musings 47

A young friend, a taxation professional was asking about the general modalities to be followed while replying to notices issued by authorities..

Some points stuck me.. as a result of about forty years of work in a taxation department ..Sharing for archives..
Of course the reply is not comprehensive enough
Each notice has to be addressed to on its own merits

My reply
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Each notice and its reply are unique..
Even though we would quote case laws or precedents, ultimately there is no estoppel in taxation.. unless there is a patent miscarriage of legal provisions..

When there are forms prescribed by the Act or Rules, or by public circulars issued by the department, those forms have to be followed scrupulously..
This is very important especially in appeals..

If the matter goes to a court, the standard procedures of the court are also to be followed without fail.

Before replying to a notice, read the notice as many times as you would require to digest the contents , consequences, and the expected action on the basis of the proceedings..

If the replies are to be filed by electronic media, that should be ensured..
A printed copy may be submitted as a matter of abundant caution
If there are imputations or allegations in the notice, every issue should be countered.. with all points in your favour highlighted..

You need not use cutting or harsh language, you can pay respect to the authority to some extent but such respect should not stand in the way of making your points as sharp and clear as possible.
Every point should be covered..
Every word in the notice that can cause prejudice to your interests should be met the best way possible..
Fear of giving offence need not stand in the way..
Of course personal attacks on the attitude or behaviour of the authority issuing the notice need not be stressed unless there is perversity in the order, or the notice arising as a sequel to the order, or preceding a final order.

You need not admit or agree with any imputations in the notice unless the facts against you are cent percent indefensible..

As a professional, while replying to a notice, it is your duty to defend your client even if there is a very rare or remote chance of succeeding..
And in penalty and prosecution matters, no admission of any guilt should be made in the written reply.
If at all you want to surrender, you take a personal hearing and verbally present the case before the authority and you need give any written admission, only if there is a good chance of getting leniency..
A written admission can always lead to unexpected adverse consequence for the one who makes the admission..

And any admission of misconduct or guilt, should be under the signature of the client, and even if you are authorised as a professional to do so, you better avoid such admissions by proxy

The reply to the notice, if it is not in a prescribed form, should be made in an elegant language.. The reply need not be servile or cringing..
It need not be unnecessarily aggressive either.

Then whenever you make a reply, you have to make it clear that the reply is being submitted on the basis of the imputations made in the notice.. and that before a final decision that may adversely affect your client might be taken only after permitting the client or his authorised counsel an opportunity of being heard, and after affording an opportunity to inspect the basic records the contents of which resulted in issuance of such notices.
If the notice issued is incomplete especially when it is in a prescribed format and if parts of the notice which are of consequence to you are left not filled up, not ticked, not scored off, that should be pointed out.. and if such defect is fatal to the notice, you have to point out politely that the notice is illegal and it is to be treated as non est.

Even if you can sense that some mistakes in the notice are just clerical errors, you are not bound to accept that and act on it.. unless the facts are so overwhelmingly clear that such clerical error will not affect the context and legality of the notice..
But always an error should be pointed out and protested.

And finally, a prayer should be made that if an adverse decision is proposed to be taken, the client should be given an opportunity to be heard personally or through a counsel and should be permitted to file further explanations, and arguments..before an adverse decision is given out.

These seem to be the basic things we should keep in mind while replying notices..

While filing grounds of appeal every point of law and facts should be covered in great detail.. and a final ground..


"For these and other grounds that may be adduced or urged at the time of hearing, the order... may be quashed.. the order may be modified.. etc.."

The statement of facts, the questions to be referred.. all these should be drafted with care.. doing full justice to law, logic, facts, grammar, spelling.. and usages too.