Additional Posers:
WITH REFERENCE TO THE OPENING PARAGAPH OF THE REPORT OF "OUR BUREAU":
One has no clue as to who originated / propounded the referred concept - "whether law should lead or follow?" - AND
what it really means?
For, so far as one could comprehend, any law (including the Income-tax Act) is expected to be complied with/enforced; not to lead or follow!
The mention that the Act "was the only piece of legislation in the country which had a vast machinery to monitor its influence" - again seems to make no sense or not really convey anything! For, undoubtedly, the legislation was not intended to influence (?) anyone. Further, one is aware of no such monitoring machinery as stated.
PS: Going by the tenor of the referred paragraph of the Report, one is not clear as to whether what are set out therein are what the Union Law Secretary himself in fact said, or they are as summarised by "Our Bureau" based on its own understanding / transcription of what he said?! In either case, the report is mind-boggling!
Sunday, August 26, 2007
Friday, August 24, 2007
IGNORANCE OF LAW - IS NO EXCUSE OR IS BLISS
IGNORANCE OF LAW - IS NO EXCUSE, OR IS IT BLISS ??!!
In the national interests, one cannot fail to take a serious note of, much less be indifferent to, the state of affairs as obtaining in our legal system today. Even a superficial but intelligent and impartial survey, and assessment of the system as a whole, is bound to lead to a realization that the situation is so grim or deplorable that there seems to be no force on earth which could help to restore one's faith in the efficacy or effectiveness of our legal system; especially, in regard to implementation or enforcement of any of the laws on the statute book. For a typical discussion, the law of income-tax (the law) as embodied in the Income-tax Act may be chosen.
Ignorance of law is no excuse - is an age-old maxim. Ignorance (of law) is bliss - is an equally old, if not an older, proverb; rather one's own prescription or choice.
Too many laws (statutes, or rules and regulations having the force of law, be they of the Centre or any State) and too much of governance are the pervading but dominant factors. They themselves are by far responsible for their own failure. Ignorance of law is no longer regarded as a serious shortcoming or blemish. On the contrary, ignorance, be it partial or total, or genuine or feigned, has come to be looked upon as bliss; an eternal one at that. The reason, as may be easily inferred is, more often than not, one of convenience. In today's scenario, with mostly professional politicians dominating and calling the shots in the political arena, ignorance of law - invariably not genuine but feigned, increasingly glorified and imbibed - has come to be largely followed from a practical point of view. Also, perhaps, in today's given political and social environment, is found more suited.
Primarily responsible for the current scenario is that any law, with hardly an exception, has become more and more riddled with controversies or complexity. Corruption has, by and by, been transformed into the essential means of livelihood. The stark truth is that escalating ignorance of /non-compliance with the law and proliferation of corruption are inherently in direct proportion to each other. That is, the increasing tendency or temptation to non-compliance has inevitably resulted in rampant corruption. For the failure or only the partial success, if not a dismal failure, of our legal system, the root cause or culprit is the in-born, mostly cultivated, human weaknesses which have to bear the blame. Ignorance of law is held out as more paying or rewarding; or the least difficult to imbibe and follow, conveniently chosen, with or without provocation. Generally, non-compliance with law has come to stay as the order of the day, a fact of life or a stark reality. Basically, the dire need of the hour is an in-depth study of human behaviour, as only then may be brought to focus the specific areas requiring governance and remedies.
One is reminded of an old court room joke: - A lawyer was confident of the strength of the stand he was trying to advocate before a court. But the judge who happened to be one unrelenting and not to be convinced, quipped - if that were the law, I would set fire to my library. The lawyer feeling intimidated and humiliated took no time to retort: Instead, why not read them my Lord!
Having regard to the overwhelming circumstances, non-compliance (with law) may invariably prove much easier than compliance; also economical. So much so, despite the ever increasing number of laws, there is seldom found to be order, in any walk of life or activity of humans.
Obviously, the maxim as originally conceived was intended as a caution to one if his act or activity were found to be in violation or deviation in the eyes of law. However, a closer study of today's happenings all around is sure to bring to focus an inescapable fact of life; that is, even the law makers as also the government, and or its authorities / officials are in no small measure responsible for the noted deplorable state of affairs. In fact, one is given the impression that they seem to be under an illusion that ignorance of law on their part is their privilege or prerogative, not something to be shunned or abhorred.
All around, there appears to be no dearth of quest or thirst for knowledge; particularly, if it were to be construed in its commonly understood sense or flavor. But when it comes to a question of knowledge of law in an absolute sense, the scenario is horrendous or pathetic. If it were to be believed to be otherwise, how then one could explain the astounding fact or reality of life today,- that is, the urge to violate or deviate or disregard even what the law clearly says or mandates, with or without any provocation. The generally widespread tendency is to try and bypass or flout the law even at the slightest or with no provocation.
Ignorance of law is no excuse - is an age-old maxim. Ignorance (of law) is bliss - is an equally old, if not an older, proverb; rather one's own prescription or choice.
Too many laws (statutes, or rules and regulations having the force of law, be they of the Centre or any State) and too much of governance are the pervading but dominant factors. They themselves are by far responsible for their own failure. Ignorance of law is no longer regarded as a serious shortcoming or blemish. On the contrary, ignorance, be it partial or total, or genuine or feigned, has come to be looked upon as bliss; an eternal one at that. The reason, as may be easily inferred is, more often than not, one of convenience. In today's scenario, with mostly professional politicians dominating and calling the shots in the political arena, ignorance of law - invariably not genuine but feigned, increasingly glorified and imbibed - has come to be largely followed from a practical point of view. Also, perhaps, in today's given political and social environment, is found more suited.
Primarily responsible for the current scenario is that any law, with hardly an exception, has become more and more riddled with controversies or complexity. Corruption has, by and by, been transformed into the essential means of livelihood. The stark truth is that escalating ignorance of /non-compliance with the law and proliferation of corruption are inherently in direct proportion to each other. That is, the increasing tendency or temptation to non-compliance has inevitably resulted in rampant corruption. For the failure or only the partial success, if not a dismal failure, of our legal system, the root cause or culprit is the in-born, mostly cultivated, human weaknesses which have to bear the blame. Ignorance of law is held out as more paying or rewarding; or the least difficult to imbibe and follow, conveniently chosen, with or without provocation. Generally, non-compliance with law has come to stay as the order of the day, a fact of life or a stark reality. Basically, the dire need of the hour is an in-depth study of human behaviour, as only then may be brought to focus the specific areas requiring governance and remedies.
One is reminded of an old court room joke: - A lawyer was confident of the strength of the stand he was trying to advocate before a court. But the judge who happened to be one unrelenting and not to be convinced, quipped - if that were the law, I would set fire to my library. The lawyer feeling intimidated and humiliated took no time to retort: Instead, why not read them my Lord!
Having regard to the overwhelming circumstances, non-compliance (with law) may invariably prove much easier than compliance; also economical. So much so, despite the ever increasing number of laws, there is seldom found to be order, in any walk of life or activity of humans.
Obviously, the maxim as originally conceived was intended as a caution to one if his act or activity were found to be in violation or deviation in the eyes of law. However, a closer study of today's happenings all around is sure to bring to focus an inescapable fact of life; that is, even the law makers as also the government, and or its authorities / officials are in no small measure responsible for the noted deplorable state of affairs. In fact, one is given the impression that they seem to be under an illusion that ignorance of law on their part is their privilege or prerogative, not something to be shunned or abhorred.
All around, there appears to be no dearth of quest or thirst for knowledge; particularly, if it were to be construed in its commonly understood sense or flavor. But when it comes to a question of knowledge of law in an absolute sense, the scenario is horrendous or pathetic. If it were to be believed to be otherwise, how then one could explain the astounding fact or reality of life today,- that is, the urge to violate or deviate or disregard even what the law clearly says or mandates, with or without any provocation. The generally widespread tendency is to try and bypass or flout the law even at the slightest or with no provocation.
ADMITTEDLY, THE LAW HAS BECOME INCREASINGLY COMPLEX OVER THE YEARS, PRIMARILY BECAUSE OF ITS HAVING BEEN OVER-WRITTEN OR REWRITTEN TOO OFTEN AND IN EVERY CONCEIVABLE MANNER.
AS TO HOW BEST THE LAW COULD BE SIMPLIFIED APPEARS TO HAVE BEEN ENGAGING THE ATTENTION OF ALL THE CONCERNED PEOPLE-THOSE IN GOVERNANCE, AS WELL AS THE TAX PAYING PUBLIC AND FIELD EXPERTS, ALIKE - FOR QUITE A LONG TIME. HOWEVER, AS TO WHAT IS GOING TO BE THE FINAL OUTCOME REMAINS TO BE ANYBODY'S GUESS.
THAT THE LAW (for that matter, any law) IS AN ASS, - IS AN OLD SAYING. BUT THE BRAIN- TEASING QUESTION IS, - WHETHER IT HAS BEEN INHERENTLY SO, OR TRANSFORMED THUS IN COURSE OF TIME; TO BE PRECISE, BY THE VESTED INTERESTS?
IN TODAY'S SCENARIO, IN RESPECT OF ANY MATTER HAVING A LEGAL IMPLICATION, HOWSOEVER SERIOUS OR OTHERWISE IT BE, ONE CANNOT PRUDENTLY AFFORD TO ACT, RATHER INVARIABLY DOES NOT ACT, WITHOUT CONSULTING A LEGAL ADVISER. AS SUCH, IGNORANCE OF LAW ON THE PART OF ANYONE CANNOT NORMALLY BE PRESUMED TO BE GENUINE, NOT FEIGNED. UNLESS, OF COURSE, THE CONCERNED LEGAL ADVISER HIMSELF SUFFERS FROM THE MALADY.
ANY FAILURE TO COMPLY WITH OR CONTRAVENTION OF THE LAW (BE IT ANYONE OR MORE OF ITS PROVISIONS), BE IT DELIBERATE OR UNCONSCIOUS, INVARIABLY TURNS OUT TO BE A SOURCE OF/ FERTILE BREEDING GROUND FOR CORRUPTION. AND THE CONVERSE CANNOT BUT BE ONLY EQUALLY TRUE. THE REASON, AS NOTED HEREINBEFORE, IS QUITE OBVIOUS - NON-COMPLIANCE, IN COMPARISON WITH COMPLIANCE, IS, MORE OFTEN THAN NOT, CONSIDERED TO BE MUCH SIMPLER, ALSO ECONOMICAL.
AS LATE NANI A. PALKHIVALA, A NOTED LEGAL LUMINARY OF OUR TIMES, QUOTING WILL DURANT, ONCE RECALLED WHAT A CYNIC REMARKED, - "YOU MUSTN'T ENTHRONE IGNORANCE JUST BECAUSE THERE IS SO MUCH OF IT."
BE THAT AS IT MAY, TO KNOW WHAT IS THE JUDICIAL VIEW IN THE MATTER , ONE MAY REFER THE JUDGMENT OF THE BOMBAY HIGH COURT IN RE. CIT V. SCHELL INTERNATIONAL ((2005) 148 TAXMAN 446) AND THE SERIES OF CASE LAW REFERRED THEREIN. THE HIGH COURT HAS, FOLLOWING, AMONG OTHERS, THE OPINION OF THE APEX COURT IN ANOTHER CASE, HELD, - THERE IS RULE THAT IGNORANCE OF LAW IS NO EXCUSE BUT THERE IS NO PRESUMPTION THAT EVERONE KNOWS THE LAW.
THE OPINION OF THE COURT(S) IS SEEN TO BE FOUNDED ON THE OBSERVATIONS AS SUMMED UP HEREIN BELOW:-
IT IS OFTEN SAID THAT EVERYONE IS PRESUMED TO KNOW THE LAW, BUT THAT IS NOT A CORRECT STATEMENT.
IT WOULD BE CONTRARY TO COMMON SENSE AND REASON IF IT WERE SO.
IT IS IMPOSSIBLE (FOR ANYONE) TO KNOW ALL THE STATUTORY LAW.
THE FACT IS THAT THERE IS NOT AND NEVER HAS BEEN A PRESUMPTION THAT EVERY ONE KNOWS THE LAW.
THERE IS THE RULE THAT IGNORANCE OF THE LAW DOES NOT EXCUSE, A MAXIM OF VERY DIFFERENT SCOPE AND APPLICATION.
NOW, IT SHOULD NOT BE DIFFCULT FOR ANYONE TO READILY PERCEIVE / SENSE WHICH WAY THE WIND BLOWS.
Friday, August 17, 2007
REVENUE'S MINDSET
FOR KNOWING THE REVENUE'S FRAME OF MIND IN GENERAL, ONE MAY JUST READ BL , ISSUE OF AUGUST 17, - "PERIODIC MONITORING OF I-T ACT ESSENTIAL, SAYS UNION LAW SECY" (extract below).
Periodic monitoring of I-T Act essential, says Union Law Secy
The Income-Tax Act is an exception to the concept of “ whether law should lead or follow”, as it was the only piece of legislation in the country which had a vast machinery to monitor its influence.
Speaking at the inaugural session of the two-day Silver Jubilee Conference 2007 of Direct Taxes Professionals Association (DTPA), on the theme of “ Accounting discipline and tax laws – A Challenge to professionals” Mr. T.K. Viswanathan, the Union Law Secretary, said amendments to tax laws in the annual Budget every year were necessary to prevent revenue leakage.
Describing the Income Tax Act as a privileged one among all the standing statutes in the country, he said different aspects of the tax provisions have to be continuously monitored to plug the loopholes which may lead to leakage.
Admitting that tax laws often faced the criticism of being highly complex, the Law Secretary said that the I-T Act was not for the common man, as it was “neither poetry nor prose”. The general rule here cannot be applied so generally, as the I-T Act had many provisions, though this aspect would be addressed in the proposed new Direct Tax Code. Mr Viswanathan said the Draft Code was still with the Finance Ministry.
When asked on the status of the Companies Act Amendment Bill, he said it was most likely to be placed before Parliament in the winter session. On the low ratio of judges to million population, he said while on the one hand the country had a massive population, it was also necessary to look at the qualitative aspect of our justice delivery system. He, however conceded that resource crunch was a problem.
DECLINE IN PENDENCY OF APPEALS
According to Mr. Vimal Gandhi, president of Income Tax Appellate Tribunal (ITAT), pendency of appeals have been brought down now to 83,000 (all over the country) from a high of 1.8-lakh appeals in 2003.
Pointing out that appeals pending in the four cities of Mumbai, Delhi, Chennai and Ahmedabad bordered around 4,000, he said that in all other cities it was less than 1,000. (In Kolkata, it is said to be around 1,300.). The ITAT has 63 benches in 27 locations in India.
Admitting to shortage of Members in the various benches, Mr. Gandhi said that the Government has been apprised of the problem. There are 93 members in total against sanction strength of 126.
POSERS:
IS NOT THE ACT , IF NOT FOR THE COMMON MAN, IN ANY CASE, FOR THE TAXPAYING PUBLIC ? (Is taxpayer, AS PERCEIVED BY THE SECY. a common man or an uncommon man???)
IS IT NOT COMMON KNOWLEDGE THAT THE ACT IS HIGHLY COMPLEX (ALSO THAT IT IS BEING RENDERED MORE AND MORE COMPLEX ALMOST PERENNIALLY) A CRITICISM OFFERED BY EVEN THE SOCALLED PROFESSIONALLY QUALIFIED TAX ADVISERS, BESIDES JURISTS/REPUTED TAX EXPERTS.
YES, THE ACT IS "NEITHER POETRY NOR PROSE". IS THAT NOT ALL THE MORE REASON WHY IT SHOULD BE INTELLIGIBLE ENOUGH/AS FAR AS POSSIBLE CLEARLY READABLE/UNDERSTANDABLE BY , BESIDES THE TAXMAN, THE TAXPAYERS AND THEIR ADVISERS ALIKE?
MORE TO FOLLOW.....
Periodic monitoring of I-T Act essential, says Union Law Secy
The Income-Tax Act is an exception to the concept of “ whether law should lead or follow”, as it was the only piece of legislation in the country which had a vast machinery to monitor its influence.
Speaking at the inaugural session of the two-day Silver Jubilee Conference 2007 of Direct Taxes Professionals Association (DTPA), on the theme of “ Accounting discipline and tax laws – A Challenge to professionals” Mr. T.K. Viswanathan, the Union Law Secretary, said amendments to tax laws in the annual Budget every year were necessary to prevent revenue leakage.
Describing the Income Tax Act as a privileged one among all the standing statutes in the country, he said different aspects of the tax provisions have to be continuously monitored to plug the loopholes which may lead to leakage.
Admitting that tax laws often faced the criticism of being highly complex, the Law Secretary said that the I-T Act was not for the common man, as it was “neither poetry nor prose”. The general rule here cannot be applied so generally, as the I-T Act had many provisions, though this aspect would be addressed in the proposed new Direct Tax Code. Mr Viswanathan said the Draft Code was still with the Finance Ministry.
When asked on the status of the Companies Act Amendment Bill, he said it was most likely to be placed before Parliament in the winter session. On the low ratio of judges to million population, he said while on the one hand the country had a massive population, it was also necessary to look at the qualitative aspect of our justice delivery system. He, however conceded that resource crunch was a problem.
DECLINE IN PENDENCY OF APPEALS
According to Mr. Vimal Gandhi, president of Income Tax Appellate Tribunal (ITAT), pendency of appeals have been brought down now to 83,000 (all over the country) from a high of 1.8-lakh appeals in 2003.
Pointing out that appeals pending in the four cities of Mumbai, Delhi, Chennai and Ahmedabad bordered around 4,000, he said that in all other cities it was less than 1,000. (In Kolkata, it is said to be around 1,300.). The ITAT has 63 benches in 27 locations in India.
Admitting to shortage of Members in the various benches, Mr. Gandhi said that the Government has been apprised of the problem. There are 93 members in total against sanction strength of 126.
POSERS:
IS NOT THE ACT , IF NOT FOR THE COMMON MAN, IN ANY CASE, FOR THE TAXPAYING PUBLIC ? (Is taxpayer, AS PERCEIVED BY THE SECY. a common man or an uncommon man???)
IS IT NOT COMMON KNOWLEDGE THAT THE ACT IS HIGHLY COMPLEX (ALSO THAT IT IS BEING RENDERED MORE AND MORE COMPLEX ALMOST PERENNIALLY) A CRITICISM OFFERED BY EVEN THE SOCALLED PROFESSIONALLY QUALIFIED TAX ADVISERS, BESIDES JURISTS/REPUTED TAX EXPERTS.
YES, THE ACT IS "NEITHER POETRY NOR PROSE". IS THAT NOT ALL THE MORE REASON WHY IT SHOULD BE INTELLIGIBLE ENOUGH/AS FAR AS POSSIBLE CLEARLY READABLE/UNDERSTANDABLE BY , BESIDES THE TAXMAN, THE TAXPAYERS AND THEIR ADVISERS ALIKE?
MORE TO FOLLOW.....
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