TMI Blog1998 (2) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 80HHC(2) of the said Act, inter alia, on the ground that the said extension application was filed after the expiry of six months from the end of the previous year. The case of the writ petitioner is that the said order is illegal and in violation of natural justice inasmuch as the Commissioner did not examine on merits the question as to whether the delayed realisation of the export proceeds was for reasons beyond the assessee's control. It further appears from the records that according to the Commissioner an application for extension of time should be made before the expiry of the period of six months from the end of the previous year within which the export proceeds were required to be realised and in any event before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0HHC(2) itself does not provide for any period of limitation for making such application for extension to the Commissioner. He further submitted that when the statute itself does not provide for any period of limitation, no such period can be fixed by the authorities. He further submitted that in the instant case the previous year relevant to the assessment year 1995-96 was the financial year ended on March 31, 1995. In terms of section 80HHC(2), the petitioner-company was required to realise the export proceeds within September 30, 1995. However, as on the said date, there were 93 outstanding invoices. More than 2/3rds of the said invoices were realised in the month of October, 1995, itself and the remaining invoices were realised by Jan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an opportunity to show that it is entitled to the extension. The section fixes the time for realisation of the export proceeds which can be extended by the Commissioner or Chief Commissioner. He further drew my attention to the order of the Commissioner where the Commissioner himself has not disputed this aspect. It appears from the said orders as follows : "It is true that there is nothing in section 80HHC(2)(a) that requires assessees to apply for extension of time if they are unable to receive in or bring into India foreign exchange representing export sale proceeds within the period of six months from the end of the relevant financial year." Mr. Bajoria further submitted that this specific question arose before the Allahabad High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is imperative on its part to place the same before the Chief Commissioner or Commissioner, as the case may be. The assessee may also bring the fact to the notice of the Chief Commissioner or Commissioner, but in that event, no time limit can be applied except that the claim is to be made in the return to be filed." He further placed reliance on the judgment of this court in the case of CIT v. Rai Bahadur Bissesswarlal Motilal Malwasie Trust [1992] 195 ITR 825. Mr. Dipak Deb, appearing on behalf of the respondent, contended that the petitioner-company was not entitled to the deduction under section 80HHC even otherwise since it did not submit a report of the accountant in accordance with sub-section (4) of the said section along with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of the Revenue that the word 'extend' in the proviso to section 139(2) implies that at the time of making the application the time allowed should not have expired. Though the Civil Procedure Code, 1908, by itself does not apply to the proceedings under the Income-tax Act, we see no reason why a principle of procedure evolved for doing justice to a party to the proceeding cannot be called in aid while interpreting a procedural provision contained in the Act. Section 148 of the Code provides that where any period is fixed or granted by the court for the doing of any act prescribed or allowed by the Code, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ike the consequences which may follow if it is held that it cannot be done. From a mere absence of a specific provision authorising the Income-tax Officer to entertain an application made beyond time it was not proper to hold that it was not open to the assessee to make an application under section 139(2) for extension of time after the time allowed had expired and that such an application could not be entertained by the Income-tax Officer. If an application could be made even after the time allowed had expired, it became the duty of the Income-tax Officer either to grant it or reject it. Once the assessee called upon the Income-tax Officer to exercise his discretion it was not open to him to ignore that request and not to pass any order th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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