C\/SCA\/13653\/2020 JUDGMENT
\nIN THE HIGH COURT OF GUJARAT AT AHMEDABAD
\nR\/SPECIAL CIVIL APPLICATION NO. 13653 of 2020
\nWith
\nR\/SPECIAL CIVIL APPLICATION NO. 660 of 2021
\nFOR APPROVAL AND SIGNATURE:
\nHONOURABLE MR. JUSTICE J.B.PARDIWALA
\nand
\nHONOURABLE MR. JUSTICE ILESH J. VORA
\n==========================================================
\n1 Whether Reporters of Local Papers may be allowed to see the
\njudgment ? YES
\n2 To be referred to the Reporter or not ? NO
\n3 Whether their Lordships wish to see the fair copy of the
\njudgment ? NO
\n4 Whether this case involves a substantial question of law as to
\nthe interpretation of the Constitution of India or any order made
\nthereunder ? NO
\n==========================================================
\nTHE ALL GUJARAT FEDERATION OF TAX CONSULTANTS
\nVersus
\nUNION OF INDIA
\n==========================================================
\nAppearance:
\nIN SPECIAL CIVIL APPLICATION NO.13653 OF 2020:
\nMR SN SOPARKAR, SENIOR COUNSEL WITH MR B S SOPARKAR(6851)
\nfor the Petitioner(s) No. 1,2
\nMR ZOHEB HOSSAIN WITH MR VARUN K PATEL WITH MR NIKUNT K
\nRAVAL, ADVOCATES for the Respondent(s) No. 1,2
\nDS AFF.NOT FILED (N)(11) for the Respondent(s) No. 1,2,3
\nIN SPECIAL CIVIL APPLICATION NO.660 OF 2021:
\nMR.AVINASH PODDAR(9761) for the Petitioner(s) No. 1
\nMR.VISHAL J DAVE(6515) for the Petitioner(s) No. 1
\nMR NIPUN SINGHVI(9653) for the Petitioner(s) No. 1
\nMR ZOHEB HOSSAIN WITH MR VARUN K PATEL WITH MR NIKUNT K
\nRAVAL, ADVOCATES for the Respondent(s) No. 1,2
\n==========================================================
\nPage 1 of 29
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\nC\/SCA\/13653\/2020 JUDGMENT
\nCORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
\nand
\nHONOURABLE MR. JUSTICE ILESH J. VORA
\nDate : 13\/01\/2021
\nORAL JUDGMENT
\n(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
\n1 The operative part of the order passed by this Court dated 8th
\nJanuary 2021 in the Special Civil Application No.13653 of 2020 reads as
\nunder:
\n\u201c21 We are of the view that the respondent No.1 \u2013 Union of India,
\nMinistry of Finance should immediately look into the issue, more
\nparticularly, the representation dated 12th October 2020 at Annexure : I
\nof the paper book (page 108) and take an appropriate decision at the
\nearliest in accordance with law. We, accordingly, direct the respondent
\nNo.1 to do so. While taking an appropriate decision, the Union shall bear
\nin mind the observations made by this High Court in the two above noted
\njudgements, more particularly, the observations of the Supreme Court in
\nthe case of Vaghjibhai S. Bishnoi (supra) that the powers given to the
\nCBDT are beneficial in nature to be exercised for proper administration of
\nfiscal law so that undue hardship may not be caused to the taxpayers. The
\npurpose is of just, proper and efficient management of the work of
\nassessment and the public interest. One additional aspect needs to be kept
\nin mind before taking any appropriate decision that the time period for the
\nofficials of the tax department has been extended upto 31st March 2021
\nhaving regard to the current covid19
\npandemic situation. If that be so,
\nthen some extension deserves to be considered in accordance with law. Let
\nan appropriate decision be taken by 12th January 2021.
\n22 Post this matter on 13th January 2021 on top of the Board.
\n23 Mr. Patel, the learned Senior Standing Counsel appearing for the
\nrespondents Nos.2 and 3 shall apprise this Court of any decision or
\ndevelopment in the matter on the next date of hearing.\u201d
\n2 Pursuant to the directions issued by this Court referred to above,
\nthe CBDT looked into the representation dated 12th October 2014
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\nC\/SCA\/13653\/2020 JUDGMENT
\npreferred by the All Gujarat Federation of Tax Consultants and is said to
\nhave also taken into consideration the other observations made by this
\nCourt in the order dated 8th January 2021.
\n3 The order under Section 119 of the Income Tax Act, 1961 dated
\n11th January 2021 declining to extend the time limit any further reads
\nthus:
\n\u201cF.NO. 370153\/39\/2020TPL
\nGOVERNMENT OF INDIA
\nMINISTRY OF FINANCE DEPARTMENT OF REVENUE (CENTRAL BOARD
\nOF DIRECT TAXES)
\n(TAX POLICY AND LEGISLATION DIVISION)
\n***********
\nNew Delhi, 11th January, 2021
\nORDER UNDER SECTION 119 OF INCOME TAX ACT, 1961
\nThe Hon’ble Gujarat High Court vide judgement dated 8th January, 2021
\nin the case of The All India Gujarat Federation of Tax Consultants Vs.
\nUnion of India, SCA 13653 of 2020, has directed the Ministry of Finance
\nto look into the issue of extension of due dates for filing of Audit Report
\nunder section 44AB of the Income tax Act more particularly the
\nrepresentation dated 12.10.2020 and take an appropriate decision in
\naccordance with law.
\n2. In the wake of the global pandemic due to COVID19
\nthe due dates
\nfor filing of income tax returns for A.Y. 202021
\nwas extended vide the
\nTaxation and Other laws (Relaxation and Amendment of Certain
\nProvisions) Act, 2020 (which was enacted on 29th September,2020) to
\n30th November, 2020. Subsequently, vide notification s.o. 3906(E) dated
\n29th October, 2020 the due dates for filing of returns were further
\nextended to 31st January, 2021 for cases in which tax audit report under
\nsection 44AB of the Income tax Act (“the Act”) is required to be filed and
\n31 st December, 2020 for all other cases. Further vide notification S.O.
\n4805 (E) dated 31st December, 2020 the above due dates were further
\nextended to 15th February, 2021 and 10th January, 2021 respectively.
\n3. As per the provisions of the Act the due date for filing of the audit report
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\nC\/SCA\/13653\/2020 JUDGMENT
\nunder section 44AB is one month prior to the due date of filing of income
\ntax return. Therefore, the said due date was extended to 31st October,
\n2020 vide the Taxation and Other laws (Relaxation and Amendment of
\nCertain Provisions) Act, 2020, 31st December, 2020 vide notification s.o.
\n3906(E) dated 29th October, 2020 and further to 15th January, 2020
\nvide notification s.o. 4805 (E) dated 31st December, 2020.
\n4. The due dates for payment of selfassessment
\ntax, for taxpayers whose
\namount due does not exceed rupees one lakh, also coincide with the due
\ndates for filing of income tax returns. The table below summarises the
\nvarious due date extensions given:S.
\nNo. Action Original Due
\ndate
\n1st Extension
\nvide TOLA,
\n2020
\n2nd Extension
\nvide
\nNotification
\nS.O.3906 (E)
\ndated
\n29.10.2020
\n3rd Extension
\nvide
\nNotification
\nS.O. 4805
\n(E) dated
\n31.12.2020
\n1 Return for
\nNon-Audit
\nCases
\n31.07.2020 30.11.2020 31.12.2020 10.01.2021
\n2 Tax Audit 30.09.2020 31.10.2020 31.12.2020 15.01.2021
\n3 Return for
\nTax Audit
\nCases
\n31.10.2020 30.11.2020 31.01.2021 15.02.2021
\n5. Thus, it is apparent that the Government has not only considered
\nrepresentations of various stakeholders but also has been proactive in
\nproviding relaxation to the taxpayers by extending due dates regularly.
\nThe table below gives the statistical data comparing the return filing
\nstatistics of A.Y. 201920
\nand A.Y. 202021
\nDate \u2013
\nthis year
\nAY 20-21
\nITRs filed
\nDaily figures Date \u2013 last
\nyear
\nAY 19-20
\nITRS filed
\nDAILY
\nFigures
\n05-
\nJan-21
\n5,08,48,022 7,26,177 26-Aug-19 4,14,13,558 13,65,348
\n06-Jan-
\n21
\n5,16,71,398 8,23,376 27-Aug-19 4,30,99,600 16,86,042
\n07-Jan-
\n21
\n5,27,14,751 10,43,353 28-Aug-19 4,51,44,749 20,45,149
\n08-Jan-
\n21
\n5,41,54,435 14,39,684 29-Aug-19 4,77,39,460 25,94,711
\n09-Jan-
\n21
\n5,64,10,561 22,56,126 30-Aug-19 5,12,55,607 35,16,147
\n10-Jan-
\n21
\n5,95,15,322 31,04,761 31-Aug-19 5,61,79,905 49,24,298
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\nC\/SCA\/13653\/2020 JUDGMENT
\nFrom the above table, it is apparent that the number of returns filed this
\nyear has already exceeded the number of returns filed last year up to 31 st
\nAugust which was the last day of filing of the all the returns other than the
\ncompany\/tax audit returns, by about 6%.
\nThe table below gives the statistical data comparing the filing statistics of
\ntax audit report for A.Y. 201920
\nand A.Y. 202021.
\nDate Form 3CA Form 3CB Date Form 3CA Form 3CB
\n20-Oct-
\n19
\n2,741 29,760 04-Jan-21 3,079 27,492
\n21-Oct-
\n19
\n5,598 51,069 05-Jan-21 3,238 28,875
\n22-Oct-
\n19
\n7,626 62,938 06-Jan-21 3,190 30,582
\n23-Oct-
\n19
\n9,125 75,031 07-Jan-21 3,323 31,035
\n24-Oct-
\n19
\n10,977 87,350 08-Jan-21 3,316 29,924
\n25-Oct-
\n19
\n11,841 93,575 09-Jan-21 2,824 26,924
\n26-Oct-
\n19
\n10,366 91,397 10-Jan-21 1,416 16,370
\n27-Oct-
\n19
\n2,309 30,861 11-Jan-21
\n28-Oct-
\n19
\n6,138 59,785 12-Jan-21
\n29-Oct-
\n19
\n10,119 1,00,569 13-Jan-21
\n30-Oct-
\n19
\n23,125 1,87,444 14-Jan-21
\n31-Oct-
\n19
\n42,280 3,15,190 15-Jan-21
\nGrand
\nTotal
\ncumulativ
\ne
\n2,88,236 25,37,444 Grant Total
\ncumulative
\n2,14,804 18,49,461
\n6. The above table also show that majority of the audit reports under
\nsection 44AB of the Act as well as income tax returns are filed within the
\nlast few days of the dates only. For A.Y. 201920
\nit is seen that 24% of
\ntotal audit reports were filed in last 3 days before the due date. Therefore,
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\nC\/SCA\/13653\/2020 JUDGMENT
\nlesser filing compliances having been made much before the due date
\ncannot be said to be an anomalous situation.
\n7. A look at the relaxation of similar nature provided by other economies
\nglobally makes it clear that the Government of India has been very
\nempathetic to the needs of the taxpayers as compared various other
\ncountries. It is apparent from the table no other country has extended the
\ndue dates as much as India. Even countries which are comparatively worse
\nhit by COVID19,
\nlike the USA, UK etc., have provided n o or lesser
\nextensions in due dates. The table below lists such extensions given by a
\nfew countries:
\nCountry Financial
\nperiod
\nIndividual Corporate
\nDue date Extended
\ndue date
\nDue date Extended
\ndue date
\nUSA 2019 15th April
\n2020
\n15th October
\n2020
\n15th April
\n2020
\n15th October
\n2020
\nUK 2019-2020 31 January
\n2021
\nNo extension 31st
\nDecember
\n2020
\nNo extension
\nAustralia 2018-2019 5th May
\n2020
\n5th June 2020 15th May
\n2020
\n5th June 2020
\nSouth Africa 2019 16th
\nNovember
\n2020
\nNo extension 31st
\nDecember
\n2020
\nNo extension
\nNetherlands 2019 1st May
\n2020
\nNo extension 1st June
\n2020
\nNo extension
\nIreland 2019 12th
\nNovember
\n2020
\n10th
\nDecember
\n2020
\n12th
\nNovember
\n2020
\n10th
\nDecember
\n2020
\nSingapore 2019 18th April
\n2020
\n31st May
\n2020
\n15th
\nDecember
\n2020
\n15th January
\n2020
\nCanada 2019 30th April
\n2020
\n30th
\nSeptember
\n2020
\nMay
\nAugust
\n2020
\n30th
\nSeptember
\n2020
\nBrazil 2019 1st March
\n2020
\n30th April
\n2020
\n30th April
\n2020
\n30th June
\n2020
\n8. From the above it may be seen that Government has been proactive
\nin analyzing the situation and providing relief to assessee. However, it
\nshould also be appreciated that filing of tax returns\/audit reports are
\nessential part of the obligations of assessee and cannot be delayed
\nindefinitely. Many functions of the Incometax
\nDepartment start only after
\nthe filing of the returns by the assessee. Filing of tax returns by assessee
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\nC\/SCA\/13653\/2020 JUDGMENT
\nalso results in collections of taxes either through payment of selfassessment
\ntax by the assessee or by the subsequent collection by the
\ndepartment post processing or assessment of the tax returns. The tax
\ncollections assume increased significance in these difficult times and
\nGovernment of India needs revenue to carry out relief work for poor and
\nother responsibilities. Any delay in filing returns affects collection of taxes
\nand other welfare functions of the state for the vulnerable and weaker
\nsections of society which is funded through the revenue collected. Sufficient
\ntime has already been given to taxpayers to file their tax returns and a
\nlarge number of taxpayers have already filed their returns of income.
\n9. From the above discussion, it is apparent that,\u2022
\nThe due dates for filing of return\/tax audit have already been
\nextended on 3 occasions.
\n\u2022 Internationally, the extension provided by India is more
\ngenerous as compared to other countries.
\n\u2022 The return filing statistics of the current year indicates that
\nreturns filed in this financial year already far exceeds the returns
\nfiled which were due on the last date of filing of returns.
\nAny further extension would adversely affect the return filing discipline
\nand shall also cause injustice to those who have taken pains to file the
\nreturn before the due date. It would also postpone the collection of revenue
\nthereby hampering the efforts of the Government to provide relief to the
\npoor during these COVID times.
\n11. In fact several decisions of the Hon’ble Supreme Court have gone to
\nthe extent of saying that the choice of a cut off date cannot be dubbed as
\narbitrary even if no particular reason is given for the same in the counter
\naffidavit filed by the Government, (unless it is shown to be totally
\ncapricious or whimsical). [State of Bihar vs. Ramjee Prasad 1990(3) SCC
\n368, Union of Indian & Anr. vs. Sudhir Kumar JaiswaI1994(4) SCC 212
\n(vide para 5), Ramrao & Ors. vs. All India Backward Class Bank
\nEmployees Welfare Association & Ors. 2004 (2) SCC 76 (vide para 31),
\nUniversity Grants Commission vs. Sadhana Chaudhary & Ors. 1996(10)
\nSCC 536, etc .] When it is seen that a line or a point there must be and
\nthere is no mathematical or logical way of fIxing it precisely, the decision
\nof the legislature or its delegated must be accepted unless it can be said
\nthat it is very wide off the reasonable mark. (See Union of India & Anr. v.
\nMis Parameshwaran match works Ltd., 1975 (2) SCR 573, at p. 579; and
\nDr. (Mrs.) Sushma Sharma etc. etc. v. State of Rajasthan & Ors. 1985 (3)
\nSCR 243, at p. 269)
\n2. In view of the above reasons, all the representations for further
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\nC\/SCA\/13653\/2020 JUDGMENT
\nextension of the due date are hereby rejected.\u201d
\n4 Thus, it appears that the CBDT has taken the final decision not to
\nextend the due date any further and accordingly, rejected all the
\nrepresentations.
\n5 The decision taken by the CBDT vide order dated 11th January
\n2021 referred to above is sought to be produced by way of further
\naffidavit filed on behalf of the respondents Nos.2 and 3 respectively. The
\nsame is ordered to be taken on record.
\n6 We proceeded with the further hearing of this litigation today at
\nsharp 11:00 A.M.
\n\u25cf SUBMISSIONS ON BEHALF OF THE WRIT APPLICANTS:
\n7 Mr. S. N. Soparkar, the learned Senior Counsel appearing for the
\nwrit applicants vehemently submitted that the decision of the CBDT
\nplaced on record is nothing, but an eyewash. It is argued that the core
\nissue arising in this litigation has not been addressed by the CBDT.
\n8 It is argued that the CBDT has very conveniently and consciously
\nnot addressed itself to the hard reality that the utilities for filing the Tax
\nAudit Report and the Income Returns were released at a belated stage.
\nIn fact, those were released almost after a period of more than five
\nmonths despite there being a mandate from this Court in the previous
\nlitigation referred to in the order dated 8th January 2021 that the utilities
\nshould be released not later than 1st April of the financial year. The
\nCBDT has failed to appreciate that by inordinate delay in releasing the
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\nC\/SCA\/13653\/2020 JUDGMENT
\nutilities, the time available with the tax practitioners could be said to
\nhave been considerably curtailed. The tax practitioners are finding it
\nvery difficult to prepare the Returns of Income and Tax Audit Reports
\nbefore the due date.
\n9 It is argued that the issues raised in the present writ applications
\nare identical to the one decided in 2014(50) taxmann.com 115(Guj)
\nparas 37 to 39 and 2015 (61) taxmann.com 431 (Guj) (para 6). It is
\nargued that in the present case also, the Income Tax Return utilities
\nwere issued at a belated stage. Substantive amendments were
\nintroduced in the form of Tax Audit Reports in the middle of the order
\ni.e. 1st October 2020 and even thereafter, the utility was not issued till
\n22nd October 2020 creating a complete state of disarray.
\n10 It is argued that even if the two subsequent extensions are taken
\ninto consideration, then the total time available is only 85 days instead
\nof 183 days.
\n11 There is no fault on the part of the writ applicants and the case is
\none of genuine hardship on account of the delay on the part of the
\nCBDT.
\n12 Way back in the year 2014, this Court had directed the CBDT not
\nto introduce new utility with additional requirements in the midst of the
\nyear. The directions issued by this Court in the two judgements referred
\nto above have been completely defied.
\n13 It is argued that this High Court extended the due date in the
\ndecision reported in 2015 (61) taxmann.com 431, even while the other
\nHigh Courts declined to do so.
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\n14 It is argued that by extending the time period, as prayed for, no
\nhardship is going to be caused to the Revenue, whereas, if the time
\nperiod is not extended, the writ applicants will be put to immense
\ndifficulties.
\n15 Mr. Soparkar, once again, invited our attention to the following
\nchart:
\nITR\/
\nTAR
\nForm
\nDue date of
\nfiling
\n(original)
\nClear
\ndays
\nexpected
\nfrom
\n01.04.20
\n20
\nDate of
\navailability
\nof e-filing
\nutility
\nSchema
\nupdation
\ndate
\nUtility
\nupdation
\ndate
\nExtended
\ndue date
\nEffective
\ndays
\navailable
\nwith
\ntaxpayers
\nand the tax
\nprofessiona
\nls from
\nutility
\navailability
\nITR 3 31.10.2020 214 days 31.07.2020 29.08.2020
\n09.11.2020
\n11.01.2021
\n11.01.2021 15.02.2021 199 days
\nITR 5 31.10.2020 214 days 25.08.2020 30.09.2020
\n13.11.2020
\n11.01.2021
\n11.01.2021 15.02.2021 174 days
\nITR 6 31.10.2020 214 days 10.10.2020 22.11.2020
\n&
\n11.01.2021
\n11.01.2021 15.02.2021 128 days
\nITR 7 31.10.2020 214 days 03.09.2020 15.10.2020
\n08.12.2020
\n11.01.2021
\n11.01.2021 15.02.2021 165 days
\nTAR
\n3CA
\n3CB
\n3CD
\n30.09.2020 183 days 22.10.2020
\n(Rules
\namended on
\n01.10.2020)
\n15.01.2021 85 days
\nITR 3: for individuals having income from business\/ profession head
\nITR 5: For Firm \/LLP\/AOP\/BOI
\nITR 6: For company
\nITR 7: for charitable organisation\/political party\/university (claiming
\nexemption)
\n16 It is argued that on account of the covid pandemic situation, there
\nhas been frequent disruption as regards the availability of the staff,
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\nC\/SCA\/13653\/2020 JUDGMENT
\nemployees, working hours, client meetings and audit work. The hardship
\nfaced by the taxpayers and tax professionals in finishing the audit
\nassignments and collecting the requisite details to file the Returns of
\nIncome and Tax Audit Reports is genuine and real. Adequate time period
\nis needed to finish the work. It is pointed out that not less than 18
\norganizations (including the Institute of Chartered Accountants of India)
\nhave made representations for this purpose.
\n17 It is argued that through the Taxation and other Laws (Relaxation
\nand Amendment of Certain Provisions) Act, 2020, the due dates for
\ncompletion of any proceedings or passing of any order or issuance of any
\nnotice, intimation, notification, sanction or approval or such other
\naction, by whatever name called, by any authority, Commission or
\nTribunal, by whatever name called under the provisions of the specified
\nAct is extended upto 31st March 2021. If the adequate time period
\ndetermined for such purposes is extended upto 31st March 2021 than the
\nsame should also be granted to the writ applicants. It is argued that the
\nCBDT has recognized the need to extend the time period and has already
\nextended the same for three times for A.Y. 202121.
\nTherefore, the need
\nto extend the time period from the original due dates is genuine and not
\nsuperfluous. Only the adequacy of extension is in question. It is argued
\nthat that the pandemic has not come to an end.
\n18 In such circumstances referred to above, Mr. Soparkar prays that
\nthere being merit in his writ application, the same may be considered
\nappropriately and the time period, as prayed for, may be extended in the
\ninterest of not only the tax payers but also the tax professionals.
\n19 Mr. Avinash Poddar, the learned counsel appearing with Mr.
\nVishal J. Dave and Mr. Nipun Singhvi, the learned counsel for the writ
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\nC\/SCA\/13653\/2020 JUDGMENT
\napplicants of the connected writ application submitted that they would
\nadopt all the submissions canvassed by Mr. S. N. Soparkar referred to
\nabove and noted above.
\n\u25cf SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
\n20 On the other hand, both the writ applications have been
\nvehemently opposed by Mr. Zoheb Hossain assisted by Mr. Varun K.
\nPatel and Mr. Nikunt K. Raval, the learned counsel appearing for the
\nrespondents.
\n21 Mr. Hossain would submit that the principal argument canvassed
\non behalf of the writ applicants as regards the delay in releasing the
\nutilities for filing the Tax Audit Reports and Income Tax Returns has
\nbeen blown out of proportion. It is argued that the changes brought
\nabout in the ITR by way of an update do not amount to adding or
\nextending the fields. It is only increasing or making changes in the
\ncharacter of the existing fields to enable certain minuscule taxpayers to
\nreport correctly which they might not have been able to otherwise.
\n22 It is argued that the Tax Audit work undertaken by the writ
\napplicants is in no manner affected by such amendment minuscule
\nchanges or updates which are provided in the existing fields. No
\nprejudice could be said to have been caused warranting any interference
\nat the end of this Court in exercise of writ jurisdiction under Article 226
\nof the Constitution of India. It is argued that the Tax Audit Report Utility
\nhas been made available from 1st April of the relevant year. Reliance
\nplaced on the two decisions of this High Court referred to above are
\ncompletely misplaced because in the said case by a Notification dated 1st
\nMay 2013, the CBDT had made it mandatory for the assessees to
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\nC\/SCA\/13653\/2020 JUDGMENT
\nelectronically file the Income Tax Returns relevant for the assessment
\nyear 201314
\nand onwards. In relation to the assessment year 201415,
\nthe respondents therein had failed to make the utility specified for filing
\nthe Tax Audit Report until 31st August 2014. Various representations
\nwere made to the CBDT in that regard which in exercise of power under
\nSection 119 of the Act extended the due date for filing the Tax Audit
\nReport under Section 44AB of the Act 1961 to 30th September 2014.
\nHowever, the due date for filing of Returns of Income was not extended.
\nIt is in such factual background prevailing at the relevant point of time
\nthat this Court thought fit to issue the writ of mandamus directing the
\nCBDT to extend the due date for filing the Income Tax Returns. It is
\nargued that after deliberations at the highest level in the Ministry of
\nFinance, it was decided that the time limit for filing of the Audit Reports,
\nwhich is presently fixed as 15th January 2021 should not be extended
\nany further for the following reasons:
\n(1) The Compliance in filing the Tax Audit Reports is rapidly increasing
\neach day as is evident from the following table:
\nDate FORM3
\nCA
\nAY 20-
\n21
\nFORM3
\nCB
\nAY20-
\n21
\nCumulati
\nve figure
\n\u2013 AY 20-
\n21
\nDate FORM3C
\nA AY 19-21
\nFORM3C
\nB AY 19-20
\nCumulativ
\ne figure
\nAY 19-20
\nDifferenc
\ne
\n04-
\nJan-21
\n3,079 27,492 18,84,075 20-Oct-19 2,791 29,760 15,30,967 3,53,108
\n05-
\nJan-21
\n3,238 28,875 19,16,188 21-Oct-19 5,598 51,069 15,87,634 3,28,554
\n06-
\nJan-21
\n3,190 30,582 19,49,960 22-Oct-19 7,628 62.938 16,58,198 2,91,762
\n07-
\nJan-21
\n3,323 31,035 19,84,318 23-Oct-19 9,125 75,031 17,42,354 2,41,964
\n8-Jan-
\n21
\n3,316 29,924 20,17,558 24-Oct-19 10,977 87,350 18,40,681 1,76,877
\n09-
\nJan-21
\n2,824 26,097 20,46,479 25-Oct-19 11,841 93,575 19,46,097 1,00,382
\n10-
\nJan-21
\n1,416 16,370 20,64,265 26-Oct-19 10,366 91,397 20,47,860 16,405
\n11- 4,320 41,970 21,10,555 27-Oct-19 2,309 30,861 20,81,030 29,525
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\nC\/SCA\/13653\/2020 JUDGMENT
\nJan-21
\n12-
\nJan-21
\n8,690 85,663 22,04,908 28-Oct-19 6,138 59,785 21,46,953 57,955
\n13-
\nJan-21
\n29-Oct-19 10,119 1,00,569 22,57,641
\n14-
\nJan-21
\n30-Oct-19 23,125 1,87,444 24,68,210
\n15-
\nJan-21
\n31-Oct-19 42,280 31,15,190 28,25,680
\nGrand
\nTotal
\ncumula
\ntive
\n2,27,814 19,77,
\n094
\n22,04,908 Grand
\nTotal
\ncumulative
\n2,88,236 25,37,444 28,25,680 -6,20,772
\n(2) From the above data, it is evident that there has been a huge leap in
\nfiling of the tax audit reports and from 10.01.2021 the daily filings have
\nincreased 4 to 5 times as on 12.01.2021. On 10.01.2021, the daily filing
\nof Form 3CB was 16,370 which jumped to 41,970 on 11.01.2021 which
\nhas again more than doubled to 85,663 on 12.01.2021. The assessees are
\nrapidly complying with the filing of the tax audit report across the country
\nand any interference at this stage may affect the discipline of filings by the
\nAssessees as well as the larger interest of the Revenue and public interest.
\n(3) Notably, from the above table it is also evident that as against last
\nyear with 3 days remaining from the deadline, the cumulative figure of the
\nTAR filings for AY 201920
\nwas 21,46,953 as against the cumulative
\nfigure of the TAR filings this year with three days remaining from the last
\ndate is 22,04,908 which is 57,955 already in excess of the last year\u2019s TAR
\nfilings. Therefore, there is disciplined compliance taking place by the
\nassessees.
\n(4) The TAR utility was available from the beginning of the year, and
\ntherefore, there is no justification in seeking an extension for filing the tax
\naudit report.
\n(5) Moreover, the submission that certain ITR Forms were released in June
\n2020, July 2020, August 2020 and September 2020 respectively and
\ntherefore filing of the ITRs should be extended is misplaced since the
\npreparation of the Final Accounts, which is done on the basis of the
\nIncome Tax Act and the Rules therein is nowhere dependent on the date of
\nrelease of the ITR utility and is an independent exercise. It is nobody\u2019s case
\nthat the assessee was ready to file his returns prior to June 2020, July
\n2020, August 2020 or September 2020 the
\nvarious dates when the
\ndifferent ITR Forms became available but
\ncould not file the same and
\nthereafter they were prevented from filing till the last date of filing such
\nreturn on 15.02.2021. There is nothing in the Act or Rules which
\nmandates that the portal should be open and available from 1st April of
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\nC\/SCA\/13653\/2020 JUDGMENT
\nthe relevant year itself provided that a reasonable time is given to the
\nassessees to file their return of income. In fact the ITR forms which were
\nmade available contained only minimal changes to reflect the amendments
\nmade in the Finance Act 2020 which were already known to all assessees
\nand Tax practitioners.
\n(6) The Filing of returns in the tax audit cases demonstrate that even as
\non 12.01.2021 which is 34 days before the extended due date, the returns
\nfiled in the tax audit cases far exceed the returns filed in comparison to
\nlast year on a similar date. A chart to this effect is as under:
\nAsst year AY 2020-21 a on
\n12th Jan 2021
\nAY 2019-20 as on
\n28th Sep 2019
\nDifference
\nITR \u2013 3 83,98,573 79,18,513 4,80,060
\nITR -5 10,68,479 7,68,756 2,99,723
\nITR – 6 4,82,981 2,38,168 2,44,813
\nThis is comparison for AY 201920
\n(due date 31st Oct 2019 for all
\nITRs with TAR) and AY 2021
\n(due date 15th Feb 2021 for all ITRs
\nwith TAR): 34 days prior to extended due date for equivalent
\ncomparison
\n(7) Indisputably, the assessees would have at least 148 days to upload
\ntheir returns from 22\/09\/2020 the date when the ITR6
\nwas made
\navailable till 15.02.2021 which is the date when the return for the Audit
\nCases is to be filed. The writ applicants have not been able to establish any
\nprejudice caused to the Assessee or indicate any rational nexus between
\ntheir inability to prepare their Final Accounts and Tax Audit Reports and
\nthe availability of the utility for various forms from June 2020\/September
\n2020 onwards.
\n(8) The Supreme Court has consistently held that in financial matters
\njudicial deference may be shown to the executive pragmatism and free play
\nin the joints may be given to the executive especially in fixing cutoff
\ndates.
\n(9) It has also been demonstrated that the various updates the Petitioner
\nhas referred to made to various forms did not amount to changing or
\nincreasing any existing fields, rather only the size of such fields were
\nincreased in the number of characters or in some cases the field was
\nmodified to accommodate from numeric characters to alpha numeric
\ncharacters keeping in mind certain special cases. A list of such Schema
\nchanges and justification was presented before this Court.
\n(10) The consequence of late filing of a tax audit report is provided under
\nSection 271B which reads as under:
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\n\u201cFailure to get accounts audited.
\n271B. If any person fails to get his accounts audited in respect of
\nany previous year or years relevant to an assessment year or
\nfurnish a report of such audit as required under section 44AB, the
\nAssessing Officer may direct that such person shall pay, by way of
\npenalty, a sum equal to onehalf
\nper cent of the total sales,
\nturnover or gross receipts, as the case may be, in business, or of the
\ngross receipts in profession, in such previous year or years or a sum
\nof one hundred fifty thousand rupees, whichever is less.\u201d
\n(11) However, Section 273B containing the consequence of nonfiling
\nof
\ntax audit report provides that if in a given case the assessee proves
\nreasonable cause for failure to file tax audit report in accordance with
\nSection 44AB, no penalty will be imposable on the person or the assessee.
\nThe relevant portion of Section 273B is reproduced hereunder:
\n\u201cPenalty not to be imposed in certain cases.
\n273B. Notwithstanding anything contained in the provisions of
\nclause (b) of subsection
\n(1) of\u2026section 271B, \u2026, no penalty shall
\nbe imposable on the person or the assessee, as the case may be, for
\nany failure referred to in the said provisions if he proves that there
\nwas reasonable cause for the said failure.\u201d
\n(12) Therefore in exceptional cases, if an assessee is able to make out a
\ncase of reasonable cause for his failure to file tax audit report within the
\nrelevant time as required under Section 44AB, then the case of such person
\nor assessee will be considered in accordance with law under Section 273B.
\n23 In support of the aforesaid submissions, the learned counsel have
\nrelied upon the following case law:
\n(1) Government of Andhra Pradesh vs. N. Subbarayudue
\nand others (2008) 14 SCC (paras 5 to 8)
\n(2) Ramrao and others vs. All India Backward Class Bak
\nEmployees Welfare Association (2004) 2 SCC 76 (para 31 to
\n33)
\n(3) Union of India and another vs. Sudhir Kumar Jaiswal
\n(1994) 4 SCC 212 (paras 5 to 7)
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\n(4) University Grants Commission vs. Sadhana Chaudhary
\n(1996) 10 SCC 536 (para 21)
\n(5) RK Garg vs. Union of India (1981) 4 SCC 675 (para 8)
\n(6) Union of India vs. Nitdip Textile Processors Pvt Ltd
\n(2013) 1 SCC 226 (para 66)
\n(7) Supreme Court’s order dated 20th March 2020 In Union
\nof India vs. PD Sunny and others in SLP(C) No.10669 of 2020
\n24 It is also brought to our notice that the High Court of Kerala and
\nthe High Court of Allahabad had passed orders issuing general directions
\nto the various departments like the banks, financial institutions, income
\ntax authorities, authorities dealing with the erstwhile KVAT, GST,
\nrecovery of tax on motor vehicles and building tax to defer the recovery
\nproceedings or coercive measures till a particular point of time. The
\nRevenue challenged the two orders before the Supreme Court by filing
\nthe Special Leave to Petition (Civil) No.10669 of 2020. The Supreme
\nCourt passed the following order dated 20th March 2020, which reads
\nthus:
\n\u201cThe Registry is directed to accept these special leave petitions against the
\njudgment and order(s) passed by the High Court of Judicature at Kerala,
\nErnakulam Bench in Writ Petition (Civil)No.8231\/2020 and of the High
\nCourt of Judicature at Allahabad, Allahabad Bench in Writ Petition (Civil)
\nNo.7014\/2020.
\nPermission to file special leave petitions is granted.
\nIssue notice.
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\nIn the meantime, there shall be exparte
\nadinterim
\nstay of the impugned
\njudgment and order(s) passed in the aforesaid writ petitions and of further
\nproceedings before the High Court(s), in view of the stand taken by the
\nGovernment of India through learned Solicitor General, before us, that the
\nGovernment is fully conscious of the prevailing situation and would itself
\nevolve a proper mechanism to assuage concerns and hardships of every
\none.\u201d
\n25 In such circumstances referred to above, the learned counsel
\nappearing for the respondents pray that there being no merit in these
\ntwo writ applications, those be rejected.
\n\u25cf SUBMISSIONS IN REJOINDER:
\n26 Mr. Soparkar, in rejoinder, submitted that the Revenue has raised
\nthe following five contentions:
\n\u201c(1) Comparing number of income tax returns filed on 31.08.2019 (5.51
\ncrores) and 10.01.2021(5.95 crores) \u2013 an argument is advanced that a
\ngreater number of returns are already filed by the time 10.01.2021 and
\ntherefore no further extension is required.
\n(2) Comparing number of Tax audit reports filed on 31.10.2019 (2.88
\nlakhs\/25.37 lakhs) and 10.01.2021(2.14 lakhs\/18.49 lakhs) \u2013 an
\nargument is advanced that a lesser number of returns filed before a due
\ndate is not anomaly as 24% of total reports were filed in last five days.
\n(3) Comparing the extension granted by other countries around the world
\n\u2013 an argument is made that the CBDT has been generous in granting
\nextension that it has granted already and no further extension is required.
\n(4) It is also argued that return filing is an obligation of the assessee
\nwhich cannot be delayed indefinitely. Many functions of the tax
\ndepartment begin after filing of the returns. Filing of the returns results in
\ntax payment that the government needs. Further extension will adversely
\naffect return filing discipline and shall cause injustice to those who have
\nfiled before due date.
\n(5) Reliance is placed on Supreme Court decisions to submit that due date
\nis not arbitrarily decided and the same may not be disturbed.\u201d
\n27 Mr. Soparkar would submit that the CBDT still owes an answer to
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\nthe following:
\n(a) the delay in releasing the utilities by 46
\nmonths despite
\nrepeated orders of various High Courts.
\n(b) amendments in the Rules and Tax Audit Return form in the
\nmiddle of the year
\n(c) No hardship is likely to be caused to the revenue if the due
\ndate is extended
\n(d) Why the writ applicants should not be treated at par with the
\nrevenue officers for whom the due date is extended to 31.03.2021
\n28 Mr. Soparkar submitted that the comparison of the ITR filed on
\n31st August 2019 and 10th January 2015 is fundamentally flawed. The
\nreason being that by 31st August 2019, only the nonTax
\nAudit Returns
\nwould have been filed, whereas by 10th January 2015, both the Tax
\nAudit as well as the nonTax
\nAudit Returns would have been filed.
\n29 It is pointed out from the table produced by the Revenue itself
\nthat the daily Tax Audit Reports filed in 2021 are less than half
\ncompared to what was filed in 2019. In such circumstances, it is
\nunrealistic to expect that 25% shortfall can be met in last five days the
\nway it did in 2019.
\n30 It is pointed out that the United States has given extension of six
\nmonths, whereas the CBDT has given extension of 3.5 months. It is
\nfurther submitted that for all other countries (except U.K.), the financial
\nperiod is the calendar year 2019 i.e. when there was no pandemic. The
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\nAudit and Return filing preparation would have begun and materially
\ncompleted before the pandemic in such cases. Such is not the scenario
\nwith India and therefore, such comparison is not valid. It is pointed out
\nthat the population of India and the number of returns are substantially
\nlarge compared to other countries.
\n31 In the last, it is argued that the case law relied upon on behalf of
\nthe Revenue is completely misplaced and not applicable in any manner
\nas in each of those cases relied upon, the challenge was to the fixing of
\ndate. The writ applicants do not seek to challenge Section 139(1) or
\nSection 44AB of the Act, 1961. The writ applicants only seek judicious
\nexercise of powers under Section 119 of the Act, 1961.
\n32 In such circumstances, it is prayed that this Court may consider
\nthe prayer sympathetically keeping in mind the practical difficulties
\nfaced by one and all in this hard times of the covid pandemic.
\n\u25cf ANALYSIS:
\n33 Having heard the learned counsel appearing for the parties and
\nhaving gone through the materials on record, the only question that falls
\nfor our consideration is whether this Court should issue a writ of
\nmandamus to the CBDT for the purpose of extending the time limit to
\nfile the Tax Audit Reports and the Income Tax Returns.
\n34 There is no denying to the fact that the year 2020 was a
\nchallenging one. The challenge still continues in the new year 2021
\nwhich has just dawned. There has been loss of life and there has been
\nloss of livelihood. There has been anxiety, anguish and even, a degree of
\nanger which stems from helplessness or our inability to be in control of
\nthe situation. The Union and the State Government has been striving
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\nC\/SCA\/13653\/2020 JUDGMENT
\nhard since a long period of time to combat the situation. It is not as if the
\nGovernment is completely oblivious of the difficulties which have been
\npointed out by the learned Senior Counsel appearing for the writ
\napplicants so far as the present litigation is concerned. However, the
\nmoot question for this Court to consider is as to where to draw the line.
\nIn other words, to what extent the High Court in exercise of its writ
\njurisdiction should interfere with the decision taken by the respondents,
\nmore particularly, when it comes to Revenue.
\n35 Before an applicant could get a writ of mandamus or an order in
\nthe nature of mandamus, he has to satisfy the court that the following
\nconditions are fulfilled.
\n(a) The applicant has a legal right;
\n(b) The opposite party has a legal duty;
\n(c) The application is made in good faith;
\n(d) The applicant has no other alternative remedy; and
\n(e) The opposite party has refused relief, i.e. demand and refusal.
\n36 Mandamus is one of the prerogative writs issued by the superior
\ncourts (High Court or Supreme Court), which is in the shape of
\ncommand to the State, its instrumentality or its functionaries to compel
\nthem to perform their constitutional \/ statutory\/public duty. 23. A writ
\nof mandamus is an extraordinary remedy to be invoked only upon
\nspecial occasion and in exceptional circumstances. It is intended to
\nsupply deficiency in law. It cannot be granted merely for the asking but
\nhas to be obtained where there is no alternative, efficacious and
\nadequate remedy. It cannot be used as an appeal against the decision of
\na court, tribunal or an authority exercising statutory power. It can only
\nbe issued as a last resort where the court is satisfied that without its aid
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\nthere would be failure of justice.
\n37 Mandamus is an action or judicial proceeding of a civil nature
\nextraordinary in the sense that it can be maintained only when there is
\nno other adequate remedy, prerogative in its character to the extent that
\nthe issue is discretionary, to enforce only clear legal rights, and to
\ncompel courts to take jurisdiction or proceed in the exercise of their
\njurisdiction, or to compel corporations, public and private, and public
\nboards, commissions, or officers, to exercise their jurisdiction or
\ndiscretion and to perform ministerial duties, which duties result from an
\noffice, trust, or station, and are clearly and peremptorily enjoined by law
\nas absolute and official (P.R. Aiyar, Advanced Law Lexicon, (2005), Vol.
\nIII P. 2873.).
\n38 Mandamus is not a writ of right and is not granted as a matter of
\ncourse (ex debito justitiae). Its grant or refusal is at the discretion of the
\ncourt. A court may refuse mandamus unless it is shown that there is a
\nclear legal right of the applicant or statutory duty of the respondent and
\nthere is no alternative remedy available to the applicant. (Union of
\nIndia v. S.B. Vohra, (2004) 2 SCC 150)
\n39 The discretion of the court, however, is not arbitrary and it must
\nbe exercised fairly, reasonably and on sound and well established legal
\nprinciples.
\n40 The court, in the exercise of discretion, must take into account
\nwide variety of circumstances. It must consider the facts of the case, the
\nexigency which calls for the exercise of discretion, the consequences of
\ngranting or refusing the writ, the nature and extent of injury likely to
\nensue by the grant or refusal of the writ, etc. In short, courts discretion
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\nC\/SCA\/13653\/2020 JUDGMENT
\nmust be governed by considerations of public policy, public interest and
\npublic good.
\n41 In the decision reported in (2008) 2 SCC 280, Oriental Bank of
\nCommerce v. Sunder Lal Jain, in paragraphs 11 and 12, the Supreme
\nCourt held thus,
\n\u201c11. The principles on which a writ of mandamus can be issued have been
\nstated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris
\nand F.G. Ferris, Jr.:
\nNote 187.Mandamus,
\nat common law, is a highly prerogative writ,
\nusually issuing out of the highest court of general jurisdiction, in the name
\nof the sovereignty, directed to any natural person, corporation or inferior
\ncourt within the jurisdiction, requiring them to do some particular thing
\ntherein specified, and which appertains to their office or duty. Generally
\nspeaking, it may be said that mandamus is a summary writ, issuing from
\nthe proper court, commanding the official or board to which it is
\naddressed to perform some specific legal duty to which the party applying
\nfor the writ is entitled of legal right to have performed.
\nNote 192.Mandamus
\nis, subject to the exercise of a sound judicial
\ndiscretion, the appropriate remedy to enforce a plain, positive, specific and
\nministerial duty presently existing and imposed by law upon officers and
\nothers who refuse or neglect to perform such duty, when there is no other
\nadequate and specific legal remedy and without which there would be a
\nfailure of justice. The chief function of the writ is to compel the
\nperformance of public duties prescribed by statute, and to keep
\nsubordinate and inferior bodies and tribunals exercising public functions
\nwithin their jurisdictions. It is not necessary, however, that the duty be
\nimposed by statute; mandamus lies as well for the enforcement of a
\ncommon law duty.
\nNote 196.Mandamus
\nis not a writ of right. Its issuance unquestionably
\nlies in the sound judicial discretion of the court, subject always to the wellsettled
\nprinciples which have been established by the courts. An action in
\nmandamus is not governed by the principles of ordinary litigation where
\nthe matters alleged on one side and not denied on the other are taken as
\ntrue, and judgment pronounced thereon as of course. While mandamus is
\nclassed as a legal remedy, its issuance is largely controlled by equitable
\nprinciples. Before granting the writ the court may, and should, look to the
\nlarger public interest which may be concernedan
\ninterest which private
\nlitigants are apt to overlook when striving for private ends. The court
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\nC\/SCA\/13653\/2020 JUDGMENT
\nshould act in view of all the existing facts, and with due regard to the
\nconsequences which will result. It is in every case a discretion dependent
\nupon all the surrounding facts and circumstances.
\nNote 206….
\nThe correct rule is that mandamus will not lie where the
\nduty is clearly discretionary and the party upon whom the duty rests has
\nexercised his discretion reasonably and within his jurisdiction, that is,
\nupon facts sufficient to support his action.
\n12. These very principles have been adopted in our country. In Bihar
\nEastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh after
\nreferring to the earlier decisions in Lekhraj Sathramdas Lalvani v. N.M.
\nShah, Rai Shivendra Bahadur (Dr.) v. Nalanda College and Umakant
\nSaran (Dr.) v. State of Bihar this Court observed as follows in para 15 of
\nthe Reports (SCC): (Sipahi Singh case, SCC pp. 15253)
\n\u201c15. … There is abundant authority in favour of the proposition that a
\nwrit of mandamus can be granted only in a case where there is a statutory
\nduty imposed upon the officer concerned and there is a failure on the part
\nof that officer to discharge the statutory obligation. The chief function of a
\nwrit is to compel performance of public duties prescribed by statute and to
\nkeep subordinate tribunals and officers exercising public functions within
\nthe limit of their jurisdiction. It follows, therefore, that in order that
\nmandamus may issue to compel the authorities to do something, it must
\nbe shown that there is a statute which imposes a legal duty and the
\naggrieved party has a legal right under the statute to enforce its
\nperformance…. In the instant case, it has not been shown by Respondent 1
\nthat there is any statute or rule having the force of law which casts a duty
\non Respondents 2 to 4 which they failed to perform. All that is sought to
\nbe enforced is an obligation flowing from a contract which, as already
\nindicated, is also not binding and enforceable. Accordingly, we are clearly
\nof the opinion that Respondent 1 was not entitled to apply for grant of a
\nwrit of mandamus under Article 226 the Constitution and the High Court
\nwas not competent to issue the same.
\nTherefore, in order that a writ of mandamus may be issued, there must be
\na legal right with the party asking for the writ to compel the performance
\nof some statutory duty cast upon the authorities….”
\n42 Mandamus is the most valuable and essential remedy in the
\nAdministrative Justice resorted to supply want of some appropriate
\nordinary remedy. The functions of the writ court is to compel the
\nperformance of public duty, for which, the person approaching the writ
\ncourt should statutorily, has a clear, specific and unequivocal,
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\nconstitutional or statutory or legal right to the relief sought for and the
\nfailure on the part of those who are bound to perform certain duties and
\nfunctions, as laid down by the legislature or directions issued for the
\npurpose of enforcing the provisions of an enactment or of any delegated
\nor subordinate legislation. There must be a legal right and corresponding
\nlegal duty.
\n43 In State of Kerala v. A.Lakshmi Kutty, reported in 1986 (4) SCC
\n632, the Supreme Court held that a Writ of Mandamus is not a writ of
\ncourse or a writ of right but is, as a rule, discretionary. There must be a
\njudicially enforceable right for the enforcement of which a mandamus
\nwill lie. The legal right to enforce the performance of a duty must be in
\nthe applicant himself. In general, therefore, the Court will only enforce
\nthe performance of statutory duties by public bodies on application of a
\nperson who can show that he has himself a legal right to insist on such
\nperformance. The existence of a right is the foundation of the
\njurisdiction of a Court to issue a writ of Mandamus. The present trend of
\njudicial opinion appears to be that in the case of nonselection
\nto a post,
\nno writ of mandamus lies.
\n44 When a Writ of Mandamus can be issued, has been summarised in
\nCorpus Juris Secundum, as follows:
\n“Mandamus may issue to compel the person or official in whom a
\ndiscretionary duty is lodged to proceed to exercise such discretion, but
\nunless there is peremptory statutory direction that the duty shall be
\nperformed mandamus will not lie to control or review the exercise of the
\ndiscretion of any board, tribunal or officer, when the act complained of is
\neither judicial or quasijudicial
\nunless it clearly appears that there has
\nbeen an abuse of discretion on the part of such Court, board, tribunal or
\nofficer, and in accordance with this rule mandamus may not be invoked to
\ncompel the matter of discretion to be exercised in any particular way. This
\nprinciple applies with full force and effect, however, clearly it may be made
\nto appear what the decision ought to be, or even though its conclusion be
\ndisputable or, however, erroneous the conclusion reached may be, and
\nalthough there may be no other method of review or correction provided
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\nby law. The discretion must be exercised according to the established rule
\nwhere the action complained has been arbitrary or capricious, or based on
\npersonal, selfish or fraudulent motives, or on false information, or on total
\nlack of authority to act, or where it amounts to an evasion of positive
\nduty, or there has been a refusal to consider pertinent evidence, hear the
\nparties where so required, or to entertain any proper question concerning
\nthe exercise of the discretion, or where the exercise of the discretion is in a
\nmanner entirely futile and known by the officer to be so and there are
\nother methods which it adopted, would be effective.” (emphasis supplied)\u201d
\n45 A prerogative writ, like, a Mandamus cannot be demanded ex
\ndebito justiatiae, but it can be issued by the court in its discretion, for
\nwhich, it must be shown that, there is a non discretionary legal duty
\nupon the authority against whom, the relief is sought for and that the
\nperson approaching the High Court under Article 226 of the Constitution
\nof India, has to prove that he has a legal right to be enforced against the
\nauthority, for the failure of performance of a legal or statutory duty, by
\nthe authority against whom, the relief is sought for.
\n46 To sum up, (a) certain conditions have to be satisfied before a writ
\nof mandamus is issued; (b) the petitioner for a writ of mandamus must
\nshow that he has a legal right to compel the respondent to do or abstain
\nfrom doing something; (c ) there must be in the petitioner a right to
\ncompel the performance of some duty cast on the respondents; (d) the
\nduty sought to be enforced must have three qualities. It must be a duty
\nof public nature created by the provisions of the Constitution or of a
\nstatute or some rule of common law; (e) the remedy of a writ of
\nmandamus is not intended to supersede completely the modes of
\nobtaining relief by an action in a Civil Court or to deny defence
\nlegitimately open in such actions; (f) the power to issue a writ of
\nmandamus is a discretionary power. It is sound use of discretion to leave
\nthe party to seek his remedy by the ordinary mode of action in a Civil
\nCourt and to refuse to issue a writ of mandamus; (g) a writ of
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\nmandamus is not a writ of course or a writ of right but is, as a rule a
\nmatter for the discretion of the Court; (h) in petitions for a writ of
\nmandamus, the High Courts do not act as a Court of appeal and examine
\nthe facts for themselves. It is not the function of the Court to substitute
\nits wisdom and discretion for that of the person to whom the judgment
\nin the matter in question was entrusted by law. The High Court does not
\nissue a writ of mandamus except at the instance of a party whose
\nfundamental rights are directly and substantially invaded or are in
\nimminent danger of being so invaded; (i) a writ of mandamus is not
\nissued to settle private disputes or to enforce private rights. A writ of
\nmandamus cannot be issued against the President of India or the
\nGovernor of State; (j) A writ will not be issued unless the Court is certain
\nthat its command will be carried out. The Court must not issue a futile
\nwrit.
\n47 It is true that a Coordinate Bench of this Court in the year 2015
\nhad the occasion to deal with almost a similar issue as the one involved
\nin the present case. This High Court had directed the CBDT to extend the
\ndue date for filing the Income Tax Returns under Section 139 from 30th
\nSeptember 2015 to 31st October 2015 so as to alleviate to a certain
\nextent, the hardships caused to the assesses on account of delay in
\nproviding the utilities. However, this Court had to interfere in a situation
\nwhen for the first time by way of a Notification the CBDT made it
\nmandatory for the assessees to electronically file the Income Tax Returns
\nrelevant for the assessment year 201314
\nand onwards.
\n48 Although Mr. Soparkar, the learned Senior Counsel has criticized
\nthe manner in which the decision is taken by the CBDT not to extend the
\ntime limit any further, yet we believe that such decision must have been
\ntaken after due deliberations, and in taking such decision, many
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\nfinancial experts must have applied their minds. It is true that the Board
\nis vested with the power under Section 119 of the Act to extend the due
\ndate and the powers are discretionary in nature and that is the reason
\nwhy we thought fit to ask the CBDT to look into the matter and take an
\nappropriate decision in accordance with law. If the CBDT has looked into
\nthe matter closely and has arrived at the conclusion that the extension of
\ntime limit would not be in the interest of the Revenue, then it cannot be
\nsaid that the CBDT has failed to exercise its discretionary powers vested
\nin it under Section 119 of the Act. When there is a power coupled with
\nduty, there is an obligation on the Board to exercise the same if the facts
\nso warrant. Upon due consideration of all the relevant aspects of the
\nmatter, if the Board has taken the final decision not to extend the time
\nlimit any further, then it is difficult for this Court to issue a writ of
\nmandamus to the Board to extend the time limit on the assumption that
\nundue hardship would be caused to the taxpayers and the tax
\nprofessionals, more particularly, in view of the latest data put forward
\nbefore us by the Revenue.
\n49 It is the case of the CBDT that it has declined to exercise its power
\nunder Section 119 of the Act as the conditions for exercise of such power
\ndo not exist. It is the case of the Revenue that the issue of hardship was
\ndealt with considerably at the relevant point of time and that is the
\nreason why three times the time limit came to be extended. The Board
\nhas now thought fit in the interest of the Revenue not to extend the time
\nperiod any further. There are so many vital issues which the Revenue
\nneeds to keep in mind before taking such decision. The question is
\nwhether this Court should go into all such issues which weighed with the
\nCBDT in taking a particular decision one way or the other and substitute
\nthe same with that of this Court on the ground that if the time limit is
\nnot extended, then the people at large would be put immense hardships?
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\nInterference at the end of this Court, at this point of time, in the matters
\nrelating to the Revenue may have far reaching implications. This Court
\nmay find it very easy to issue a writ of mandamus, as prayed for, saying
\nthat if the time limit has been extended in the past on three occasions,
\nthen why not for one last time upto 31st March 2021. However, such a
\nline of reasoning or approach may upset the entire functioning of the
\nGovernment and may lead to undesirable results.
\n50 In the overall view of the matter, we have reached to the
\nconclusion that we should not interfere in the matter.
\n51 In the result, both the writ applications fail and are hereby
\nrejected. At this stage, we may only observe that the CBDT may consider
\nissuing an appropriate circular taking a lenient view as regards the
\nconsequences of late filing of the Tax Audit Reports as provided under
\nSection 271B of the Act. We leave it to the better discretion of the CBDT
\nin this regard.
\n(J. B. PARDIWALA, J)
\n(ILESH J. VORA,J)
\nCHANDRESH
\nPage 29 of 29
\nDownloaded on : Thu Jan 14 14:22:54 IST 2021<\/p>\n","protected":false},"excerpt":{"rendered":"
It is the case of the CBDT that it has declined to exercise its power under Section 119 of the Act as the conditions for exercise of such power do not exist. It is the case of the Revenue that the issue of hardship was dealt with considerably at the relevant point of time and that is the reason why three times the time limit came to be extended. The Board has now thought fit in the interest of the Revenue not to extend the time period any further. There are so many vital issues which the Revenue needs to keep in mind before taking such decision. The question is whether this Court should go into all such issues which weighed with the CBDT in taking a particular decision one way or the other and substitute the same with that of this Court on the ground that if the time limit is not extended, then the people at large would be put immense hardships? Interference at the end of this Court, at this point of time, in the matters relating to the Revenue may have far reaching implications. This Court may find it very easy to issue a writ of mandamus, as prayed for, saying that if the time limit has been extended in the past on three occasions, then why not for one last time upto 31st March 2021. However, such a line of reasoning or approach may upset the entire functioning of the Government and may lead to undesirable results.<\/p>\n