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Vishal Garg And Others Versus Union of India And Another

Extension of due date for filing returns due by 30.9.2015 where accounts are required to be audited in terms of Section 44AB - the forms were not available to the said categories of tax payers as on 1.4.2015. - petitioners inter alia submitted that it was only after 1.8.2015, 2.8.2015 and 7.8.2015 that the income tax return Forms No. 4, 5 and 6 respectively were available for downloading by the assessees In such circumstances, the last date fixed for e-filing of income tax return for the assessm .....

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eturn should be notified by Ist day of the assessment year. - We are in agreement with the above observations but express our dissent with regard to rejection of prayer for extension of time in e-filing the returns beyond 30th September 2015.

As noticed above, we have already expressed our dissent with the order passed by the Delhi High Court qua dismissing the writ petition with regard to extension of time for e-filing of the income tax returns. Accordingly, we are unable to concur w .....

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r e-filing the returns should ordinarily be made available on the first day of April of the assessment year. - Decided in favor of petitioners. - CWP No. 19770 of 2015 - Dated:- 29-9-2015 - Ajay Kumar Mittal And Ramendra Jain, JJ. For the Petitioner : Mr. Hitesh Kaplish, Advocate For the Respondents : Ms. Urvashi Dhugga, Advocate JUDGMENT Ajay Kumar Mittal, J. 1. The petitioners impugn the Press Release dated 9.9.2015, Annexure P.1 whereby the respondents have taken a decision not to extend t .....

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sed at Chandigarh and different places in the State of Punjab. According to the petitioners, as per Section 139(1) of the Act, the income tax return of every financial year ending on 31st of March is to be filed by the due dates fixed. The forms under which the respective categories of tax payers are required to file their returns have to be duly made available to the said categories of tax payers on the very first day of the assessment year so that every tax payer has sufficient time to file th .....

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a grave prejudice as due to the same, the forms were not available to the said categories of tax payers as on 1.4.2015. The respondents issued Press Release dated 9.9.2015, Annexure P.1 not to extend the date for filing return from 30.9.2015 for certain categories of assessees including companies, firms and individuals engaged in proprietary business/profession etc. whose accounts are required to be audited in terms of Section 44AB of the Act. Aggrieved thereby, the petitioners are before this .....

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by the assessees, being 30.9.2015 is unreasonable and is liable to be extended. 5. On 24.9.2015, learned counsel for the revenue produced a copy of communication dated 23.9.2015 received from the Central Board of Direct Taxes wherein while supporting the Press Release dated 9.9.2015, Annexure P.1, it has been inter alia stated that in the assessment year 2015- 16 as compared to the earlier assessment year, only some minor modifications have occurred in the ITR 5, 6 and 7 forms and the relevant .....

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s and keeping in view the fact that e-filing of audit report had been made mandatory for the first time and some difficulties were being encountered in e-filing of audit reports for the assessment years 2013-14 and 2014-15 by the tax payers, the CBDT invoked its powers under Section 119 of the Act to extend the due date. 6. During the course of hearing on 24.9.2015, the following two questions were put to the learned counsel for the revenue:- i) As to why Forms No.4, 5 and 6 were not prescribed .....

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ned counsel for the revenue submitted that only minor changes had been made in the aforesaid forms. However, she prayed for time to file reply. Consequently, the case was adjourned to 28.9.2015. 7. On 28.9.2015, written statement on behalf of respondent Nos. 1 and 2 was filed in Court which has been taken on record. The arguments were concluded and the case was fixed for 29.9.2015 for orders. 8. In the reply filed, it has been inter alia stated that no averment has been made by the petitioners a .....

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assesses including companies, firms etc. whose accounts are required to be audited in terms of Section 44AB of the Act, is to be extended beyond 30.9.2015. 10. Learned counsel for the petitioners during the course of hearing also produced a copy of the representation sent to the Finance Minister, Ministry of Finance, Government of India, New Delhi requesting for extension of the due date for filing tax audit report and income tax return for the assessment year 2015-16 for assessees referred to .....

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f income for assessment year 2015-16 before 1st, 2nd and 7th August 2015 respectively. A copy of the document from the website of the income tax department containing Form 3CD on which audit report was required to be filed was also produced by learned counsel for the petitioners. There were certain modifications made on 24.9.2015 itself. 11. At this stage, it would be expedient to consider certain statutory provisions as are relevant for the decision of the controversy involved which read thus:- .....

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and setting forth such other particulars as may be prescribed : xx xxx xx xx xx xx xx xx Explanation 2.-In this sub-section, "due date" means,- (a) where the assessee other than an assessee referred to in clause (aa) is- (i) a company; or (ii) a person (other than a company) whose accounts are required to be audited under this Act or under any other law for the time being in force; or (iii) a working partner of a firm whose accounts are required to be audited under this Act or under a .....

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139C. Power of Board to dispense with furnishing documents, etc. with the return.-(1) The Board may make rules providing for a class or classes of persons who may not be required to furnish documents, statements, receipts, certificates, reports of audit or any other documents, which are otherwise under any other provisions of this Act, except section 139D, required to be furnished, along with the return but on demand to be produced before the Assessing Officer. (2) Any rule made under the provis .....

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r audited reports which may not be furnished along with the return in electronic form but shall be produced before the Assessing Officer on demand; (d) the computer resource or the electronic record to which the return in electronic form may be transmitted." 119. (1) The Board may, from time to time, issue such orders, instructions and directions to other income-tax authorities as it may deem fit for the proper administration of this Act, and such authorities and all other persons employed .....

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wer,- (a) the Board may, if it considers it necessary or expedient so to do, for the purpose of proper and efficient management of the work of assessment and collection of revenue, issue, from time to time (whether by way of relaxation of any of the provisions of sections 115P, 115S, 115WD, 115WE, 115WF, 115WG, 115WH, 115WJ, 115WK, 139, 143, 144, 147, 148, 154, 155, 158BFA, sub-section (1A) of section 201, sections 210, 211, 234A, 234B, 234C, 234E, 271 and 273 or otherwise), general or special o .....

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rculated in the prescribed manner for general information; (b) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order, authorise any income-tax authority, not being a Commissioner (Appeals) to admit an application or claim for any exemption, deduction, refund or any other relief under this Act after the expiry of the period specified by or under this Act for making such application or claim and de .....

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ly:- (i) the default in complying with such requirement was due to circumstances beyond the control of the assessee; and (ii) the assessee has complied with such requirement before the completion of assessment in relation to the previous year in which such deduction is claimed : Provided that the Central Government shall cause every order issued under this clause to be laid before each House of Parliament. 12. A perusal of the above provisions shows that Section 139(1) of the Act prescribes proc .....

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during the previous year in a prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed. Explanation (2) thereof provides for the 'due date' which in the case of a company, a person (other than a company) or a working partner of a firm whose accounts are required to be audited under this Act or under any other law for the time being in force, is 30th day of September of the assessment year. Section 139C provides for making rules .....

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ers, instructions and directions as it considers necessary or expedient for the purpose of proper and efficient management of the work of assessment and collection of revenue. It is also authorized to issue such orders, instructions and directions for proper administration of the Act. 13. Having analyzed the scope of the statutory provisions noticed herein before, we proceed to examine the scope of extraordinary writ jurisdiction of a High Court under Articles 226/227 of the Constitution of Indi .....

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ol conferred by Article 227 is similar to the control exercised by the court of King's Bench over the inferior courts of England under the common law. According to Blackstone the Court of King's Bench was entitled to a general superintendence over all subordinate courts for the purpose of keeping them within the bounds of their authority and of preventing usurpation. In order to achieve this object the King's Bench was at liberty to remove their proceedings to be determined by it, to .....

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ereign power of the people as vested in them by the Constitution of a democratic Republic.' xx xx xxx xx xx xxx xxx xxx xxx 23. In Pickus v. Perry, (1931) 59 S. D. 350 (Z8) the court said: "The existence of this power partakes of the nature of an ultimate safeguard to be availed of, not as an instrument of routine procedure, but in extraordinary and unusual situations where customary remedial procedure is inadequate and resort must be had to some such high power for the public good or f .....

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a matter of absolute right, and it is the clear weight of authority that the power will not ordinarily be exercised as a substitute for appellate jurisdiction, or where other remedy exists, excepting only in those cases where the other remedy is so slow, difficult, or inadequate that to compel resort thereto amounts to a denial of justice". 24. The general principles governing the exercise of the power of superintending control were admirably summarised in Re Pierce-Arrow Motor Car Co., (19 .....

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, but must involve extraordinary hardship; the remedy by appeal or writ of error must be utterly inadequate; and the application for the exercise of the power of superintending control must be speedy and prompt". This was followed by a Single Bench of Madhya Pradesh High Court in Sukha vs. Central Administrative Tribunal, 1996(1) SCT 547. 14. While discussing scope of Article 226 of the Constitution of India, the Apex Court in Sh.Jogendrasinhji Vijaysinghji vs. State of gujarat and others, .....

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isdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and de .....

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ction Tribunals are subject to the supervisory jurisdiction of the High Courts under Article 226 and a writ of certiorari under that Article will be competent against decisions of the Election Tribunals also. The Court referred to the decision in T.C.Basappa (supra) and other authorities and ruled thus:- We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution, and that superintendence is both judicial and admi .....

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ticle 227, do that, and also issue further directions in the matter. We must accordingly hold that the application of the appellant for a writ of certiorari and for other reliefs was maintainable under Articles 226 and 227 of the Constitution. 15. In the present case, Form Nos. 4, 5 and 6 were prescribed on Ist, 2nd and 7th of August 2015 respectively when the audited accounts were required to be appended for e-filing of the return under Sections 139C and 139D of the Act. Further, it has been ad .....

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the Act which also includes Section 139 thereof. For avoiding the genuine hardship in any case or class of cases, the Board if considers desirable and expedient, by general or special order, it can issue such orders, instructions and direction for proper administration of this Act. All such authorities engaged in execution of the Act are expected to follow the same. The Board has not only to see the public interest for so doing but also for avoiding the genuine hardship in any particular case or .....

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ed for e-filing of the return is held to be not reasonable. 16. In Tax Bar Association, Hisar vs. The State of Haryana and others, CWP No.15499 of 2015 decided on 30.7.2015, a Division Bench of this Court considering the issue relating to extension in time for filing the returns under the Haryana Value Added Tax Act, 2003 had extended the date for e-filing of returns upto 10.8.2015. 17. A Single Bench of the Delhi High Court in Avinash Gupta vs. Union of India and others, W.P.(C) No.9032 of 2015 .....

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etitioner. The counsel for the respondents appearing on advance notice is unable to give the reasons for the forms etc. being not available at the beginning of the assessment year on 1st April of every year and the same thereby causing inconvenience to the practitioners of the subject. There is sufficient time available to the Government, after the Finance Act of the financial year, to finalize the forms and if no change is intended therein, to notify of the same immediately. There appears to be .....

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the respondents themselves, without waiting for any representations to be made. The respondents, while doing so, to also take a decision whether owing thereto any extension of the due date is required to be prescribed and accordingly notify the public. We are in agreement with the above observations but express our dissent with regard to rejection of prayer for extension of time in e-filing the returns beyond 30th September 2015. 18. Similarly, the Gujarat High Court in All Gujarat Federation of .....

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audit under Section 44AB of the Act would get automatically extended. It was observed as under:- 53. The CBDT derives its powers under the statute which enjoins upon the Board to issue from time to time such orders, instructions and directions to other income-tax authorities if found expedient and necessary for proper administration of the Act. Without prejudice to the generality of powers provided under sub-section (1) of section 119 of the Act, the CBDT also has specific powers to pass general .....

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ities engaged in execution of the Act are expected to follow the same. Any requirement contained in any of the provisions of Chapter IV or Chapter VIA also can be relaxed by the CBDT for avoiding genuine hardship in any case or class of cases by general or special orders. This provision, therefore, gives very wide powers to the CBDT to pass general or special orders whenever it deems it necessary or expedient to so do it in respect of any class of income or class of cases. It has not only to see .....

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