Income Tax Circular No: 04/2011 (19-Jul-11) Section 281 of the Income-Tax Act, 1961- Guidelines For Prior Permission U/s.281 to Create A Charge on the Assets of Business

 
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References have been received by the Board regarding issuance of guidelines for granting of prior permission u/s 281 of the IT Act, 1961 to transfer or create a charge on the assets of the assessee. The Board has considered the matter and in order to have uniformity on the issue, it has been decided that:

1. The taxpayers should apply in the prescribed form annexed hereto titled "Application u/s 281 of the IT Act, 1961" which would be available on the departmental website, as well as with the Assessing Officers.

2. The taxpayer would have to file the form at least thirty days prior to the proposed date of transaction.

3. The circumstances under which prior permission u/s 281 should be granted by the Assessing Officers are as follows:

(i) If there is no demand outstanding and there is no likelihood of demand arising in the next six months, then the permission should be granted.

(ii) If undisputed demand is outstanding and there is no likelihood of demand arising in next 6 months, then the taxpayer should pay the same along with interest due thereon and then permission should be granted.

(iii) If there is disputed demand outstanding, then the taxpayer should obtain stay for the same and indemnify the outstanding demand by way of bank guarantee or sufficient assets or by Department retaining the first charge on the assets proposed to be transferred or on which such charge is being created, to the extent of such demand. Thereafter, the permission u/s 281 would be granted by the A.O.

(iv) If demand is likely to arise in the next six month, then the A.O. should explore the possibility of action prescribed u/s 281B.

4. There would be only one level of intervention i.e., at the level of the range head for granting permission. The cases in which A.O. would require such approval would be where

(a) value of assets being transferred or on which charge is being created, or

(b) the amount of charge being created is Rs. Ten crores or more.

5. The timelines for granting/refusing permission u/s 281 by the A.O. are as follows:

(i) If there is no demand outstanding and there is no likelihood of demand arising in the next six months, then the A.O. should grant the permission within ten working days of the receipt of the application.

(ii) If undisputed demand is outstanding and there is no likelihood of demand arising in next 6 months, then the A.O. should grant permission within ten working days of payment as in para 3(ii) above.

(iii) If there is disputed demand outstanding and the taxpayer has obtained stay and indemnified the demand, then the A.O. should grant the permission within ten working days of the indemnification of the demand.

(iv) If demand is likely to arise in the next six months and the A.O. is considering actions prescribed u/s 281B for the assets excluding the asset under consideration, then the A.O. should grant the permission within fifteen working days of the receipt of the application.

(v) If the taxpayer does not pay the undisputed outstanding demand or his application for stay of disputed demand is rejected or he is unable to indemnify the outstanding demand, the application shall be disposed of within a period of ten working days. In case the permission is not being granted, a speaking and reasoned order conveying refusal would be issued with the approval of the Range head within ten working days of expiry of time given to the taxpayer to pay the undisputed demand or rejection of his stay application, as the case may be.

These time limits should be followed scrupulously by the A.Os.

6 The validity of the letter granting permission u/s 281 would be:

(i) One hundred and eighty days from the date of issue of approval, or

(ii) Service of order of attachment u/s 281B whichever is earlier.

7. Once the asset is transferred or charge is created, the taxpayer should submit the documents, in this regard, to the A.O. for his record.

8. This circular shall come into force with immediate effect.

Form I.T.N.S. 281  Application u/s 281 of IT Act, 1961 

DATE OF APPLICATION

To,

The Assessing Officer,

..

..

..

I/M/S. (name of the assesse in block letters) son/daughter of.do, hereby, request that permission may be granted under clause (ii) of the proviso to section 281 creating a charge on, or to part with the possession (by way of sale, mortgage, gift, exchange or any other mode of transfer whatsoever) of asset(s) given in D4 of Part D below in favour of person(s) to be mentioned in D1 of Part D below.

PART A - GENERAL PARTICULARS

A1 First Name  A2 Middle Name 
   
A3 Last Name  A4 SEX 
  Male  Female 
A5 Date of Birth/Date of Incorporation  A6 Designation of Assessing officer (Ward/Circle) 

A7 Flat/Door/Block No  A8 Name of Premises/Building/Village  A9R oad/Street/Post Office 
     
  A10 Area/Locality   
     
A11 Town/City/District  A12State  A13 Pin code 
     
A14E-mail Address    A15 Residential/Office Phone No. with STD Code 

A16 Mobile No. With Country Code  A17 Fill only one Resident Non-Resident Resident but not ordinarily resident   
A18 Fill Status (Only one) Individual HUF FIRM AOP/BOI Company Others 

PART B - POSITION OF OUTSTANDING DEMAND AS ON THE DATE OF APPLICATION

  Assessment Year  Demand Section  Outstanding Demand (In Rs.)  Particulars of stay of demand, if any  Remarks 
B1           
B2           
B3           
B4           
B5           
B6           
B7           
B8           
B9           
B10           

PART C - Particulars of land, building, machinery, plant, shares, securities and fixed deposits in banks, to the extent to which any of the assets aforesaid does not form part of the stock-in-trade of the business of the assessee as on the date of application

  Description of the Asset  Particulars of Place where Situated  Value of the Asset as Shown in the Books of Account as on the Date of Application (In Rs.)  Whether any Charge Exists in Part or Full on the Asset  Remarks [Please Indicate the Amount (in Rs.) of Charge Existing On the Asset] 
C1        YesNo   
C2        YesNo   
C3        YesNo   
C4        YesNo   
C5        YesNo   
C6        YesNo   
C7        YesNo   
C8        YesNo   

PART D - The particulars of the proposed transaction(s) transferring the assets/creating charge for which permission is sought

D1  Name of the Party/Parties with Whom Transaction is Proposed   
D2  Address of the Party/Parties with Whom Transaction is Proposed   
D3  PAN of the Party/Parties with Whom Transaction is Proposed   
D4  The Complete Particulars of the Assets Proposed to be Transferred or for which a Charge is to be Created   
D5  Expected Date of Transfer or Creation of Charge (DD/MM/YYYY)   
D6  The Period For Which Charge is being Created (If Applicable)   
D7  Any Other Information Considered Relevant by the Assessee   
D8  Nature of Transaction Creation of ChargeTransfer   
D9  How the assessee proposes to pay or indemnify the Income Tax Department for outstanding demand disclosed    
D10  Whether Credit Information Report (CIR) from Credit Information Bureau (India) Ltd. (CIBIL) is available   

  Yes  No  (if yes, attach a copy) 

VERIFICATION

I,. son/daughter of. holding permanent account number solemnly declare that to the best of my knowledge and belief, the information given in the proforma above is correct and complete. I further declare that I am submitting this application in my capacity as.. and I am also competent to make the return of income and verify the return of income.

Place

SIGN HERE   

APPLICATION U/S 281- INSTRUCTIONS

Instructions for Application u/s 281 of the IT Act, 1961

1. This form needs to be used by the taxpayer to seek permission from the Assessing Officer before creating a charge or parting with the possession of an asset. According to section 281, no taxpayer shall make a sale or mortgage or gift or exchange or any other mode of transfer of any asset in favour of any other person, during the pendency of any proceedings or after the completion of proceedings, but before service of notice under rule 2 of the Second Schedule. However, the following exceptions are provided in the Act:

The transfer is made for adequate consideration and without any notice of proceedings or pendency of tax

The previous permission of the Assessing Officer is obtained

The tax payable does not exceed Rs. 5000/- and the value of the asset does not exceed Rs. 10000/-

2. Asset means land, building, plant, machinery, shares, securities and fixed deposits in bank (other than Stock-in-trade)

3. " Previous Year" is the financial year (1st April to the following 31st March) during which the income in question has been earned. "Assessment Year" is the financial year immediately following the previous year.

4. Scheme of the Form

The form has been divided into four parts, the details of the same are provided below:

i. Part A seeks general information requiring identificatory and other data

ii. Part B seeks the position of outstanding demand as on the date of Application

iii. Part C seeks particulars of assets as on the date of application

iv. Part D seeks the particulars of the proposed transaction(s) transferring the assets/creating charge for which permission is sought

5. Item by Item Instructions

Part A

A1-A3: In case of Individual, fill your First name, Middle name and Last name in A1, A2 & A3 as per details entered in PAN Card. In any other case, use the space given in A1-A3 to fill the name of the person

A4: In case of Individual, indicate the Date of birth. In others, indicate the date of incorporation. The format should always be in DD-MM-YYYY

A5-A11: Fill in the communication Address. A11 -PIN CODE is mandatory to enable faster communications from/with the department

A12: Indicate your e-mail address

A13: Fill the STD...

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