Indian Tax Law

It was the practice of the East India Company to require its servants, before leaving England, to enter into a covenant wherein their privileges were recited, and their obligations were defined. This practice is continued up to the present time, each member of the Indian Civil Service being required to enter into a covenant with Her Majesty’s Secretary of State. Hence the use of the term “Covenanted” in connexion with the Civil Service.

- Footnote to page 10; Chapter II;
Report of the Public Service (Aitchison) Commission, 1886-87

The sixth Central Pay Commission Report.
It is a month now since the much awaited sixth Central Pay Commission has submitted their report. The circumstances under which the 6th CPC was set-up and the ‘terms of references’ given to it were no different from the previous five pay commissions (for example, Government’s intention to set up the first CPC was declared in February 1946 under threat of a Railway Strike, in February 2006 our present Prime Minister declared his Government’s intent to set up a CPC (sixth) under similar strike threat from the Central Government employees). But the content and recommendations of this new century pay Commission that are claimed to be different and responsive to the public opinion, has apparently created large-scale discontents among the ranks of civilian and military departments of the Government except for a small section of employees including the direct recruit Group ‘A’ officers.
The 6th CPC Report professes reduction of layers within the Governmental structure to expedite decision making and delivery, in the process proposing removal of a number of levels taken as unnecessary. It is claimed that the proposed substitution of the entire scheme of pay scales by a system of running pay bands, where the existing 35 pay scales have been replaced by 4 running pay bands (excluding -1S) containing 20 grades, has also been put to this effect. The report claims to have put in a system that primarily lays emphasis on delivery and end results and which continuously rewards performance using features like Performance Related Incentive Scheme (PRIS) and variable increments.
Further claim has been made that by incorporating systemic changes in the existing procedure of appointments, it is being tried to ensure a young and dynamic bureaucracy, with a result oriented approach, where the best persons available are selected for holding specific posts. But, the posts of Cabinet Secretary/equivalent and Secretary to Government of India/equivalent, i.e. the highest decision making posts, have been placed in distinct pay scales outside the purview of proposed performance incentives or new recruitment procedures. While proposing these changes, the Commission has also claimed to have kept in view the capacity of the Government to pay and observed the principle that every rupee spent on allowances, facilities and salaries of Government employees has to translate into a specific measure for public good.
In effect, the 6th CPC recommends;
(i) Stopping future recruitments in Gr. D posts;
(ii) New minimum : maximum pay ratio at 1:15.68 (claimed to be 1:12 in the report);
(iii) 5 (PB-1, PB-2, PB-3, PB-4 and IS-1 for Gr. D that is proposed to be abolished) pay bands divided into different grade pays are proposed to replace and reduce existing pay scales;
(iv) Out of 4 pay bands 1 each are marked for Gr. C (PB-1) and Gr. B (PB-2) and 2 pay bands (PB-3 & PB-4) are marked for Gr. A;
(v) PB-3 covers Gr. A posts up to that has present scale of 16400-20900 and PB-4 covers all posts from Senior Administrative Grades (SAG) onwards;
(vi) Unique fixation formula is given that equals basic pay as on 01/01/2006 x 174% + Grade Pay (40% of the upper limit of the corresponding existing scale),
(However, without any rationale the Grade Pays in PB-4 has been increased and fixations in the band have been given an additional benefits of Rs. 10014.00 to Rs. 24800.00);
The actual benefit to each existing Scales (Min. & Max.) as on 01/01/2006 are placed separately in Table 1 below.
(vii) while minimizing pay scales through its conversion to Grade Pay; out of 11 Gr. D and Gr. C scales 10 are converted to matching Grade Pays, 1 being given 3 scales jump to enter Group B grade pay;
(viii) in Group B, 6 pay scales converted into 4 grade pays; and
(ix) in Group A, 19 pay scales are converted to 11 Grade Pays and 2 fixed pays at the highest levels;
(x) in total there exists 27 Grade Pays (but claimed to be 20 by taking out 4 Gr. D Grade Pays, 2 fixed pays, and 1 common Grade Pay with different fixations for Gr. B & A);
(xi) Performance Related Incentive Schemes (PRIS) to replace existing overtime allowances and bonus schemes;
(xii) Increments proposed @ 2.5% with variable increments @ 3.5% for 20% of the officers at PB-3 band on the basis of performance; and
(xiii) For career advancement, Reservation of 10% of Gr. C, B posts for promotion through Limited Departmental Competitive Examination (LDCE) from the junior posts;
(xiv) Continuation of the existing 2 ACP scheme on cadre basis for Gr. C & B employees and unorganized Gr. A services;
(xv) Separate Flexible Compensation Schemes (FCS) and promotion schemes to continue for Scientists;
(xvi) Transparent deputation policy for Senior and Higher Administrative Grades (SAG/ HAG) posts as a measure of career advancement, recognizing large-scale stagnation in the Gr. A Services; and
(xvii) Lateral entry in some of the SAG/ HAG technical/ specialized posts but not encadred in any service to be recruited in a fixed tenure on a contract basis with provision of market driven salary.

Not all these recommendations of the 6th CPC are new or untested. Except for the pay band concept, most of the recommendations are either available in earlier Pay Commission Report(s) or, systems that once existed and practiced in the British/ undivided India and had failed and gradually discarded and replaced by the present pay and service practices one by one over the last century and quarter, being detrimental to the country’s interest.
At the same time, there are certain recommendations (in the 6th CPC Report) that seem pre-fabricated and defy either the historical findings or its own rationalization. Hence, it would not be an improper task to have a relook at the evolution of the enquiry Commissions on Pay and Service matters or the Pay Commissions in India and review the 6th CPC Report in the lights of the findings.
Evolution of Central Pay Commission in India.
The Report of the Public Service (commonly named after its President – Aitchison) Commission (1886-87) was the first organized effort to deal with and rationalize the pay and service matters of the (British) Indian Civil Services, separately attending and addressing the issues relating to Covenanted (Superior) and Uncovenanted (Subordinate) Services. At that time the Superior Services in British India were manned almost exclusively by Europeans known as the “Covenanted Services’’ and there was urgent political (increasing share of natives in the administration) and financial (high scales to Europeans was burdening the country’s finances) need for Indianisation of these Services. Public opinion was also in favour of Indianisation. But not much public attention was paid to the Uncovenanted or Subordinate Services.
The Aitchison Commission made recommendations in respect of both the Covenanted and the Uncovenanted Services, suggesting transfer of some of the appointments/ posts under the Imperial Civil Services to a new local service viz. “Provincial Civil Service”, to be recruited in each Province, and also suggesting a lower service (below the Provincial Civil Service), to be called the “Subordinate Civil Service”. The status of the Provincial Civil Service, it was held, should equal similar posts of the Imperial Civil Service.
However, the recommendations of Aitchison Commission were not implemented in the right spirit or manner as was expected in the report. Though Government of India approved the report in general, the Secretary of State (British Government) while approving it found the proposals regarding Covenanted and Uncovenanted services which involved fresh legislation were inadvisable and unnecessary. Hence when ‘Royal Commission on the Public Services in India (1912-15)’, commonly known by its Chairman’s name ‘Islington Commission (1912-15)’ was appointed a part of the unresolved/ unattended issues of the Aitchison Commission fell upon them to be addressed properly.
The Islington Commission explored the possibilities of wider employment of Indians the superior services and proper method of their recruitment, and recommended grouping of the services in three heads;
(1) Those which in their opinion required a preponderating proportion of British officers (e.g., the Civil Service and the Police), for which recruitments were recommended to be continued exclusively in England.
(2) those services in which it was thought desirable that there should be an admixture of both Western and Eastern elements (e.g., education. military. finance, medicine, telegraph engineering, railways and survey of India), for which recruitments were recommended to be held both in England and India.
(3) the scientific and technical services where they held that there were no special reasons for having a large number of officers recruited from Europe, for which Commission recommended that recruitments be made in India for normal requirements.
The Commission recommended equal treatment in pay and status for Indian officers with their European counterparts. Salaries were discussed at length and while refraining from making specific recommendations for pay increase, the Islington Commission laid down a broad principle that Government should determine pay in a manner to recruit right and talented candidates and to provide them such degree of comfort and dignity that guard them from temptation and keep them efficient for the term of their service.
The Commission considered that the expression “Provincial Service” was misleading when applied to persons holding office in departments directly under the control of the Central Government and doing the same kind of work as was done by members of the Imperial Service. They accordingly recommended the amalgamation of the Imperial and Provincial Sections into a single Service.
Parallelly, they recognized existence of certain work, which, though less important, cannot be performed by a subordinate officer, at the same time to recruit an additional higher officer will be expensive to do the job. In such circumstances, they recommended two services or two classes of one service with the lower service or class to occupy a position inferior to that of the higher one. In the result, they suggested that over and above the subordinate services there should be two classes in the services under the Government of India to be described as Class I and Class II. The nomenclature, Class I and Class II are, however, actually being used only since 1926 around.
As for the ‘subordinate’ or ‘inferior’ services, fewer evidences are available on fixation and adjustment of salaries of this lower paid segment of the Government. Though enough evidences are available that the salaries of these employees were being readjusted time to time to changing social or economic conditions. A Salaries Commission appointed in Bengal in 1884 (to consider the strength of ministerial establishments) recommended twenty grades of fixed salary starting from Rs. 20 and going up to Rs. 250. It is often reported that a general feeling of ‘large staff on less pay’ for Government Services existed in the country, which fortunately was not regularly accepted by the appointed Committees. In 1908 a Committee presided by Sir James Meston looked into the salaries of the clerks working in the Central Secretariats. The Meston Committee while recommending higher scales for Clerks working in the Secretariat, specially recommended grant of Gazetted Status to Superintendents, who according to them were repositories of experience and tradition of their respective departments, analogous to senior members of permanent civil services in England.
The working of the First Central Pay Commission (1947) was greatly influenced and guided by the three aforementioned reports (apart from Sir Tenant Sloan’s examination report (1933) on the Indian Retrenchment Committee (1922-23) report) to determine its principle and perspective and also in developing its recommendations.
The 1st CPC recommended change of nomenclature of Subordinate and Inferior categories to Class III and Class IV services. Further it opined for revision of existing Class II Services with some services being promoted to Class I and some lowered to Class III.
The existing disparity between the minimum and maximum scales in the public services was recognized for the first time and recommendations for minimum pay was made on the basis of ‘living wage’ irrespective of its outside comparability and maximum pay was fixed at Rs. 2000.00. The need for Dearness Allowances was also accepted. Most of the allowances (including overtime allowance) were specifically recommended. The Commission further recommended for consultative machinery (later developed to Joint Consultative Machinery by the 2nd CPC) that excludes Class I & II Services and also for an arbitration mechanism.
But most importantly, the Pay Commission accepted the principle of ‘equal pay for equal work’ that continued to be prime principle in our country in the matter of determination of pay in Government Services.

The Report of the Commission of Enquiry on Emoluments and Conditions of Service of Central Government Employees [second Central Pay Commission] (1957-59) was pioneering in acknowledging the ‘principle of fair comparison’ principle in pay determination and further to recommend Government’s role as the ‘model employer’ if not for emoluments, at least in the matter of conditions of work and employment practices.
The promotion policy for the Class II posts was kept open for the departments to decide whether that can be given direct to senior time scale. The Commission further recommended a system of promotion by a special limited competitive examination to provide young officers in Class II and Class III services an additional opportunity to enter any of the Class I or Class II services to which there is direct recruitment by a competitive examination.
The third Central Pay Commission (1973) Report maintained the trends set by the 1st and 2nd CPCs and further acknowledged that a pay structure should be inclusive, comprehensive and adequate in addition to being fairly simple and rational. However, the 15th ILC norms for fixation of minimum wage were accepted by the Commission only after a fair amount of modifications. It was the 3rd CPC that replaced the existing classification of services as classes (I,II,II & IV) by groups (A,B,C & D) that continues till date.
Further, while accepting that there are intractable difficulties in directly relating pay with productivity for the bulk of the Government employees the 3rd CPC emphasized that stronger links should be forged than were prevalent between the performance of a Government employee and the pay he draws, thus indicating towards a ‘performance relation’ with pay.
The 3rd CPC also recommended lateral entry into Class I services (but not on contract basis).
The fourth Central Pay Commission (1986) had ultimately brought down the minimum : maximum pay ratio to 1:10.7, which was continued to be maintained by the fifth Pay Commission (1997).
The 5th CPC Report had claimed to be prepared for the 21st Century and made recommendation for several major governmental initiatives over the last decade including the ‘Right to Information Act’. After submission of the 6th CPC report, which is incomplete in many ways in comparison to the previous five reports, the 5th CPC Report would continue to be a guiding book for determining principles of service conditions.
Concluding Remarks.
The above narration of events represent that different Pay Commissions had judged issues differently, mostly in agreement with the extant political, social and economic situation of the country. But in certain areas all these pay and service reports generally since the Aitchison Commission (1886-87) and more precisely since the 1st Central Pay Commission (1947) held a common thread and maintained a specific trend.
Such areas may be distinctly marked as;
(a) Government service is a ‘service’ to the nation, best performed by the nationals and not mercenaries.
(b) Equal Pay for Equal Work.
(c) Experience has a value in government service that calls for employment in higher offices through promotion.
(d) Services other than ‘Covenanted’ or ‘Class I’ services have their own role and importance in dissemination of Government work.
(e) And that such Uncovenanted/ non-Class I officers should be given an equal service facilities and opportunities (for career advancement).
(f) Performance has a value in Government service, but it being difficult to measure for Government services; other modes are to be employed to decide the pay of a government servant.
(g) Rationalization of minimum : maximum pay ratio, through multipliable increase in the pay for the lower categories in comparison to the highest ones.
For one reason or the other the 6th CPC has preferred to deviate from each of these values and instead with a thin Group A based (17 member – most of them Group A officers) organization it has submitted a Report that is best called ‘for the Group A’ ‘by the Group A’ ‘of the Group A’. This is evidenced in every segment of their report, on pay, promotion and other service conditions, which is biased in favour of Group A recruits and thus trying to initiate a divisionist personnel policy in the Central Government administration, comparable only to the pre-Aitchison Commission period in the form of the ‘Covenanted’ services.

Tirthankar Pyne (views expressed are personal)
The Author is Superintendent of Central Excise . He may be contacted at tirtha32@gmail.com

Arun Shourie, former Union minister for divestment, statistics and programme implementation said ,'The Fifth Pay Commission (set up in 1994) recommendations resulted in a Rs 530 billion payout by the government. The next (sixth) pay commission would effectively wind up Indian sovereignty.'
Bibek Debroy, secretary general, PHDCCI opined ,"We must scrap Pay Commissions' Even World Bank held the Fifth Pay Commission as the 'single largest adverse shock' to India's strained public finances.

Indian Inc in general think it is a disastrous move and most untimely especially when stock market is on on fire, the economy is booming and global heavyweights bullish on India but then .how can central and state government employees' salaries remain stagnant when India is booming?

Well let us first discuss dark side of the story or the corporate perspective on this govt bonanza.

The result: Before the Fifth Pay Commission recommendations came into effect, the central government's wage bill (including pension dues of Rs 50.94 billion) stood at Rs 218.85 billion in 1996-1997.It shot up by nearly 99 per cent to Rs 435.68 billion in 1999-2000.The wage bill of the state govts went up by 74 per cent to Rs 898.13 billion in 1999 from Rs 515.48 billion in 1997.At present, almost 90 per cent of a state's revenues goes in paying salaries. The impact of the Fifth Pay Commission was so brutal that some 13 states did not have money to pay salaries in 2000.

States like West Bengal, Bihar, Orissa, Assam, Manipur, Meghalaya and Mizoram sought a mechanism under which the Centre could not announce a pay revision without consulting the states.They also sought the Centre's help in offsetting the impact of the Fifth Pay Commission and a national wage policy to replace pay commissions.

But did the Fifth Pay Commission just recommend hiking salaries of government employees only .No and therein lies the problem. Some of the Fifth Pay Commission's other recommendations included slashing the government workforce by 30 per cent; abolishing 350,000 vacant posts and reducing the number of pay scales from 51 to 34, none of which were implemented.

Other side of the story is that the govt wants compensation -it must be benchmarked vis-à-vis the private sector. A finance ministry notification said the govt has been considering for sometime the changes that have taken place in the structure of emoluments of its employees over the years. Conditions have also changed in several respects since the last Pay Commission submitted its report in 1997.

With this notification, decks have also been cleared for setting up of the committee to review the pay structure of PSU employees, officials. However, it should be made clear.

However, any revised pay packet for PSU employees will not put burden on the govt exchequer since only those public paying capacity will be increasing salaries of its staff. Terms of reference has left out judicial services and political (public) servants and banking services based on equation with a govt posts. Govt apprehends huge expenditure which is wrong.

The difficulty for govt is that compensation at the senior levels is hopelessly uncompetitive while that at the bottom is often supeior to market levels.

The fears that that Sixth Pay Commission will deal a severe blow to public finances of the sort dealt by the Fifth Pay Commission ,are exaggerated. First, it is not true that it was the Fifth Pay Commission that devastated public finances. Out of the increase in the combined fiscal deficit of the Centre and the states of about 3.5 percentage points in the nineties, the Fifth Pay Commission award accounted for only one percentage point. Tax reductions and increase in interest rates did most of the damage.

It would be logical not to be judgmental about the effect of the commission already as in 10 years Indian economy has under grown a sea change . Now its bigger and more resilient .Commission would definitely learn from the last one's and derive its view . There is no denying the fact there exist a lot of disparity in the pay scales which need redressed . Public opinions have been sought in govt webiste http://finmin.nic.in and http://india.gov.in

Well as for the revenue department pay hike is an urgent necessity to stem the rot of corruption and also especially for the honest officers who are struggling hard to meet the ends meet with pay packets only vis-a vis the luxurious life style of their colleagues .

Gone are the days you can treat it just like any other easily obtainable another govt identification card . It is a tremendous too for the tax department to track your financial transactions thanks to the information technology and govt's will to use it to optimum use.

However the requirement of declaring or even obtaining PAN under Section 139(5A) will not apply to a person whose income is not taxable. All he has to do is furnish a declaration under Section 197A in Form 15G/15H that tax on his income will be nil.

But then ,except for senior citizen any person, whose aggregate income from dividend, interest, withdrawal of deposits with NSS and income in respect of units exceeds the basic exemption limit cannot furnish Form 15G for non-deduction. Violation of section 139 and section 197 may attract fine of Rs 10,000 for each default or failure. So you can afford to take it lightly . But actual threat is much bigger and all encompassing .With this single identifier tax sleuths can hunt down any all your transaction and even all other related financial activities.

Let us just have a glimpse of cases where we need to declare our PAN which in itself clarify my point that PAN has brought in silent revolution in tax assessment and IT governance.

1) All returns, quarterly statements, challans or correspondence with the income tax authorities should include the PAN. It is necessary to quote the PAN in documents related to the following transactions:

2) Opening a bank account.

3) Application for issue of a credit card.

4) A cash deposit of Rs 50,000 or more with any bank during any one day.

5) Contract of sale or purchase of securities exceeding Rs 1 lakh in value, including shares, bonds, debentures, derivatives, units and government securities.

6) Cash payment of Rs 50,000 or more for purchase of bank drafts, pay orders or bankers cheques during any one day.

7) Cash payment exceeding Rs 25,000 in connection with travel to any foreign country (fare or purchase of foreign currency).

8) Application for installation of telephone, including cellular telephone.

9)Payment to hotels and restaurants against bills exceeding Rs 25,000 at any one time.

10) Sale or purchase of immovable property valued at Rs 500,000 or more. If there are co-owners (buyer or seller), the PAN of both the owners will have to be mentioned. If a nominee holds the property, the PAN of the legal owner must be mentioned.

11) Sale or purchase of a motor vehicle requiring registration other than two-wheelers.

12) A time deposit of more than Rs 50,000 with any banking company and deposit of more than Rs 50,000 with post-office savings bank. This requirement is not mandatory when investing in post-office National Savings Certificate or Kisan Vikas Patra, and the PAN will be required only if the time deposit exceeds Rs 50,000.

13) Payment of Rs 50,000 or more to a mutual fund for purchase of units or to a company for acquiring its shares or to a company/institution for acquiring its debentures/bonds or to RBI for acquiring bonds.

14) Minor intending to open time deposit or bank account should quote the PAN of either father or mother or guardian in whose hands income is likely to be clubbed.

15) Any person (other than non-residents) who receives any sum or income or amount from which tax has been deducted must provide the PAN to the person/organisation that has deducted tax at source as per Section 139(5A).

16) Buyer of specified goods like alcoholic liquor, tendu leaves, timber, forest produce and scrap for trading and every licensee or lessee of parking lots, toll plazas, mines or quarries, has to provide the PAN to the seller/licensor.

17) Any person who has deducted tax at source must quote the PAN of the payee in all the TDS certificates, TDS returns and statements of perquisites and profits in lieu of salary (Section 139(5).

Never ending vicious lunatic cycle where we all got caught in some where .

Indian Judiciary is framed after British system of justice where benefit of doubts goes in the favour of guilty as no one can be pronounced guilty without hard evidence both in civil as well as corporate legal system..
In the judicial system of Indian tax law scope is much more to get exonerated through the maze of technicalities and bar of limitation .Further , burden of proof is always being on the Department more often than not department lack to provide fool proof documents in support of their charge .Hence although there are thousands of cases where charges are based on obvious reasons but could not stand the test unleashed by the hard core professional lawyers who have expertised in identifying lapse of departmental inquiry and framing of charges.
Golden example is the stock variance in a manufacturing unit . Most of these cases made by Central Excise departments got unkind beating at floor of tribunal all over India because no malafide on part of the assessee could be established .merely for stock shortage in absence of any corroborative evidence of clandestine removal
Even if a truck load of manufactured goods are caught in road by the officers with out any duty paying documents it could easily be proved that it was mistake on the part of the excise clerk who had issued the invoice afterwards and had it sent by post to the consignee .So words like ' assumption',' presumption',' obvious' have no place in the Indian Judiciary .
Govt loses thousands of crores in cases barred by limitation which means department either fail to prove any malafide on part of the assessee so that longer period of 5 years could be invoked or where there is no such malafide involved but duty was not paid or less paid only , failed to frame charge or issue show cause within a stipulated period of 1 year.
Tax department are there fore always on the alert to issue show cause notice even if there is no case in order to avoid getting time barred or invoke longer period mindlessly even if there is no malafide intention of the assessee to save their skin resulting in piling of thousands of cases at the tribunals .
Its an unsolved puzzle of its own kind where parties are Govt with its pretending revenue biasness and blind porous Indian judicial system
Tarun Majumder