Taxmann's Faceless Assessment Appeals & Penalty Ready Reckoner

Page 1


About the Author I-5

Preface to Seventh Edition I-7 Acknowledgement I-9 About the Book I-11 Chapter Heads I-15 “WHAT’S IN A FACE?” (A Poetic Tribute to the New Era of Faceless Assessments) 1

CHAPTER 1

FACELESS ASSESSMENTS GOT A NEW LEASE OF LIFE

1.0 Epilogue: Faceless assessments got a new lease of life 3

1.1 Problematic issues to be addressed for the Faceless Assessments tax reform clock not to be turned back 3

1.2 Prologue: Metamorphosis of Faceless Assessment regime 8

1.3 Key Characteristics of New Faceless Regime of assessments 12

1.4 Difference between conventional E-Proceedings assessments & new faceless assessments u/s 144B of Income-tax Act 13

1.5 Key de nitions 18

1.6 Infographic presentation of new prescribed procedure of Faceless assessments in substituted section 144B 22

1.7 Faceless assessments: Our own AI & ML based GPT 23

1.8 Time for some lighter moments 23

CHAPTER 2

2.0

2.1

2.2

2.3

2.4

2.5

2.6

2.7

2.11

2.12

2.13

CHAPTER 3

FAQs ON STANDARD OPERATING PROCEDURES (SOPs) FOR FACELESS ASSESSMENT PROCEEDINGS U/S 144B OF THE

3.0 FAQs on Standard Operating Procedures (SOPs) to be Adhered by Assessment Units (AUs) in the conduct of Faceless assessment proceedings u/s 144B

3.1 Which category of cases are to be assigned to an Assessment Unit (AU) in a faceless hierarchy?

3.2

3.3 How is it ensured that cases excluded u/s 144B(2) are not being assigned to AU?

3.4 In reopened cases, what is to be done by AU on assignment of such case?

3.5 When initial scrutiny questionnaire is to be issued by AU?

3.6 Before issuing initial questionnaire, which considerations AU must bear in mind?

3.7 Which queries should ideally be included by AU in the initial questionnaire?

3.8 What is the process for issuance of notice u/s 142(1) of the Act?

3.9 How much time AU must give the assessee to respond to a notice?

3.10 What is to be done by AU where there is no response from the assessee to the initial notice u/s 142(1), within the compliance date?

3.11 What are the prescribed timelines for grant of adjournment to the assessee by AU?

3.12 What is the procedure to be followed by AU on receipt of reply to the initial notice u/s 142(1) by the assessee?

3.13 What is to be done by AU if the assessee doesn’t respond to notice u/s 142(1) even after the lapse of adjourned time limit?

3.14 What is the assessment procedure in case of non-compliance of notice u/s 142(1) and passing of best judgment assessment u/s 144 of the Act in a fair & reasonable manner?

3.15 In which circumstances, AU may make a reference to the Technical Unit (TU)?

3.16 What is the procedure to be followed by AU for making a reference to VU?

3.17 What is to be done by AU where the assessee seeks cross examination of witness not having any digital footprint?

3.18 What is the procedure to be followed by AU for making a reference to Technical Unit (TU)?

3.19 Under what circumstances AU can make a reference to NaFAC for special audit u/s 144B(7)?

3.20 How AU shall proceed for making a reference to NaFAC for Special Audit u/s 144B(7)?

3.21 What is the procedure to be followed by AU for issuance of Show Cause Notice (SCN) to the assessee?

3.22 What is the procedure to be followed by AU for Granting personal hearing in respect of the SCN to the assessee?

3.23 What is the procedure to be followed by AU for Preparation of Income & Loss Determination Proposal (ILDP)?

3.24 What is the procedure to be followed by AU on receipt of report of RU, in cases where ILDP prepared by it has been referred by NaFAC to RU for review?

3.25 What is the procedure to be followed by AU for preparation of Draft order?

3.26 What is the procedure to be followed by AU for preparation of Final Assessment Order?

3.27 What all considerations are to be kept in mind by AU in passing the nal assessment order? 61

3.28 How AU shall proceed with the PAN marked as fraud by ITBA?

3.29 What is the role of AU with reference to withholding of assessee’s refund u/s 241A?

3.30 What is the role of AU with reference to provisional attachment of assessee’s immovable property u/s 281B?

CHAPTER 4

PRACTICAL GUIDE TO e-PROCEEDINGS

4.1 Launch of New Income-tax ‘E- ling portal’ & New ‘E-Proceedings’ utility 64

4.2 Step-by-step Guide to ‘Faceless Assessment Proceedings’ under sections 143(3), 144 and 147/143(1)

4.3 Other sections 88

CHAPTER 5

CRITICALITY OF PRINCIPLE OF NATURAL JUSTICE IN FACELESS ASSESSMENTS

5.0 Meaning of principle of Natural Justice 89

5.1 Signi cance of principle of natural justice in faceless assessments 89

5.2 Legislative provisions ensuring adherence to the Principle of Natural Justice in faceless assessments 90

5.3 Omission of sub-section (9) of section 144B: Set Back to the Principle of Natural Justice 92

5.4 Principle of Natural Justice not adhered to in Faceless Assessment: Writ or regular appeal? 94

CHAPTER 6

PRACTICAL GUIDE TO PRINCIPLE OF NATURAL JUSTICE IN FACELESS ASSESSMENTS

6.1 Recent judicial precedents Highlighting the criticality of the adherence of the Principle of Natural Justice in Faceless Assessments 95

6.2 Omission of section 144B(9) will not make faceless assessments made in contravention of Principle of Natural Justice, Immune/Faceless assessment order made in contravention of Principle of Natural Justice remitted back to AO & not quashed 95

6.3 Faceless assessments made in contravention of principle of natural justice quashed & not just set aside [SLP of assessee admitted by Supreme Court] 96

6.4 Faceless Assessment order passed without considering reply of assessee violates section 144B(1)(xiv) [Now substituted with section 144B(1)(xv)] of the Income-tax Act

6.5 Faceless assessment order without passing Draft assessment order & without serving income & loss determination proposal set aside 97

6.6 Faceless assessment order passed without giving adequate time to reply set aside 98

6.7 Where SCN suffered from vice of pre-determination, faceless assessment order stood vitiated 99

6.8 Faceless assessment order made with additions not show caused in draft assessment order quashed 99

6.9 Omission of section 144B(9) by Finance Act, 2022, not unconstitutional 100

6.10 Faceless assessment order passed without responding to assessee’s adjournment request set aside

6.11 Where response page got closed due to technical glitch in IT Portal, revenue directed to open response window

6.12 Non-speaking faceless assessment order without considering reply of assessee set aside

6.13 No infringement of principles of Natural Justice if assessee utilised the short time period opportunity to reply

6.14 Faceless assessment order passed by simply cut copy pasting draft assessment order, without considering reply of assessee, set aside

6.15 High pitched faceless assessment order passed rejecting Documentary evidence furnished in regional language remanded back to AO

6.16 Faceless assessment order passed not considering assessee’s objections led with DRP u/s 144C(2) set aside

6.17 Faceless assessment order passed in gross violation of principles of Natural Justice ignoring Standard Operating Procedure (SOP) quashed

6.18 Faceless assessment order passed without considering assessee’s reply as evidenced by system generated acknowledgement set aside

CHAPTER 7

7.0 Vested right of personal hearing through video conferencing in faceless assessments

7.1 Amendment brought by Finance Act, 2022, vesting the right of personal hearing through video conferencing to assessees, in faceless assessments

7.2 Rationale for bringing in the amendment

7.3 Step-by-step guide to avail opportunity of personal hearing through video conferencing

7.4 Personal hearing through video conferencing not granted: writ or regular appeal?

CHAPTER 8

LEGAL JURISPRUDENCE IN PERSONAL HEARING THROUGH VIDEO CONFERENCING IN FACELESS ASSESSMENTS

8.1 Understanding practical aspects of the vested opportunity of personal hearing through video conferencing in faceless assessments through case laws

8.2 Whether non-granting of personal hearing through video conferencing will fall foul of Principle of Natural Justice?

8.3 Whether personal hearing through video conferencingA vested right of assessee?

8.4 Whether denial of personal hearing through video conferencing is violative of provisions of section 144B(6)(vii)/(viii) of the Income-tax Act?

8.5 Whether faceless assessment order passed without granting meaningful personal hearing to be set aside?

8.6 Whether grant of personal hearing through video conferencing with technical glitches - A reasonable opportunity of being heard?

8.7 Whether personal hearing through video conferencing to be granted to assessee only if the assessee asks for it?

8.8 Whether assessee can ask for physical hearing in place of virtual hearing?

8.9 Where link for virtual hearing was not provided even when the assessee opted for the same, faceless assessment order passed after one month, to be set aside

CHAPTER 9

PRACTICAL GUIDE TO ISSUANCE & SERVICE OF NOTICE & ORDER IN FACELESS ASSESSMENTS

9.1 What constitutes a valid ‘issue’, ‘dispatch’ & ‘service’ of notice & order under faceless assessments regime?

9.2 Whether the date of digitally signing the notice or order is to be considered as the date of issuance and service of such notice or order?

9.3 Understanding practical aspects of the ‘issuance’ & ‘service’ of notice & order in faceless assessments through Case Laws

CHAPTER 10

PRACTICAL GUIDE TO OVERCOME SPACE CONSTRAINT LIMITATIONS IN UPLOADING SUPPORTING DOCUMENTS IN FACELESS ASSESSMENTS

10.0 Practical limitations in uploading supporting attachments and les along with a response in faceless assessment proceedings

10.1 Practical tips to overcome space constraints in ling effective responses/submissions to scrutiny notice under section 143(2)/142(1)/SCNs and other requisitions

10.2 Recent case laws addressing the space constraint limitations in uploading supporting attachments along with replies in faceless assessment proceedings

10.3 Suggestive solutions to IT Portal’s restrictions qua number of attachments & le uploading size

CHAPTER 11

MISCELLANEOUS CRITICALITIES IN FACELESS ASSESSMENTS

11.0 Addressing miscellaneous criticalities in faceless assessments in light of recent case laws

11.1 Reconsideration of exercise of revisionary powers of PCIT u/s 263/264 in faceless assessments regime

11.2 Validity of frequent transfer of faceless assessments & penalty cases, from faceless hierarchy to jurisdictional AO

11.3 Legality of closing response window before the completion of time barring limitation period of faceless assessments

CHAPTER 12

FACELESS REASSESSMENT UNDER NEW REGIME

12.1 Introduction of faceless Reassessment under New Regime

12.2 Substitution of “Reason to Believe” by “Information in Possession”

12.3 Meaning of the term “Information” as per Finance Act, 2021 143

12.4 Expansion in scope of the term “Information” by Finance Act, 2022 143

12.5 Conducting enquiry, providing opportunity before issue of Notice u/s 148 [Section 148A, applicable w.e.f. 1.4.2021]

12.6 Limitation period for issuance of notice u/s 148 [Section 149 as amended by Finance Act, 2021] 144

12.7 Amendments made by Finance (No. 2) Act, 2024 in New Reassessment Regime 145

12.8 Legislative Intent v. Ground Level Implementation 148

12.9 Circumvention of the reduced limitation period of 3 years 150

12.10 What is the meaning of ‘risk management strategy of CBDT’? 150

12.11 Concluding remarks 151

CHAPTER 13

PRACTICAL GUIDE TO FACELESS REASSESSMENT UNDER NEW REGIME

13.0 Emerging legal jurisprudence on New Faceless Reassessment Regime 153

13.1 SCN u/s 148A(b) & Order u/s 148A(d) & Notice u/s 148 to be issued by Faceless Assessing Of cer (FAO) & not by Jurisdictional Assessing Of cer (JAO)

13.2 Reopening Notice u/s 148 for AYs 2013-14 & 2014-15, issued under old reassessment regime and deemed as SCN u/s 148A(b), by revenue relying upon Ashish Aggarwal judgment of SC, are barred by limitation, based on rst proviso to section 149, as fth proviso will not apply

13.3 Reopening Notice issued under old section 148 for AYs 2016-17 & 2017-18, deemed as SCN u/s 148A(b), as per Ashish Aggarwal judgment of SC, are invalid if approval u/s 151 not obtained from PCCIT

13.4 Order passed u/s 148A(d) and reopening notice issued u/s 148 under the new reassessment regime unsustainable if passed merely on the basis of change of opinion

13.5 Where JAO has not applied an independent application of mind on information received from investigation authority, impugned reassessment notice set aside

13.6 Order Passed u/s 148A(d) without dealing with assessee’s reply in response to notice u/s 148A(b) remanded back

13.7 Where reason for issuance of notice u/s 148A(b) was itself de hors available record, such SCN issued u/s 148A(b) and order passed u/s 148A(d) were liable to be set aside

13.8 Invocation of extended period of limitation of 10 years for reopening of assessments as per section 149(1)(b) on assumption basis by AO, in contradiction to the actual escapement of income of less than ` 50 lacs, invalidates the reassessment proceedings

CHAPTER 14

GUIDELINES FOR COMPULSORY SELECTION OF CASES FOR COMPLETE SCRUTINY IN FY 2024-25 IN FACELESS REGIME

14.1 Guidelines for compulsory selection of cases for complete scrutiny in FY 2024-25 in Faceless Regime

CHAPTER 15

PRACTICAL CASE STUDY ON ADDITION BASED ON DENIAL OF BENEFIT OF NEW PERSONAL TAX REGIME IN FACELESS ASSESSMENT

15.0 Legislative provisions w.r.t. introduction of New/Alternate Personal Tax Regime 167

15.1 Break-even point analysis to make an informed choice between the Old & the New Personal Tax Regime 168

15.2 Recent case laws on denial of bene t of new Regime for delayed ling of Form 10-IE

15.3 Case Study on addition on account of denial of the bene t of reduced tax rates of the new personal tax regime

CHAPTER 16

PRACTICAL CASE STUDY ON DISALLOWANCE OF BROUGHT FORWARD BUSINESS LOSSES PURSUANT TO DEMERGER/AMALGAMATION IN FACELESS ASSESSMENT

16.1 Allowability of carry forward & set-off of accumulated business loss & unabsorbed depreciation in amalgamation

16.2 Allowability of carry forward & set-off of accumulated Business loss & unabsorbed depreciation in demerger

16.3 Legislative provisions of carry forward & set-off of business loss & unabsorbed depreciation in amalgamation & demerger

16.4 Allowability of the brought forward capital losses & mat Credit of amalgamating/demerged entity in the hands of the amalgamated/resulting entity

16.5 Recent case laws on allowability of brought forward business losses & unabsorbed depreciation in amalgamation/ demerger

16.6 Case Study on disallowance of brought forward business losses pursuant to demerger/amalgamation

CHAPTER 17

PRACTICAL CASE STUDY ON ADDITION BASED ON AIS INFORMATION IN FACELESS ASSESSMENT

17.1 Reporting of Speci ed Financial Transactions (SFTs) in Annual Information Return (AIR) by speci ed entities

17.2 New functionality in AIS rolled out displaying status of information con rmation

17.3 Use of AI & ML tools by Indian Tax Administration to process AIS based information

17.4 Case Study on addition based on AIS information of purchase of time/ xed deposits with Bank

CHAPTER 18

PRACTICAL CASE STUDY ON ADDITION BASED ON PURCHASE OF IMMOVABLE PROPERTY IN FACELESS ASSESSMENT

18.1 Case Study on addition of unexplained expenditure u/s 69C on account of purchase of immovable property 194

CHAPTER 19

PRACTICAL CASE STUDY ON ADDITION BASED ON DIFFERENT REVENUE RECOGNITION CRITERIA IN REAL ESTATE BUSINESS IN FACELESS ASSESSMENT

19.1 Case Study on addition based on different revenue recognition criteria in real estate business

CHAPTER 20

PRACTICAL CASE STUDY ON ADDITION OF UNDISCLOSED INCOME IN FACELESS ASSESSMENT

20.0 Legislative scheme for taxation of undisclosed income 204

20.1 How to handle taxability of share capital receipts as unexplained cash credits u/s 68?

20.2 Case Study on addition of share capital money/premium Receipts as unexplained cash credit u/s 68

CHAPTER 21

PRACTICAL CASE STUDY ON ADDITION OF CASH DEPOSITS BASED ON AUDIT OBJECTION IN NEW REASSESSMENTS REGIME

21.1 Whether cash deposits made out of regular cash sales recorded in the books of account, be treated as unexplained cash credits u/s 68?

21.2 Case Study on addition of cash deposits in bank as unexplained cash credit u/s 68 in faceless reassessment based on audit objection

CHAPTER 22

PRACTICAL CASE STUDY ON ADDITION OF LONGTERM CAPITAL GAIN ON PENNY STOCKS IN FACELESS ASSESSMENT

22.1 How to handle issue of addition of Long-Term Capital Gain on Penny Stocks? 231

22.2 Recent case law on Addition of Long-Term Capital Gain on Penny Stock 232

22.3 Case Study on addition of Long-Term Capital Gain on Penny Stocks 233

CHAPTER 23

PRACTICAL CASE STUDY ON DISALLOWANCE OF RELATED PARTY EXPENDITURE IN FACELESS ASSESSMENT

23.1 Case Study on disallowance of interest paid to sister concern u/s 36(1)(iii) 241

CHAPTER 24

PRACTICAL CASE STUDY ON IND AS ADJUSTMENTS IN FACELESS ASSESSMENT

24.1 Case Study on Ind AS adjustments in income 248

CHAPTER 25

PRACTICAL CASE STUDY ON DISALLOWANCE U/S 14A & RULE 8D IN FACELESS ASSESSMENT

25.1 Case Study on disallowance u/s 14A read with rule 8D 254

CHAPTER 26

PRACTICAL CASE STUDY ON DISALLOWANCE OF PRE-COMMENCEMENT BUSINESS EXPENDITURE IN FACELESS ASSESSMENTS

26.1 Case Study on issue of disallowance of pre-commencement business expenditure 262

CHAPTER 27

PRACTICAL CASE STUDY ON ADDITION OF COMPENSATION RECEIVED UNDER RFCTLARR ACT, 2013 IN FACELESS ASSESSMENTS

27.1 Case Study on issue of addition of compensation received towards compulsory acquisition of land under Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 (RFCTLARR Act)

CHAPTER 28

PRACTICAL CASE STUDY ON ADDITION BASED UPON ANNUAL INFORMATION RETURN (AIR) INFORMATION

28.1 Case Study on additions based upon Annual Information Return (AIR) Information

CHAPTER 29

PRACTICAL CASE STUDY ON REVENUE RECOGNITION & EXPENDITURE BOOKING IN REAL ESTATE BUSINESS IN FACELESS ASSESSMENTS

29.1 Case Study on issue of accounting for revenue recognition & expenditure booking in real estate business

CHAPTER 30

FACELESS APPEALS IN ITS NEW AVATAR

30.1 Catching up on all signi cant developments in Faceless Appeal Regime

30.2 Difference between conventional appeals before CIT (Appeals) & Faceless Appeals under the newly substituted faceless appeal scheme, 2021

30.3 Key de nitions

30.4 Pictorial presentation of modi ed procedure of conduct of faceless appeals

CHAPTER 31

DECODING FACELESS APPEAL SCHEME, 2021

31.0 Threadbare analysis of amendments brought in by legislature in the substituted ‘Faceless Appeal Scheme, 2021’

31.1 Scope and coverage of Faceless Appeal Scheme, 2021

31.2 The New Faceless Appeals Hierarchy

31.3 Procedure of Conduct of Faceless Appeals

31.4 Exchange of Communication Exclusively by Electronic Mode: For the purposes of this Scheme

31.5 Authentication of Electronic Record: For the purposes of this Scheme, an electronic record shall be Authenticated

31.6 Delivery of electronic record

31.7 No Personal appearance in the appeal centres or units & vested right of personal hearing through video conferencing

31.8 Penalty proceedings

31.9 Recti cation proceedings

31.10 Appellate proceedings

31.11 Power to specify format, mode, procedure and processes

31.12 Comparison Between Faceless Appeal Scheme, 2020 & Faceless Appeal Scheme, 2021 310

CHAPTER 32

PRACTICAL GUIDE TO FACELESS APPEALS

32.1 Step-By-Step Guide to File E-Appeal in Online Form 35 through E-Filing Portal

CHAPTER 33

PRACTICAL CASE STUDY ON DISALLOWANCE OF PURCHASES TREATING THEM AS BOGUS IN FACELESS APPEALS

33.1 Case Study on Appeal Representation w.r.t. disallowance of purchases treating them as bogus

33.2 Recent case law on disallowance of bogus purchases

CHAPTER 34

PRACTICAL CASE STUDY ON DISALLOWANCE OF DEDUCTION U/S 35D IN FACELESS APPEALS

34.1 Case Study on appeal representation w.r.t. disallowance of deduction u/s 35D of the Income-tax Act

CHAPTER 35

PRACTICAL CASE STUDY ON ADDITION OF FOREIGN BANK ACCOUNT IN FACELESS APPEALS

35.1 Case Study on appeal representation in respect of addition of foreign bank account balance

CHAPTER 36

PRACTICAL CASE STUDY ON RENTAL BUSINESS INCOME TREATED AS INCOME FROM HOUSE PROPERTY IN FACELESS APPEALS

36.1 Case Study on appeal representation in respect of rental business income treated as income from house property

CHAPTER 37

PRACTICAL CASE STUDY ON CAPITAL GAIN ON SALE OF BUILDING COMPRISED IN BLOCK OF ASSETS TREATED AS CAPITAL GAIN ON LAND IN FACELESS APPEALS

37.1 Case Study on capital gain on sale of building comprised in block of asset treated as capital gain on sale of land

CHAPTER 38

PRACTICAL CASE STUDY ON APPEAL AGAINST ORDER U/S 201(1)/(1A) FOR NON-DEDUCTION OF TDS ON YEAR END EXPENDITURE PROVISIONS IN FACELESS APPEALS

38.1 Case Study on appeal representation w.r.t. Order u/s 201(1)/ (1A) for non-deduction of TDS on year end expenditure provisions

348

355

364

369

CHAPTER

39

DECODING THE NEW RULES OF PENALTY SHOOTOUT: FACELESS PENALTY SCHEME

39.1 Learning the New Rules of the Penalty Shoot-Out Game 387

39.2 Faceless Penalty Scheme Decoded 387

39.3 Launch of Faceless Penalty Scheme, 2021 388

39.4 Key De nitions 388

39.5 Faceless Penalty (Amendment) Scheme, 2022 391

39.6 Scope of Faceless Penalty Scheme 391

39.7 Authorities to conduct the Faceless Penalty Proceedings 392

39.8 Procedure to conduct Faceless Penalty Proceedings 393

39.9 Transfer of case 396

39.10 Electronic Records 397

39.11 Personal appearance at the centre and units 398

CHAPTER 40

PENALTY FOR UNDER REPORTING & MISREPORTING OF INCOME IN FACELESS REGIME

40.1 Penalty for under reporting & misreporting of income in Faceless Regime 400

40.2 Illustrative List of Under Reporting of Income v. Misreporting of Income Circulated By Income Tax Department For Faceless Assessment [Penalty] Of cers 401

CHAPTER 41

PRACTICAL CASE STUDY ON PENALTY U/S 270A ON DISALLOWANCE U/S 14A READ WITH RULE 8D IN FACELESS PENALTY

41.1 Case Study on Penalty u/s 270A on disallowance u/s 14A read with rule 8D 408

CHAPTER 42

MISCELLANEOUS FACELESS SCHEMES UNDER THE INCOME TAX ACT, 1961

42.0 Miscellaneous Faceless Schemes under the Income-tax Act, 1961

42.1 e-Assessment of income Escaping Assessment Scheme, 2022 (CBDT Noti cation No. 18/2022, dated 29-3-2022)

42.2 Faceless Jurisdiction of Income-Tax Authorities Scheme, 2022 (CBDT Noti cation No. 15/2022, dated 28-3-2022)

42.3 e-Advance Rulings Scheme, 2022 (CBDT Noti cation No. 07/2022, dated 18-01-2022)

42.4 e-Verification Scheme, 2021 (CBDT Notification No. 137/2021, dated 13-12-2021)

42.5 e-Settlement Scheme, 2021 (CBDT Noti cation No. 129/2021, dated 1-11-2021) 416

42.6 Faceless Scheme for determination of Arm’s Length Price [Section 92CA]

42.7 Faceless Scheme for making of reference to Dispute Resolution Panel [Section 144C]

42.8 Scheme for Faceless Appeal to Appellate Tribunal [Section 253]

42.9 Procedure for Faceless Appeal to Appellate Tribunal [Section 255]

42.10 Extended Limitation dates for issuing Directions for the Faceless Schemes under sections 92CA, 144C, 253 and 255 as per Finance (No. 2) Act, 2024

42.11 Faceless enquiry or Valuation Scheme, 2022 (CBDT Notication No. 19/2022, dated 30-3-2022)

42.12 e-Dispute Resolution Scheme, 2022 (CBDT Noti cation No. 26/2022, dated 4-4-2022)

CHAPTER 43

PRACTICAL GUIDE TO E-FILING OF RECTIFICATION APPLICATION & RESPONSE TO OUTSTANDING DEMAND

43.1 Reconciliation between returned income & return processed under section 143(1) 423

CHAPTER 44

INTERNATIONAL BEST PRACTICES & INDIAN TAX ADMINISTRATION

44.1 The Changing Landscape of tax administration: Global Trends 436

44.2 Digital transformation of tax administrations World-Wide 438

44.3 International best practices concerning digital transformation of the tax administrations 439

44.4 Country speci c international best practices in tax administration 440

44.5 Digitalisation of Indian Tax Administration 445

CHAPTER 45

FAQs ON FACELESS REGIME

45.1 ‘Frequently Asked Questions’ (FAQs) on ‘Faceless Regime’ 452

45.2 FAQs on response to outstanding demand 457

45.3 FAQs on recti cation applications u/s 154 458

45.4 FAQs on authenticating notices issued by Income Tax Department 463

APPENDICES

CLARIFICATIONS UNDER SECTION 144B [FACELESS ASSESSMENT] 506

FACELESS APPEAL SCHEME, 2021 534

FACELESS PENALTY SCHEME, 2021 547

DIRECTIONS TO GIVE EFFECT TO FACELESS PENALTY SCHEME, 2021 560

CLARIFICATION AND GUIDANCE UNDER FACELESS PENALTY SCHEME 569

e-ADVANCE RULINGS SCHEME, 2022 577

e-SETTLEMENT SCHEME, 2021 587

e-VERIFICATION SCHEME, 2021 593

FACELESS JURISDICTION OF INCOME TAX AUTHORITIES SCHEME, 2022 600

e-ASSESSMENT OF INCOME ESCAPING ASSESSMENT SCHEME, 2022 602

FACELESS INQUIRY OR VALUATION SCHEME, 2022 603

e-DISPUTE RESOLUTION SCHEME, 2022 604 e-APPEALS SCHEME, 2023 613

CHAPTER 20

Practical Case Study on Addition of Undisclosed Income in Faceless Assessment

20.0 LEGISLATIVE SCHEME FOR TAXATION OF UNDISCLOSED INCOME

Sections 68 to 69D of the Income-tax Act, 1961 (‘the Act’) deal with additions to total income, in respect of undisclosed income (other than undisclosed foreign income and undisclosed foreign assets). For ready reference and comparative analysis, the legislative provisions of these sections are tabulated below for a birds’ eye view of the legislative scheme for taxation of undisclosed income.

S. No. Particulars Section 68 Section 69 Section 69A Section 69B Section 69C

1. Applicability

Assessee offers no/ unsatisfactory explanation about the nature and source of any sum found credited in books of account maintained by the assessee.

Assessee offers no/ unsatisfactory explanation about the nature and source of investments made, which are not recorded in the books of account, if any, maintained by the assessee.

Assessee offers no/ unsatisfactory explanation about the nature and source of acquisition of money, bullion, Jewellery or other valuable article or thing, for which he is found to be the owner, and which

Assessee offers no/ unsatisfactory explanation about the excess amount expended by the assessee on making investments or acquiring ownership of any money, bullion, Jewellery or any other valuable

Assessee offers no/ unsatisfactory explanation about the source of any expenditure, or part thereof, incurred by the assessee

S. No. Particulars

Section 68 Section 69

Section 69A

Section 69B

Section 69C is not recorded in books of account, if any, maintained by the assessee article than recorded by him in the books of account maintained by the assessee

2. Requirement of Maintenance of Books of Account

3. Year of Applicability

Mandatory Not mandatory, as the expression, if any, is used Not mandatory, as the expression, if any, is used

Mandatory Not mandatory

In the financial year when the subject matter ‘sum’ is Credited in the Books of Account

In the financial year in which such investments are made by the assessee

In the financial year in which such money, bullion, Jewellery, or any other valuable article is acquired

In the financial year in which such excess expenditure is incurred in making investments or acquiring such money, bullion, Jewellery, or any other valuable article, than recorded in the Books of Account

In the financial year in which such expenditure is incurred

No.

4. Burden of Proof

On the assessee, as credit is in his books of account

The condition precedent i.e., making of investments by the assessee has to be established by the AO

The condition precedent i.e., acquisition of unrecorded money, bullion, Jewellery or other valuable article by the assessee has to be established by the AO

The condition precedent i.e., excess of expenditure by the assessee has to be established by the AO

The condition precedent i.e., incurring of the unrecorded expenditure has to be established by the AO

20.1 HOW TO HANDLE TAXABILITY OF SHARE CAPITAL RECEIPTS AS UNEXPLAINED CASH CREDITS U/S 68?

All businesses need capital infusion to get started, develop and grow. The receipt of share capital money is a capital receipt and not a revenue receipt, and as such is outside the purview of taxability, in general. However, in the Income-tax Act, there is one special section 68, which contains the enabling legislative provisions for the taxability of mala de or unexplained share capital money receipts, wherein the taxpayer’s own unaccounted money is routed back in its books of account, disguised as share capital money receipts. The need and justi ability of curbing such malpractices can’t be undermined in any manner. However, at the same time, a bona de share capital money receipt, can’t be considered as unexplained cash credit u/s 68 of the Act.

The receipt of share capital money/share premium money is one of the most common selection criteria of scrutiny consideration under CASS and as such the assessees in receipt of such share capital/share premium money, in any particular assessment year, are bound to get scrutiny notices and requisitions.

20.1.1 Establishment of Identity, Creditworthiness & Genuineness

On receipt of such scrutiny notice, the assessee is required to explain the nature and source of receipts of such share capital/share premium money and to establish the identity, and creditworthiness of the investor entities and genuineness of such receipts in order to discharge its statutory onus under section 68 of the Income-tax Act.

Identity: In order to establish the Identity of the Investor Entity, the under mentioned records and documents should be submitted and placed on record before the AO:

(i) Copy of PAN Card of the Investor Entity;

(ii) Documentary Evidence of Regd. Address of the Investor Entity;

(iii) Master Data Sheet downloaded from the official site of MCA, showing the active status and reflecting CIN No. and all other particulars of the investor entity.

(

iv) Copy of Memorandum of Association & Articles of Association of Investor Entity.

(

v) Copy of GSTIN Certificate, if any.

Genuineness: In order to establish the Genuineness of the Receipts of Share Capital/Share Premium money by the assessee company from the Investor Entity, the under mentioned records and documents should be submitted before the AO:

(i) Copy of Confirmation from the Investor Entity;

(ii) Copies of Share Certificates;

(iii) Certified Copy of Board Resolution of the assessee company, duly authorizing the subscription in the share capital by the investor entity;

(iv) Copy of Allotment Letter;

(v) Copy of PAS 3 Return filed with ROC, duly evidencing the allotment of shares to the investor entity;

(

vi) Copies of Share Valuation Report under section 56(2)(viib) read with Rule 11UA(2)(a) of Income Tax Rules;

(vii) Copy of the Bank Statement of the investor entity duly reflecting the investment in share capital of the assessee company;

(viii) Copy of Audited Balance Sheet of the investor entity, duly reflecting the investment in the share capital of the appellant company.

Creditworthiness: In order to establish the Creditworthiness of the Investor Entity, the under mentioned records and documents should be furnished before the AO

(i) Copy of the Bank Statement of the investor entity duly evidencing the availability of sufficient funds at the time of making investments in the share capital of assessee company;

(ii) Copy of Audited Balance Sheet of the investor entity, duly evidencing the availability of sufficient funds in the form of share capital,

Para 20.1 UNDISCLOSED INCOME IN FACELESS ASSESSMENT 208

reserves, and surplus, net worth and borrowings, for making investment in the share capital of the assessee company;

(iii) Copy of ITR of the investor entity

20.1.1.1 Recent Case Law on Taxability of Share Capital Money

Case Name: PCIT v. Agson Global (P.) Ltd.

Case Citation: [2022] 134 taxmann.com 256 (Delhi)

Forum: Delhi High Court

Head Note: Section 68 of the Income-tax Act, 1961 - Cash credits (Share capital money) - Assessment years 2012-13 to 2017-18 - Assessee-company received share capital and share premium money from several investors - Assessing Of cer made addition in respect of same on account of unaccounted income under section 68 on basis of recorded statement of managing director of assessee-company - Whether since assessee placed suf cient documentary evidence to establish that money which assessee had paid to investors was routed back to it in form of share capital/share premium and identity, creditworthiness and genuineness of investors was proved, there was no justi cation to make addition under section 68 - Held, yes [Paras 11.4, 11.5 and 14.4] [In favour of assessee]

20.1.2 Discharge of statutory onus of establishing source of source as per proviso to section 68

The Finance Act, 2012 has inserted the rst proviso to section 68 w.e.f. 1.4.2013, to mandate the establishment of source of share application money, share capital money or the share premium money, in order to discharge the burden of establishing the identity and creditworthiness of such share subscribers and genuineness of such receipts of share application/share capital/share premium receipts, as has been explained in detail, in the case study, discussed above, in paragraph No. 6.1.

However, the onus of establishing the source of source in cases of receipts of unsecured loans and borrowings, was still not speci cally stipulated in section 68, and as such in numerous judgments of the hon’ble High Courts, including the hon’ble Delhi High Court judgments in the cases of ‘CIT v. Shiv Dhooti Pearls & Investments v. CIT [2015] 64 taxmann.com 329 (Delhi); CIT v. Vrindavan Farms in ITA No. 71/2015; CIT v. Value Capital Services Ltd. [2008] 307 ITR 334 (Delhi), it was held that in case of unsecured loans and borrowings, the establishment of the source of source was not required.

Thus, with a view to overcome and nullify such numerous judgments, the Finance Act, 2022 has added a second proviso to section 68, so as to provide that the nature and source of any sum, whether in the form of loan or borrowing, or any other liability credited in the books of an assessee shall be treated as explained only if the source of funds is also explained in the

hands of the creditor or entry provider. However, this additional onus of proof of satisfactorily explaining the source in the hands of the creditor, would not apply if the creditor is a well-regulated entity, i.e., it is a Venture Capital Fund, Venture Capital Company registered with SEBI. This amendment has taken effect from 1st April, 2023 and accordingly applies in relation to the assessment year 2023-24 and subsequent assessment years. Thus, it has now become mandatory to explain the source of the source in the cases of unsecured loans and borrowings also, in order to establish the identity, creditworthiness and genuineness parameters under section 68 of the Income-tax Act.

In order to discharge the above statutory onus of the two provisos to section 68, the investor party or the lender should be requested to provide con rmations duly con rming the fact of subscription in the share capital of the assessee or the advancement of loan, as the case may be and they should also fully explain the nature and source of making investment in the share capital of the assessee or the unsecured loan as the case may be. The investor or the lender should also be requested to furnish their bank statement duly re ecting the source of their investment or the unsecured loan, and copies of audited nancial ledgers, balance sheets and ITR, to be placed before the AO. The Ld. AO should be asked to send notice under section 133(6) of the Act, for independent con rmation, to the investor entity, in case the assessee nds it dif cult to obtain such records and documents directly.

20.1.3 Key takeaways from significant judicial pronouncements on taxability of share capital receipts as unexplained cash credit u/s 68

(i) Can addition u/s 68 be made on the presumption by the AO that since the assessee has received share capital money at a premium, so the same has to be his unaccounted money routed back in his books of account?

Answer: The hon’ble Delhi High Court in its judgment in the case of MOD Creations (P) Ltd. v. ITO [354 ITR 282 (Del)], has addressed this important question very aptly and has held that,

“A mere bald assertion by the A.O. that the credits were a circular route adopted by the appellant company to plough back its own undisclosed income into its accounts, can be of no avail. The AO was required to prove this allegation. An allegation by itself which is based on assumption will not pass muster in law. The revenue authorities would be required to bridge the gap between the suspicions and proof in order to bring home this allegation”.

Para 20.1 UNDISCLOSED INCOME IN FACELESS ASSESSMENT 210

The addition made solely on the basis of surmises and conjectures and not on any corroborative and supporting material evidence are liable to be quashed.

(a) Uma Charan Shaw & Bros. Co. v. CIT 37 ITR 271 (SC)

(b) Omar Salay Mohammad Sait v. CIT 37 ITR 151 (SC)

(c) Dhirajlal Girdharilal v. CIT, Bombay 26 ITR 736 (SC)

(d) Lal Chand Bhagat Ambica Ram v. CIT 37 ITR 288 (SC)

(e) CIT v. Calcutta Discount Company Ltd. 91 ITR 8 (SC)

(ii) Can addition u/s 68 be made by the AO just on the basis of low returned incomes of the investors?

Answer: JCIT v. M/s Shalimar Housing & Finance Ltd. ITA No. 4079/ Mum/2019

“17. The grievance of the assessing of cer is that these companies do not have substantial income and hence are not capable of giving loans. He has also expressed doubt about the position of reserves and fund position without brining on record any cogent material from any further enquiry made by bench. We nd that the funds position of the companies as noted by the ld. CIT(A) is quite capable of granting loans. The adverse inference drawn from the nancial statement of lending companies is only a surmise by the assessing of cer without making any enquiry. In this regard, we note that honourable jurisdictional High Court in the case of Pr. CIT v. Veedhata Tower Pvt. Ltd., order dated 21.04.2018 has held that when all the necessary details of the fund provider was available with the assessing of cer, he was free to make the necessary enquiry and addition under section 68 in the hands of the recipient were unjusti ed. Furthermore, assessee has also paid interest to the lenders. It has also deducted tax at source. Loan have been duly repaid, some part has been repaid even in the present assessment year. In these circumstances, in our considered opinion assessee has discharged the onus. The assessing of cer has not brought on record any cogent material to make the addition as unproved cash credit. Hence, the addition made by the assessing of cer is not sustainable.”

(iii) Can directors’ or any third-party statements alone can be formed the basis of making additions u/s 68?

It is a well settled legal proposition that the statements recorded during survey proceedings u/s 133A and or search u/s 132(4) have no evidentiary value alone in the absence of any corroborative evidence substantiating the same & as such the additions made solely on the basis of such statements are non-sustainable in the eyes of law.

211

CASE STUDY ON ADDITION OF SHARE CAPITAL MONEY Para 20.2

(i) Pullangode Rubber Produce Co. Ltd. v. State of Kerala 91 ITR 18 (Supreme Court)

(ii) Dismissal of Revenue’s SLP by the Hon’ble Supreme Court in the case of CIT v. S. Khader Khan Son 254 CTR 228 (SC);

(iii) CIT v. S. Khader Khan Son reported in (2008) 300 ITR 157 (Madras High Court);

(iv) Avinash Kumar Setia v. DCIT Central Circle 17, New Delhi in I.T.A. No. 1787/DEL/2014 dt. 28.4.2016 (ITAT Delhi);

(v) Mahesh Ohri v. ACIT in [2013] 35 taxmann.com 301 (Delhi-Trib) IT Appeal No. 4109/Del/09 Dt. 8.3.2013 (ITAT Delhi);

(vi) TDI Marketing (P) Ltd v. ACIT (2008) 28 SOT 215 (Delhi High Court).

(vii) CBDT Instruction F. No. 286/2/2003 IT(Inv.) dt. 10.3.2003

(iv) Can addition u/s 68 be made on the sole basis of issue of shares at a high premium?

The Hon’ble Delhi High Court, dt. 16.4.2015, in the case of: CIT (Central)-III (Appellant) v. Anshika Consultants Pvt Ltd in ITA No. 467/2014 (Respondent No. 1); Flex International Pvt. Ltd. in ITA No. 470/2014 (Respondent No. 2); Apporva Extrusion Pvt. Ltd. in ITA No. 518/2014 (Respondent No. 3); Anshika Investment Pvt. Ltd. in ITA No. 523/2014 (Respondent No. 4); A.R. Leasing Pvt. Ltd. in ITA No. 524/2014 (Respondent No. 5), has held that:

“Section 68 of the Act, doesn’t in any way, restricts or prohibits, the issue of shares at a premium. The main crux of the addition u/s 68 of the Act rests upon the fact that whether the credits are satisfactorily explained or they remained unexplained. Therefore, in the context of section 68, for any seized document or material to be considered as an incriminating document/material, it is an essential & necessary condition that the said seized document/material must unhide the fact of routing back of the unaccounted money of the appellant company in its own books of account. The mere fact of issue of shares at a certain premium by the appellant company to the respective investor companies have no relevance or bearing, whatsoever, in the context of addition u/s 68 of the Act.”

20.2 CASE STUDY ON ADDITION OF SHARE CAPITAL MONEY/ PREMIUM RECEIPTS AS UNEXPLAINED CASH CREDIT U/S 68

In this Case Study, the assessee is in receipt of a Show Cause Notice proposing a variation in the returned income on account of considering the receipts of share capital and share premium as unexplained cash credits in

the hands of the assessee u/s 68 of the Act. The valuation of share premium receipts has also been challenged u/s 56(2)(viib) of the Act.

Suggested Submission: The suggested assessment submission incorporating all the relevant and updated legal precedents, in order to represent and tackle this commonly recurring issue in an effective and ef cient way, is being shared for the bene t and ready reference of Readers.

S M MOHANKA & ASSOCIATES

Chartered Accountants

Mohanka Chambers, A-934, Logix Cyberpark, Tower A, Noida-201307, Tel.: 9999981515

E-mail: camayank@smmohanka.com

Dated: May 15, 2024

To The Assessing Authority

National Faceless Assessment Centre

New Delhi

Subject: Reply in Response to Show Cause Notice in Respect of Ongoing Faceless Assessment Proceedings for AY 2023-24.

Reference: Your Show Cause Notice dated 08.05.2024

Dear Assessing Authority,

This is in reference to the captioned Show Cause Notice, in respect of ongoing faceless assessment proceedings for AY 2023-24, requiring the assessee company to show cause as to why the variation to the returned income of the assessee company, in the form of addition of its receipts of share capital and share premium u/s 68 read with section 56(2)(viib) of the Act, should not be done.

In the captioned show cause notice, the assessee company has been required to show cause as to why the receipts of share capital and share premium money from the investor company M/s PQR Pvt Ltd. should not be considered as unexplained cash credits under section 68 of the Income-tax Act. In this regard, in continuation with our earlier furnished written submissions along with all the corresponding supporting records and documents, we further submit as under:

During the FY 2022-23, presently under consideration, the assessee company has received share capital money of ` 50 lakhs and share premium money of ` 150 lakhs from the investor entity M/s PQR Pvt Ltd. towards subscription of its 5,00,000 equity shares of face value of ` 10 each at a premium of ` 30 each.

Establishment of Identity, Creditworthiness & Genuineness Parameters in relation to the receipt of Share Capital/Share Premium money by the assessee company:

The complete details of the Share Capital Money and the Share Premium Amount received by the assessee company during the FY 2022-23, presently under consideration, is being tabulated as under:

Identity: In order to establish the Identity of the Investor Entity, the under mentioned records and documents are being enclosed as per attachments and are being placed on record:

(i) Copy of PAN Card of the Investor Entity;

(ii) Documentary Evidence of Regd. Address of the Investor Entity;

(iii) Master Data Sheet downloaded from the official site of MCA, showing the active status and reflecting CIN No. and all other particulars of the investor entity.

Faceless Assessment Appeals & Penalty Ready Reckoner with Practical Guide to Handling Income Tax Notices

AUTHOR : MAYANK MOHANKA

PUBLISHER : TAXMANN

DATE OF PUBLICATION : SEPTEMBER 2024

EDITION : 7TH EDITION

NO. OF PAGES : 664

ISBN NO : 9789357786423

BINDING TYPE : PAPERBACK

DESCRIPTION

Rs. 1,850

This book comprehensively analyses the faceless taxation regime under the Income-tax Act, 1961, blending legislative insights with practical applications. It offers step-by-step guides, real-time case studies, and illustrative tools like infographics and tables to simplify complex processes. The key topics include handling notices, video conferencing for personal hearings, and overcoming technical challenges, making it an essential resource for understanding the intricacies of the faceless regime. It is designed to enhance professional practice; the book equips tax professionals, accountants, legal practitioners, assessees, and tax administrations with actionable strategies for managing faceless assessments, appeals, and penalty proceedings.

The Present Publication is the 7th Edition and has been amended by the Finance (No. 2) Act, 2024. This book is authored by Mayank Mohanka, with the following noteworthy features:

• [Comprehensive Coverage]

o Faceless Regime Overview- In-depth coverage of faceless assessments under section 144B, the Faceless Appeal Scheme, 2021, and the Faceless Penalty Scheme, 2021

o Latest Legislative Updates – Includes the e-Assessment of Income Escaping Assessment Scheme, 2022, and the Faceless Jurisdiction of Income-tax Authorities Scheme, 2022

• [Practical Guidance] Step-by-step instructions for handling notices, faceless assessments, and e-submissions, along with practical tips for addressing technical challenges

• [Litigation Insights] Analysis of common litigation issues, including disallowances, AIS information, and complex assessments

• [Visual Aids] Infographics and tables to simplify legislative provisions and procedures

• [Comparative Analysis] Highlights differences between traditional and faceless regimes

• [Comprehensive Resources] Appendices with relevant provisions, prescribed authorities, and clarifications on faceless schemes

• [International Perspective] Discussion on global best practices in digital tax administration

• [FAQs] Answers to common questions on standard operating procedures, rectification applications, and handling outstanding demands

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