Clarifications on Tax Compliance for Undisclosed Foreign Income and Assets

                Circular
No. 13 of 2015

 

F. No. 142/18/2015-TPL

 

Government of India

Ministry
of Finance

 

Department of Revenue

Central
Board of Direct Taxes

 

(TPL Division)

 

***

 

Dated 6th of July, 2015

 

Clarifications on Tax Compliance for
Undisclosed Foreign Income and Assets

 

The Black Money
(Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015
(hereinafter referred to as ‘the Act’) has introduced a tax compliance
provision under Chapter VI of the Act. The Black Money (Undisclosed Foreign
Income and Assets) and Imposition of Tax Rules, 2015 (hereinafter referred to
as ‘the Rules’) have been notified. In regard to the scheme queries have been
received from the public about the scope of the scheme and the procedure to be
followed. The Board has considered the same and decided to clarify the points
raised by issue of a circular in the form of questions and answers as follows.-

 

Question No.1:         If
firm has undisclosed foreign assets, can the partner file declaration 
in respect of such asset?

 

Answer:                     The declaration can be made by the firm which shall be signed
by the person specified in sub-section (2) of
section 62 of the Act. The partner 
cannot make a declaration in his name.
However, the partner may file 
a declaration in respect of an undisclosed
asset held by him.

 

Question No.2:         Where  a  company 
has  undisclosed  foreign 
assets,  can  it 
file  a 
declaration  under 
Chapter  VI  of  the  Act? 
If  yes,  then 
whether 
immunity would be granted to Directors of
the company?

 

Answer:                     Yes, the company can file a declaration under Chapter VI of the
Act.  The
Directors of the company shall not be liable for any offence under 
the
Income-tax Act, Wealth-tax Act, FEMA, Companies Act and the 
Customs  Act 
in  respect  of 
declaration  made  in  the
 name 
of  the company.

 

Question No.3:         Whether immunity in respect of declaration made under the
scheme is 
provided in respect of Acts other than
those mentioned in section 67 
of the Act?

  

Answer:                     Section 67 provides immunity from prosecution under the five
Acts viz. the Income-tax Act, Wealth-tax Act,
FEMA, Companies Act and  the Customs Act. It does not provide
immunity from prosecution under any other Act. For example- if the
undisclosed asset has been acquired out of the proceeds of sale of
protected animals the person will not be eligible for immunity under
the Wildlife (Protection) Act, 1972.

 

Question No.4:         Whether  the  person 
making  the  declaration 
will  be  provided 
immunity from the Prevention of Money
Laundering Act, 2002?

 

Answer:                     The  offence  under 
the  PMLA  arises 
while  laundering  money generated from the process or activity
connected with the offences  specified 
in  the  schedule 
to  the  PMLA. 
Therefore,  the  primary requirement under PMLA is commission of a
scheduled offence. With the enactment of the Act, the offence of
wilful attempt to evade tax under section 51 of the Act has become a
scheduled offence under PMLA. However, where a declaration of an
asset has been duly made under section 59 of the Act the provisions
of section 51 will not be applicable 
in  respect  of 
that  asset.  Therefore, 
PMLA  will  not  be applicable in respect of the scheduled
offence of wilful attempt to evade tax under section 51 of the Act in respect
of assets for which declaration is made under section 59 of
the Act.

 

Question No.5:         Where an undisclosed foreign asset is declared under Chapter VI
of 
the Act and tax and penalty is paid on its
fair market value then will
 

the declarant be liable for capital gains
on sale of such asset in the 
future? 
If  yes,  then 
how  will  the 
capital  gains  in 
such  case  be 
computed?

 

Answer:                     Yes, the declarant will be liable for capital gains under the
Income-tax Act on sale of such asset in future. As
per the current provisions of  the Income-tax Act, the capital gains is
computed by deducting cost of acquisition from the sale price. However,
since the asset will be taxed at its fair market value the cost of
acquisition for the purpose of Capital Gains shall be the said fair
market value and the period of holding shall start from the date of
declaration of such asset under Chapter VI of the Act. 

Question No.6:         Where
a notice under section 142/ 143(2)/ 148/ 153A/ 153C of the 
Income-tax Act has been issued to a person
for an assessment year 
will he be ineligible from voluntary
declaration under section 59 of 
the Act?

 

Answer:                     The person will only be ineligible from declaration of those
foreign assets which have been acquired during the
year for which a notice under 
section  142/  143(2)/ 
148/  153A/  153C 
is  issued  and 
the proceeding is pending before the Assessing
Officer. He is free to declare other foreign assets which have
been acquired during other years for which no notice under above
referred sections have been issued.

 

Question No.7:         As  per  section 
71(d)(i),  declaration  cannot 
be  made  where 
an 
undisclosed  asset 
has  been  acquired 
during  any  previous 
year 
relevant to an assessment year for which a
notice under section 142, 
143(2), 148, 153A or 153C of the
Income-tax Act has been issued. If the 
notice has been issued but not served on
the declarant then how will 
he come to know whether the notice has
been issued?

 

Answer:                     The declarant will not be eligible for declaration under
Chapter VI of the Act where an undisclosed asset has
been acquired during anyprevious year relevant to any assessment
year where a notice under section 142, 143(2), 148, 153A or 153C of the
Income-tax Act has been issued and served on the declarant on or before 30th day of June, 2015.The declarant is required to file a
declaration regarding receipt of any such notice in Form 6. 

 

Question No. 8:        Where
an undisclosed foreign asset has been acquired partly during a 
previous year relevant to the assessment
year which is pending for 
assessment and partly during other years
not pending for assessment 
then whether such asset is eligible for
declaration under Chapter VI 
of the Act?

 

Answer:                     In  the  case 
where  proceedings  are 
pending  before  an 
Assessing Officer in pursuance of a notice under
section 142, 143(2), 148, 153A or 153C 
of  the  Income-tax 
Act  served  on 
or  before  30-06-2015, 
the declarant may declare the undisclosed
asset under Chapter VI of the Act. 
However,  while  computing 
the  amount  of 
declaration  the investment made in the asset during the
previous year relevant to the assessment year for which such notice is
issued needs to be deducted from the fair market value of the asset
for which the person shall provide 
a  computation  alongwith 
the  declaration.  Further, 
such investment which is deducted from the fair
market value shall be assessable in the assessment of the
relevant assessment year pending under the Income-tax Act and the person shall inform the
Assessing Officer the investment made during the
relevant year in such asset. 

Also to clarify, where a notice under
section 142, 143(2), 148, 153A or 153C of the Income-tax Act  is issued 
on  or  after 
30-06-2015, the declarant shall be eligible to declare
full value of asset even if such asset (or part of such asset) is acquired
in the previous year relevant to the assessment year for which such
notice is issued.

 

Question No.9:         Can
a declaration be made of undisclosed foreign assets which have 
been assessed to tax and the case is
pending before an Appellate 
Authority?

 

Answer:                     As per section 65 of the Act, the declarant is not entitled to re-open any assessment or reassessment made under
the Income-tax Act.  Therefore, he is not entitled to avail the
tax compliance in respect of those assets. However, he can voluntarily
declare other undisclosed oreign assets which have been acquired or
made from income not disclosed and consequently not assessed
under the Income-tax Act.

 

Question No.10:       Can a person against whom a search/ survey operation has been initiated file voluntary declaration under
Chapter VI of the Act?

 

Answer:                     (a) The person is not eligible to make a declaration under
Chapter VI if a search has been initiated and the
time for issuance of notice under  

section 153A has not expired, even if such
notice for the relevant assessment year has not been issued. In
this case, however, the person is eligible to file a declaration in
respect of an undisclosed foreign asset acquired in any previous year in
relation to an assessment year which is prior to assessment years
relevant for the purpose of notice under section 153A. 

(b) In case of survey operation the person
is barred from making adeclaration  under 
Chapter  VI  in 
respect  of  an 
undisclosed  asset acquired in the previous year in which the
survey was conducted.  The person is, however, eligible to make a
declaration in respect of an undisclosed asset acquired in any other
previous year. 

Question
No. 11: Where a search/ survey operation was conducted and the assessment has
been completed but the undisclosed foreign asset was not taxed, then whether
such asset can be declared under Chapter VI of the Act?
 

Answer:Yes, such undisclosed asset can be
declared under Chapter VI of the Act.

 

Question
No.12: Whether a person is barred from voluntary declaration under Chapter VI
of the Act if any information has been received by the Government under DTAA?

 

Answer:As per section 71(d)(iii), the person
cannot make a declaration of an undisclosed foreign asset where the Central
Government has received an information in respect of such asset under the DTAA.
The person is entitled for voluntary declaration in respect of other
undisclosed foreign assets for which no information has been received.

 

Question
No.13: How would the person know that the Government has received information
of an undisclosed foreign asset held by him which will make the declaration
ineligible?

 

Answer:The person may not know that the
Government has information about undisclosed foreign asset held by him if the
same has not been communicated to him in any enquiry/proceeding under the
Income-tax Act. After the person has filed a declaration, which is to be filed
latest by 30th September, 2015, he will be issued
intimation by the Principal Commissioner/Commissioner by 31th October, 2015, whether any information has been received by
the Government and consequently whether he is eligible to make the payment on
the declaration made. If no information has been received up to 30th June, 2015 by the Government in respect of such asset the
person will be allowed a time upto 31st December, 2015 for payment of tax and
penalty in respect of the declared asset.

 There may be a case where person makes
declaration in respect of 5 assets whereas the Government has information about
only 1 asset. In such situation the person will be eligible to declare the
balance 4 assets under Chapter VI of the Act. In such case the declarant, on
receipt of intimation by the Principal Commissioner/Commissioner, shall revise
the declaration made within 15 days of such receipt of intimation to exclude the asset which is
not eligible for declaration. 

 

Tax and penalty on the eligible assets
under the Act shall be payable in respect of the revised declaration by
31 st  of December, 2015. In respect of the ineligible assets
provisions of the Income-tax Act shall apply. (Please also see answer to question
no. 15)

 

Question No.14:       What
are the consequences if no declaration under Chapter VI of the 
Act is made in respect of undisclosed
foreign assets acquired prior to

 the commencement of the Act?

 

Answer:                     As per section 72(c), where any asset has been acquired prior
to the commencement of the Act and no declaration
under Chapter VI of the 

 

Act is made then such asset shall be
deemed to have been acquired in the year in which it comes to the notice
of the Assessing Officer and  the provisions of the Act shall apply
accordingly. India is expected to start receiving
information through Automatic Exchange of Information (AEOI) route under
FATCA from USA later in the year 2015. Further, under the
multilateral agreement India will start receiving information from other
countries under AEOI route from 2017 onwards. As at 18th March 2015, 58 jurisdictions (including India) have committed to share information
under AEOI by 2017 and  36 
jurisdictions  have  committed 
to  share  by 
2018,  including jurisdictions  which 
have  beneficial  tax 
regime.  The  multilateral agreement is expected to cover all the
countries in the near future. The 
information  under  the 
AEOI  will  include 
information  of controlling persons (beneficial owners) of
the asset. The possibility of discovery of an undisclosed asset may
arise at any time in the future; say 
for  example,  information 
of  an  immovable 
property  can  be unearthed 
if  any  utility 
bills/property  tax  or 
even  gardener’s/ caretaker’s salary has been paid through
an existing or closed bank account. Therefore, if any information of
an undisclosed foreign asset acquired earlier, say in the year 1975,
for $ 100,000 comes to the notice of an Assessing Officer later, say in the
year 2020, when its value becomes, say, $ 5 Million, the liability
under the Act amounting to 120 percent of the fair market value of the asset on the valuation
date may arise in the year 2020, besides
prosecution and other consequences. In this case if the valuation date is in the
year 2020 the amount of tax and penalty under the Act will be $ 6 Million.

 

Question No.15:       If a
declaration of undisclosed foreign asset is made under Chapter VI 
of the Act and the same was found
ineligible due to the reason that 
Government
had prior information under DTAA then will the person 
be liable for consequences under the Act?

 

Answer:                     In respect of such assets which have been duly declared in good
faith under the tax compliance but not found
eligible, he shall not be hit by section 72(c) of the Act and no action
lies in respect of such assets under 
the  Act.  However, 
such  information  may  be
 used 
for  the purpose of the Income-tax Act.

 

Question No.16:       In respect of the undisclosed foreign assets referred to in
answer to 
question No. 15 above, where the
proceedings under the Income-tax 
Act are initiated, can the options of
settlement commission etc. under 
the Income-tax Act be availed in respect
of such assets?

 

Answer:                     All the provisions of the Income-tax Act shall be applicable in
respect of those assets. 

 

Question No.17:       A person has some undisclosed foreign assets. If he declares
those 
assets in the Income-tax Return for
assessment year 2015-16 or say 
2014-15 (in belated return) then should he
need to declare those assets 
in the voluntary tax compliance under
Chapter VI of the Act?

 

Answer:                     As per the Act, the undisclosed foreign asset means an asset
which is unaccounted/ the source of investment in
such asset is not fully explainable. Since an asset reported in
Schedule FA does not form part of computation of total income in the
Income-tax Return and consequently does not get taxed, mere
reporting of a foreign asset in Schedule 
FA  of  the 
Return  does  not 
mean  that  the 
source  of investment in the asset has been
explained. The foreign asset is liable to be taxed under the Act (whether
reported in the return or not) if the source of investment in such asset is
unexplained. Therefore, declaration should be made under Chapter
VI of the Act in respect of all 
those  foreign  assets 
which  are  unaccounted/ 
the  source  of all 
those  foreign  assets 
which  are  unaccounted/ 
the  source  of investment in such asset is not fully
explainable.

 

Question No.18:       A person holds certain foreign assets which are fully explained
and 
acquired out of tax paid income. However,
he has not reported these 
assets in Schedule FA of the Income-tax Return in the past.
Should he 
declare such assets under Chapter VI of
the Act?

 

Answer:                     Since,  these  assets 
are  fully  explained 
they  are  not 
treated  as undisclosed foreign assets and should not
be declared under Chapter  VI of the Act. However, if these assets
are not reported in Schedule FA of the Income-tax Return for assessment
year 2016-17 (relating to previous 
year  2015-16)  or 
any  subsequent  assessment 
year  by  a person, being a resident (other than not
ordinarily resident), then he shall be liable for penalty of Rs. 10
lakhs under section 43 of the Act. The penalty is, however, not applicable in
respect of an asset being one or more foreign bank accounts having
an aggregate balance notexceeding an amount equivalent to Rs. 5
lakhs at any time during the previous year.exceeding an amount equivalent to Rs. 5
lakhs at any time during the previous year.

 

Question No.19:       A
person has a foreign bank account in which undisclosed income has 
been deposited over several years. He has
spent the money in the

 account over these years and now it has a
balance of only $500. Does 
he need to pay tax on this $500 under the
declaration?

 

Answer:                     Section 59 of the Act provides for declaration of an
undisclosed asset and not income. In this case the Bank
account is an undisclosed asset 

which may be declared. Tax on undisclosed
asset is required to be paid on its fair market value. In case of
a bank account the fair market  value is the sum of all the deposits made
in the account computed in accordance with Rule 3(1)(e). Therefore,
tax and penalty needs to be paid on such fair market value and not on
the balance as on date.

 

Question
No. 20:    A person held a foreign bank
account for a limited period between 
1994-95 and 1997-98 which was unexplained.
Since such account was
 

closed in 1997-98 does he need to declare
the same under Chapter VI 
of the Act?

 

Answer:                     Section 59 of the Act provides that the declaration may be made
of any undisclosed foreign asset which has
been acquired from income 

which has not been charged to tax under
the Income-tax Act. Since the investment in the bank account was unexplained and was from untaxed income the same may be declared
under Chapter VI of the Act. The consequences of non-declaration
may arise under the Act at any time in the future when the
information of such account comes to the notice of the Assessing Officer.the notice of the Assessing Officer

 

Question No.21:       A
person inherited a house property in 2003-04 from his father who is 
no more. Such property was acquired from
unexplained sources of investment. The property was sold by the person in
2011-12. Does he need to declare such property under Chapter VI of the Act and
if yes then, what will be the fair market value of such
property for the purpose of declaration?

 

Answer:                     Since the property was from unexplained sources of investment
the same may be declared under Chapter VI of
the Act. However, the  declaration in this case needs be made by
the person who inherited the property in the capacity of legal representative of his
father. The fair market value of the property in his
case shall be higher of its cost of acquisition and the sale price as per
Rule 3(2) of the Rules.

 

Question No.22:       A
person acquired a house property in a foreign country during the 
year 2000-01 from unexplained sources of
income. The property was

sold in 2007-08 and the proceeds were
deposited in a foreign bank 
account. Does he need to declare both the
assets under Chapter VI of 
the Act and pay tax on both the assets?

 

Answer:                     The declaration may be made in respect of both the house
property and the bank account at their fair market
value. The fair market value 

of the house property shall be higher of
its cost and the sale price, less amount deposited in bank account. If the
cost price of the house property is higher the declarant will be required  to pay tax and penalty on (cost price – sale price) of
the house. If the sale price of the house property is higher the fair market
value of the house property shall be nil as full amount was deposited
in the bank account. The fair market value of the bank account shall be
as determined under Rule 3(1)(e) and tax and penalty shall be paid
on this amount. (Please also refer to the illustration under Rule 3(3)
for computation of fair market value.)

 

Further, it is advisable to declare all
the undisclosed foreign assets even if the fair market value as computed
in accordance with Rule 3 comes to nil. This may avoid initiation of
any inquiry under the Act in the future in case such asset comes to the
notice of the Assessing Officer.

 

Question No.23:       A person is a non-resident. However, he was a resident of India earlier and had acquired foreign assets
out of income chargeable to 
tax in India which was not declared in the
return of income or no 
return was filed in respect of that
income. Can that person file a 
declaration under Chapter VI of the Act? 

Answer:                     Section 59 provides that a declaration may be made by any
person of an undisclosed foreign asset acquired from
income chargeable to tax

under the Income-tax Act for any
assessment year prior to assessment year 2016-17. Since the person was a
resident in the year in which he had acquired foreign assets (which were
undisclosed) out of income chargeable to tax in India, he is eligible
to file a declaration under section 59 in respect of those assets
under Chapter VI of the Act.

 

Question No.24:       A person is a resident now. However, he was a non-resident
earlier 
when he had acquired foreign assets (which
he continues to hold now)

 out of income which was not chargeable to
tax in India. Does the 
person need to file a declaration in
respect of those assets under 
Chapter VI of the Act?

 

Answer:                     No. Those assets do not fall under the definition of
undisclosed assets under the Act. 

 

Question
No. 25:    If a person has 3 undisclosed
foreign assets and declares only 2 of 
those under Chapter VI of the Act, then
will he get immunity from the 
 

Act in respect of the 2 assets declared?

 

Answer:                     It is expected that one should declare all his undisclosed
foreign assets. However, in such a case the person
will get immunity under 

the provisions of the Act in respect of
the two assets declared under Chapter VI of the Act and no immunity will
be available in respect of 

the third asset which is not declared.

Question No. 26:    A
resident earned income outside India which has been deposited in 
his foreign bank account. The income was
charged to tax in the

foreign country when it was earned but the
same was not declared in
the return of income in India and consequently
not taxed in India. 
Does he need to disclose such income under
Chapter VI of the Act? 
Will he get credit of foreign tax paid?

 

Answer:                     Declaration under Chapter VI is to be made of an undisclosed
foreign asset. In this case, the person being a
resident of India, the foreign 

bank account needs to be declared under
Chapter VI as it is an undisclosed asset and acquired from income
chargeable to tax in India. The fair market value of the bank
account shall be determined as per Rule 3(1)(e). No credit of foreign
taxes paid shall be allowable in India as section 84 of the Act does not
provide for application of sections 90(1)(a)/90(1)(b)/ 90A(1)(a)/
90A(1)(b) of the Income-tax Act (relating to credit of foreign tax paid) to the Act. Further,
section 73 of the 
Act  does  not 
allow  agreement  with 
foreign  country  for 
the purpose of granting relief in respect of
tax chargeable under the Act. purpose of granting relief in respect of
tax chargeable under the Act.

 

Question No. 27:    Can a
person declare under Chapter VI his undisclosed foreign assets 
which have been acquired from money earned
through corruption?

 

Answer:                     No. As per section 71(b) of the Act, Chapter VI shall not
apply, inter- alia, in
relation to prosecution of any offence punishable under the 

Prevention of Corruption Act, 1988.
Therefore, declaration of such asset 
cannot  be  made 
under  Chapter  VI. 
However,  if  such  a declaration  is 
made  and  in  an  event 
it  is  found 
that  the  asset represented money earned through
corruption it would amount to misrepresentation of facts and the
declaration shall be void under section 68 of the Act. If a declaration is
held as void, the provisions of the Act shall apply in respect of such
asset as they apply in relation to any other undisclosed foreign asset.

 

Question
No. 28:    If a foreign asset has been
acquired partly out of undisclosed income 
chargeable to tax and partly out of
disclosed income/exempt income 
(tax paid income) then whether that
foreign asset will be treated as 
undisclosed? Whether declaration under
Chapter VI needs to be made 
in respect of such asset? If yes, what
amount should be disclosed?

 

Answer:                     As per section 5 of the Act, in computing the value of an
undisclosed foreign asset any income which has been assessed
to tax under the Income-tax Act from which that asset is
acquired shall be reduced from the value of the undisclosed foreign
asset. Only part of the investment is such foreign asset is
undisclosed (unexplained) hence declaration of such foreign asset may be
made under Chapter VI of the Act. The amount of declaration shall
be the fair market value of such asset as on 1st July, 2015 as reduced by the amount
computed in accordance with section 5 of the Act.

 

Question
No. 29:    Whether for the purpose of
declaration, the undisclosed foreign asset 
should be held by the declarant on the
date of declaration?

 

Answer:                     No, there is no such requirement. The declaration may be made
if the foreign asset was acquired out of
undisclosed income even if the same has
been disposed off and is not held by the declarant on the date of declaration. 

Question No. 30: Whether at the time of declaration under
Chapter VI, will the Principal Commissioner/Commissioner do any enquiry in
respect of 
the declaration made?

 

Answer:                     After  the  declaration 
is  made  the 
Principal  Commissioner/Commissioner  will 
enquire  whether  any 
information  has  been received by the competent authority in
respect of the asset declared.  Apart from this no other enquiry will be
conducted by him at the time of declaration.

 

Question
No. 31:    A  person 
is  a  beneficiary 
in  a  foreign 
asset.  Is  he 
eligible  for 
declaration under section 59 of the Act?

 

Answer:                     As far as ownership is concerned, as per section 2(11) of the
Act “undisclosed asset located outside India”
means an asset held by the person in his name or in respect of which
he is a beneficial owner. The definition 
of “beneficial  owner”  and “beneficiary”  is provided 
in explanation 4 and Explanation 5 to section 139(1) of the Income-tax
Act,respectively (which is at variance with
the determination of beneficial  wnership provided under Rule 9(3) of the
PMLA (Maintenance of Records) 
Rules,  2005).  Therefore, 
for  the  purpose 
of  the  Act “beneficial owner” in respect of an asset
means an individual who has provided, rectly or indirectly,
consideration for the asset for the immediate or future benefit, direct or
indirect, of himself or any other person. 
Further,  “beneficiary”  in 
respect  of  an 
asset  means  an individual who derives benefit from the
asset during the previous year and the consideration for such asset
has been provided by any person other than such beneficiary. Therefore,
as per the Act the beneficial owner is eligible for
declaration under section 59 of the Act.

 

There may be a case where a person is
listed as a beneficiary in a foreign asset, however, if he has provided consideration for
the asset,  directly  or 
indirectly, he  will  be 
covered under  the  definition 
of beneficial owner for the purposes of the
Act.

 

Question No. 32:    A
person was employed in a foreign country where he acquired or 
made an asset out of income earned in that
country. Whether such

asset is required to be declared under
Chapter VI of the Act?

 

Answer:                     If the person, while he was a non-resident in India, acquired
or made a foreign asset out of income which is not chargeable to tax in
India,  

such asset shall not be an undisclosed
asset under the Act.However, if income was accrued or received
in India while he was non-resident, such income is chargeable to
tax in India. If such income was not disclosed in the return of income
and the foreign asset was  acquired  from  such 
income  then  the 
asset  becomes  undisclosed foreign asset and the person may declare
such asset under Chapter VI of the Act.

 

(Gaurav
Kanaujia) Director to the Government of India

 

Copy to:-

 

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PS to Secretary (Revenue).

 

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Secretary and above.

 

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departmental website.

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