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19770 of 2015
Annexure P.1 whereby the respondents have taken a decision not to extend
the date for filing of returns due by 30.9.2015 for the assessment year 201516 for certain categories of assessees including companies, firms and
individuals engaged in proprietary business/profession etc. whose accounts
are required to be audited in terms of Section 44AB of the Income Tax Act,
1961 (in short, the Act).
2.
139(1) of the Act, the income tax return of every financial year ending on
31st of March is to be filed by the due dates fixed. The forms under which
the respective categories of tax payers are required to file their returns have
to be duly made available to the said categories of tax payers on the very
first day of the assessment year so that every tax payer has sufficient time
to file the income tax return in the prescribed format. However, the
respondents knowing well the essence of time in filing income tax return
failed to notify the prescribed income tax return forms for the concerned
categories of tax payers. Further, the respondents notified the income tax
return forms for all types of assessees at a belated stage on different dates.
On account of the said delay on the part of the respondents in notifying the
said forms, the tax payers of the concerned categories suffered a grave
prejudice as due to the same, the forms were not available to the said
categories of tax payers as on 1.4.2015. The respondents issued Press
Release dated 9.9.2015, Annexure P.1 not to extend the date for filing return
from 30.9.2015 for certain categories of assessees including companies,
firms and individuals engaged in proprietary business/profession etc. whose
accounts are required to be audited in terms of Section 44AB of the Act.
Aggrieved thereby, the petitioners are before this court through the instant
writ petition with the prayer for extension of the due date for filing income
tax returns.
3.
4.
was only after 1.8.2015, 2.8.2015 and 7.8.2015 that the income tax return
Forms No. 4, 5 and 6 respectively were available for downloading by the
assessees. In such circumstances, the last date fixed for e-filing of income
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tax return for the assessment year 2015-16 by the assessees, being 30.9.2015
is unreasonable and is liable to be extended.
5.
questions were put to the learned counsel for the revenue:i) As to why Forms No.4, 5 and 6 were not prescribed before
7th August 2015 when the same are required to be appended
alongwith the e-filing of the return under Section 139D of
the Income Tax Act, 1961?
ii) Has any assessee in this category filed the return before 7th
August 2015? If yes, whether the assessee is required to file
fresh return after the format of audit report has been
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and 2 was filed in Court which has been taken on record. The arguments
were concluded and the case was fixed for 29.9.2015 for orders.
8.
In the reply filed, it has been inter alia stated that no averment
has been made by the petitioners as to the statutory mandate being violated
or rules not being followed or any specific violation of any statutory rights.
Further, the factual position for filing of the returns in the instant year is
totally different from the last year.
9.
whether keeping in view the facts and circumstances of the case and the
genuine hardship of the assessees, the date for filing of returns for the
assessment year 2015-16 for certain categories of assesses including
companies, firms etc. whose accounts are required to be audited in terms of
Section 44AB of the Act, is to be extended beyond 30.9.2015.
10.
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(i) a company; or
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income under Chapter XIV of the Act is to be furnished. It states that every
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person being the company or being a person other than the company or a
firm, if his total income or the total income of any other person in respect of
which he is assessable under this Act during the previous year exceeded the
maximum amount which is not chargeable to income tax shall on or before
the due date furnish a return of his income or the income of such other
person during the previous year in a prescribed form and verified in the
prescribed manner and setting forth such other
particulars as may be
prescribed. Explanation (2) thereof provides for the 'due date' which in the
case of a company, a person (other than a company) or a working partner of
a firm whose accounts are required to be audited under this Act or under any
other law for the time being in force, is 30th day of September of the
assessment year. Section 139C provides for making rules for a class or
classes of persons who may not be required to furnish documents,
statements, receipts, certificates, reports of audit or any other documents
which are otherwise under any other provisions of the Act except Section
139D, required to be furnished alongwith the return and instead they are to
be produced before the Assessing Officer on demand. Section 139D
provides for filing of return in electronic form. Under Section 119 of the
Act, the CBDT is inter alia empowered to issue such orders, instructions and
directions as it considers necessary or expedient for the purpose of proper
and efficient management of the work of assessment and collection of
revenue. It is also authorized to issue such orders, instructions and
directions for proper administration of the Act.
13.
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prompt".
This was followed by a Single Bench of Madhya Pradesh High Court in
Sukha vs. Central Administrative Tribunal, 1996(1) SCT 547.
14.
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under Articles
226
and
227
of
the
Constitution.
15.
Ist, 2nd and 7th of August 2015 respectively when the audited accounts were
required to be appended for e-filing of the return under Sections 139C and
139D of the Act.
14
Section 119 of the Act, the Board has specific powers to pass general or
special orders in respect of any class or class of cases by way of relaxation
of any of the provisions of the Act which also includes Section 139 thereof.
For avoiding the genuine hardship in any case or class of cases, the Board if
considers desirable and expedient, by general or special order, it can issue
such orders, instructions and direction for proper administration of this Act.
All such authorities engaged in execution of the Act are expected to follow
the same. The Board has not only to see the public interest for so doing but
also for avoiding the genuine hardship in any particular case or class of
cases when such powers can be exercised. It was not disputed by learned
counsel for the revenue that the forms were not available on the very first
day of the assessment year as required. Learned counsel for the revenue
could not furnish any satisfactory explanation or justification for not
prescribing Forms 4, 5 and 6 prior to Ist, 2nd and
respectively. The plea of the department that there were only minor changes
in the forms is not justified. Thus, the period required for e-filing of the
return is held to be not reasonable.
16.
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15
was dismissed but certain observations were recorded therein that the
prescribed format to be filed alongwith the return should be notified by Ist
day of the assessment year. It was recorded as under:Notwithstanding having held so, I am of the view that there
is however some merit, if not legal then otherwise, in the
grievance of the petitioner. The counsel for the respondents
appearing on advance notice is unable to give the reasons for
the forms etc. being not available at the beginning of the
assessment year on 1st April of every year and the same
thereby causing inconvenience to the practitioners of the
subject. There is sufficient time available to the Government,
after the Finance Act of the financial year, to finalize the
forms and if no change is intended therein, to notify of the
same immediately. There appears to be no justification for
delay beyond the assessment year in prescribing the said
forms. Accordingly, though not granting any relief to the
petitioner for the current assessment year, the respondents are
directed to, with effect from the next assessment year, at least
ensure that the forms etc. which are to be prescribed for the
audit report and for filing the ITR are available as on 1st April
of 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. The respondents, while doing so, to also take a decision
whether owing thereto any extension of the due date is
required to be prescribed and accordingly notify the public.
We are in agreement with the above observations but express our dissent
with regard to rejection of prayer for extension of time in e-filing the
returns beyond 30th September 2015.
18.
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identical issue held that keeping in view the facts and circumstances of the
case, it would be in the fitness of things if the Board relaxes the provisions
of Section 139(1) of the Act by extending the due date for filing the return
of income till 30th of November 2014 as a direct consequence whereof, the
specified date for obtaining and furnishing the report of audit under Section
44AB of the Act would get automatically extended. It was observed as
under:53. The CBDT derives its powers under the statute which
enjoins upon the Board to issue from time to time such orders,
instructions and directions to other income-tax authorities if
found expedient and necessary for proper administration of the
Act. Without prejudice to the generality of powers provided
under sub-section (1) of section 119 of the Act, the CBDT also
has specific powers to pass general or special orders in respect
of any class or class of cases by way of relaxation of any of the
provisions of section, which also includes section 139 of the
Act. If the Board is of the opinion that it is necessary in the
public interest to so do it. For avoiding the genuine hardship in
any case or class of cases, the CBDT if considers desirable and
expedient, by general or special order, it can issue such orders,
instructions and directions for proper administration of this Act.
All such authorities engaged in execution of the Act are
expected to follow the same. Any requirement contained in any
of the provisions of Chapter IV or Chapter VIA also can be
relaxed by the CBDT for avoiding genuine hardship in any case
or class of cases by general or special orders. This provision,
therefore, gives very wide powers to the CBDT to pass general
or special orders whenever it deems it necessary or expedient to
so do it in respect of any class of income or class of cases. It
has not only to see the public interest for so doing, but also for
avoiding the genuine hardship in any particular case or class of
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petition by both the sides were concluded on 28.9.2015 and the case was
adjourned for today for orders. Learned counsel for the revenue has
produced a copy of the order dated 28.9.2015 passed by the Rajasthan High
Court on a Public Interest Litigation in The Rajasthan Tax Consultants
Association and another vs. The Union of India and another, D.B. Civil
Writ (PIL) Petition No.11037 of 2015, where the Hon'ble Bench has
declined to interfere by referring that it is a policy decision of the
Government and had relied upon decision of the Delhi High Court in
Avinash Gupta's case (supra) dated 21.9.2015 where the writ petition was
dismissed for extension of time. As noticed above, we have already
expressed our dissent with the order passed by the Delhi High Court qua
dismissing the writ petition with regard to extension of time for e-filing of
the income tax returns. Accordingly, we are unable to concur with the view
expressed by the Rajasthan High Court.
20.
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(Ramendra Jain)
Judge