TMI Blog2012 (9) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... ration is also given that the declaration shall be deemed never to have been made. The submission as attempted by the assessee for counting the period of three months step by step and then, referring to the fact that the month of February had 28 days has a fundamental fallacy in it. It is the period of three months that is relevant for the purpose of Section 67 ibid. and not the number of days in such months. When the declaration was made on on a simple computation, the last day of the third month therefrom expired on 30.03.1998. The deposit as made on even if delayed by one day, cannot be taken as a valid deposit for the purpose of the Scheme - against assessee. - S.B. CIVIL WRIT PETITION NOS. 1850 TO 1852 OF 2001 - - - Dated:- 2-7-2012 - DINESH MAHESHWARI, J. Anjay Kothari for the Petitioner. Arun Bhansali for the Respondent. ORDER 1. The petitioners in these three writ petitions are the assessees under the Income Tax Act, 1961 ('the Act of 1961'); and are closely related to each other inasmuch as the petitioners of CWP Nos. 1850/2001 and 1852/2001 are the sons of the petitioner of CWP No. 1851/2001. The identical nature grievance of the petitioners in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited the tax payable for such declaration only on 31.03.1998. The petitioners were informed by the identical nature communications dated 28.05.1999 that the tax having not been deposited in connection with the VDIS declaration within prescribed time, the necessary certificate could not be issued. The contents of the said communication dated 28.05.1999 read as under:- "It has since been brought to the notice of your Authorised Representative that you have not deposited the tax in connection with VDIS declaration within prescribed time. Therefore, certificate cannot be issued. It is for your information." 4. It appears that aggrieved of the aforesaid communication dated 28.05.1999, the petitioners earlier approached this Court in the writ jurisdiction while seeking to question the constitutional validity of the provisions of the Act of 1997 relating to VDIS but the challenge was withdrawn with liberty to approach the Departmental Authorities and for raising grievances before them in the first place. It is borne out that the petitioners, thereafter, submitted the respective representations through their Authorised Representative before the respondent No. 2. It was, inter alia, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained Scheme there is no provision for condonation of delay in payment of tax irrespective of the fact whether reasonable cause for delay exists or not. Even the period of delay is immaterial. Therefore, considering the facts circumstances of the case and in view of the Hon'ble Andhra Pradesh High Court's decision in the case of Vyshnavi Appliances Pvt. Ltd, v. CBDT , 243 ITR 101, your application for reconsideration is rejected. No interference is called for." 5. It appears that the petitioners attempted yet further representations but the same were rejected on 19/20.02.2001 with reference to the fact that similar representations had already been rejected. Thereafter, on 14.03.2001, the concerning Income Tax Officer proceeded to issue individual notices to the petitioners under Section 148 of the Act of 1961 seeking to re-assess the escaped income. Faced with such notices, the petitioners filed these writ petitions on 30.04.2001. 6. These writ petitions were simultaneously considered on 17.05.2001; and were admitted with interim order while taking note of the contentions on behalf of the petitioners with the following order (as reproduced from the file of CWP No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be rather arbitrary if the payment made by them on 31.03.1998 is not accepted. The learned counsel yet further contended that the payment of tax with interest as made by the petitioners ought to be taken within the time prescribed under the Scheme in the following manner:- i. The petitioners filed the declaration under the Scheme on 30.12.1997. ii. The tax alongwith interest could have been paid within three months from the date of filing declaration. iii. The period of three months has to be computed step by step. iv. The first month from the date of declaration starts from 30.12.1997 and expires on 30.01.1998. v. The second month starts from 30.01.1998 and expires on 30.02.1998 but since there is no corresponding date in the month of February, the principle of corresponding date of the subsequent month for computing limitation fails and the same cannot be carried further. However, the date of expiry of second month cannot be left in vacuum and same, at worst, could be taken as 28.02.1998 or at best, 02.03.1998. vi. The period of one month still remains to be computed to determine the date of expiry of three months and since the principle of corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court also took note of the contra submissions on behalf of the Revenue that under the Scheme, payment was envisaged to be made first and the declaration was to be filed thereafter; and only with a view to dilute the rigidity of this requirement that Section 67 allowed the assessee to make payment subsequent to declaration but subject to payment of interest @ 2% per month upto a period of three months and not further. The Hon'ble Supreme Court further took note of the contentions on behalf of the Revenue that as per the language used, the provisions contained in Section 67(2) were mandatory and no extension could be granted beyond the period of three months. 12. After thus taking note of the rival submissions in Hemalatha Gargya ( supra ) the Hon'ble Supreme Court laid down the law in no uncertain terms that the provisions contained in the Scheme were mandatory in nature and there was no question of adopting and applying any equitable consideration. The Hon'ble Supreme Court, inter alia, held,- "We are of the view that the submissions of the Revenue must be accepted. A plain reading of the provisions of the Scheme would show that the tax payable under the Scheme " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of the scheme are stated in such plain language. Seen from the angle of the Designated authority, which is created under the Scheme, it is clear that the authority cannot act beyond the provisions of the Scheme itself. The power to accept payment under the Scheme has been prescribed by the statute. There is no scope for the Revenue authorities to imply a provision not specifically provided for which would in any way modify the explicit terms of the Scheme." 13. It may be pointed out that one of the decisions as referred by the petitioners at the time of admission of these writ petitions had been in the case of Sardar Machhi Singh v. CIT [2000] 245 ITR 58/[2001] 116 Taxman 228 (MP) and a copy of the order dated 17.07.2000 as passed in SLP No. 4220/2000 has been placed on record wherefrom it appears that the Hon'ble Supreme Court dismissed the Special Leave Petition against the aforesaid decision of the Hon'ble Madhya Pradesh High Court in Sardar Machhi Singh's case ( supra ). However, this aspect was also taken note of by the Hon'ble Supreme Court in Hemalatha Gargya's case ( supra ) while disapproving all the decisions holding that the time prescribed under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily disclosed income. Section 67 ibid. had given a latitude only to the extent that the declarant may file the declaration and then, pay the tax within three months from the date of filing of the declaration with simple interest @ 2% per every month or part thereof as comprised in the period beginning from the date of filing of the declaration and ending on the date of payment of tax. In fact, any date beyond the last day of the third month from the date of filing of the declaration cannot be considered available for making payment for the very specific and clear phraseology of Section 67 whereby even the proof of payment has to be supplied within the said period of three months. Then, in sub-section (2) of Section 67, the result of default in payment of tax before the expiry of three months from the date of filing of the declaration is also given that the declaration shall be deemed never to have been made. As expounded and explained by the Hon'ble Supreme Court in Hemalatha Gargya's case ( supra ), the provisions remain strict and mandatory with no scope for any leniency or modulation. 17. The submission as attempted by the learned counsel for the petitioners for counting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the last that if at all the contentions on validity of payment of tax under VDIS are not accepted, the authorities may be directed to proceed on the notice under Section 148 of the Act of 1961 with reference to the directions of the Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19/[2002] 125 Taxman 963. It is also noticed that in Hemalatha Gargya's case ( supra ), the Hon'ble Supreme Court, even while holding that the assessee, who had not made timely payment of tax on the voluntarily disclosed income, would not be entitled to the benefit of the Scheme yet, directed the Revenue Authorities to refund or adjust the amount already deposited by the assessee concerned. 20. It goes without saying that the authorities are expected to apply the directions of the Hon'ble Supreme Court uniformly to all the similarly placed cases; and it cannot be assumed that the authorities concerned would not be proceeding in accordance with law. Of course, in the present matters, for the proceedings having hitherto remained stayed pursuant to the interim orders, the authorities concerned would now be expected to proceed expeditiously in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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