IN THE HIGH COURT OF JUDICATURE AT BOMBAY
\nORDINARY ORIGINAL CIVIL JURISDICTION
\nWRIT PETITION (L.) NO.955 OF 2021
\nCVO Chartered & Cost
\nAccountants\u2019 Association, Mumbai and anr. \u2026 Petitioners
\nV\/s.
\nUnion of India and anr. \u2026 Respondents
\n—
\nMr.V.Sridharan, Senior Advocate with Mr.Vipul Joshi, Mr.
\nS.Sriram, Mr.Harsh Kapadia, Advocates for the Petitioners.
\nMr.Anil Singh, ASG with Mr.Sham Walve, Advocates for the
\nRespondents.
\n—
\nCORAM : UJJAL BHUYAN &
\nMILIND N. JADHAV, JJ.
\nDATE : JANUARY 15, 2021.
\nP.C.:-
\nHeard Mr.Sridharan, learned senior counsel for the
\npetitioners; and Mr.Anil Singh, learned Additional Solicitor
\nGeneral of India assisted by Mr.Sham Walve, learned standing
\ncounsel, Revenue for the respondents.
\n2. This petition has been filed under Article 226 of the
\nConstitution of India seeking the following reliefs:-
\n\u201c(a) direct the Respondent No.2 to issue the
\nforms and utilities for filing of the Return of
\nIncome under section 139 of the Act and the Tax
\nAudit Report under section 44AB the Act
\nimmediately after the end of the previous year
\nand at the beginning of the Assessment Year and,
\nhenceforth, not make any alterations in Forms
\nand Utilities or changes in tax compliance
\nrequirements in that regard, after the beginning
\nPriya Soparkar 2 wpl 955-21
\nof the Assessment Year in which the same are
\nmade applicable;
\n(b) direct the Respondent No.2 to provide the
\ntax payers and the tax practitioners a clear
\nperiod of 183 and 214 days to prepare and submit
\nthe prescribed Reports and Forms, respectively
\nand that in the matter of extension of due dates,
\nconsult the stakeholders well in advance and not
\nto keep the matter pending till last moment.
\n(c) direct the Respondent No.2 to extend the
\ndue date for filing the Income Tax Returns (ITR)
\nfor A.Y. 2020-2021 till 31st March, 2021 and to
\nextend the due date for filing the Tax Audit
\nReports (TAR) for A.Y. 2020-2021 to 28th February,
\n2021;
\n(d) for ad-interim reliefs in terms of prayers in
\nclauses above;
\n(e) for costs of the petition; and
\n(f) for such other and further other reliefs as
\nthis Hon\u2019ble Court may deem fit and proper in
\nthe nature and circumstances of the case.\u201d
\n3. Petiitoner No.1 is a trust representing Chartered
\nAccountants, Company Secretaries and Cost Accountants
\nwhereas petitioner No.2 is a Chartered Accountant besides
\nbeing an assessee under the Income Tax Act, 1961 and Vice-
\nPresident of petitioner No.1 as well.
\n4. From the prayer portion as extracted above, it is seen
\nthat principal relief sought for by the petitioners is for a
\ndirection to respondent No.2 i.e. Central Board of Direct Taxes
\n(also referred to as \u201cCBDT\u201d hereinafter) to extend the due
\ndate for filing income tax returns for the assessment year
\n2020-21 till 31st March, 2021 and to extend the due date for
\nfiling tax audit reports for the said assessment year to 28th
\nFebruary, 2021.
\nPriya Soparkar 3 wpl 955-21
\n5. Due date for filing of return of income in the case of
\nthose categories of assessees whose accounts are required
\nto be audited is 15th February, 2021; and the due date for
\nfiling tax audit report under section 44AB of the Income Tax
\nAct, 1961 (briefly \u201cthe Act\u201d hereinafter) is 15th January, 2021.
\n6. It may be mentioned that seeking similar relief, a writ
\npetiton was filed in the Gujarat High Court by the All Gujarat
\nFederation of Tax Consultants. By order dated 8th January,
\n2021 Gujarat High Court directed Union of India, Ministry of
\nFinance to look into such grievance and, thereafter, to take
\nan appropriate decision in accordance with law.
\n7. Though not part of the writ petition, at the hearing Mr.
\nSridharan has produced before us a copy of order dated 11th
\nJanuary, 2021 passed by the CBDT under section 119 of the
\nAct which we have taken on record. By the said order all
\nrepresentations made for further extension of due dates have
\nbeen rejected. Since the order dated 11th January, 2021 is
\nrelevant, the same is extracted hereunder in its entirety:-
\n\u201cF.NO.370153\/39\/2020 TPL
\nGOVERNMENT OF INDIA
\nMINISTRY OF FINANCE DEPARTMENT OF REVENUE
\n(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,
\n1961
\nPriya Soparkar 4 wpl 955-21
\nThe Hon\u2019ble Gujarat High Court vide judgment dated
\n8th January, 2021, in the case of The All India Gujarat
\nFedration of Tax Consultants Vs. Union of India, SCA
\n13653 of 2020, has directed the Ministry of Finance
\nto look into the issue of extension of due dates for
\nfiling of Audit Report under section 44AB of the Income
\nTax Act more particularly the representation dated
\n12.10.2020 and take an appropriate decision in
\naccordance with law.
\n2. In the wake of the global pandemic due to COVID-19
\nthe due dates for filing of income tax returns for A.Y.
\n2020-21 was extended vide the Taxation and Other
\nlaws (Relaxation and Amendment of Certain
\nProvisions) Act, 2020 (which was enacted on 29th
\nSeptember,2020) to 30th November, 2020.
\nSubsequently, vide notification s.o. 3906(E) dated 29th
\nOctober, 2020 the due dates for filing of returns were
\nfurther extended to 31st January, 2021 for cases in
\nwhich tax audit report under section 44AB of the
\nIncome tax Act (\u201cthe Act\u201d) is required to be filed and
\n31 st December, 2020 for all other cases. Further vide
\nnotification S.O.4805 (E) dated 31st December, 2020
\nthe above due dates were further extended to 15th
\nFebruary, 2021 and 10th January, 2021 respectively.
\n3. As per the provisions of the Act the due date for
\nfiling of the audit report under section 44AB is one
\nmonth prior to the due date of filing of income tax
\nreturn. Therefore, the said due date was extended to
\n31st October, 2020 vide the Taxation and Other laws
\n(Relaxation and Amendment of Certain Provisions) Act,
\n2020, 31st December, 2020 vide notification s.o.
\n3906(E) dated 29th October, 2020 and further to 15th
\nJanuary, 2020 vide notification S.O. 4805 (E) dated
\n31st December, 2020.
\n4. The due dates for payment of self-assessment tax,
\nfor taxpayers whose amount due does not exceed
\nrupees one lakh, also coincide with the due dates for
\nfiling of income tax returns. The table below
\nsummarises the various due date extensions given:
\nS.
\nNo.
\nAction Original due
\ndate
\n1st
\nExtension
\nvide TOLA
\n2020
\n2nd
\nExtension
\nvide
\nNotification
\n3rd
\nExtension
\nNotification
\nS.O. 4805
\nPriya Soparkar 5 wpl 955-21
\nS.O.
\n3906(E)
\ndated
\n29.10.2020
\n(E) dated
\n31.12.2020
\n1 Return
\nfor
\nNon-
\nAudit
\nCases
\n31.07.2020 30.11.2020 31.12.2020 10.01.2021
\n2 Tax
\nAudit
\n30.09.2020 31.10.2020 31.12.2020 15.01.2021
\n3 Return
\nfor Tax
\nAudit
\nCases
\n31.10.2020 30.11.2020 31.01.2021 15.02.2021
\n5. Thus, it is apparent that the Government has not
\nonly considered representations of various
\nstakeholders but also has been proactive in
\nproviding relaxation to the taxpayers by extending due
\ndates regularly. The table below gives the statistical
\ndata comparing the return filing statistics of A.Y. 2019-
\n20 and A.Y. 2020-21
\nDate –
\nthis
\nyear
\nAY 20-21
\nITRs filed
\nDaily figures Date- last
\nyear
\nAY 19-20
\nITRs filed
\nDaily
\nfigures
\n05-Jan-
\n21
\n5,08,48,0
\n22
\n7,26,177 26-Aug-19 4,14,13,
\n558
\n13,65,
\n348
\n06-Jan-
\n21
\n5,16,71,3
\n98
\n8,23,376 27-Aug-19 4,30,99,
\n600
\n16,86,
\n042
\n07-Jan-
\n21
\n5,27,14,7
\n51
\n10,43,353 28-Aug-19 4,51,44,
\n749
\n20,45,
\n149
\n08-Jan-
\n21
\n5,41,54,4,
\n35
\n14,39,684 29-Aug-19 4,77,39,
\n460
\n25,94,
\n711
\n09-Jan-
\n21
\n5,64,10,5
\n61
\n22,56,126 30-Aug-19 5,12,55,
\n607
\n35,16,
\n147
\n10-Jan-
\n21
\n5,95,15,3
\n22
\n31,04,761 31-Aug-19 5,61,79,
\n905
\n49,24,
\n298
\nFrom the above table, it is apparent that the number of
\nreturns filed this year has already exceeded the
\nnumber of returns filed last year up to 31st August
\nwhich was the last day of filing of the all the returns
\nPriya Soparkar 6 wpl 955-21
\nother than the company\/tax audit returns, by about
\n6%.
\nThe table below gives the statistical data comparing
\nthe filing statistics of tax audit report for A.Y. 2019-20
\nand A.Y. 2020-21.
\nDate Form 3CA Form 3CB Date Form
\n3CA
\nForm
\n3CB
\n20-Oct-
\n19
\n2,741 29,760 04-Jan-
\n21
\n3,079 27,492
\n21-Oct-
\n19
\n5,598 51,069 05-Jan-
\n21
\n3,238 28,875
\n22-Oct-
\n19
\n7,626 62,938 06-Jan-
\n21
\n3,190 30,582
\n23-Oct-
\n19
\n9,125 75,031 07-Jan-
\n21
\n3,323 31,035
\n24-Oct-
\n19
\n10,977 87,350 08-Jan-
\n21
\n3,316 29,924
\n25-Oct-
\n19
\n11,841 93,575 09-Jan-
\n21
\n2,824 26,924
\n26-Oct-
\n19
\n10,366 91,397 10-Jan-
\n21
\n1,416 16,370
\n27-Oct-
\n19
\n2,309 30,861 11-Jan-
\n21
\n28-Oct-
\n19
\n6,138 59,785 12-Jan-
\n21
\n29-Oct-
\n19
\n10,119 1,00569 13-Jan-
\n21
\n30-Oct-
\n19
\n23,125 1,87,444 14-Jan-
\n21
\n31-Oct-
\n19
\n42,280 3,15,190 15-Jan-
\n21
\nGrand
\nTotal
\ncumula
\ntive
\n2,88,236 25,37,444 Grand
\nTotal
\ncumulati
\nve
\n2,14,80
\n4
\n18,49,4
\n61
\n6. The above table also show that majority of the audit
\nreports under section 44AB of the Act as well as
\nincome tax returns are filed within the last few days of
\nthe dates only. For A.Y. 2019-20 it is seen that 24% of
\ntotal audit reports were filed in last 3 days before the
\ndue date. Therefore, lesser filing compliances having
\nbeen made much before the due date cannot be said
\nto be an anomalous situation.
\nPriya Soparkar 7 wpl 955-21
\n7. A look at the relaxation of similar nature provided by
\nother economies globally makes it clear that the
\nGovernment of India has been very empathetic to the
\nneeds of the taxpayers as compared various other
\ncountries. It is apparent from the table no other
\ncountry has extended the due dates as much as India.
\nEven countries which are comparatively worse
\nhit by COVID19, like the USA, UK etc., have provided
\nno or lesser extensions in due dates. The table below
\nlists such extensions given by a few countries:
\nCountry Financ
\nial
\nperiod
\nIndividual Corporate
\nDue date Extended
\ndue date
\nDue date Extend
\ned due
\ndate
\nUSA 2019 15th April
\n2020
\n15th
\nOctober
\n2020
\n15th April
\n2020
\n15th
\nOctobe
\nr 2020
\nUK 2019-
\n2020
\n31 January,
\n2021
\nNo
\nExtension
\n31st
\nDecember
\n2020
\nNo
\nExtensi
\non
\nAustrali
\na
\n2018-
\n2019
\n5th May 2020 5th June
\n2020
\n15th May
\n2020
\n5th June
\n2020
\nSouth
\nAfrica
\n2019 16th
\nNovember
\n2020
\nNo
\nExtension
\n31st
\nDecember
\n2020
\nNo
\nExtensi
\non
\nNetherl
\nands
\n2019 1st May 2020 No
\nExtension
\n1st June
\n2020
\nNo
\nExtensi
\non
\nIreland 2019 12th
\nNovember
\n2020
\n10th
\nDecember
\n2020
\n12th
\nNovember
\n2020
\n10th
\nDecem
\nber
\n2020
\nSingap
\nore
\n2019 18th April
\n2020
\n31st May
\n2020
\n15th
\nDecember
\n2020
\n15th
\nJanuary
\n2020
\nCanada 2019 30th April
\n2020
\n30th
\nSeptember
\n2020
\nMay August
\n2020
\n30th
\nSeptem
\nber
\n2020
\nBrazil 2019 1st March
\n2020
\n30th April
\n2020
\n30th April
\n2020
\n30th
\nJune
\n2020
\nPriya Soparkar 8 wpl 955-21
\n8. From the above it may be seen that Government
\nhas been proactive in analyzing the situation and
\nproviding relief to assessee. However, it should also be
\nappreciated that filing of tax returns\/audit reports are
\nessential part of the obligations of assessee and
\ncannot be delayed indefinitely. Many functions of the
\nIncome-tax Department start only after the filing of the
\nreturns by the assessee. Filing of tax returns by
\nassessee also results in collections of taxes either
\nthrough payment of self-assessment tax by the
\nassessee or by the subsequent collection by the
\ndepartment post processing or assessment of the tax
\nreturns. The tax collections assume increased
\nsignificance in these difficult times and Government of
\nIndia needs revenue to carry out relief work for poor
\nand other responsibilities. Any delay in filing returns
\naffects collection of taxes and other welfare functions
\nof the state for the vulnerable and weaker sections of
\nsociety which is funded through the revenue collected.
\nSufficient time has already been given to taxpayers to
\nfile their tax returns and a large number of taxpayers
\nhave already filed their returns of income.
\n9. From the above discussion, it is apparent that,-
\n\u2022 The due dates for filing of return\/tax audit have
\nalready been extended on 3 occasions.
\n\u2022 Internationally, the extension provided by India
\nis more generous as compared to other
\ncountries.
\n\u2022 The return filing statistics of the current year
\nindicates that returns filed in this financial year
\nalready for exceeds the returns filed which were
\ndue on the last date of filing of returns.
\nAny further extension would adversely affect the
\nreturn filing discipline and shall also cause injustice to
\nthose who have taken pains to file the
\nreturn before the due date. It would also postpone the
\ncollection of revenue thereby hampering the efforts of
\nthe Government to provide relief to the
\npoor during these COVID times.
\n10. In this regard, the decisions of the Hon\u2019ble
\nSupreme Court have also been considered. The
\nHon\u2019ble Supreme Court in the case of Govt. of A.P. v.
\nN. Subbarayudu, (2008) 14 SCC 702 at page 703:
\nPriya Soparkar 9 wpl 955-21
\n\u201c5. In a catena of decisions of this Court it
\nhas been held that the cut-off date is fixed
\nby the executive authority keeping in view
\nthe economic conditions, financial
\nconstraints and many other administrative
\nand other attending circumstances. This
\nCourt is also of the view that fixing cut-off
\ndates is within the domain of the executive
\nauthority and the court should not normally
\ninterfere with the fixation of cut-off date by
\nthe executive authority unless such order
\nappears to be on the face of it blatantly
\ndiscriminatory and arbitrary. (See State of
\nPunjab v. Amar Nath Goyal 1(2005) 6 SCC
\n754 : 2005 SCC (L&S) 910].
\n***
\n7. There may be various considerations in
\nthe mind of the executive authorities due to
\nwhich a particular cut-off date has been
\nfixed. These considerations can be financial,
\nadministrative or other considerations. The
\ncourt must exercise judicial restraint and
\nmust ordinarily leave it to the executive
\nauthorities to fix the cut-off date. The
\nGovernment must be left with some leeway
\nand free play at the joints in this connection.
\n8. In fact several decisions of this Court have
\ngone to the extent of saying that the choice
\nof a cut-off date cannot be dubbed as
\narbitrary even if no particular reason is given
\nfor the same in the counter-affidavit filed by
\nthe Government (unless it is shown to be
\ntotally capricious or whimsical), vide State of
\nBihar v. Ramjee Prasad [(1990) 3 SCC 368:
\n1991 SCC (L&S) 51] , Union of India v. Sudhir
\nKumar Jaiswal [(1994) 4 SCC 212: 1994 SCC
\n(L&S) 925 : 1994) 27 ATC 561] (vide SCC
\npara 5), Ramrao v. All India Backward Class
\nBank Employees Welfare Assn. 1(2004) 2
\nSCC 76 2004 SCC (L&S) 337] (vide SCC para
\n31), University Grants Commission v.
\nSadhana Chaudhary [(1996) 10 SCC 536:
\n1996 SCC (L&S) 1431], etc. It follows,
\ntherefore, that even if no reason has been
\ngiven in the counter-affidavit of the
\nPriya Soparkar 10 wpl 955-21
\nGovernment or the executive authority as to
\nwhy a particular cut-off date has been
\nchosen, the court must still not declare that
\ndate to be arbitrary and violative of Article
\n14 unless the said cut-off date leads to some
\nblatantly capricious or outrageous result.\u201d
\n11. In fact several decisions of the Hon\u2019ble Supreme
\nCourt have gone to the extent of saying that the
\nchoice of a cut off date cannot be dubbed as
\narbitrary even if no particular reason is given for the
\nsame in the counter affidavit filed by the Government,
\n(unless it is shown to be totally
\ncapricious or whimsical). [State of Bihar vs. Ramjee
\nPrasad 1990(3) SCC 368, Union of Indian & Anr. vs.
\nSudhir Kumar JaiswaI 1994(4) SCC 212
\n(vide para 5), Ramrao & Ors. vs. All India Backward
\nClass Bank Employees Welfare Association & Ors.
\n2004(2)SCC 76 (vide para 31), University Grants
\nCommission vs. Sadhana Chaudhary & Ors. 1996(10)
\nSCC 536, etc .] When it is seen that a line or a point
\nthere must be and there is no mathematical or logical
\nway of fIxing it precisely, the decision
\nof the legislature or its delegated must be accepted
\nunless it can be said that it is very wide off the
\nreasonable mark. (See Union of India & Anr. v.
\nMis Parameshwaran match works Ltd., 1975 (2) SCR
\n573, at p.579; and Dr. (Mrs.) Sushma Sharma etc. etc.
\nv. State of Rajasthan & Ors. 1985 (3)
\nSCR 243, at p. 269)
\n12. In view of the above reasons, all the
\nrepresentations for further extension of the due date
\nare hereby rejected.\u201d
\n8. Grievance expressed by the petitioners as highlighted
\nby Mr.Sridharan relates to amendment brought to the
\nIncome Tax Rules, 1962 by way of Income Tax (22nd
\nAmendment) Rules, 2020 vide notification dated 1st October,
\n2020, whereby certain additions have been inserted in section
\n115BAA of the Act, amongst others, for the assessment year
\n2020-21 only. That apart, various utilities for income tax
\nreturns were made available belatedly on 22nd September,
\nPriya Soparkar 11 wpl 955-21
\n2020 and subsequently amended on 11th January, 2021.
\nExtension granted on previous occasions carry no meaning
\nas those were granted at the eleventh hour. Further,
\nvoluminous instructions for filing income tax return as per
\nrevised form running into 700 plus pages was released by
\nthe CBDT on 31st October, 2020. All these therefore justifies
\nfurther extension of the due dates which is a very reasonable
\nprayer.
\n9. On the other hand, Mr.Singh submits that the changes
\ncarried out in various forms of the Income Tax Rules, 1961 are
\nof minor nature having no substantive effect. That apart,
\nCBDT had already looked into the overall situation of the
\ncountry in view of covid-19 pandemic and the resultant
\nlockdown and had accordingly extended the due dates on
\nthree earlier occasions. He submits that notwithstanding the
\ncritical situation faced by the country life has to go on, so
\nalso the tax administrative machinery.
\n10. We have heard learned counsel for the parties at
\nlength and given our anxious consideration to the rival
\nsubmisions.
\n11. We find from the order dated 11th January, 2020 passed
\nby the CBDT under section 119 of the Act that across the
\nboard three extensions of the due dates have been granted.
\nIn so far filing of tax audit report is concerned, the original
\ndue date was 30th September, 2020, which was first
\nextended to 31st October, 2020, thereafter to 31st December,
\nPriya Soparkar 12 wpl 955-21
\n2020 and now to 15th January, 2021. In respect of filing of
\nincome tax return in those cases where tax audit report is
\nrequired to be filed the original due date was 31st October,
\n2020 which was first extended to 30th November, 2020,
\nthereafter to 31st January, 2021 and finally to 15th February,
\n2021. Thus, we find that CBDT had considered the evolving
\nsituation in the country and thereafter, had extended the
\ndue dates on three occasions. Now CBDT says that filing of
\naudit reports and income tax reports cannot be delayed
\nindefinitely. Therefore, a line has been drawn that no further
\nextension of the due dates would be granted.
\n12. Power exercised by the CBDT under section 119 of the
\nAct is discretionary. On careful consideration of the order
\npassed by the CBDT on 11th January, 2021 under the said
\nprovision, we are of the considered view that it cannot be
\nsaid that CBDT had failed to exercise its discretion or that
\nCBDT had acted in an arbitrary or unreasonable manner in
\nrefusing to grant further extension of the due dates. We
\ntherefore do not find any good ground to invoke our writ
\njurisdiction under Article 226 of the Constitution of India to
\ndirect CBDT for further extension of the due dates.
\n13. Having regard to the above, we are not inclined to
\nentertain the writ petition.
\n14. Writ petition is accordingly dismissed. However, there
\nshall be no order as to costs.
\nPriya Soparkar 13 wpl 955-21
\n15. This order will be digitally signed by the Private
\nSecretary\/Personal Assistant of this Court. All concerned will
\nact on production by fax or email of a digitally signed copy
\nof this order.
\n(MILIND N. JADHAV, J.) (UJJAL BHUYAN, J.)
\n\u2026.<\/p>\n","protected":false},"excerpt":{"rendered":"
We find from the order dated 11th January, 2020 passed by the CBDT under section 119 of the Act that across the board three extensions of the due dates have been granted. In so far filing of tax audit report is concerned, the original due date was 30th September, 2020, which was first extended to 31st October, 2020, thereafter to 31st December, 2020 and now to 15th January, 2021. In respect of filing of income tax return in those cases where tax audit report is required to be filed the original due date was 31st October, 2020 which was first extended to 30th November, 2020, thereafter to 31st January, 2021 and finally to 15th February, 2021. Thus, we find that CBDT had considered the evolving situation in the country and thereafter, had extended the due dates on three occasions. Now CBDT says that filing of audit reports and income tax reports cannot be delayed indefinitely. Therefore, a line has been drawn that no further extension of the due dates would be granted.<\/p>\n