks the very requisites of a valid Appeal.  The reasons could be many and depends on the case to case.

2.4 For example, non-payment of self-assessment tax is one of the reasons for an invalid Appeal. Ref 246A. Before filing the appeal, the taxpayer should pay the tax determined as per the return of income filed by him.

2.5 However, on application made by the taxpayer, the CIT(A) may exempt the taxpayer from payment of tax before filing the appeal. Such benefit is granted if good and sufficient reason is proved by the taxpayer for non-payment of tax before filing the appeal.

2.6 Also, the High Courts and the Supreme Courts can dismiss the Appeals if there is no point of law. Ref Sec 260A. Condonation of delay is a matter to the satisfaction of the Appellate Authority.  When the delay for filing an appeal is condoned, the eligibility under VsV Act need to be are fully kept in mind because, when a delay is condoned, the date of instituting the Appeal is always on the date of filing and is merely admitted for the purpose of adjudication.

2.7 The question for consideration is when an Appeal is filed electronically or by manual filing or by Appeal by admission after condonation of delay.  Is there a discretion to the Appellate Authority to admit or dismiss?  What if the delay is condoned and when the Appeal is deemed to come into existence on the due date the Appeal ought to have been filed or on the date it is admitted after condonation of delay?  In the latter case, the declarant is not eligible.  Even if the delay is condoned, it can-not be said that the Appeal came into existence on a notional day, when it was supposed to be filed.  Delay is condoned for the mere purpose of admission and considering the principles of natural justice.  Hence, if the Board gives the sanctity of such belated appeals as the Appeals pending on the specified date, it sends a wrong signal that through a back door, the entry is permitted.

2.8 In the alternative, where the due date for filing has not expired before 31-1-2020, the Appeal if filed within the next due date is eligible in the eyes of law.  What if there is delay even in such cases, it can be held that such cases can be validly admitted under VVS Scheme.  Therefore, there is no clarity in classifying an appeal as eligible Appeal or ineligible Appeal. It is highly critical to decide about the eligibility criteria before venturing into VVS.

3.0 WITHDRAWAL OF APPEALS BEFORE ITAT and CIT(A)

3.1 Deemed withdrawal of appeal before ITAT or CIT (A) is governed by the provisions of Section 4(2), upon the filing the declaration, any appeal pending before the Income Tax Appellate Tribunal or Commissioner (Appeals), in respect of the disputed income or disputed interest or disputed penalty or disputed fee and tax arrears shall be deemed to have been withdrawn from the date on which certificate under sub-section (1) of section 5 is issued by the designated authority.

3.2 Section 5 (1) provides that the designated authority shall, within a period of fifteen days from the date of receipt of the declaration, by order, determine the amount payable by the declarant in accordance with the provisions of this Act and grant a certificate to the declarant containing particulars of the tax arrears and the amount payable after such determination, in such form as may be prescribed.

3.3 From the analysis of the above, the Appeal (limited to filed before ITAT and CIT) is deemed withdrawn the moment certificate is grated to the declarant determining the amount payable.  As per Section 5(2), the declarant shall pay the amount determined under sub-section (1) within fifteen days of the date of receipt of the certificate.  Therefore, it is quite clear that the Appeals are deemed withdrawn be whether the amount is paid or not paid subsequently by the declarant and the withdrawal is not linked or synced to the payment.

3.4 The second limb in Section 5(1) provides for such form as may be prescribed meaning the format of the certificate.  While the law is clear in this manner, it may be out of place for the Board to provide in the Rules that the withdrawal should be with reference to the payment and thereupon the designated authority passing an order stating that the declarant has paid the amount.

4.0 FINALITY OF ORDER PASSED U/S 5(1) R.W SECTION 5(3)

4.1 Section 5(3) provides that every order passed under sub-section (1) of section 5, determining the amount payable under this Act, shall be conclusive as to the matters stated therein and no matter covered by such order shall be reopened in any other proceeding under the Income-tax Act or under any other law for the time being in force or under any agreement, whether for protection of investment or otherwise, entered into by India with any other country or territory outside India.

4.2 The exception to the provisions of section 5(3) shall be those related to giving effect to allowance of deductibility of expenses u/s 40(a)(ia) on payment of TDS, granting credit to the TDS to the deductee, refund of tax amounts, orders giving effect to CFL/BFL,  etc., which are more of procedural in nature. Ref FAQ 5 in this regard.

4.3 The Board in FAQ 52 and 55 clarified that the declaration made shall not amount to conceding as the case may be by the declarant and the department.  Whether statement recorded u/s 132(4) covering the admissions for the search years be contested and conceded differently for different assessment years.

4.4 Section 5(3) also provides that the order passed u/s 5(1) shall be conclusive and no matter can be reopened in respect of any proceeding under DTAA.  These are typically the cases of MAP or before ICJ.  This should be read in conjunction with scope of the Act u/s 9 (a) (iii) relating to any undisclosed income from a source located outside India or undisclosed asset located outside India for which additions are made in the order, which are disputed.

4.5 There are no FAQs on foreign income or assets on whether partial disclosure is an undisclosure to the extent of what is not disclosed, what constitutes source of income, whether an undisclosed credit or investment u/s 69 is a source of income.

5.0 REFUNDS

5.1 The Board in FAQ 5 clarified that if an Applicant has already paid the disputed demand either partly or fully, the amount of tax paid is more than the amount payable under VsV, the applicant is entitled to refund.

5.2 The FAQ is with reference to the provisions of section 7 where any amount paid in pursuance of a declaration made under section 4 shall not be refundable under any circumstances. However, explanation to the section provides that for the removal of doubts, it is hereby clarified that where the declarant had, before filing the declaration under sub-section (1) of section 4, paid any amount under the Income-tax Act in respect of his tax arrears which exceeds the amount payable under section 3, he shall be entitled to a refund of such excess amount, but shall not be entitled to interest on such excess amount under section 244A of the Income-tax Act.

5.3 The law makes it clear that what is paid prior to making declaration is refundable and amount paid in pursuance of the declaration u/s 4 shall not be refundable under any circumstances.

5.4 Therefore, the declarants need to be careful in making payment either prior to making declaration vs in pursuance of the declaration.  In the former case, it is refundable and in the latter case it is not refundable.  The applicants who are in border line of doubtful categories of eligibility, should be careful in choosing the dates of payment.

5.5 The Board should clarify the mechanism of granting refunds, whether by way of orders giving effect to by the DAs / AOs or by filing any particular refund claim and the time limit for granting refunds.

5.6 In this connection, attention is drawn to the provisions of Section 4(5) where the declarant is asked to furnish an undertaking waiving his right, whether direct or indirect, to seek or pursue any remedy or any claim in relation to the tax arrears which may otherwise be available to him under any law for the time being in force, in equity, under statute or under any agreement entered into by India with any country or territory outside India whether for protection of investment or otherwise and the undertaking shall be made in such form and manner as may be prescribed.

5.7 The surrender of rights by the declarant and the denial of remedies by the tax department should not normally deny the principles of natural justice failing which the rights under the constitution under article 226, can be invoked.

5.8 Section 4(7) of the VsV Act provides that no appellate forum or arbitrator, conciliator or mediator shall proceed to decide any issue relating to the tax arrears mentioned in the declaration in respect of which an order has been made under sub-section (1) of section 5 by the designated authority or the payment of sum determined under that section. The appellate forum for the purpose of this Act is defined u/s 2 (b) as “appellate forum” means the Supreme Court or the High Court or the Income Tax Appellate Tribunal or the Commissioner (Appeals).

5.9 The question for consideration is whether the Parliament can embark and limit the powers of the judiciary.

5.10 Even otherwise, the restriction on the powers as in Section 4(7) relate only to any issue relating to the tax arrears mentioned in the declaration in respect of which an order has been made under sub-section (1) of section 5, but not in respect of any other matter such as granting refund and other remedies. It is equally important to understand what is “any issue relating to the tax arrears” as covered under section 4(7). The Board should clarify through an FAQ.

5.11 Section 6 of the Act provides that

“Subject to the provisions of section 5, the designated authority shall not institute any proceeding in respect of an offence; or impose or levy any penalty; or charge any interest under the Income-tax Act in respect of tax arrears.”

The definition of designated authority is mentioned in Section 2(e) as – “designated authority” means an officer not below the rank of a Commissioner of Income-tax notified by the Principal Chief Commissioner for the purposes of this Act;

The question for consideration is whether this provision takes away the powers and jurisdiction of the authorities below the rank of the Commissioner of Income Tax in respect of the matters pending before them, for levy of penalty, charging of interest or initiation of any penalty proceedings with or without the approval of the higher authority in cases when necessary. The law should put a bar on the assessing officer (Not on DA) in not instituting any proceeding in respect of an offence; or impose or levy any penalty; or charge any interest under the Income-tax Act in respect of tax arrear

6.0 CONSEQUENCES

6.1 As per Section 4(6), the declaration under sub-section (1) shall be presumed never to have been made if,— (a) any material particular furnished in the declaration is found to be false at any stage; (b) the declarant violates any of the conditions referred to in this Act; (c) the declarant acts in any manner which is not in accordance with the undertaking given by him under sub-section (5), and in such cases, all the proceedings and claims which were withdrawn under section 4 and all the consequences under the Income-tax Act against the declarant shall be deemed to have been revived.

6.2 The consequences of declaration and the proceedings becoming invalid are enumerated in Section 4(6) and as a result all the all the consequences under the Income-tax Act against the declarant shall be deemed to have been revived.  The intent of the legislation being that the interest waived, penalty waived and the prosecutions dropped shall get revived and the Law did not provide for reinstatement or revival of the Appeals hitherto made and withdrawn consequent to the situations specified in section 4(6).

6.3 In the awareness campaign mail being received, the tax payer is advised to find details of your outstanding tax demand by logging into your account in the e-Filing website of the Income Tax Department.  The tax payer should go through the e-proceedings portal where the pending appeals are posted or listed, not the outstanding demand section.  Not all outstanding demands are eligible to file the declarations, but only disputed demands are eligible to file.

6.4 May be the CPC should come out with an App or Module on the CPC linking the Appeals for disputed income and calculate the tax on disputed income and also the disputed interest for the tax payer to be prepared for planning and reconciliation of disputed taxes.

7.0 REVENUE APPEALS:

In the matters where the Revenue has gone in Appeal, whether the person is at liberty to going for VVS scheme on his motion? Or whether any prior intimation / consent of the revenue is required prior to filing a declaration, whether the declaration by the person is binding on the Designated Authority / Revenue to accept.  There is no provision in the VVS that the declaration has to be accepted in toto by the Revenue. Whether the DA has to exercise caution and care prior to accepting the declaration.

8.0 EXCLUDED CATEGORIES:

8.1 Section 9 of the Act seeks to exclude from the Scheme tax arrears relating to an assessment year in respect of which an assessment has been made u/s 143(3), 144, 153A or 153C on the basis of search initiated u/s 132 or 132A of the Income-tax Act if the disputed tax exceeds Rs 5 Crores and also cases in which prosecution has been instituted on or before the date of filing of declaration and other categories as specified.

8.2 Initially when the Bill was introduced, the provisions of the Scheme were not be applicable in respect of tax arrears on the basis of search assessment orders. However, Act as finally passed provided monetary limit of Rs 5 crores.

8.3 The Finance Minister clarified that search and seizure cases of over Rs 5 crore have been excluded as the government doesn’t want large fraud and evasion cases to come under the scheme to avoid alleged tax evaders take undue benefit of these provisions.

8.4 Section 9 proposes to discriminate Assessees on the basis of the amount of a tentative disputed tax. Therefore, this discrimination constitutes violation of Article 14 of the Constitution of India, there being no other reasonable classification as an exception to the rule of equality under Article 14.  Such discrimination keeping in mind the object of the Act is expected to meet the test of Constitutional legality.

9.0 TREATEMENT OFF AMOUNT PAID UNDER VsV

The amount paid over and above disputed tax like 25% or 35% as the case maybe or in relation to income in dispute and hence such amount partakes the character of tax on income under section 40(a)(ii) and shall not be admissible as deduction while computing the income from business of the year in which such settlement is done.