Income Tax Return - Gujarat High Court
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Transcript of Income Tax Return - Gujarat High Court
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C/SCA/15075/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15075 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
================================================================
1 Whether Reporters of Local Papers may be allowedto see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy ofthe judgment ?
Whether this case in!ol!es a substantial "uestion oflaw as to the interpretation of the #onstitution of$ndia or any order made thereunder ?
================================================================
ALL GUJARAT FEDERATION OF TAX CONSULTANTS....Petitioner(s)
Versus
CENTRAL BOARD OF DIRECT TAXES & 1....Respondent(s)
================================================================Appearance:
MR SN SOPARKAR, SR. ADVOCATE with MR MANISH K KAJI, ADVOCATE
for the Petitioners
MR MR BHATT, SR. ADVOCATE with MRS MAUNA M BHATT, ADVOCATE for
the Respondents
================================================================
#%R&'( HONOURABLE MS.JUSTICE HARSHA DEVANI
andHONOURABLE MR.JUSTICE A.G.URAIZEE
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Date : 29/09/2015
ORAL JUDGMENT
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. Rule. Mrs. Mauna Bhatt, learned senior standing counsel
waives service of notice of rule on behalf of the respondents.
2. Having regard to the controversy involved in the present
case and the urgency of the matter as discussed hereinafter,
the court has heard the matter finally.
3. By this petition under rticle 22! of the "onstitution of
#ndia, the petitioners see$ the following substantive reliefs %
[13] The petitioner, therefore, prays :-
[a] that this Honble Court may be pleased toissue a writ of mandamus, or any other appropriate writ,
order or diretion, diretin! that the respondent hene
forth, ma"e any alternations in #orms and $tilities or
han!es in ta% ompliane re&uirements, appliable from
the '()( subse&uent to the '()( in whih suh alterations
are introdued(
[b] that this Honble Court may be pleased to
issue a writ of ertiorari, or any other appropriate writ,
order or diretion holdin! the impu!ned announement
dated *+*+1. as bein! ille!al, inasmuh as, it promotes
the filin! of /T0 without the mandatorily re&uired T'0(
[] that this Honble Court may be pleased to
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issue a writ of mandamus, or any other appropriate writ,
order or diretion, diretin! that the respondent to
e%tend the due date for filin! the /T0 and T'0 to
3+11+1.(
&. 'he first petitioner is a 'rust registered under the
provisions of the Bombay (ublic 'rusts ct, 1)*+ and has over
1+++ members who are various professionals, being
dvocates, "hartered ccountants and 'a (ractitioners
engaged in the field of taation. 'he second petitioner is the
(resident of the first petitioner -ederation and is also assessee
who is directly interested in the subect matter of the petition.
*. 'he controversy involved in the present case arises in the
following bac$drop. By a notification dated +1.+*.2+13 the first
respondent made it mandatory for the assessees, to
electronically file the income ta returns relevant forassessment year 2+13/1& and onwards. #n relation to
assessment year 2+1&/1*, the respondents failed to ma$e the
utility software for filing 'R until 21st ugust, 2+1&.
Representations were made to the "entral Board of 0irect
'aes, which in eercise of powers under section 11) of the ct
etended the due date for filing the 'a udit Report 'R
under section &&B of the #ncome 'a ct, 1)!1 hereinafter
referred to as the ct4 to 3+th5ovember, 2+1&6 however, the
due date for filing of return of income was not etended. 'he
petitioners, therefore, made representations to the "entral
Board of 0irect 'aes hereinafter referred to as the Board4
for etending the due date of filing return to 3+th 5ovember,
2+1*, but to no avail. 'he petitioners therefore approachedthis court by way of writ petitions being 7pecial "ivil
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pplication 5o. 12!*! of 2+1& and 12*81 of 2+1&. 'he said
petitions came to be allowed by directing "B0' to etend the
due date for filing the income ta return to 3+th 5ovember,
2+1&.
!. #n relation to the current year, vi9., assessment year
2+1*/1!, the 0epartment delayed notifying the #'R forms
being #'R/1, #'R/2, #'R/2, #'R/&7 but etended the due date
for filing the income ta returns in the case of such assessees
to 31stugust, 2+1*. 'he on/line forms in relation to assessees
subect to ta audit and other assessees, vi9., -orms #'R/3, #'R/
&, #'R/*, #'R/! and #'R/8 in relation to assessment year 21+*/
1! came to be notified on 2).8.2+1* and the forms were e/
enabled and were available on the e/filing website of the
0epartment only from 8thugust, 2+1*. 7ince the income ta
returns in case of such assessees were to be filed on or before
3+.+).2+1*, according to the petitioners the delay in ma$ingthe form available caused utter confusion and chaos amongst
the "hartered ccountants and the assessees. #t is the case of
the petitioners that the ta audit returns can only be filed
electronically which re:uires an appropriate utility;software4
to be made available by the respondents to the assessees.
However, the respondents failed to ma$e available the utilities
for assessment year 2+1* /1! until +8.+
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representations yielded no results, and the respondents did
not grant etension of due date for filing the income ta
returns. >n the contrary by an announcement dated )th
7eptember, 2+1* the =overnment of #ndia Ministry of -inance,
it was stated that a decision had been ta$en that the last date
of filing of returns due by 3+th7eptember, 2+1* will not be
etended. #t is in these circumstances that the petitioners have
approached this court see$ing the reliefs noted hereinabove.
8. Mr. 7. 5. 7opar$ar, 7enior dvocate, learned counsel with
Mr. Manish ?ai, learned advocate for the petitioners submitted
that with effect from assessment year 2+13/1&, it is mandatory
for the assessees to electronically file the income ta returns
online. #t was submitted that the utility for filing the income ta
returns in respect of the assessees who are subect to ta
audit, came to be released only on 8thugust, 2+1* and was
subse:uently updated on 22nd
ugust, 2+1*. #t was submittedthat while under the statutory provisions, the income ta
returns can be filed in time from 1stpril till the due date for
filing the income ta returns, in the absence of the utility for
filing such returns online, the returns could not be filed earlier.
#t was submitted that there was significant delay in providing
the utility for filing the returns online, that is, 8 thugust, 2+1*
and prior thereto, till the utility was made available, it was not
possible to file the income ta returns. #t was submitted that in
respect of such delay, the assessees are not at fault and that
till the online forms are prescribed, the assessees do not $now
the nature of the changes made and till such forms are
notified, they cannot file the returns. #t was submitted that in
relation to assessment year 2+1&/1* also, the respondents hadetended the time for filing the ta audit report, however, time
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for filing the income ta returns had not been etended and
the petitioners had approached this court see$ing etension of
the time limit for filing the income ta returns. 'he attention of
the court was invited to the udgment and order dated 22nd
7eptember, 2+1& passed by this court in the petitioner@s own
case in 7pecial "ivil pplication 5o.12!*! of 2+1& and allied
matter, to point out that the court had observed that any
introduction or new utility;software with additional re:uirement
in the middle of the year ordinarily is not desirable. ny
change unless inevitable can be planned well in advance.
?eeping in focus such comprehensive process re/engineering
may not result in undue hardship to the sta$e holders for
whose benefits the same operates. #t was submitted that the
hope epressed by the court is belied by the respondents by
once again notifying online forms belatedly on 8thugust, 2+1*
and not granting sufficient time to the assessees to submit the
same.
8.1 Mr. 7opar$ar submitted that the #ncome 'a ct
prescribes time from 31stMarch to 3+th7eptember, that is, 1
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announcement dated +).+).2+1* issued by the Ministry of
-inance nneure 4 to the petition wherein, it has been
stated that /nome Ta% 0eturns #orms 3, 2, ., and 4 whih
are used by the ompanies, firms, indi5iduals en!a!ed in
proprietary business+professional et(, whose aounts are to
be audited, were notified for assessment year 1.-1 on
*(4(1.( The forms were e-enabled and were a5ailable on
the e-filin! website of the 6epartment from 4th'u!ust, 1.
!i5in! enou!h time for ompliane( The han!es made to
these forms are not e%tensi5e as ompared to the earlier
years( %%%% 'fter onsideration of all fats, it has been deided
that the last date for filin! of returns due by 3th7eptember,
1. will not be e%tended( The ta%payers are ad5ised to file
their returns in time to a5oid last minute rush( #t was
submitted that prior to 8thugust, 2+1*, the relevant forms
were not e/enabled and made available to the assessees.
'herefore, the :uestion that arises for consideration is thatwhen the law provides for a period of 1
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available. #t was submitted that in the case of assessees who
are re:uired to file returns of income in forms #'R/1, #'R/2, #'R/
2, #'R/&7, the due date for filing return came to be etended
till 31stugust, 2+1* and there is no reason as to why such
benefit cannot be etended to the assessees who are re:uired
to file returns on income in -orms #'R/3, #'R/&, #'R/*, #'R/! and
#'R/8. #t was submitted that curtailing the period for filing the
ta returns by providing the utilities for filing the same at a
belated stage is not reasonable and is arbitrary. #t was
submitted that for 122 days, the forms were not available and
it is within the remainder period that the returns of income of
all the assessees belonging to the categories which are
re:uired to file returns in -orms #'R/3, #'R/&, #'R/*, #'R/! and
#'R/8, were re:uired to be filed. #t was, accordingly, urged that
the action of the respondents in not granting time for filing
income ta returns, being unreasonable and arbitrary,
necessary directions are re:uired to be issued to the firstrespondent Board to etend the period till 31st 5ovember,
2+1*.
< Aehemently opposing the petition, Mr. M. R. Bhatt, 7enior
dvocate, learned counsel for the respondents submitted that
the reliefs prayed for in the present petition reveal that the
same is more in the nature of a public interest litigation and
therefore, should have been filed by way of a public interest
litigation. #t was submitted that no cause of action of
infringement of any rticle of the "onstitution has been
brought to the notice of the court. #t was submitted that the
first petitioner which is a federation of professionals cannot, in
any manner, be said to be preudiced by the non/etension ofthe date for filing the income ta returns. #t was contended
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7eptember, 2+1* in C.(." 5o.)+32 of 2+1* wherein, the court
had dismissed a similar petition see$ing etension of due date
for filing the income ta returns. #t was submitted that the writ
petition has been filed without disclosing any cause of action
or infringement of fundamental rights.
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91*.8 .4 /T0 ., wherein it was observed that, Barring
some eceptions, it has been the general policy laid down by
this court in income ta matters that whatever our own view
may be, we should follow the view ta$en by another High "ourt
on the interpretation of a section4. #t was submitted that
therefore, once the 0elhi High "ourt has ta$en a view, it is not
permissible for this court to ta$e a different view.
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assessment year 2+1*/1! having the due date of 3+th
7eptember are concerned. 'he attention of the court was
further invited to the implications of business process, to
submit that any change in due date by way of etension has to
be given effect by change in return preparation software to
handle modification in interest under section 23&;23&B of the
ct. 7imilar changes have to be made in processing software to
calculate the refund accurately which re:uires substantial
changes to be made in business rules and which in turn also
delays the process of handling and processing of returns and
its conse:uential actions. #t was further submitted that on writ
petitions filed by various sta$e holders on this issue in their
respective urisdictional High "ourts li$e, 0elhi, ?arnata$a and
Raasthan High "ourts have not granted any relief to the
petitioners and therefore, in case, this court decides to allow
the petition pertaining to its urisdiction, thus deviating from
the stand of the "B0' and decisions of other High "ourts, itmay create anomalous situation in administering the #ncome
'a ct which is a "entral ct.
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Consultants Association v. Union of Indiarendered on 2
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without any evidence in support thereof, the (#E petitioners
shall have to be put to strict proof and cannot be allowed to
function as an etraordinary and etra/udicial ombudsmen
:uestioning the entire eercise underta$en by an etensive
body which include administrators, technocrats and financial
eperts. 'he court was of the considered view that this might
lead to a friction if not collision among the three organs of the
7tate and would affect the principle of governance engrained
in the theory of separation of powers. 'he decision of the
7upreme "ourt in the case of Federation of ail+ay
,fficers Association and others v. Union of India, 938
2 7CC *,was cited for the proposition that in eamining a
:uestion of the nature where a policy is evolved by the
=overnment, udicial review thereof is limited. Chen policy
according to which or the purpose for which discretion is to be
eercised is clearly epressed in the statute, it cannot be said
to be an unrestricted discretion. >n matters affecting policyand re:uiring technical epertise, the court would leave the
matter for decision of those who are :ualified to address the
issues. Fnless the policy or action is inconsistent with the
"onstitution and the laws or arbitrary or irrational or abuse of
power, the court will not interfere with such matters. Reliance
was also placed upon the decision of the 7upreme "ourt in the
case of Council of $cientific and Industrial esearch and
,thers v. amesh Chandra A-ra+al and another, 9*8
3 7CC 3., wherein the court had held that the 7tate is entitled
to fi a cut/off date. 7uch a decision can be struc$ down only
when it is arbitrary. #ts invalidation may also depend upon the
:uestion as to whether it has a rational neus with the obect
sought to be achieved. 'he "ourt observed that by choosing acut/off date, no illegality was committed. G/facie, it cannot be
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said to be arbitrary. Reliance was also placed upon the decision
of the 7upreme "ourt in the case of $tate of U. *. and
another v. &ohri #al, 928 2 7CC 412, with particular
reference to paragraphs 2< to 3+ thereof, for the proposition
that the scope and etent of power of the udicial review of the
High "ourt contained in rticle 22! of the "onstitution of #ndia
would vary from case to case, the nature of the order, the
relevant statute as also the other relevant factors including the
nature of power eercised by the public authorities, namely,
whether power is statutory, :uasi/udicial or administrative.
'he court observed that the limited scope of udicial review,
succinctly put, is %
i "ourts, while eercising the power of udicial review, do
not sit in appeal over the decisions of administrative
bodies6
ii petition for a udicial review would lie only on certainwell/defined grounds6
iii n order passed by an administrative authority eercising
discretion vested in it, cannot be interfered in udicial
review unless it is shown that eercise of discretion itself
is perverse or illegal6
iv mere wrong decision without anything more is not
enough to attract the power of udicial review6 the
supervisory urisdiction conferred on a "ourt is limited to
seeing that 'ribunal functions within the limits of its
authority and that its decisions do not occasion
miscarriage of ustice6
v 'he "ourts cannot be called upon to underta$e the
=overnment duties and functions. 'he "ourt shall notordinarily interfere with a policy decision of the 7tate.
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7ocial and economic belief of a udge should not be
invo$ed as a substitute for the udgment of the legislative
bodies.
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nature, it was submitted that unless the assessees $now about
the nature of the changes made, it is immaterial as to whether
the changes are minor or maor. #t was submitted that such a
contention could be available to the respondents provided the
old form was continued. However, till the new form was issued,
there was a total blac$out and it was not permissible for the
assessees to file their returns till the utility was made available
on 8thugust, 2+1*. s regards the contention that the statute
nowhere provides for 1
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which it is to be done, something in the conditions under which
it is to be done, something in the title of the persons for whose
benefit the power is to be eercised, which may couple the
power with a duty, and ma$e it the duty of the person in whom
the power is reposed to eercise that power when called upon
to do so. #t was submitted that the petitioners have a right as
assessees to believe that they would have enough time to file
their income ta returns. #t was submitted that the Board is
vested with powers coupled with a duty to eercise them,
when facts ustify.
).3 s regards the contention that necessary details with
regard to the number of assessees who have found it difficult
to submit the income ta returns before the due date having
not been made available, it was submitted that it is the
respondents who would $now as to how many persons have
filed returns. #t was submitted that the onus is cast upon therespondents to show that in spite of delay on their part, it is
possible to file the ta returns before the prescribed due date.
#t was submitted that the Board which is the authority which is
vested with the powers under section 11) of the ct to etend
the due date, has not eercised such powers, and therefore,
occasion has arisen for the petitioners to approach the court. #t
was submitted that the law epects the respondents to be
reasonable and that non/etension of the due date for filing
the income ta returns cannot in any manner be said to be
reasonable.
1+ s regards the contention that a "hartered ccountant
has in all to deal with !+ ta audits and corresponding income
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ta returns, and therefore, it cannot be said that the same
cannot be filed within seven wee$s, the attention of the court
was invited to the provisions of section 13) of the ct to point
out that insofar as !+ audits are concerned, the "hartered
ccountant is not re:uired to only deal with the assessees who
are subect to ta audit under section &&B of the ct. Chile
the number of assessees who are subect to ta audit under
section &&B of the ct may be limited to !+, there are various
other assessees in respect of whom the income ta returns
have to be filed. Reference was made to Gplanation 2 to
section 13) of the ct, which defines due date4, to point out
that the same provides that the due date for filing income ta
returns in respect of different categories of assessees.
Referring to sub/rule 1 of rule 12 of the #ncome 'a Rules,
1)!2 hereinafter referred to as the rules4, it was pointed out
that various categories of assessees and nature of forms are
prescribed therein. #t was submitted that the present petitiondoes not relate to the assessees covered under clauses a, b
and ca thereof. #t was pointed that in case of assessees
covered by clause c in relation to whom the -orm #'R/3 is
re:uired to be notified, are not subect to ta audit. 7imilar is
the case with the assessees covered by clauses d, f and g
who may be thousands in number. Fnder the circumstances,
the submission that a "hartered ccountant has to prepare ta
audit report and has to conduct only !+ ta audits and
correspondingly !+ income ta returns in respect of which the
period of seven wee$s is sufficient, clearly disregards the other
assessees in relation to whom also the utility was made
available only with effect from 8th ugust, 2+1*. #t was
submitted that thus, the relevant forms for e/filing of returnswere earlier prescribed only in case of the assessees falling
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under clauses a, b and ca, namely, the assessees having
salary income, etc. #t was submitted that maority of the
assessees fall in categories in whose cases utility for filing the
returns was provided only on 8thugust, 2+1*. therefore, the
view advanced on behalf of the Board is not in consonance
with the provisions of the ct and the rules and the Board has
failed to appreciate the 7cheme of the ct and the rules and
therefore, the argument that income ta returns could be filed
within the limited period of seven wee$s is e/facie bad.
1+.1 s regards the contention that it is not permissible for
the court to ta$e a different view from that adopted by the
0elhi, it was submitted that the :uestion involved in the
petition does not involve interpretation of a statutory provision.
'he attention of the court was also invited to the decision of
this court in the case of . . *aper 0oard %imited v.
Deputy Commissioner of Income Tax, 91**8 32 /T0 433,wherein the court after considering the decision of the Bombay
High "ourt in the case of ;ane"lal Chunilal and 7ons
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1+.& 'he learned counsel also invited the attention of the
court to the decision of the (unab and Haryana High "ourt in
the case of 1ishal Gar- and others v. Union of India and
anotherrendered today, that is, on 2) th7eptember, 2+1* in
"C( 5o.1)88+ of 2+1*, wherein the court, after considering
the totality of the facts of the case and after considering the
decisions of the Raasthan High "ourt, 0elhi High "ourt, has
considered it appropriate to etend the date for e/filing of
returns upto 31st>ctober, 2+1*.
1+.* s regards the contention based upon the above
referred decisions of the 7upreme "ourt that in a matter of
policy decision, this court would not interfere, the learned
counsel reiterated the proposition of law laid down by the
7upreme "ourt in the case of %. irday arain v. Income
Tax ,fficer/ 0areillysupra, to submit that when there is a
power coupled with duty, there is an obligation on the
respondents to eercise the same if the facts so warrant. s
regards the decisions on which reliance had been placed by
the learned counsel for the revenue, it was submitted that in
those decisions, the =overnment did not owe any obligation.
Besides, the issue involved in the present case does not relate
to economic policy and is a simple issue of failure to eercisediscretion where the facts ustify eercise of such discretion. #t
was, accordingly, urged that the decision of the Board not to
etend the due date for filing return of income, suffers from
the vice of legal mala fides.
11. Mr. Bhatt, learned counsel for the respondents in
response to the contention that there are several other
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categories of assessees than those who are subect to ta
audit, submitted that in case of all other assessees, only
details are re:uired to be punched in the prescribed forms and
therefore, no case of hardship has been made out. #t was also
urged that ust because the petitioners have come to the court,
is no reason to grant them relief.
11 'he controversy involved in the present case lies in a
very narrow compass. 'he petitioners and other assessees
covered under the categories to which the petition relates, are
ordinarily re:uired to file their returns of income any time from
1stpril till 3+th7eptember of the relevant assessment year. By
virtue of rule 12 of the rules, all the assessees have to file the
income ta returns electronically, that is, online. -or this
purpose, the corresponding utility relating to each category of
assessees in the nature of -orms 5o.#'R/3, #'R/&, #'R/*, #'R/!
and #'R/8 are re:uired to be provided by the respondents. #t isan admitted position that in the year under consideration, the
relevant utility has been provided only with effect from 8th
ugust, 2+1*. 'herefore, prior to 8thugust, 2+1*, it was not
possible for any of the assessees who were re:uired to file
income ta returns in the above referred forms, to file their
returns of income. 'herefore, while in the ordinary course, the
assessees falling in the above categories have a period of 1
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for eercising powers under section 11) of the ct and
etending the due date for filing the income ta returns
prescribed under Gplanation 2 to section 13) of the ct.
However, by the announcement dated )th 7eptember, 2+1*,
such re:uest has been turned down and it has been stated
that the last date for filing of returns being 3+th 7eptember,
2+1* will not be etended. s noticed hereinabove, in case of
other categories of assessees who are re:uired to file ta
returns in -orm #'R/1, #'R/2, #'R/2, #'R/&7, in whose case also,
there was a delay in furnishing the necessary utility, the Board
had etended the due date for filing the income ta returns.
'he stand of the Board is that the period of seven wee$s which
is available to the petitioner and other assessees for filing
online income ta returns, is sufficient and therefore, there is
no reason for etending the due date for filing the income ta
returns.
12. Chile it is true that the powers under section 11) of the
ct are discretionary in nature and it is for the Board to
eercise such powers as and when it deems fit. However, it is
e:ually true that merely because such powers are
discretionary, the Board cannot decline to eercise such
powers even when the conditions for eercise of such powers
are shown to eist. t this uncture reference may be made to
the decision of the 7upreme "ourt in the case of UC, 0ank v.
CIT, 91***8 2 7CC .**91***8 34 /T0 *, wherein the court
had occasion to interpret section 11) of the ct. 'he court held
thus%
23.@hat is the status of these irularsA 7etion 11*918
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of the /nome Ta% 't, 1*1 pro5ides that:
11*( 918 The Central ?oard of 6iret Ta%es may, from
time to time, issue suh orders, instrutions and diretions
to other /nome Ta% 'uthorities as it may deem fit for the
proper administration of this 't, and suh authorities and
all other persons employed in the e%eution of this 't shall
obser5e and follow suh orders, instrutions and diretions
of the ?oard:
>ro5ided that no suh orders, instrutions or diretions
shall be issuedB
9a8 so as to re&uire any /nome Ta% 'uthority to ma"e a
partiular assessment or to dispose of a partiular ase in a
partiular manner or
9b8 so as to interfere with the disretion of the 'ppellate
'ssistant Commissioner in the e%erise of his appellate
funtions(
9emphasis supplied8
$nder sub-setion 98 of 7etion 11*, without preDudie to
the !enerality of the ?oards power set out in sub-setion
918, a speifi power is !i5en to the ?oard for the purpose of
proper and effiient mana!ement of the wor" of assessment
and olletion of re5enue to issue from time to time !eneral
or speial orders in respet of any lass of inomes or lassof ases settin! forth diretions or instrutions, not bein!
preDudiial to assessees, as the !uidelines, priniples or
proedures to be followed in the wor" relatin! to
assessment( 7uh instrutions may be by way of rela%ation
of any of the pro5isions of the setions speified there or
otherwise( The ?oard thus has power, inter alia, to tone
down the ri!our of the law and ensure a fair enforement of
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its pro5isions, by issuin! irulars in e%erise of its statutory
powers under 7etion 11* of the /nome Ta% 't whih are
bindin! on the authorities in the administration of the 't(
$nder 7etion 11*989a8, howe5er, the irulars as
ontemplated therein annot be ad5erse to the assessee(
Thus, the authority whih wields the power for its own
ad5anta!e under the 't is !i5en the ri!ht to fore!o the
ad5anta!e when re&uired to wield it in a manner it
onsiders Dust by rela%in! the ri!our of the law or in other
permissible manner as laid down in 7etion 11*( The power
is !i5en for the purpose of Dust, proper and effiient
mana!ement of the wor" of assessment and in publi
interest( /t is a benefiial power !i5en to the ?oard for
proper administration of fisal law so that undue hardship
may not be aused to the assessee and the fisal laws may
be orretly applied( Hard ases whih an be properly
ate!orised as belon!in! to a lass, an thus be !i5en thebenefit of rela%ation of law by issuin! irulars bindin! on
the ta%in! authorities(
13. 'hus, the power under section 11) of the ct is a
beneficial power given to Board for proper administration of
fiscal law so that undue hardship may not be caused to theassessee and the fiscal laws may be correctly applied. #n the
case at hand, as is evident from the facts noted hereinabove,
in the normal course, assessees who are subect to audit as
well as other categories of assessees referred to hereinabove,
can file their returns of income from 1stpril to 3+th7eptember
of the year in :uestion. #n view of the provisions of rule 12 of
the rules, whereby, the assessees who are subect to ta audit,
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as well as the assessees referred to hereinabove, are re:uired
to file the ta returns electronically, that is, online. However,
for filing the ta returns, appropriate utility is re:uired to be
made available by the respondents to the assessees.
'herefore, till such utility is provided by the respondents, it is
not possible for the assessees to file their returns of income.
'herefore, there is a duty cast upon the respondents to ensure
that necessary utility for e/filing of the income ta returns is
made available to various categories of assessees at the
beginning of the assessment year so that the assessees can
plan their ta matters accordingly. However, as noted
hereinabove, the utilities for e/filing of returns have been made
available only with effect from 8th ugust, 2+1*, thereby
curtailing the time available for filing the income ta returns to
a great etent. ccording to the petitioners, such curtailment
of time causes immense hardship and preudice to the
petitioners and other assessees belonging to the abovecategories, whereas the respondent Board, on the other hand,
has ta$en an adamant stand not to etend the time for e/filing
of the returns despite the fact that the entire situation has
arisen on account of default on the part of the 0epartment and
not the assessees.
1&. #t may be recalled that in relation to assessment year
2+1&/1*, the respondent Board had etended the time for
filing the ta audit reports, but had not etended the time for
filing the returns and the petitioners were constrained to
approach this court for etension of the due date for filing
return of income. #n that case, this court has, inter alia,
observed thus %
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.( @e are also atuated by the fat that the entire
situation is arisin! not on aount of any ontribution on
the part of either the professionals or the assesses leadin!
to suh a situation( /n the present ase, with the
ad5anement of the tehnolo!y, it is always ommendable
that the department ta"es reourse to the tehnolo!y
more and more( @ith the possible defets ha5in! been
found in utility software in use in the pre5ious year, the
re&uired han!es in the larifiation or the new format of
suh utility, if brou!ht to the fore, the same would be
desirable( 't the same time, the omplete bla" out for
nearly a months time would not allow aessibility to suh
utility software to the assessees, whih has put them to a
!reat Deopardy(
.3( The C?6T deri5es its powers under the statute
whih enDoins upon the ?oard to issue from time to timesuh orders, instrutions and diretions to other inome-
ta% authorities if found e%pedient and neessary for proper
administration of the 't( @ithout preDudie to the
!enerality of powers pro5ided under sub-setion 918 of
setion 11* of the 't, the C?6T also has speifi powers
to pass !eneral or speial orders in respet of any lass or
lass of ases by way of rela%ation of any of the pro5isions
of setion, whih also inludes setion 13* of the 't( /f
the ?oard is of the opinion that it is neessary in the publi
interest to so do it( #or a5oidin! the !enuine hardship in
any ase or lass of ases, the C?6T if onsiders desirable
and e%pedient, by !eneral or speial order, it an issue
suh orders, instrutions and diretions for properadministration of this 't( 'll suh authorities en!a!ed in
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e%eution of the 't are e%peted to follow the same( 'ny
re&uirement ontained in any of the pro5isions of Chapter
/E or Chapter E/' also an be rela%ed by the C?6T for
a5oidin! !enuine hardship in any ase or lass of ases by
!eneral or speial orders( This pro5ision, therefore, !i5es
5ery wide powers to the C?6T to pass !eneral or speial
orders whene5er it deems it neessary or e%pedient to so
do it in respet of any lass of inome or lass of ases( /t
has not only to see the publi interest for so doin!, but
also for a5oidin! the !enuine hardship in any partiular
ase or lass of ases, suh powers an be e%erised(
.2( 0e5ertin! to the matters on hand, a 5ery peuliar
situation has arisen portrayin! the !enuine hardship to the
assessee, as also to the ta% onsultants, by way of
representations made to the ?oard, it would ha5e been
desirable and e%pedient on the part of the C?6T to ha5eonsidered suh re&uest and e%erise the powers by way
of a rela%ation( @hat all that has been sou!ht is to ma"e
the due date for filin! the ta% return harmonious with the
filin! of the T'0 and without DeopardiFin! the issue of
olletion of ta%, it was not impossible to e%erise suh
powers of rela%ation of pro5ision presribin! e%tension of
the due date(
..( @hile e%aminin! the C?6TGs powers e%erisable
under setion 11* of the 't, of ourse, in some other
onte%t, the 'pe% Court has held and obser5ed thus:
*( @hat is the status of these irularsA 7etion 11*918 ofthe /nome-ta% 't, 1*1 pro5ides that, The Central
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?oard of 6iret Ta%es may, from time to time, issue suh
orders, instrutions and diretions to other /nome-ta%
authorities as it may deem fit for the proper administration
of this 't and suh authorities and all other persons
employed in the e%eution of this 't shall obser5e and
follow suh orders, instrutions and diretions of the
?oard( >ro5ided that no suh orders, instrutions or
diretions shall be issued 9a8 so as to re&uire any /nome-
ta% authority to ma"e a partiular assessment or to
dispose of a partiular ase in a partiular manner: or 9b8
so as to interfere with the disretion of the 'ppellate
'ssistant Commissioner in the e%erise of his appellate
funtions( $nder sub-setion 98 of 7etion 11* without
preDudie to the !enerality of the ?oardGs power set out in
sub-setion 918 a speifi power is !i5en to the ?oard for
the purpose of proper and effiient mana!ement of the
wor" of assessment and olletion of re5enue to issuefrom time to time !eneral or speial orders in respet of
any lass of inomes or lass of ases settin! forth
diretions or instrutions, not bein! preDudiial to assesses,
as the !uidelines, priniples or proedures to be followed
in the wor" relatin! to assessment( 7uh instrutions may
be by way of rela%ation of any of the pro5isions of the
setions speified there or otherwise( The ?oard thus has
power, inter alia, to tone down the ri!or of the law and
ensure a fair enforement of its pro5isions, by issuin!
irulars in e%erise of its statutory powers under 7etion
11* of the /nome-ta% 't whih are bindin! on the
authorities in the administration of the 't( $nder 7etion
11*989a8 howe5er, the irulars as ontemplated thereinannot be ad5erse to the assessee( Thus, the authority
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whih wields the power for its own ad5anta!e under the
't is !i5en the ri!ht to for!o the ad5anta!e when
re&uired to wield it in a manner it onsiders Dust by
rela%in! the ri!our of the law or in other permissible
manners as laid down in 7etion 11*( The power is !i5en
for the purpose of Dust, proper and effiient mana!ement
of the wor" of assessment and in publi interest( /t is a
benefiial power !i5en to the ?oard for proper
administration of fisal law so that undue hardship may
not be aused to the assessee and the fisal laws may be
orretly applied( Hard ases whih an be properly
ate!orised as belon!in! to a lass, an thus be !i5en the
benefit of rela%ation of law by issuin! irulars bindin! on
the ta%in! authorities(
..(1 Thus as held by the 'pe% Court the powers !i5en to
the ?oard are benefiial in nature to be e%erised forproper administration of fisal law so that undue hardship
may not be aused to the ta%payers( The purpose is of
Dust, proper and effiient mana!ement of the wor" of
assessment and the publi interest(
.( Conse&uenes that would follow on aount of the
delay in filin! the return of inome also are wei!hin!
fators for the Court to onsider suh re&uest( ?ein!
onsious of the fat that the writ of mandamus, whih is
hi!hly prero!ati5e writ is for the purpose of ompellin! the
authorities of any offiial duties, offiially har!ed by the
law either refuses or fails to perform the same, the writ of
mandamus is re&uired to be used for the publi purpose,partiularly, when the party has not other remedy
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a5ailable( /t is essentially desi!ned to promote Dustie(
( Ieepin! in mind the sope of writ Durisdition as
detailed in the deision hereinabo5e, these petitions
deser5e onsideration( /n absene of any remedy
a5ailable, muh less effeti5e to the sta"eholders a!ainst
the non-use of benefiial powers by the ?oard for the
lar!er ause of Dustie, e%erise of writ Durisdition to meet
the re&uirements of irumstanes has beome ine5itable(
( 7uh e%tension needs to be !ranted with the
&ualifiation that the same may not result into non-
har!in! of interest under setion 32'( 7imply put, while
e%tendin! the period of filin! of the ta% return and
!rantin! benefit of suh e%tension for all other pro5isions,
interest har!ed under setion 32' for late filin! of return
would be still permitted to be le5ied, if the ?oard sohoses for the period ommenin! from 1(1(12 to the
atual date of filin! of the return of inome( Those ta%
payers o5ered under these pro5isions if hoose to pay the
amount of ta% on or before the 3th7eptember, 12, no
interest in any ase would be le5ied despite their filin! of
return after the 3th7eptember, 12(
2( @e are not inlined to stay new utility for one year
as suffiient measures are already ta"en by the ?oard to
redress this !rie5ane( Howe5er, it needs to be obser5ed
at this Dunture that any introdution or new
utility+software with additional re&uirement in the middle
of the year ordinarily is not desirable( 'ny han!e unlessine5itable an be planned well in ad5ane, "eepin! in
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fous that suh omprehensi5e proess re-en!ineerin!
may not result in undue hardship to the sta"eholders for
whose benefit the same operates(
4( ?esides, no !ra5e preDudie would be aused to the
re5enue if the due date for filin! the return of inome is
also e%tended till the date of filin! of the ta% audit report,
whereas the assessee would be 5isited with serious
onse&uenes as referred to hereinabo5e in ase of non-
filin! of return of inome within the presribed period as
he would not be in a position to laim the benefit of the
pro5isions referred to hereinabo5e( The apprehension
5oied by the re5enue that in ase due date for filin!
return of inome is e%tended, due date for self-assessment
also !ets automati e%tension, resultin! into delay in
olletion of self-assessment ta% whih is otherwise
payable in 7eptember, 12, an be ta"en are of bypro5idin! that the due date shall stand e%tended for all
purposes, e%ept for the purposes of J%planation 1 to
setion 32' of the 't(
1*. #t may be noted that despite the fervent hope epressed
by the court that the respondents in future may plan any
change well in advance, a similar situation has prevailed in the
present year also and the utilities for e/filing of income ta
returns have been made available as late as on 8 th ugust,
2+1*, leaving the petitioners and other assessees with less
than one third of the time that is otherwise available under the
statute.
1!. #t may be noted that in the facts of the above case, there
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was a blac$out for a period of one month, whereas in the year
under consideration, the utility was not made available till 8 th
ugust, 2+1*. 'hus, it was not possible for any of the
assessees who are re:uired to file returns in -orms 5o.#'R/3,
#'R/&, #'R/*, #'R/! and #'R/8, to file income ta returns before
such date.
18. nother notable aspect of the matter is that as
contended on behalf of the petitioners, non/filing of returns
before the due date would result into the assessees being
deprived of their right to file the revised return or claiming
loss, whereas insofar as the revenue is concerned, no hardship
or preudice is li$ely to be caused, inasmuch as the interest of
the revenue can be ta$en care of by providing that the due
date shall stand etended for all purposes, ecept for the
purposes of Gplanation 1 to section 23& of the ct. Fnder
the circumstances, when no preudice is caused to the revenueand the assessees are put to great hardship on account of the
short period within which the income ta returns are to be
filed, it was epected of the Board to eercise the discretionary
powers vested in it under section 11) of the ct to ameliorate
the difficulties faced by the assessees on account of no default
on their part, at least to a certain etent, by etending the due
date for filing the income ta returns for a reasonable time. #n
the opinion of this court, the Board should not create a
situation whereby the assessees are re:uired to $noc$ the
doors of the court year after year, more so, when on account
of the delay on the part of the respondents, it is the assessees
who would have to face the conse:uences of not filing the
returns in time. 'he contention that no preudice is caused tothe petitioners;assessees, therefore, does not merit
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acceptance.
1ctober, 2+1* so as to alleviate
to a certain etent, the hardships caused to the assessees on
account of delay in providing the utilities.
1). 7ignificantly, one of the factors which appears to have
weighed with the Board while turning down the re:uest for
etension of the due date for filing returns is that as per the
guidelines of #"#, a practicing "hartered ccountant, as an
individual or as a partner of a firm, can conduct only upto sity
ta audits under section &&B of the ct and corresponding
number of ta returns are re:uired to be filed, in respect of
which, the seven wee$s available to them should be sufficient.
#n this regard it may be germane to refer to rule 12 of the
rules, which prescribes the different forms under which
assessees belonging to various categories enumeratedthereunder are re:uired to file their returns. "lause c of sub/
rule 1 of rule 12 prescribes -orm 5o.#'R/3 in case of a person
being an individual or Hindu Fndivided family who is a partner
in a firm and where income chargeable to income/ta under
the head (rofits and gains of business and profession4 does
not include any income ecept the categories enumerated
therein. "lause d of rule 121 prescribes -orm 5o. #'R/& in
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the case of a person being an individual or a Hindu undivided
family or other than the individual or Hindu undivided family
referred to in clause a or b or c or ca deriving income
from a proprietory business or profession. "lause e prescribes
-orm 5o. #'R/* in the case of a person not being an individual
or a Hindu undivided family or a company or a person to which
clause g applies. "lause f prescribes -orm 5o. #'R/! in the
case of a company not being a company to which clause g
applies and clause g prescribes -orm 5o.#'R/8 in the case of
a person including a company whether or not registered under
section 2* of the "ompanies ct, 1)*! which is re:uired file
return under the relevant sub/sections of section 13) of the
ct mentioned thereunder. 5ot all the aforesaid classes of
assessees are re:uired to be audited under section &&B of
the ct. 'herefore, it is not ust assessees who are subect to
ta audit under section &&B of the ct who are affected by
the non/etension of due date but assessees belonging to allthe above categories who may not be subect to ta audit
under section &&B. 'he number of ta audits conducted by a
"hartered ccountant may be limited to !+, but the total
number of assessees that he deals with is not limited to !+, as
a large number of assessees may belong to the categories
which are not subect to ta audit under section &&B of the
ct.
2+. 'he Board while not etending the due date for filing
return was also of the view that due date should not be
etended ust for the benefit of those who have remained la
till now for no valid reason in discharging their legal
obligations. #t may be noted that despite the fact thatordinarily the #'R -orms which should be prescribed and made
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available before the 1stof pril of the assessment year, have in
fact, been made available only on 8thugust, 2+1* and the
assessees are given only seven wee$s to file their ta returns.
'herefore, laity, if any, evidently is on the part of the
authority which is responsible for the delay in ma$ing the
utility for G/-iling the return being made available to the
assessees. Chen the default lies at the end of the
respondents, some grace could have been shown by the Board
instead of ta$ing a stand that such a trend may not be
encouraged. Had it not been for the laity on the part of the
respondents in providing the utilities, there would not have
been any cause for the petitioners to see$ etension of the
due date for filing ta returns.
21. s regards the decision of the 0elhi High "ourt on which
reliance has been placed by the learned counsel for the
petitioners, it may be noted that the learned 7ingle udge hasobserved that the claim of the petitioners that it is entitled to
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court in paragraph 22 of the udgment has epressed the view
that there is some merit, if not legal then otherwise, in the
grievance of the petitioner. 'he court noticed that the counsel
for the respondents was unable to give reasons for the forms
etc. not being available at the beginning of the assessment
year on 1stpril of every year and the same thereby causes
inconvenience to the practitioners of the subect. 'he court
further observed that there is sufficient time available to the
=overnment, after the -inance ct of the financial year, to
finalise the forms and if no change is intended therein, to
notify the same immediately. 'he court found no ustification
for delay beyond the assessment year in prescribing the said
forms. ccordingly, while not granting relief to the petitioner
for the current assessment year, the court directed the
respondents to, with effect from the net assessment year, at
least ensure that the forms etc. which are prescribed for the
udit Report and for filing the #'R are available as on 1st
prilof the assessment year unless there is a valid reason therefor
and which should be recorded in writing by the respondents
themselves, without waiting for any representations to be
made. 'he court further observed that the respondents, while
doing so, to also ta$e a decision whether owing thereto any
etension of the due date is re:uired to be prescribed and
accordingly notify the public.
22. s regards the decision of the ?arnata$a High "ourt, the
court has merely relegated the petitioners therein to the "B0'
for the consideration of their representation and does not lay
down any proposition of law. 'he Raasthan High "ourt has
epressed the view that the decision contained in theannouncement dated )th 7eptember, 2+1* being a policy
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decision, the court should not interfere. 'he court, therefore,
has not considered the non/eercise of discretionary powers
under section 11) of the ct on the part of the Board despite
the fact that the circumstances so warrant eercise of
discretion in favour of the assessee.
23. 'he (unab and Haryana High "ourt in the case of Aishal
=arg v. Fnion of #ndia supra has, having regard to the totality
of facts and circumstances of the case, considered it
appropriate to etend the due date for e/filing of returns upto31st>ctober, 2+1*. 'herefore, instead of etending the due
date to 3+th5ovember as prayed for in the petition, with a
view to maintain consistency in the due date for e/filing of
returns, this court is of the view that, the same date is re:uired
to be adopted.
2&. 'he contention that once the 0elhi High "ourt has ta$en
a particular view, in relation to an all #ndia statute, it is not
permissible for this court to ta$e a different view, does not
merit acceptance in the light of the view ta$en by this court in
5 R (aper Board Eimited v. 0eputy "ommissioner of #ncome
ta supra. Besides, even if such contention were to be
accepted, there are conflicting decisions of different High
"ourts, inasmuch as, the (unab and Haryana High "ourt has
ta$en a view different from the 0elhi High "ourt and hence, it
is permissible for the court to adopt the view with which it
agrees.
2*. #n the light of the above discussion, the petition partly
succeeds and is accordingly allowed to the following etent.
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C/SCA/15075/2015 JUDGMENT
'he respondent Board is hereby directed to forthwith issue
re:uisite notification under section 11) of the ct etending
the due date for e/filing of the income ta returns in relation to
the assessees who are re:uired to file return of income by 3+ th
7eptember, 2+1* to 31st>ctober, 2+1*. 'he respondents shall
henceforth, endeavour to ensure that the forms and utilities for
e/filing of income ta returns are ordinarily made available on
the 1st day of pril of the assessment year. Rule is made
absolute to the aforesaid etent with no order as to costs.
(HARSHA DEVANI, J.)
(A.G.URAIZEE,J)parmar*