Government’s Refusal To Listen Leads to Repeated Embarrassment
Does the last day of 2021 portend what is in store for 2022? If yes, we are in for tougher times. On 31st December, I had tweeted how chartered accountants (CA), as a community, had erupted in anger over the dysfunctional income-tax (I-T) portal on the last day for filing returns. The government not only rejected their plea to extend the date to file returns but defended the glitchy portal saying “58.9 million income-tax returns (ITRs) have been filed on the new e-filing portal as on 31 December 2021.” 
 
This disingenuous claim left many professionals stupefied. Like with the malfunctioning goods & services tax (GST) portal, the extent of pain and bugs encountered are in direct proportion to the complexity of returns filed. So numbers do not tell the real story. What is worse, problems with the portal continue unabated. The year began with taxpayers receiving significantly higher refunds than were due to them (https://twitter.com/caamresh/status/1478190085380075521); some, who had successfully e-verified a tax return on 30th/31st December, were receiving unverified acknowledgements in January. 
 
This malfunction does not give a bonanza to the ‘lucky’ taxpayer; it only creates more work—of answering follow-up demands and reversal! And, yet, neither have tax professionals got a proper hearing from the finance ministry, nor has the company responsible for the dreadful new portal faced any punitive consequences. 
 
The anger among CAs is all the more interesting because many of them are aggressive supporters of the Bharatiya Janata Party (BJP). They have been forced to acknowledge that the government’s refusal to listen or engage is not limited to farmers, anti-nationals, media or andolan-jeevi (perpetual protestors) types. It is universal. One CA, who had great hopes from the NDA (BJP-led national democratic alliance) in 2014, says, “We now have #taxtorture. Atrocious law and highly complicated software making life miserable for taxpayers and tax professionals.” Another supporter tweeted: “Increasingly this BJP govt feels like UPA II in their last three years. Arrogant and not ready to listen, except through street power. #IncomeTaxReturn.”
 
The government has repeatedly passed legislation, without any debate in parliament. It has only paused or rolled back in the face of strong agitation and street protests by affected groups such as farmers, bankers or even resident doctors. Meanwhile, two slogans of 2014 have been forgotten—‘Ease of Doing Business’ and ‘Minimum Government, Maximum Governance’. The government is everywhere; it is more intrusive, riding roughshod on individual rights and privacy, and forcing compliance through ever-increasing fines, penalties, bans, threat of imprisonment and investigation. All this is a reminder of the disenchantment with UPA2 and its ‘coalition (a)dharma’.
 
NDA2 Is Mirroring UPA2 Many Ways. 
An article I wrote in July 2019, when Modi Sarkar 2.0 had just begun a new innings, offers a good reference point. At that time, it seemed like the ‘clean up of corporate India’ had begun in right earnest. Nine months later, a virus had sent the world into turmoil and India went into a hard lock-down. 
 
 
Since then, there has been no new action or conclusion to the investigation into Sahara, Infrastructure Leasing & Financial Services (IL&FS) or even Dewan Housing Finance Ltd (DHFL) and Housing Development Infrastructure Ltd (HDIL). Rating agencies have got away with a small slap on the wrist for their failure to alert investors to the precarious financial position of these entities and regulators, who had ignored warning signs and detailed letters from whistle-blowers, have not been touched. 
 
As for our many fugitive industrialists, they remain safely abroad. Mehul Choksi, who is living it up with his girlfriend in the Caribbean islands, even managed to make the Indian government look very foolish in the middle of the pandemic. In May this year, India dispatched a private jet to bring back the absconding diamantaire wanted in the Punjab National Bank scam; but our officials returned looking foolish after failing to obtain a deportation order. 
 
One could argue that it is unfair to expect focused follow-up investigation in the middle of a pandemic. But, on the other hand, the same agencies launched a slew of new investigations, conducted raids and announced major seizures, despite the pandemic. Many have targeted politically-connected persons and businesses. In the past, such investigations dragged on for decades, while the cases were systematically weakened by making crucial documents and witnesses vanish. The photo ops, arrests and leaked documents that mark the initial action are soon forgotten. As a journalist, I have witnessed how sensitive commercial documents leak like a sieve from all government agencies, often directly to powerful corporate competitors. This has remained unchanged under all political formations. 
 
The difference is that India is no longer a closed economy and multinationals have the option of invoking international arbitration, bilateral treaties and accessing international courts, which is leading to repeated global embarrassment. Here are two recent examples. At the end of December, two Indian entities of retail giant Amazon filed a writ in the Delhi High Court challenging the jurisdiction of the enforcement directorate (ED) in an investigation opened under the Foreign Exchange Management Act, 1999 (FEMA). Its point is that the ED is using the investigation to demand information on transactions that have nothing to do with foreign exchange and are beyond its remit. 
 
We hold no brief for Amazon which has used legal teams to dance around Indian rules and brazenly evaded responsibility for the sale of fake products. This happened under the benign watch of various ministries, most notably the ministry of consumer affairs. In the past two years though, it has been subjected to a public tongue-lashing by a minister and its founder Jeff Bezos was childishly snubbed and refused appointments when he visited India in January 2020 (Government Snubs Jeff Bezos; Was Refused Appointment With PM, Say Sources). Discerning corporate watchers note that Amazon’s concerns about a fishing expedition are valid and the government’s change in attitude to the company has coincided with the aggressive retail expansion of a powerful business house. Mainstream media wrongly attributed the change to a concern for retail traders. 
 
After decades of litigation, Vodafone, Cairn Energy (Cairn) and Devas Multimedia (Devas) have successfully embarrassed the government in 2020 and 2021 with significant international victories.
 
In July 2021, when Cairn’s legal victories continued to be ignored by an arrogant Modi government, Cairn secured an order from a (Cairn Energy Allowed To Takeover Indian Assets in Paris To Recover Part of $ 1.2 Billion Arbitration Award) French court to seize about 20 properties in Paris belonging to the Indian government to recover a portion of  the US$1.2bn (billion) owed to it by India. Cairn’s action came after India had confiscated its shareholding in Vedanta shares and withheld dividends and tax refunds.
 
The French court order, finally, shamed the government to amend the retrospective I-T law introduced in 2012. India then closed out the issue with Cairn in November 2021 (Cairn Energy Agrees To Indemnify Indian Govt; Drops Litigation for Rs7,900 Crore Tax Refund) but not with Devas. On the contrary, in May 2021, the national company law tribunal (NCLT) ordered the liquidation of Devas calling it a fraudulent incorporation.
 
The NDA government’s actions defy logic and explanation because all three issues were inherited from the Congress-led united progressive alliance (UPA) government which is reviled and trolled by its leaders every day. The Devas dispute goes back to 2005 when it signed a deal with Antrix Corporation to lease communication satellites for 12 years. The UPA government had cancelled the deal arguing that spectrum allocated was required for national security purposes. Foreign investors in Devas approached the Permanent Court of Arbitration and won an arbitration award of US$1.2bn in 2015 which the government refused to honour. India also ignored bilateral agreements covering the matter and has even lost appeals against these orders. 
 
Devas went on to secure favourable orders from the Canadian and US courts, allowing it to seize Indian assets in those countries. Through all of this, the Indian government refused to engage with Devas. Earlier this week, in a major embarrassment for India, Devas and two others secured favourable orders from a Canadian court to seize money collected by the International Air Transport Association on behalf of the Airport Authority of India and Air India.
 
The Canadian court order, says a source, described the NCLT proceedings as being “illegal, arbitrary, vexatious and in contravention to the basic tenets of law being violative of the principles of natural justice.” This telling comment by a global court about our new and shining bankruptcy forum has even bigger implications for Indian companies that do not have the same legal options. This is just the beginning. If India wants to be taken seriously as a future superpower, the government has to get serious about ‘Ease of Doing Business’ as well as fair and equitable treatment of job-creators. Vendetta-driven actions have to stop and investigation agencies, regulators and those with fiduciary responsibility, have to be made more accountable to stakeholders.
 

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Comments
drtvan
7 months ago
It is time that the powers that be shed their hubris and arrogance and are sensitive to legitimate concerns of the average citizen.All the instances wherein the government was made to eat humble pie due to embarrassment in international arbitration has really not made any difference.All the pet slogans used in electioneering have proved to be ploys for immediate electoral gains.
mehtapm
7 months ago
How easy it is to label opponents as "andolan-jeevi" so their voice can be easily ignored without addressing the issues or views expressed.
kalpesh.chandaliya
7 months ago
Madam if you have some time please write an article on draconian provisions of GST like section 16(4) which are leading to double taxation and disallowing the fundamental right to claim Input Tax Credit. I trust you on this
dkmneeraj
7 months ago
Thanks a lot for atleast raising the correct voice. Great!!!
bhandarihiren
7 months ago
Thanks a lot Mam for atleast raising the correct voice.
r_ashok41
7 months ago
Yes as mentioned govt has become too much arrogant on matters which concern the aam aadmi .I think it is just a matter of time people will again mandate the earlier govt similar to upa II and also during earlier vajpayee second term .we as concerned citizens should all join together and send a petition to our PM stating the facts.
snehcs5
7 months ago
Request to allow using money life material in filing civil Writ in Hon’ble Delhi High Court
Dear sirs,
I am whistleblower , openly working (at great personal risk) to reduce corruption . I had reported more than Rs 20,000 Crore Tax evasion information to Income Tax and Indirect taxes.
My recent success was related to Hon’ble Delhi High Court . My Civil writ (DHC CW 7626/2021) and connected action will force , Hon’ble Delhi High Court to increase actual working Judge in Hon’ble Delhi High Court From 30 to 60. Hon’ble Chief Justice Delhi High Court has promised to do the needful on 30-9-2021 vide CW order. This action will result -Reduction in pendency in Courts and that will remove many ills in Society.
Now I come to my request .
I want to use money-life material - Government’s Refusal To Listen Leads to Repeated Embarrassment By Miss Sucheta Dalal dated 06 January 2022 in my Civil Writ in Hon’ble Delhi High Court in case related to Ministry of Corporate affairs.
Main duty of Companies act is two fold
First
to enable Citizen know financial details of commercial organization , so that they deal with them by knowing their financial details.
Second
To take actions against financial wrong doer by exception.
Actual Facts
On both of above , Ministry of Corporate Affairs is miserable failed. In facts , it looks , MCA is working against its objective with huge success.
Related to First Main Objective Proper Record keeping
I am financial investigator and in the Past I had pursued the matter with Previous MCA Secretary Mr. T S Krishnamurthy(who retired as Chief Election Commissioner) .
Facts stated to MCA
a During inspection upto 2012-13 , I had found in all metro City Registrar of Company – most of Company files(at ROC) had records given at the time of incorporation only . All records filed thereafter of even more than 60 years , were never placed on records.
b MCA (Read ROC) had ( still has) huge surplus from the fees paid by company/ citizen , but never utilized for the main purpose of record keeping.
C I had given records from United Kingdom Registrar of Companies to MCA (obtain free of cost – through online medium ) , but unable to get from ROC/ MCA even after payment of fees and ROC had records.
Previous MCA Secretary Mr. T S Krishnamurthy Response on Above from 2004 to 2006
MCA Secretary Mr. T S Krishnamurthy started MCA 21 project (copying UK project) , now Records filed by Company are online.
a First online filing (by Companies directly to MCA website) is for Fy 2005-06.
b MCA had destroyed all documents received prior to online filing (that were not place in respective files) – without putting them to their respective files. Destroyed document(without putting into respective file for inspection) are many Crore
C Online filing increased the compliance cost of Company . Now , Company has to pay fees to Professional to file return online.
d Companies face substantial difficulty in filing online returns , due to various MCA website software supplied inefficiency/ defect in software
And they had to pay hefty fees as penalty for late filing.
e Substantial records available on MCA website , like DIN (directors detail like address , phone number , e mail numbers) are not available to Public to take actions against directors.
f MCA is putting speed breakers putting -Like if they had done certain default , Company can not file Documents Like non submission of certain form 22, not verifying DIN number annually , not filing of two years one annual returns etc.

With relation to Second objects –(To take actions against financial wrong doer by exception) less said is better.
I had informed siphoning off fund of many Dehi Bases Leading Company to MCA / ROC , but they had not take any actions.
They are filing filing cases against small companies for their small offence of not filing of returns .
MCA can also upload Central co operative society data on web.
In the light of above , kindly permit me to use the your article mentioned above and other published earlier.

With regards
Your truly

CA RAKESH KUMAR GUPTA
Flat Number 301 , Block C2B Pocket 2
Golf Link Residency , Sector 18B Dwarka
New Delhi-110078, Mobile: 98110-79436.
E Mail : [email protected], [email protected]
vram2311
7 months ago
We need to strike a balance , we are a market driven economy . We need to support our local enterprises and also multinationals . Such unwarranted litigations are damaging and are detrimental to an investor mindset
sivakumar_go
7 months ago
They are puppets in the hands of the government.
steelsummit
7 months ago
When agencies feel that only actions against political opponents are recognised and rewarded the agenda for long term systematic correction/evolition is subverted .
aakashgoel
7 months ago
It will keep going on worse direction till 2024. And since party system is not going anywhere, because NOTA is not used by 'common citizen' viz ration card holders on 'peddled' fear of losing welfare entitlements, the fight for change is endless with change elusive.
sathya2011
7 months ago
This is sad
nitinmate.pune41
Replied to sathya2011 comment 7 months ago
The only option to fight against Government is Non Payment of each Tax for atleast 3 Months, such as GST, ADVANCE TAX, TDS, etc. For that purpose all Associations of tax professionals and as well as Trade Associations come together for this fighting against Government. When the government has not getting a single Rupee in way of Tax , then their eye's will open and they will discuss about problems of Tax Professionals.
nitinmate.pune41
Replied to sathya2011 comment 7 months ago
The only option to fight against Government is Non Payment of each Tax for atleast 3 Months, such as GST, ADVANCE TAX, TDS, etc. For that purpose all Associations of tax professionals and as well as Trade Associations come together for this fighting against Government. When the government has not getting a single Rupee in way of Tax , then their eye's will open and they will discuss about problems of Tax Professionals.
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