Some earlier articles in this section emphasised the need to have in place better tax governance and align the administration (which tends to be harsh) with the law (which seems quite balanced). This article continues the discussion in this vein, specifically against the backdrop of the Union Budget 2013, which was presented before parliament a little over a week back.
While presenting the Budget, the FM said: "While there are nearly 17,00,000 registered assessees under service tax, only about 7,00,000 file returns. Many have simply stopped filing returns. We cannot go after each of them."
This is quite an astonishing admission, to our minds. The government does not have the resources to systematically enforce compliance in face of a rampant and large-scale pattern of non-compliance. Therefore, what should the government do in view of this situation? Obviously, it should make the task of compliance easier. This has been done, in part.
The Budget 2013 has proposed to introduce the service tax voluntary compliance encouragement scheme, 2013, to encourage the defaulting assessees to pay tax and file returns for the last five years, with immunity from interest and penalties. However, at the same time the Budget 2013 proposes to give sharper teeth to the revenue officer. It has proposed to levy a personal penalty of up to Rs 1 lakh on the directors, managers, secretary and officers of the companies committing specified defaults. The defaults include evasion of service tax, issuing of false invoices, etc.
The budget also introduces proposals for the arrest of people involved in various offences under service tax law, as well as for them to be punished by imprisonment for varying durations, depending on the magnitude of the offence.
The Budget also proposes an automatic lifting of stay order by the tribunal after an expiry of 365 days from the date of stay order, even for a case where the appeal remains pending for the reasons beyond the control of the assessee.
On a closer analysis of the above measures, it almost seems beneficial to not comply! As per the finance minister's admission, the one million assessees that do not file service tax returns or pay service tax cannot be made to comply with the provisions of the law. On the other hand the assessees paying taxes on time and ensuring complying with the law will now be subject to harsher measures of administration. Currently, dealing with the service tax officers is no picnic, as any of them will be happy to tell you. However, on enactment of the budget they would face personal penalties of Rs 1 lakh and potential arrest and threatened imprisonment for various offences.
The provisions, although harsh and punitive, are balanced and applicable only in cases of offences that are quite egregious. However, this is on paper. The reality, as it will - no doubt - play out in the next year, is likely to be quite different.
There we have the contradiction of the tax administration, in India. The assessees that are currently paying tax and filing returns, etc, do not need to be browbeaten to pay their fair share of tax and to comply with the law. If the government has to, at all, enforce the law in a decisive manner, it is with the one million service providers that have stopped complying with the law. For this section of the industry, we have an amnesty scheme, with immunity from payment of interest and penalties.
Therefore, at whom are the new provisions aimed, which deal personal penalties and imprisonment? Obviously, at other than the one million assessees that do not file returns at all. In other words, at the businesses and companies that are currently paying taxes, but in whose case there is a possibility of a dispute on whether or not a given amount is taxable. Such disputes will not only face a sure tax demand, which is currently the case. They will in addition face a vacation of the (partial) stay of demand which the tribunal may give them and will potentially face punitive action in the form of personal penalties and the threat of arrest.
The philosophy of the government seems to be frankly quite difficult to follow. One, they admit that they don't have the means to enforce the law on one million service providers that do not comply; two they announce an amnesty in the hopes that they will take advantage of this and start to comply; and three they arm themselves with powers that are more draconian than any currently in the law, presumably to use against those that already comply.
One hopes that either these proposals for enhanced penalties, arrest and the like will be watered down or one will get to see them being applied with immense restraint and judiciousness. We'll have to see how this plays out.
The author is Leader, Indirect Tax Practice PricewaterhouseCoopers Pvt. Ltd.
Email: firstname.lastname@example.org Supported by Tajinder Singh