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TMI Blog2012 (9) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... d aspects of the matter are as follows: In the Finance Act, 1997 ('the Act of 1997'), the said disclosure Scheme, VDIS, was announced that was to remain in force until the 31st day of December 1997; and provided for voluntary disclosure of income and consequential recovery of tax from the concerned assessee. Sections 66 and 67 of the Act of 1997, particularly those relating to the time for payment of tax under the Scheme, being relevant for the present purpose, could be taken note of as under:- "66. Time for payment of tax.- The tax payable under this Scheme in respect of the voluntarily disclosed income shall be paid by the declarant and the declaration shall be accompanied by proof of payment of such tax. 67. Interest payable by declarant.- (1) Notwithstanding anything contained in section 66, the declarant may file a declaration without paying the tax under that section and the declarant may file the declaration and the declarant may pay the tax within three months from the date of filing of the declaration with simple interest at the rate of two per cent. for every month or part of a month comprised in the period beginning from the date of filing the declaration and ending on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... short delay of one (01) day, the declarant ought be given the benefit of the Scheme. It was yet further submitted in each case that the assessee was prevented by a reasonable cause in not depositing the tax on 30.03.1998 as the mother of the petitioner of CWP No. 1851/2001 (grand-mother of the other petitioners) was hospitalized at Agra in a critical condition and they had to rush to attend on her. It was, therefore, prayed that the delay of one day be condoned. The Commissioner of Income Tax, Jodhpur, however, proceeded to reject the representations so made with identical nature communications dated 27.11.2000, the contents whereof, from the file of CWP No. 1850/2001, are reproduced hereunder for ready reference:- "I am directed to refer to Shri S.P. Vyas, advocate, Jodhpur's letter received in this office on 18.8.2000 regarding reconsideration of condonation of delay under Voluntary Disclosure of Income Scheme, relying upon the following decisions:- 1. Hon'ble Punjab and Haryana High Court in the case of Smt. Laxmi Mittal v. Commissioner of Income-tax, reported in [1999] 238 ITR, 97. 2. Hon'ble Madras High Court in the case of E. Prahalatna Babu v. Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Rule is made returnable after eight weeks. Meanwhile, further proceedings in pursuance of impugned notice u/s. 148 shall remain stayed. Connect with C.W. No. 1851/2001 and C.W. No. 1852/2001." 7. Upon taking up of these matters for hearing, the learned counsel for the Department pointed out that though these petitions were filed with reference to some of the decisions of the High Courts taking a view that the short delay in payment of tax under VDIS could be condoned but then, the said decisions are no longer good law and stand over-ruled with the conclusive pronouncement of the Hon'ble Supreme Court in the case of Hemalatha Gargya v. CIT [2003] 259 ITR 1/128 Taxman 190 wherein it has been held that the time schedule for payment of tax under VDIS is mandatory and cannot be extended; and there is no scope for any equitable consideration. 8. The learned counsel for the petitioners has, however, made the submissions that the rules of purposive interpretation ought to be employed and as the last date for making declaration under the Scheme was the 31st day of December 1997, the period for making payment of tax with interest ought also be read as three months from such last date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary to remedy the injustice could be passed. According to the learned counsel, the alleged delay of one day in paying the tax with interest in the present case being non-deliberate, bonafide, and supported by justifiable reasons, the cause of substantial justice deserves to be preferred and this unintentional delay deserves to be condoned. 10. After having given a thoughtful consideration to the entire matter, this Court is unable to agree on the submissions made on behalf of the petitioners, particularly in view of the dictum of the Hon'ble Supreme Court in Hemalatha Gargya's case (supra). In the opinion of this Court, the matter stands squarely covered thereby and all the arguments on behalf of the petitioners must fail. 11. In the case of Hemalatha Gargya (supra), the Hon'ble Supreme Court specifically considered the question as to whether the time for payment as fixed under the Scheme was extendable after noticing that there had been conflicting views expressed by different High Courts and by different Benches of the same High Court. The Hon'ble Supreme Court, inter alia, took note of the decisions in Smt. Laxmi Mittal's case (supra) and E. Prahalatha Babu's, case (supra) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the declaration and shall end with the date of payment of tax. It may be noted that under section 67(1) not only must these two conditions be fulfilled within the period of three months but proof of such payment must also be filed within the same period. The use of the word "shall" in a statute, ordinarily speaking, means that the statutory provision is mandatory. It is construed as such unless there is something in the context in which the word is used which would justify a departure from this meaning. There is nothing in the language of the provisions of the scheme which would justify such a departure. On the other hand, the provisions of section 67(2) make it abundantly clear that if the declarant fails to pay the tax within the period of three months as specified, the declaration filed shall be deemed never to have been made under the scheme. In the words, the consequences of non-compliance with the provisions of section 67(1) relating to the payment have been provided. It is well-settled that when consequences of the failure to comply with the prescribed requirement is provided by the statute itself, there can be no manner of doubt that such statutory requirement must be int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding we make it clear we do not intend to reopen those decisions which have become final in favour of the assessees. It may also be noted that in one of such decisions, the Revenue had sought to prefer an appeal before this Court by way of a special leave petition which was dismissed in limine. It needs hardly to be stated that such dismissal would not operate as confirmation of the reasoning in the decision sought to be appealed against, nor does such dismissal by itself operate as an argument in favour of the assessee and against the Revenue." 14. In view of the authoritative pronouncement of the Hon'ble Apex Court in Hemalatha Gargya's case (supra), the contentions as urged on behalf of the petitioners about condonation of delay or about any interpretation whereby the date of deposit under VDIS could be seen as available in their case upto 31.03.1998 deserve to be rejected. 15. The suggestion that what the authorities cannot do could yet be done by this Court in extraordinary writ jurisdiction has only been noted to be rejected. Issuance of any writ, order or direction under Article 226 of the Constitution of India fundamentally requires existence of a legal right and infringe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue, similar had been the fact situation that the declaration was filed on 30.12.1997 but the declarant paid the tax on 31.03.1998. Therein, the Hon'ble Andhra Pradesh High Court did not agree with the proposition in Smt. Laxmi Mittal's case (supra) that the concerning provisions of Section 67 were to be construed liberally; and found no legal ground to grant relief under Article 226 of the Constitution of India. Though in Vyshnavi Appliances (P.) Ltd.'s case (supra) the Hon'ble Court made an observation that the petitioner therein had not come forward with any explanation for delay but any such observation could only be considered redundant in view of the pronouncement of the Hon'ble Supreme Court in Hemalatha Gargya's case (supra). The relevance of the decision in Vyshnavi Appliances (P.) Ltd.'s case (supra) for the present case is that in relation to the exactly similar facts, of the date of filing of the declaration and date of payment of tax, the Court found the payment to be a belated one; and no legal basis to condone the delay. There appears absolutely no reason to take any view different. 18. Thus, in a cumulative effect of the above referred decisions in Hemalatha Gar ..... 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