TMI Blog2001 (4) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... at an early date and for de-clogging the legal system by reducing the number of appeals, writ petitions, revisions, etc., pending as on that date. As per the scheme all the assessees, who are in due of payment of tax, interest, penalty, etc., as on March 31, 1998, which is disputed before any authority are entitled to make a declaration during the period of the scheme from September 1, 1998, to December 31, 1998, and pay the tax at the declared concessional rate. According to the petitioner, in pursuance of the said scheme, he filed his declaration before the first respondent on December 28, 1998. The said declaration was for the assessment years 1993-94 and 1994-95, showing the tax arrears at Rs. 74,390 and Rs. 1,14,598, respectively. A certificate of intimation in Form No. 2-A under section 90(1) of the Finance (No, 2) Act, 1998, was issued to the petitioner. In terms of the intimation, the petitioner was required to pay Rs. 27,498 for the assessment year 1993-94 and Rs. 50,462 for the assessment year 1994-95. According to the petitioner, the above two payments were made by means of cheque on March 27, 1999, drawn on the Rajadhani Bank, Barkathpura, in a sum of Rs. 77,958 and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be realised only by April 12, 1999, and, therefore, it amounts to non-payment of the amount under the Scheme within the period of 30 days. It is stated specifically that under section 90(1) of the Scheme, Form No. 2A was issued on February 25, 1999, and the petitioner was under an obligation to pay the said amount within 30 days. As the said amount was not paid within the period of 30 days, the petitioner is not entitled to the benefit of the KVS Scheme. It is also stated that though the petitioner presented the cheque on March 27, 1999, the amount was not credited to the Government account within the period of 30 days. Hence, the petitioner is not entitled for the benefit of the KVS Scheme. From the above, the issue that arises for consideration is whether the payment of the amount due under the Scheme by cheque dated March 27, 1999, would amount to payment as on the date of the presentation of the cheque or the payment would be as on the date of realisation of the said amount? The petitioner relied upon the decision of the apex court in the case of Ogale Glass Works Ltd. [1954] 25 ITR 529. It was a case where the issue was whether the income was received in the Indian St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: "Where the payment is by cheque and is conditional, the mere delivery of the cheque on a particular date does not mean that the payment was made on that date unless the cheque was accepted as unconditional payment. Where the cheque is not accepted as an unconditional payment, it can only be treated as a conditional payment. In such a case the payment for purposes of section 20, Limitation Act, 1908, would be on the date on which the cheque would be actually payable at the earliest, assuming that it will be honoured. The fact that a cheque is presented later than the date it bears and then paid is immaterial for it is the earliest date on which the payment could be made that would be the date where the conditional acceptance of a post-dated cheque becomes actual payment when honoured.... Where a post-dated cheque is accepted conditionally and it is honoured, the payment for purposes of section 20 of the Limitation Act, can only be on the date which the cheque bears and cannot be on the date the cheque is handed over, for the cheque, being post-dated, can never be paid till the date on the cheque arrives." This issue was also considered by the Gujarat High Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the declaration was filed by the assessee. Thereafter, the petitioner filed an application under section 119(2)(b) of the Income-tax Act, 1961, to the Central Board of Direct Taxes for condoning the delay of one day in payment of the tax relatable to the income voluntarily disclosed. The Board declined to condone the delay. Thereafter, a writ petition was filed and this court felt that there was no scope for any interference with the impugned action of the Board as there was no legal infirmity to grant the relief to the petitioner. It would be convenient to extract the relevant Treasury Rules dealing with payment by cheques, i.e., rules 80 and 81 of the Central Treasury Rules, in order to consider the rival contentions: "80. Demand drafts shall not be distinguished from cheques for the purpose of these rules and, provided that a cheque tendered in payment of Government dues is accepted under the provisions of rule 79 and is honoured on presentation, payment shall be deemed to have been made (i) if the cheque is handed over to the Government's bankers or to a Government officer authorised to receive money on behalf of the Government, on the date on which it is so handed over; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esignated authority may amend the certificate for reasons to be recorded in writing. (2) The declarant shall pay the sum determined by the designated authority within thirty days of the passing of an order by the designated authority and intimate the fact of such payment to the designated authority along with proof thereof and the designated authority shall thereupon issue the certificate to the declarant... Provided that where the declarant has filed a writ petition or appeal or reference before any High Court or the Supreme Court against any order in respect of the tax arrear, the declarant shall file an application before such High Court or the Supreme Court for withdrawing such writ petition, appeal or reference and after withdrawal of such writ petition, appeal or reference with the leave of the court, furnish proof of such withdrawal along with the intimation referred to in sub-section (2)." A perusal of the above sub-section (2) shows that the declarant has to make the payment determined by the designated authority within 30 days of the passing of the order by the designating authority and intimate the fact of such payment to him. Here admittedly the first respondent, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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