TMI Blog2010 (8) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... a who was residing on the ground floor whereas the office of the company is situate in the first floor - The affidavits which have been produced by the petitioners to substantiate the aforesaid plea are vague and, therefore, cannot be relied upon - Accordingly the appeal is dismissed - 6331 of 2002 - - - Dated:- 11-8-2010 - ALAM S. R., ALOK ARADHE, JJ JUDGMENT Alok Aradhe J.- The petitioners in the instant writ petition have impugned the legality and validity of the order dated January 3, 2000 (annexure P-7) by which the Commissioner of Income-tax has declined to issue the certificate under section 90(2) of the Finance (No. 2) Act of 1998, (hereinafter referred to as "the Act") as well as the order dated October 1, 2002 (annexure P-15) by which the application filed by the petitioners for condonation of delay in making payment of the amount of tax under the Kar Vivad Samadhan Scheme, 1998 (in short "the Scheme") has been rejected. 2. Briefly stated, the facts giving rise to filing of the instant writ petition, are that the petitioners made declarations on December 29, 1998 contained in annexures P-1 and P-2 in respect of the assessment years 1990-91 and 1991- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esiding on the ground floor of the building whereas the registered office of the petitioner/company is situate on the first floor of the same building. The said Vinod Kumar Sharma handed over the certificate only on March 17, 1999, and thereafter the payment was made within the stipulated time. Accordingly, a prayer was made that delay in making the payment may be condoned and certificate under the Scheme may be issued. Along with the application, the affidavits of Vinod Kumar Sharma and director of the petitioner No. 1/company were filed. Respondent No. 1 vide order dated October 1, 2002 (annexure P-15) rejected the application dated September 25, 2002, seeking condonation of delay filed by the petitioners on the ground that there is no power to condone the delay in making payment of the amount of tax under the Scheme. Accordingly, the petitioners were informed that their declarations under the Scheme for the assessment years 1990-91 and 1991-92 have been rejected by the designated authority. 4. The respondents have filed the return inter alia, indicating that there is no provision in the Scheme which was introduced by the Finance (No. 2) Act of 1998, to condone the delay in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed authority in the absence of any provision for condonation of delay under the Scheme has no power to condone the delay. Learned counsel has placed reliance on the decisions reported in Vyshnavi Appliances (P) Ltd. v. CBDT [2000] 243 ITR 101 (AP), Ranganatha Associates v. Union of India [2003] 261 ITR 646 (Karn) ; [2003] 180 CTR (Karn) 441 and K. Dilip Kumar v. Asst. CIT [2001] 247 ITR 16 (Ker) as well as a decision of the Supreme Court in Hemalatha Gargya v. CIT [2003] 259 ITR 1 in support of his contentions. 7.In the aforesaid factual backdrop and the submissions made by learned counsel for the parties, the following issues arise for consideration : (1)whether the designated authority under the provisions of the Scheme has power to condone the delay ? and (2) whether in the instant case the amount of tax has been paid within the period of limitation ? 8. Kar Vivad Samadhan Scheme, 1998 was introduced in the year 1998 by the Finance (No. 2) Act of 1998, which came into force on September 1, 1998. The Scheme provides for settlement of tax payable and time and manner of payment of arrears of tax. Since, answer to questions would depend upon the provisions of the Scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te under section 90(1) of the Act. The Scheme has conferred a benefit on those who had not disclosed their income earlier by affording them protection against the possible legal consequences of such non-disclosure under the Income-tax Act. A person seeking to claim the benefit under the statutory Scheme is bound to comply strictly with the conditions under which the benefit is granted to him. There is no scope for the application of any equitable consideration when the statutory provisions of the Scheme are stated in plain language. From a perusal of the relevant provisions of the Scheme referred to (supra) it is apparent that the designated authority cannot act beyond the provisions of the Scheme. The power to accept the payment under the Scheme has been prescribed by the Revenue authorities. There is no express provision enabling the designated authority to condone the delay in making payment of amount deposited under the Scheme. Therefore, if the power to condone the delay is conceded to the designated authority, we are afraid, it would amount to modification of explicit terms of the Scheme which is impermissible in law. In this connection we may refer to the decision of the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavits annexed with the application dated September 25, 2002. From a perusal of the affidavit of Vinod Kumar Sharma, it is graphically clear that there is no specific averment in the affidavit that the certificate dated February 3, 1999 was served on him and he handed over the same to the petitioners on March 17, 1999. Affidavit sworn in by Vinod Kumar Sharma is vague. Affidavit of the director of the company is silent with regard.to the fact as to when the said Vinod Kumar Sharma received the certificate and to whom he handed over the certificate on March 17, 1999. Thus, in the first instance on February 28, 2000, the petitioners admitted that there is delay in making the payment of tax on account of non-availability of funds. After a period of two and half years, petitioners for the first time took a stand that the certificate was served on them on March 17, 1999. The affidavits which have been produced by the petitioners to substantiate the aforesaid plea are vague and, therefore, cannot be relied upon. In our view, the aforesaid plea of service of notice on March 17, 1999, has been taken as an afterthought. For the aforementioned reasons, we hold that the payment of the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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