Explanatory Notes on Provisions Relating to the Voluntary Disclosure of Income Scheme, 1997
Circular No. 753 was issued by the Central Board of Direct Taxes on 10 June 1997. Its subject is Explanatory Notes on Provisions Relating to the Voluntary Disclosure of Income Scheme, 1997.
These are the Board’s explanatory notes to a Finance Act. They are the department’s account of what the amendments were meant to do, and they are cited constantly — but the words of the Act govern where the two part.
Explains the Voluntary Disclosure of Income Scheme, 1997 contained in sections 62 to 78 of the Finance Act, 1997 (Act No. 26 of 1997, assented to on 14th May, 1997). The Scheme came into force on 1st July, 1997 by notification of 9th June, 1997, and the last date for making a disclosure was 31st December, 1997. A person may disclose income chargeable under the Income-tax Act for any assessment year for which he failed to file a return, or which he failed to disclose in a return filed before 1st July, 1997, or which escaped assessment; no disclosure of wealth is allowed. Tax on the disclosed income is 35 per cent for companies and firms and 30 per cent for others, payable before filing the declaration, failing which within three months of filing with simple interest at 2 per cent for every month or part of a month, and if the tax is not paid within those three months the declaration is void and no part payment is refundable, nor is any tax paid under the Scheme refundable in any circumstance. A person served with a notice under section 142 or 148 who has not filed the return before 1st July, 1997 cannot declare for that year, and a search under section 132 or requisition under section 132A bars declaration for the year of search and every earlier year, while a survey under section 133A bars only the year of the survey. The declaration goes to the Commissioner in the prescribed form, signed by the persons specified in section 65, and jewellery declared must be supported by a registered valuer's certificate.
The Board's explanatory notes on a newly enacted scheme, issued to state its substance for officers and intending declarants.
EXPLANATORY NOTES ON PROVISIONS RELATING TO THE VOLUNTARY DISCLOSURE OF INCOME SCHEME, 1997
Introduction
The Finance Act, 1997 as passed by the Parliament received the assent of the President on the 14th May, 1997 and has been enacted as Act No. 26 of 1997. Sections 62 to 78 of the Finance Act, 1997 relate to the Voluntary Disclosure of Income Scheme, 1997. This circular explains the substance of the provisions of the Disclosure Scheme.
2. The Voluntary Disclosure of Income Scheme, 1997 shall come into force from the 1st day of July, 1997. Notification to this effect has been issued on 9th June, 1997. Any person can, therefore, make a disclosure of income on or after this date. The last date for making the disclosure of income is the 31st day of December, 1997.
3. In accordance with the provisions of section 64 of the Finance Act, 1997, a person may make a disclosure in respect of any income chargeable to tax under the Income-tax Act, for any assessment year—
(a) for which he has failed to furnish a return under section 139 of the IT Act, 1961;
(b) which he has failed to disclose in a return of income furnished by him before the date of commencement of the Scheme, i.e., 1st July, 1997;
(c) which has escaped assessment.
A person may, therefore, make a disclosure of income for any assessment year including assessment year 1997-98, provided he has either not furnished his return of income or has failed to disclose the income for which the declaration is being made. No disclosure of wealth is allowable under the Voluntary Disclosure of Income Scheme, 1997.
Rate of tax
4. The tax payable on the disclosed income in respect of any assessment year shall be at the rate of 35% in the case of companies and firms and 30% in the case of others.
The tax payable under the Scheme is required to be paid before the filing of the declaration. The declaration should be accompanied by the proof of payment of tax. In case a person is not in a position to pay the tax before the filing of the declaration, he may do so within 3 months of the date of filing of the declaration. In such a case simple interest @ 2% shall be charged for every month or part of a month comprised in the period beginning from the date of filing of the declaration to the date of payment of the tax. However, in cases where the declart fails to pay the tax within the said period of 3 months from the date of filing of the declaration, the declaration filed shall be deemed to be void. Any part payment of tax made in the above situation shall not be refundable. Any tax paid in pursuance of the declaration shall also not be refundable under any circumstances.
5. No person can make a voluntary disclosure of income for any assessment year in relation to which a notice under section 142 or 148 has been served upon him and the return has not been furnished before the 1st day of July, 1997. Further, a person is also debarred from making a disclosure of income in respect of the previous year in which a search is initiated under section 132 or requisition is made under section 132A or a survey under section 133A of the Income-tax Act is carried out. In the case where a search is initiated or a requisition is made under section 132 or 132A respectively, a person is also debarred from making a voluntary disclosure of income in respect of any earlier year prior to the previous year in which the search is initiated or requisition is made (section 64 of the Finance Act, 1997). Declaration can, however, be made in such cases for a previous year subsequent to the year of search, etc. In the case of survey under section 133A, a person will be barred from making a declaration only in respect of the assessment year in which the survey was carried out.
Form of declaration
6. The declaration shall be made to the Commissioner of Income-tax and shall be in the prescribed Form. The declaration can be signed in the case of an individual, by the individual himself. Where the individual is away from the country, the declaration may be signed by a person duly authorised by the individual. In a case where the individual is mentally incapacitated, the declaration may be signed by his guardian or any other person competent to act on his behalf. In the case of a Hindu Undivided Family, company, firm, association, etc., the declaration can be signed and verified by persons specified in section 65 of the Finance Act, 1997 which are the same as those mentioned in section 140 of the IT Act, 1961. A person can make a declaration in different capacities, namely, in respect of his individual income, in his capacity as karta of his Hindu undivided family, etc.
Where the voluntary disclosed income is represented by jewellery, the value of the jewellery or bullion so declared shall be substantiated by a registered valuer’s certificate. In case the jewellery declared is in respect of an assessment year prior to assessment year, 1987-88, the value for purposes of declaration shall be taken to be the value as on 1-4-1987. The expression ‘jewellery’ shall have the same meaning as assigned to it in Explanation (a ) to clause (ea) to section 2 of the Wealth-tax Act, 1957/Explanation 1 to clause (viii) of section 5 of the Wealth-tax Act, 1957.
7. The declaration shall be filed before the Commissioner of Income-tax. Where a taxpayer resides at a place other than the headquarters of the Commissioner, the declaration along with the challan for payment should be sent to the Office of the Commissioner of Income-tax, who in turn, would send the certificate of disclosure and payment of tax by post. The certificate will be issued by the Commissioner of Income-tax only on full payment of tax in respect of the disclosure made by a person.
8. The disclosure made in respect of any assessment year shall not affect the finality of any completed assessment. A declaration cannot, therefore, have the right to get any assessment or reassessment reopened on the ground that he has now made a disclosure of income in respect of that assessment year. No set-off or relief in any appeal, reference or other proceeding can also be claimed by a declarant in respect of the voluntarily disclosed income.
9. The voluntarily disclosed income shall not be included in the total income of the declarant for any assessment year if the declarant credits such amount in the books of account, if any, maintained by him or in any other record and intimates the credit so made to the Assessing Officer. If no books of account are maintained, it is expected that the declarant will make the credit in some other record. The second condition for the voluntarily disclosed income not to be included in the total income for any assessment year is that tax in respect of the disclosed amount is paid within the time specified in section 66 or section 67 of the Finance Act, 1997.
10. The particulars furnished by a declarant shall be kept a secret and shall be treated as confidential. No court or any other authority shall be entitled to require any officer of the Income-tax Department or the declarant himself to produce before it any such declaration or to give evidence before it in this regard. Further, nothing contained in any declaration shall be admissible as evidence against the declarant for the purpose of any proceeding relating to imposition of penalty or launching of prosecution under the Income-tax Act, Wealth-tax Act, Foreign Exchange Regulation Act, 1973 or the Companies Act, 1956.
11. In cases where the voluntarily disclosed income is represented by cash, bullion, shares or any other assets and where, (i) the declarant has failed to furnish a return under section 14 of the Wealth-tax Act for any assessment year, (ii) such assets have not been shown in the return of wealth, (iii) the disclosure relates to understated investment and where the same was understated in a return of wealth, then no wealth-tax shall be payable in respect of the assessment year for which the disclosure is made. Wealth-tax shall, however, become payable for the assessment years subsequent to the assessment years for which the declaration was made.
12. The provisions of Chapter XV of the Income-tax Act relating to liability in special cases shall apply in relation to proceedings under this Scheme as they apply in relation to proceedings under the Income-tax Act.
13. The secretary and immunity provisions of the voluntarily disclosure of income scheme shall not apply to—
(a) to any person in respect of whom an order or detention has been made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 in certain circumstances.
(b) in relation to prosecution for any offence punishable under Chapter IX or Chapter XVII of the Indian Penal Code, the Narcotic Drugs and Psychotropic Substances Act, 1985, the Terrorists and Disruptive Activities (Prevention) Act, 1987, the Prevention of Corruption Act, 1988 or for the purpose of enforcement of any civil liability;
(c) to any person notified under section 3 of the Special Court (Trial of Offences Relating to Transaction in Securities) Act, 1992.
Circular : No.753, dated 10-6-1997
In an old file where a declaration under the Scheme is produced to explain an asset, and in any dispute over whether the declaration was valid or void for non-payment.
An individual files a declaration on 1st October, 1997 for Rs. 10,00,000 of undisclosed income without paying the tax first. Tax at 30 per cent is Rs. 3,00,000, payable by 1st January, 1998 with simple interest at 2 per cent a month from the date of filing. If he pays only Rs. 1,00,000 by then, the declaration is void and the Rs. 1,00,000 is not returned to him.
Source: the Income Tax Department’s own published text — its page for this instrument.