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Vishal Garg vs. UOI (P&H High Court)

COURT:
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COUNSEL:
DATE: September 29, 2015 (Date of pronouncement)
DATE: September 29, 2015 (Date of publication)
AY: 2015-16
FILE: Click here to download the file in pdf format
CITATION:
As the CBDT delayed issued the Income-tax Return Forms, the due date for filing the returns is extended to 31.10.2015. CBDT directed to issue an appropriate order u/s 119

The Press Release dated 9.9.2015 issued by the CBDT whereby the decision was taken not to extend the date for filing of returns due by 30.9.2015 for the assessment year 2015-16 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 was challenged. It was submitted that it 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 and that in such circumstances, the last date fixed for e-filing of income tax return for the assessment year 2015-16 by the assessees, being 30.9.2015 is unreasonable and is liable to be extended. HELD by the High Court upholding the plea:

(i) Form Nos. 4, 5 and 6 were prescribed on 1st, 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. Further, it has been admitted by the respondent department in the office memorandum dated 24.9.2015 that since returns in ITRs 4, 5 and 6 were mandatorily required to be e-filed, no assessees in these categories could have filed their returns of income for the assessment year 2015-16 before 1st, 2nd and 7th of August 2015 respectively. Under 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 1st, 2nd and 7th August, 2015 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.

(ii) In view of the above, taking the totality of facts and circumstances of the case, it is considered appropriate to extend the due date for e-filing of returns upto 31st October 2015 for which the CBDT shall issue appropriate notification/instructions under Section 119 of the Act. Direction is also issued to the respondents to ensure that the forms etc. which are to be prescribed for the audit report and for e-filing the returns should ordinarily be made available on the first day of April of the assessment year.

(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 and Order dated 21.9.2015 passed by the Delhi High Court in Avinash Gupta vs. Union of India and others, W.P.(C) No.9032 of 2015 dissented from)

7 comments on “Vishal Garg vs. UOI (P&H High Court)
  1. Swaminath Viswanathan says:

    What about return filing of those whose last date is 30th Nov’15 considering the transfer pricing Form3ceb annexures having foreign transactions.

    Will there be any change for the same also

    REGARDS

    SWAMINATH

  2. PERMIL GOEL Advocate KAITHAL(Haryana) says:

    Inexperienced govt. Wakes up only after court directs

  3. Nem Singh says:

    Welcomable, I think its a clear direction to follow the direction of the High Court in Mandamus Writ Petition or to challenge the order before SC.

  4. bobjee kurien says:

    How many raps from the courts ( both state and supreme ) does it take for the CBDT to hang its head in shame. Even the supreme court orders are given a go by The high court direction are thrown into waste paper baskets .The result, the lower authorities in the dept do not care a hoot to the directions of the written directions of the highest body of taxation in India .

  5. vswami says:

    OFFHAND

    Ref.. “Direction is also issued to the respondents to ensure that the forms etc. which are to be prescribed for the audit report and for e-filing the returns SHOULD ORDINARILY BE MADE AVAILABLE ON THE FIRST DAY OF APRIL OF THE ASSESSMENT YEAR.”
    Such a direction from the court , it goes without saying, is required to be taken a serious note of by the government and its empowered authorities, for future guidance as well, and be strictly followed. Do so, not only in regard to the filing requirements specifically dealt with in the instant court case, but in respect of several other related matters .
    Most significant of all , to be highlighted : It is a well settled and widely accepted proposition that the law applicable for any assessment year IS that in force as on the first day of that year. As such, as a rule, the fiscal budget is ordinarily expected to be presented to the legislature, and the proposals enacted for implementation and enforcement not later than the last day of the appliocable ‘previous year ‘ i.e. 31 st March. In recent years, however, that rule has come to be followed not strictly but, if at all, as an exception.
    In the context herein, attention may be drawn to several instances in the past, in which, perforce, as an alternative, for any new or modified enactment, an effective date later than April 1, came to be chosen and prescribed. And, to the fact that such a practice happened to be fraught with problems and controversies in implementation and enforcement. One such instance, fresh in one’s memory, is section 234 D, newly inserted w.e.f the odd date of June 1 2003, and led to a prolonged litigation. , For an appreciation of the controversies so surfaced, – which eventually had to be resolved much later by another amendment of the law, – if care to, may look up the critique in the published article – (2008) 173 TAXMANN 80 (Mag).

  6. bobjee kurien says:

    Mr Swami in effect has endorsed my view with muscle and bone Who are the people for such irresponsible delay need to be hauled up and action taken against them .Do it once and you will se a sea change in administration .

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