What is Power of Joint Commissioner to issue directions
in certain cases? What is Reference to Commissioner in
certain cases? Section 144A and 144BA of
Income Tax Act 1961
Power of Joint Commissioner to issue directions in
certain cases and Reference to Commissioner in certain cases
defined under section 144A and 144BA of Income Tax Act 1961.
Provisions under these Sections are :
Section 144A of Income Tax Act "Power of Joint
Commissioner to issue directions in certain cases"
Section 144A. A Joint Commissioner may, on his own motion
or on a reference being made to him by the Assessing Officer
or on the application of an assessee, call for and examine
the record of any proceeding in which an assessment is
pending and, if he considers that, having regard to the
nature of the case or the amount involved or for any other
reason, it is necessary or expedient so to do, he may issue
such directions as he thinks fit for the guidance of the
Assessing Officer to enable him to complete the assessment
and such directions shall be binding on the Assessing
Provided that no directions which are prejudicial to the
assessee shall be issued before an opportunity is given to
the assessee to be heard.
Explanation.-For the purposes of this section no
direction as to the lines on which an investigation
connected with the assessment should be made, shall be
deemed to be a direction prejudicial to the assessee.
Section 144BA of Income Tax Act "Reference to
Commissioner in certain cases"
Section 144BA. Following section 144BA shall be inserted
after section 144B by the Finance Act, 2013, w.e.f. 1-4-2016
Reference to [Principal Commissioner or] Commissioner in
144BA. (1) If, the Assessing Officer, at any stage of the
assessment or reassessment proceedings before him having
regard to the material and evidence available, considers
that it is necessary to declare an arrangement as an
impermissible avoidance arrangement and to determine the
consequence of such an arrangement within the meaning of
Chapter X-A, then, he may make a reference to the [Principal
Commissioner or] Commissioner in this regard.
(2) The [Principal Commissioner or] Commissioner shall,
on receipt of a reference under sub-section (1), if he is of
the opinion that the provisions of Chapter X-A are required
to be invoked, issue a notice to the assessee, setting out
the reasons and basis of such opinion, for submitting
objections, if any, and providing an opportunity of being
heard to the assessee within such period, not exceeding
sixty days, as may be specified in the notice.
(3) If the assessee does not furnish any objection to the
notice within the time specified in the notice issued under
sub-section (2), the [Principal Commissioner or]
Commissioner shall issue such directions as he deems fit in
respect of declaration of the arrangement to be an
impermissible avoidance arrangement.
(4) In case the
assessee objects to the proposed action, and the [Principal
Commissioner or] Commissioner after hearing the assessee in
the matter is not satisfied by the explanation of the
assessee, then, he shall make a reference in the matter to
the Approving Panel for the purpose of declaration of the
arrangement as an impermissible avoidance arrangement.
If the [Principal Commissioner or] Commissioner is
satisfied, after having heard the assessee that the
provisions of Chapter X-A are not to be invoked, he shall by
an order in writing, communicate the same to the Assessing
Officer with a copy to the assessee.
(6) The Approving
Panel, on receipt of a reference from the [Principal
Commissioner or] Commissioner under sub-section (4), shall
issue such directions, as it deems fit, in respect of the
declaration of the arrangement as an impermissible avoidance
arrangement in accordance with the provisions of Chapter X-A
including specifying of the previous year or years to which
such declaration of an arrangement as an impermissible
avoidance arrangement shall apply.
(7) No direction under
sub-section (6) shall be issued unless an opportunity of
being heard is given to the assessee and the Assessing
Officer on such directions which are prejudicial to the
interest of the assessee or the interests of the revenue, as
the case may be.
(8) The Approving Panel may, before
issuing any direction under sub-section (6),-
(i) if it is of the opinion that any further inquiry in the
matter is necessary, direct the 88[Principal Commissioner
or] Commissioner to make such inquiry or cause the inquiry
to be made by any other income-tax authority and furnish a
report containing the result of such inquiry to it; or
(ii) call for and examine such records relating to the
matter as it deems fit; or
(iii) require the assessee to furnish such documents and
evidence as it may direct.
(9) If the members of the Approving Panel differ in opinion
on any point, such point shall be decided according to the
opinion of the majority of the members.
(10) The Assessing Officer, on receipt of directions of the
88[Principal Commissioner or] Commissioner under sub-section
(3) or of the Approving Panel under sub-section (6), shall
proceed to complete the proceedings referred to in
sub-section (1) in accordance with such directions and the
provisions of Chapter X-A.
(11) If any direction issued under sub-section (6) specifies
that declaration of the arrangement as impermissible
avoidance arrangement is applicable for any previous year
other than the previous year to which the proceedings
referred to in sub-section (1) pertains, then, the Assessing
Officer while completing any assessment or reassessment
proceedings of the assessment year relevant to such other
previous year shall do so in accordance with such directions
and the provisions of Chapter X-A and it shall not be
necessary for him to seek fresh direction on the issue for
the relevant assessment year.
(12) No order of assessment or reassessment shall be passed
by the Assessing Officer without the prior approval of the
88[Principal Commissioner or] Commissioner, if any tax
consequences have been determined in the order under the
provisions of Chapter X-A.
(13) The Approving Panel shall issue directions under
sub-section (6) within a period of six months from the end
of the month in which the reference under sub-section (4)
(14) The directions issued by the Approving Panel under
sub-section (6) shall be binding on-
(i) the assessee; and
(ii) the 89[Principal Commissioner or] Commissioner and the
income-tax authorities subordinate to him,
and notwithstanding anything contained in any other
provision of the Act, no appeal under the Act shall lie
against such directions.
(15) The Central Government shall, for the purposes of this
section, constitute one or more Approving Panels as may be
necessary and each panel shall consist of three members
including a Chairperson.
(16) The Chairperson of the Approving Panel shall be a
person who is or has been a judge of a High Court, and-
(i) one member shall be a member of Indian Revenue Service
not below the rank of 89[Principal Chief Commissioner or]
Chief Commissioner of Income-tax; and
(ii) one member shall be an academic or scholar having
special knowledge of matters, such as direct taxes, business
accounts and international trade practices.
(17) The term of the Approving Panel shall ordinarily be for
one year and may be extended from time to time up to a
period of three years.
(18) The Chairperson and members of the Approving Panel
shall meet, as and when required, to consider the references
made to the panel and shall be paid such remuneration as may
(19) In addition to the powers conferred on the Approving
Panel under this section, it shall have the powers which are
vested in the Authority for Advance Rulings under section
(20) The Board shall provide to the Approving Panel such
officials as may be necessary for the efficient exercise of
powers and discharge of functions of the Approving Panel
under the Act.
(21) The Board may make rules for the purposes of the
constitution and efficient functioning of the Approving
Panel and expeditious disposal of the references received
under sub-section (4).
Explanation.-In computing the period referred to in
sub-section (13), the following shall be excluded-
(i) the period commencing from the date on which the first
direction is issued by the Approving Panel to the
89a[Principal Commissioner or] Commissioner for getting the
inquiries conducted through the authority competent under an
agreement referred to in section 90 or section 90A and
ending with the date on which the information so requested
is last received by the Approving Panel or one year,
whichever is less;
(ii) the period during which the proceeding of the Approving
Panel is stayed by an order or injunction of any court:
Provided that where immediately after the exclusion of the
aforesaid time or period, the period available to the
Approving Panel for issue of directions is less than sixty
days, such remaining period shall be extended to sixty days
and the aforesaid period of six months shall be deemed to
have been extended accordingly.