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TMI Blog2011 (2) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... on made by the petitioner under the Voluntary Disclosure of Income Scheme, 1997, for the year 1989-90 by condoning the delay of one day and issue a certificate of immunity under section 68(2); (iii) to call for the records of the case leading to the issue of exhibit P3 notice, declare the same to be illegal and non est in the eye of law and quash the same by way of issuing a writ of certiorari; (iv) to issue a writ of prohibition restraining the respondents from proceeding further with exhibit P3 notice; The facts leading to the case are as follows:- By the Finance Act, 1997, Voluntary Disclosure of Income Scheme is propounded. The broad outlines of the Scheme are that, any person can make a declaration in accordance with section 65 (giving the particulars prescribed) of the said Scheme in respect of any income chargeable to tax under the Income-tax Act for any assessment year for which the person either failed to furnish a return under section 139 of the Act or in a case where a return was in fact filed, but some part of the income pertaining to the relevant year is not disclosed. Under the Scheme, people falling under the abovementioned categories ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r part of a month comprised in the period beginning from the date of filing the declaration and ending on the date of payment of such tax and file the proof of such payment within the said period of three months. (2) If the declarant fails to pay the tax in respect of the voluntarily disclosed income before the expiry of three months from the date of filing of the declaration, the declaration filed by him shall be deemed never to have been made under this Scheme." Further, under section 68(2), the Commissioner who is the competent authority before whom the declaration is required to be filed under section 65(1) is obliged to issue a certificate to a declarant under the Scheme setting forth the particulars of the voluntarily disclosed income and the amount of income-tax paid in respect of the same. Such certificate, however, is to be issued on an application made by the declarant. Section 68, clause (2) reads as follows:- "(2) The Commissioner shall, on an application made by the declarant, grant a certificate to him setting forth the particulars of the voluntarily disclosed income and the amount of income-tax paid in respect of the same." In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1997. Though it is argued by the learned counsel for the respondents that, since the declaration was not directly presented to the Commissioner but filed before the Assistant Commissioner, the declaration is treated to have been filed on December 30, 1997. Therefore, the period of three months contemplated under section 67(1) is to be reckoned from that date. We reject the submission of the respondents. It is a settled principle of jurisprudence of taxation that there is neither any scope for equities or inferences contrary to the language of the enactment. The law stipulates that declaration is to be made to the Commissioner of Income-tax and, therefore, it is the date of the receipt of the declaration by the Commissioner of Income-tax that is relevant for the purpose of settling the rights of the declarant. In the circumstances, we are of the opinion that the declaration must be construed to have been made on December 31, 1997, by the appellant herein. In view of the above finding, the next question would be whether the payment of tax made on March 31, 1998, is within the period permissible under section 67(2) of the Scheme. As already noticed, section 67 entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary there must be 29 or 28 days, according as the year is or is not a leap year'. Thus computed, the application filed by the appellant on April 30, 1988, is within limitation-a period of three months of the date of the registered sale deed dated January 30, 1988. In this view of the matter, we are unable to sustain the order under challenge. We set aside the impugned order, restore the second appeal and remit the case to the High Court for disposal in accordance with law." Again, the question fell for the consideration of the Supreme Court in the judgment in State of Himachal Pradesh v. Himachal Techno Engineers [2010] 3 KLT 575 ; [2010] 12 SCC 210, 214. The Supreme Court once again considered the question at paragraphs 9 to 11 and held as follows:- "9. The High Court has held that 'three months' mentioned in section 34(3) of the Act refers to a period of 90 days. This is erroneous. A 'month' does not refer to a period of thirty days, but refers to the actual period of a calendar month. If the month is April, June, September or November, the period of the month will be thirty days. If the month is January, March, May, July, August, October or December, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purpose of section 67 of the Finance Act. The second respondent declined to grant the certificate contemplated under section 68(2) by his communication dated May 15, 1998, on the ground that the payment was not made within the period permitted by the law. Such a communication is unsustainable in view of the conclusions reached by us and the reasons recorded. We, therefore, set aside the impugned order of the second respondent dated May 15, 1998, and direct the second respondent to issue the necessary certificate to the appellant. In view of the rejection of the certificate by the Commissioner, the Assessing Officer issued further notice in exhibit P3 under section 148 of the Income-tax Act proposing to reopen the assessment for the assessment years 1989-90 based on the declaration made under the Scheme. In view of our conclusion that the appellant is entitled for the certificate under section 68(2) and in view of the declaration under section 68(1) that the amount voluntarily disclosed shall not be included in the total income of the declarant for any assessment year under the Income-tax Act, exhibit P3 notice must be declared to be illegal and we declare as such. However ..... X X X X Extracts X X X X X X X X Extracts X X X X
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