Tax evasion case
Tax evasion case
Tax evasion is the illegal evasion of taxes by individuals, corporations and trusts. Tax evasion often entails taxpayers deliberately misrepresenting the true state of their affairs to the tax authorities to reduce their tax liability and includes dishonest tax reporting, such as declaring less income, profits or gains than the amounts actually earned, or overstating deductions. Tax evasion is an activity commonly associated with the informal economy. One measure of the extent of tax evasion (the “tax gap”) is the amount of unreported income, which is the difference between the amount of income that should be reported to the tax authorities and the actual amount reported.
There is a difference between tax minimization/avoidance and tax evasion. All citizens have the right to reduce the amount of taxes they pay as long as it is by legal means. In contrast, tax avoidance is the legal use of tax laws to reduce one’s tax burden. Both tax evasion and avoidance can be viewed as forms of tax noncompliance, as they describe a range of activities that intend to subvert a state’s tax system, although such classification of tax avoidance is not indisputable, given that avoidance is lawful, within self-creating systems.
Tax evasion in India
Tax evasion has always been a criminal offence in India. There are a number of provisions relating to prosecution under Chapter XXII of the Income-tax Act, 1961. Failure to file timely return of income, false statement and verification, willful attempt to evade tax, fabrication of accounts and documents and failure to deposit tax deducted or collected at source attract minimum rigorous imprisonment of three/ six months. Removal, concealment, transfer or delivery of property to thwart tax recovery or failure to afford necessary facilities for the officers during search operations are some more offences liable for rigid sentences. Abetment of false return, where it is proved, would land not only the accused in trouble but those who help him, including those rendering professional assistance, providing for a rigorous imprisonment for a minimum period of three/ six months and a fine. Where the offence is rendered by a firm or company partners and the officers, including directors of the company, may be responsible, unless they are able to prove that the offence was committed without their knowledge in spite of due diligence on their part. For the offence of the Hindu Undivided Family (HUF), the karta himself, besides all members, is deemed to be guilty, unless such members are able to prove that the offence was committed without their consent or connivance.
Enforcement of law is also made easier for prosecution by statutory presumptions of culpable mental state placing the responsibility of proving innocence on the accused. Probation of Offenders Act, 1958, is not applicable for economic offences under the income-tax law, except for persons below 18 years of age. The law in India treats tax offences not only as a criminal offence but also has strengthened the same by statutory presumptions and minimum rigorous imprisonment subject to a maximum period of seven years. There are number of prosecutions launched year after year. It is difficult to accept that tax administration in India is “notoriously” slack and that there is a lot of political interference. More often the Department is known for its overzealousness, while the tax officers are comparatively independent protected by law. If they yield to political pressure, it cannot be solely the fault of the politicians. There are numerous instances, where the officers have not yielded to pressure from any quarters.
If there is still significant tax evasion, it is as much a part of the system of limited scrutiny in vogue for the past several years and more probably because of all pervading corruption against which stiffer action is certainly necessary. As for comment relating to the proposed Direct Taxes Code Bill, 2010, provisions relating to prosecutions under Chapter XV in the proposed Code do not lighten the severity of the provisions under the present Act. The word “concealment” is not used in the context of prosecution either under the present Act or the proposed legislation. But there are provisions to tackle defaults of every kind. As regards penalty, the Code provides for levy of penalty automatically, wherever there is a difference between reported and assessed income. The removal of the word “concealment” takes away the need for inference of intent to keep back any information relating to assessment. The law in the Code makes no difference between the deliberate delinquency and the innocent omission so that the Code, as in most other aspects, is more stringent on the taxpayer.
India loses 14 trillion rupees ($314 billion) from tax evasion annually, depriving it of funds for investment in roads, ports, and power, says Arun Kumar, author of The Black Economy in India. General government tax revenue is an estimated 18 percent of India’s $1.5 trillion in gross domestic product, the lowest among the four BRIC nations, International Monetary Fund data show. With so little revenue coming in, Prime Minister Manmohan Singh is now attempting India’s biggest overhaul of the tax code in half a century. Investors say tax reform would boost their confidence. “If the government does end up making a substantial amount in revenue as a result of the tax overhaul, their deficit requirements should come down and the interest burden will also come down,” says Killol Pandya, Mumbai-based head of fixed income investments at Daiwa Asset Management (India).
About Anurag Kashyap
Anurag Singh Kashyap (born 10 September 1972) is an Indian film director, producer and screenwriter. He famously is termed as an Art filmmaker who loves dark and real concepts. Kashyap made his directorial debut with as yet unreleased Paanch, with Kay Kay Menon as the lead. As a filmmaker, he is known for Black Friday (2004), a controversial and award-winning Hindi film about the 1993 Mumbai bombings, followed by No Smoking (2007), Dev D (2009), Gulaal (2009), That Girl in Yellow Boots(2011) and Gangs of Wasseypur (2012). As a screenwriter, he wrote the scripts for theFilmfare Award-winning Satya (1998) and the Academy Award-nominated Canadian filmWater (2005). He founded his film production company, Anurag Kashyap Films Pvt. Ltd. in 2009. In 1999, Kashyap won the Best Screenplay award for Satya at the Star Screen Awards.
The next year, his short film Last Train to Mahakali won the Special Jury Award at the same awards. His feature film debut Black Friday won the Grand Jury Prize at the 3rd Annual Indian Film Festival of Los Angeles (2005), and was a nominee for the “Golden Leopard” (Best Film) at the 57th Locarno International Film Festival (2004). In 2010, he announced his association with Tumbhi where he and his team will make six short films for Tumbhi and start his blog with them, as well. He was listed on the The DNA power list: Top 50 influentials, a list of 50 most influential Indians in 2011. Soon, he will be awarded with a cultural achievement award in the Cannes Film Festival. Kashyap currently serves on the board of Mumbai-based NGO, Aangan Trust, which helps protect vulnerable children around India. He is one of the most influential and important directors in India. Gangs of Wasseypur are a huge commercial and critical hit.
Legendary Hollywood film-maker Martin Scorsese wrote to Kashyap, saying how much he loved Gangs…and Dev D. The two will be spending 15 days together at the end of the year. Kashyap’s first big-budget film, Bombay Velvet, being co-produced by Fox Studios, went on the floors this month. He’s getting to direct Amitabh Bachchan, whose movies of the ’70s greatly influenced him, for a fiction TV show. Megastars such as Shah Rukh Khan are keen to work with him. “An Amitabh and a Ranbir working with me means they are coming midway, they want to do something different and don’t want to be slaves of their image. That says a lot. We both are meeting midway. A Ranbir is as good or an even better actor than a lot of those on the fringes,” says Kashyap.
Anurag Kashyap is in a light spot. The filmmaker has been held by the Service Tax department officials who have been keeping an eagle eye on B-town celebs for defaulting on taxes. From what we hear, the ST officials carried out an extensive investigation at Kashyap’s Yari road office in Mumbai a couple of weeks back and later charged him guilty for service tax evasion of Rs 55 lakh. Based on this, the director-producer was asked to appear before the Service Tax Department on August 22, but he failed to do so and sent his representatives to deal with the matter. Hence, Anurag’s accounts got sealed and he has now requested the department to grant him time until September 3.
A team of officers from the Service Tax Department visited Anurag Kashyap’s office at Yari Road on 26 August between 2 pm to 10:30 pm and found him “guilty of Service Tax evasion to the tune of Rs 55 lakhs.” Anurag Kashyap was then summoned to appear before the Service Tax Commission on 27 August.
But as he was still in Sri Lanka, he sent a representative. On the following day, his bank accounts were frozen, and now the ‘Gangs of Wasseypur’. Sameer Wankhede, Deputy Commissioner of the Service Tax Department confirmed that a case had been booked against Anurag Kashyap. A Service Tax official said, “Section 89 of the Finance Act says that if you have not paid your service tax to the tune of Rs 50 lakh for a period of six months, the defaulter can face imprisonment for a period of seven years and it is a non bail able offence. As of now, we have detected that Anurag has defaulted on over Rs 50 lakh. First it was the film’s budget that shot up by Rs 23 crore, thanks to the sinking INR and now the director has landed in legal tangles with the Service Tax Department.
Anurag kashyap also has been accused of not filling taxes from the business he runs side by side. He is involved in the fashion industry and manufactures designer clothes for celebrities. This company is run under his ownership and is looked after by his wife. He has had a huge profit of approximately 2 crores in the year 2012 and he has not turned up to pay the taxes for it. It has also been reported that he had not paid wealth tax which amounts to 30cr. including the ornaments that he owns. According to the income tax authorities he is liable to pay a tax of 30 lakhs.
1) Discuss the whole case in detail.
2) Evaluate the total tax that he is liable to pay according to the tax department authorities 3) Discuss the payment methods of these taxes in India.
4) How can the dispute be settled?
5) What is the future of these taxes in India?
Analysis of the case
The above described case is of the famous bollywood film-maker Anurag Kashyap. According to this case he failed to submit a service tax which amounted to Rs. 55 lakhs. After he gained a hug profit of 23 crore at the box office from his film Gangs of Wasseypur, he was supposed to submit this amount as service tax which he failed to do, and thus he had a raid by the income tax officials in his office. He was found guilty and his accounts were immediately ceased.
The second tax that he failed to pay is the income that he is earning from the house in the name of his daughter. Under this head, tax amounts to rs. 000. This income is taxed under the income from other sources. The second tax evasion that the income tax authority finds him guilty of is the income from his designer clothes manufacturing company which was supposed to earn a profit of 19000000. He has tried not to show this income as a part og his total taxable income. The income tax authority says that the total tax due under this head should be around 55lakhs Anurag Kashyap has been found guilty of not paying tax under three heads i.e. service tax, earnings from other sources, and wealth tax.
Calculation of the total tax
Total earnings in the year 2012-13 from the box office Rs.23,00,00,000 Taxable income after the net deductions Rs. 4,45,00,000 Service tax (@12.36% (10+2+1) = 55,00,000
total taxable wealth Rs.3,00,00,000 rate of wealth tax (1% over 30lakhs) Rs.27,00,000
tax from business and proffession:
profit a/c to profit and loss account Rs. 1,90,00,000 income tax payable Rs. 55,30,000 Education Cess @ 2% Rs.110600 Secondary and Higher Education Cess @ 1% Rs. 55300 Total (Rs. 55lakhs+27lakhs+ 5695900) = Rs.1,38,95,900
Ans3) Pament of service tax in india
Service tax is envisaged as the tax of the future. Well synchronized taxation on manufacturing, trade (domestic & international) and service without giving rise to cascading effect of taxation would be an ideal worth pursuing in the immediate future. This would bring in VAT in its truest sense, though the ultimate objection ushers in the regime of Goods and Service Tax (GST). Continued growth in GDP accompanied by higher rate of growth in service sector promises new & wider avenues of taxation to the Government. If the tax on services reduces the degree of intensity of taxation on manufacturing and trade without forcing the Government to compromise on the revenue needs, then one of the basic objectives of taxing the service sector would be achieved.
Voluntary tax compliance on the part of taxpayers demands prudent accounting practices and transparency in the conduct of their business. Marginal rates of taxation would be conducive in this process. Many new services may be brought under the tax net in future. The inclusion of all value added services in the tax net would yield larger amount of revenue and make the existing tax structure more elastic. Advanced economies of Western Europe, North America and Far East have share of service sector in their GDP ranging from 60% to 80%. The growth in absolute quantum of GDP and proportion of Service-sector in GDP holds promise for larger revenue generation without increasing the existing level of taxation
The Goods and Services Tax (GST) is a Value Added Tax (VAT) to be implemented in India, the decision on which is pending. It will replace all indirect taxes levied on goods and services by the Indian Central and State governments. It is aimed at being comprehensive for most goods and services. India is a federal republic, and the GST will thus be implemented concurrently by the central and state governments as the Central GST and the State GST respectively. Exports will be zero-rated and imports will be levied the same taxes as domestic goods and services adhering to the destination principle. The service tax rate in india is 12% which is calculated on the net taxable income. It also includes an education cess of 2% and a senior higher secondary cess of 1%. Thus a consolidated percentage of 12.36% is calculated on the taxable amount.
According to the case the director was liable to pay a roundabout sum of Rs.55 lakh on a profit of 23crore which he earned last year.
Payment of wealth tax in India
The Wealth Tax Act 1957 is governed by the Income Tax department that falls under the Department of Revenue. Just like Income Tax, Wealth Tax forms a part of annual assessment. It is a type of direct tax that is levied on individuals that fall under its purview. This is a tax that is charged on the net wealth of those who fall under its purview. The benefits that you derive from ownership of property are taxed under this head. Other assets that come under the purview of wealth tax are motor car, aircrafts, and yachts, cash in hand, jewellery etc. You are required to pay wealth tax on yearly basis on the market value of your property irrespective of the fact that it generates any income for you or not. Wealth Tax is Applicable To: Individuals, Companies, Hindu Undivided Families (HUFs) The Wealth Tax as of now is 1 percent on the net taxable wealth of the assessee that exceeds the limit of Rs 30 Lacs.
Assets that are charged under Wealth Tax in India
House Property (Guest House, residential house or commercial) Urban Land
Boats, Aircrafts and Yachts
Cash in Hand (subject to certain limits) only for HUFs and Individuals Jewellery, Gold Utensils, Silver, Bullions etc
All assets that are transferred by individuals to their minor children and to spouse for considerations that are inadequate also fall under the purview of wealth tax. Payment of income from business and profession
For charging the income under the head “Profits and Gains of business,” the following conditions should be satisfied: There should be a business or profession.
The business or profession should be carried on by the assessee. The business or profession should have been carried on by the assessee at any time during the previous year.
Income that will be chargeable to income tax under the head ‘Profits and gains of business or profession’
The following income would be chargeable under the head “Profits and gains of business or profession”: The profits and gains of any business or profession, which was carried on by the assessee at any time during the previous year; Any compensation or other payment, due or received by the following:- Any person, by whatever name called, managing the whole or substantially the whole of the affairs of an Indian company, at or in connection with the termination of his management or the modification of the terms and conditions relating thereto; Any person, by whatever name called, managing the whole or substantially the whole of the affairs in India of any other company, at or in connection with the termination of his office or the modification of the terms and conditions relating thereto; Any person, by whatever name called, holding an agency in India for any part of the activities relating to the business of any other person, at or in connection with the termination of any agency or the modification of the terms and conditions relating thereto;
Any person, for or in connection with the vesting in the Government, or in any corporation owned or controlled by the Government, under any law for the time being in force, of the management of any property or business; Income, derived by a trade, professional or similar association from specific services performed for its members; Profits on sale of a license granted under the Imports (Control) Order, 1955, made under the Imports and Exports (Control) Act, 1947; Cash assistance (by whatever name called), received or receivable by any person against exports under any scheme of the Government of India; Any duty of customs or excise repaid or repayable as drawback to any person against exports under the Customs and Central Excise Duties Drawback Rules, 1971; The value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession; Any interest, salary, bonus, commission or remuneration, by whatever name called, due to, or received by, a partner of a firm from such firm.
However, it is provided that where any interest, salary, bonus, commission or remuneration, by whatever name called, or any part thereof has not been allowed to be deducted under Clause (b) of section 40, the income under this clause shall be adjusted to the extent of the amount not so allowed to be deducted.
Deductions that are allowed in computing income from profits and gains of business or profession
A number of other deductions under Section 36 of the Income-Tax Act are allowed while computing income from profits and gains of business or profession: S36 (i): The amount of any premium, paid in respect of insurance against risk of damage or destruction of stocks or stores, used for the purposes of the business or profession; (ia) The amount of any premium, paid by a federal milk co-operative society to effect or to keep in force an insurance on the life of the cattle owned by a member of a co-operative society, being a primary society engaged in supplying milk, raised by the members of such federal milk co-operative society; (ib) The amount of any premium, paid by cheque by the assessee as an employer to effect or to keep in force an insurance on the health of his employees under a scheme, framed in this behalf by the General Insurance Corporation of India, formed under section 9 of the General Insurance Business (Nationalization) Act, 1972 (57 of 1972) and approved by the Central Government;
(ii) Any sum, paid to an employee as bonus or commission for services rendered, where such sum would not have been payable to him as profits or dividend if it had not been paid as bonus or commission;
(iii) The amount of the interest paid in respect of capital borrowed for acquisition of the asset from the date it is put to use for the purposes of the business or profession;
(iv) Any sum, paid by the assessee as an employer by way of contribution towards a recognized provident fund or an approved Superannuation fund, subject to such limits as may be prescribed for the purpose of recognizing the provident fund or approving the Superannuation fund, as the case may be; and subject to such conditions as the Board may think fit to specify in cases where the contributions are not in the nature of annual contributions of fixed amounts or annual contributions, fixed on some definite basis by reference to the income chargeable under the head “Salaries” or to the contributions or to the number of members of the fund;
(v) Any sum, paid by the assessee as an employer by way of contribution towards an approved gratuity fund created by him for the exclusive benefit of his employees under an irrevocable trust; (va) Any sum, received by the assessee from any of his employees to which the provisions of sub-clause (x) of clause (24) of section 2 apply, if such sum is credited by the assessee to the employee’s account in the relevant fund or funds on or before the due date.
(vi) In respect of animals which have been used for the purposes of the business or profession, otherwise than as stock-in-trade and have died or become permanently useless for such purposes, the difference between the actual cost to the assessee of the animals and the amount, if any, realized in respect of the carcasses or animals;
(vii) Subject to the provisions of sub-section (2), the amount of any bad debt or part thereof which is written off as irrecoverable in the accounts of the assessee for the previous year;
(viia) in respect of any provision for bad and doubtful debts made by the following: A scheduled bank or non — scheduled bank, an amount not exceeding five per cent of the total income and an amount not exceeding ten per cent of the aggregate average advance made by the rural branches of such bank computed in the prescribed manner; A bank, being a bank incorporated by or under the laws of a country outside India, an amount not exceeding five per cent of the total income; public financial institution or a State financial corporation or a State industrial investment corporation, an amount not exceeding five per cent of the total income.
(viii) In respect of any special reserve created by a financial corporation which is engaged in providing long term finance for industrial or agricultural development in India or, by a public company formed and registered in India with the main object of carrying on the business or providing long – term finance for construction or purchase of houses in India for residential purposes, an amount not exceeding forty per cent of the total income can be carried to the reserve account;
(ix) Any bona fide expenditure incurred by a company for the purpose of promoting family planning amongst its employees;
(x) Any sum, paid by a public financial institution by way of contribution towards any Exchange Risk Administration Fund, set up by public financial institutions, either jointly or separately.
(xi) Any expenditure, incurred by the assessee on or after the 1st day of April 1999 but before the 1st day of April 2000, wholly and exclusively in respect of a non-Y2K compliant computer system, owned by the assessee and used for the purposes of his business or profession, so as to make such computer system Y2K compliant. (xii) Any expenditure (not being in the nature of capital expenditure) incurred by a corporation or a body corporate, by whatever name called, constituted or established by a Central, State or Provincial Act for the objects and purposes authorized by the Act, under which such corporation or body corporate was constituted or established. It is important to note that deductions are subject to certain conditions being satisfied.
Deductions allowed in respect of rent, rates, taxes, repairs and insurance for premises, which are used for the purpose of business or profession?
S 30: The deductions that are allowed while computing income from ‘profits and gains from business or profession’ in respect of rent, rates, taxes, repairs and insurance for premises, which are used for the purpose of business or profession while computing income from ‘profits and gains from business or profession’ are as follows: Where the premises are occupied by the assessee:
1. As a tenant, the rent paid for such premises; and further if he has undertaken to bear the cost of repairs to the premises, the amount paid on account of such repairs; excluding expenditure in the nature of capital expenditure. 2. Otherwise than as a tenant, the amount paid by him on account of current repairs to the premises; excluding expenditure in the nature of capital expenditure. Any sums, paid on account of land revenue, local rates or municipal taxes; The amount of any premium, paid in respect of insurance against risk of damage or destruction of the premises. Deductions to be allowed in respect of repairs and insurance of machinery, plant and furniture.
The following deductions shall be allowed in respect of repairs and insurance of machinery, plant and furniture: The amount paid on account of current repairs thereto; excluding expenditure in the nature of capital expenditure. The amount of any premium, paid in respect of insurance against damage or destruction thereof.
Ans 4) Settlement of disputes
Settlement of disputes could be done through
Norms of industrial disputes act 1947
Court of enquiry
Ans 5) Future of service tax in India
Service tax in India was introduced in 1994-95 to correct the asymmetric treatment of goods and services in the tax framework and to widen the tax net. Need to introduce service tax was felt due to the fact that service sector contributed to around half of GDP but it wasn’t taxed. The numbers of services liable for taxation were gradually raised from 3 in 1994-95 to virtually all service in budget 2012-13 except for the services enlisted in the negative list. The negative list includes the services by Government or a local authority, services by the Reserve Bank of India, Services by a foreign diplomatic mission located in India, services relating to agriculture, Service of transportation of passengers, Funeral, burial, crematorium or mortuary services etc. In the last eight odd years, after a modest beginning, service tax had become one of the most important sources of government revenue.
Budget 2012-13 increased the service tax rate from 10 percent to 12 percent. Already, a cess is imposed on all indirect taxes including service tax to finance secondary and higher education. In 2011-12, Rs 95,000 crores are expected to mop up through service tax and for 2012-13, target is to collect as much as Rs.1.24 Lakh crores. The increase in service tax is opposed by different section of the business community. At present, service sector contributes more than 55 percent of GDP and its share is likely to increase in future as it is poised to grow between 8-10 percent in next decade along with the reduced share of primary sector.
This offers tremendous revenue potential to the Government. It is expected that in due course, service tax would reduce the tax burden on international trade (Customs duty) and domestic manufacturing sector (Excise duty). So a planned growth of service tax would be commensurate with the goals of economic liberalization and globalization. This process requires levy of taxes on new services without substantial rise in the rate or cost of collection. The service tax promises many opportunities as well as challenges to realize the opportunities. For instance, increased revenue through service tax will help in bridging the fiscal deficit, finance the social services, reduce the burden on commodity taxes etc.
The challenges include providing more simplified tax administration in the country which will reduce the tax evasion. Further, department should intensify the field survey operations to ensure that all taxable service assessees are brought into the tax net and service tax due from them are collected without hitch. While the basic tenet of voluntary compliance of service tax law has to be adhered to, the habitual evaders of service tax must be booked for appropriate action under the law.
Effective use of Audit and Anti-evasion tools for ensuring the compliance on the part of the assessee and curbing the instances of irregularities and tax evasion are the need of hour. Greater emphasis should be laid on training the staff in Information Technology skills necessary to carry out effective, systematic and result oriented analysis of data available in the system, to achieve the target. Electronic Tax Administration (ETA) system for service tax should be effectively implemented so that service tax could be administered as a pioneer e-tax of the country. Adequate staff must be deployed along with suitable infrastructure and conveyance to implement service tax law effectively. In future, service tax will be integrated with commodity taxes to give rise to the Goods and Service Tax (GST). The proposed Goods and Service Tax is the part of the tax reforms that centre around evolving an efficient and harmonized consumption tax system in the country.
Presently, there are parallel systems of indirect taxation at the Central and State level. The existing service tax system poses an imminent challenge to reform its synergies to eventually harmonize itself in the GST regime. Successful integration of goods and service tax would give India a world-class tax system and will bring in improved tax collection. In a way, it will boost our economy and enable us to compete at the global front. As a result, our system will eventually match the international standard in the sphere of indirect taxation. It will also end the long standing distortions of differential treatments to the manufacturing and service sectors. GST would be a single comprehensive indirect tax to be levied on goods and services. It would be levied at every production and distribution chain with the eligibility to claim indirect taxes paid on procurement chain.
Under the current regime, there is a fractured credit mechanism where businesses don’t get credit for all the taxes they pay. The effort to prepare for a smooth integration with the GST without any hardship to public is a big challenge, which needs to be handled at the field as well policy level. GST is the future of all indirect taxes in India for which a consensus is needed between the central and state governments. It was supposed to be implemented from 1 April 2010 but is postponed every year due to lack of consensus. The delay in the implementation is causing loss to the tune of thousands of crores every year which could have gained in by increased efficiency. The central government should come forward with some form of incentive driven plan to bring the GST regime in the country which poised to put the fiscal administration of the country at higher level.
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