Anoop Garg v. Union Of India

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 2881/2001 Anoop Garg s/o Shri M.K. Garg, r/o B-73, Gautam Marg, ShyamNagar, Jaipur ----Petitioner Versus 1. Union of India through the Chief Commissioner of IncomeTax, New Central Revenue Building, Statue Circle, Jaipur. 2. The Commissioner of Income Tax, New Central RevenueBuilding, Statue Circle, Jaipur. 3. The Deputy Commissioner of Income Tax, Range 3 (1), NewCentral Revenue Building, Statue Circle, Jaipur. ----Respondents For Petitioner(s):Mr. Anant Kasliwal, Sr. Advocate assisted by Mr. Vaibhav Kasliwal &Mr. Raghav KrishnatriFor Respondent(s):Mr. Anuroop Singhi withMr. N.S. Bhati &Mr. Aditya Khandelwal HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MRS. JUSTICE SHUBHA MEHTA Order (Per Shubha Mehta, J) 1.This civil writ petition has been filed against the order dated22/28.02.2001, whereby the application under Section 264 of theIncome Tax Act,1961 (for brevity-`the Act’) for processing returnof income under Section 80 RRA of the Act on the remunerationreceived by the petitioner in foreign currency, was rejected. 2.The petitioner, a Marine Engineer, filed a return of income forthe assessment year 1996-97 on 08.08.1997 which was processedand accepted by the respondents. An intimation to that effect wasgiven to the petitioner under Section 143 (1) (a) of the IncomeTax Act, 1961 on 23.10.1997. In this original return, petitioner didnot claim the deduction under Section 80 RRA of the Act onremuneration to the tune of Rs.1,23,279/- received in foreigncurrency for the services rendered by him on high seas. Thepetitioner filed revised return on 31.03.1998 claiming thededuction under Section 80 RRA of the Act. 3.Petitioner filed an application under Section 263 of the Actfor revision of order dated 23.10.1997 and the same wasdismissed by respondent No.2 on 13/14.03.2000 and it wassuggested that the petitioner should file an application underSection 264 of the Act. 4.The application filed by the petitioner under Section 154 ofthe Act and the revised return filed by him on 31.03.1998 alsocame to be rejected on 05.04.2000 by respondent No.3. Afterthat, the petitioner has filed an application under Section 264 ofthe Act on 15.05.2000 for revision of the order dated 23.10.1997under Section 143 (1) (a) of the Act and prayed for the deductionunder Section 80 RRA of the Act. This application was rejected byrespondent No.2 vide order dated 22/28.02.2001. Aggrieved bythis order, petitioner has filed this writ petition wherein he prayedthat order dated 22/28.02.2001, 23.10.1997 under Section 143(1) (a) and 05.04.2000 under Section 154 of the Act be quashedand set aside and petitioner be allowed to make appropriatededuction under Section 80 RRA of the Act. 5.Learned counsel for the respondent filed reply to the writpetition and stated therein that the orders dated 22/28.02.2001,23.10.1997 & 05.04.2000 passed by the authorities are strictly inaccordance with the provisions of the Act. The original return wasfiled belatedly on 08.08.1997 instead of on or before 30.06.1996.This return was filed under Section 139 (4) of the Act and revisedreturn of that is not permissible under Section 139 (5) of the Act.Petitioner himself had not claimed the deduction under Section 80RRA of the Act in his original return. It is also stated in the replythat application under Section 264 of the Act was filed beyond thelimitation period prescribed under Section 264 (3) of the Act.Petitioner's original return was processed and was accepted underSection 143 (1) (a) of the Act as per law. Petitioner cannot claimany deduction under Section 80 RRA of the Act, therefore, his writpetition is liable to be rejected. 6.We have heard learned counsel for the parties. 6.We have heard learned counsel for the parties. 7.Learned counsel for the petitioner contended that the orderdated 22/28.02.2001 is illegal and erroneous. His applicationunder Section 119 (2) (b) of the Act for condonation of delay wasnot properly dealt with although the petitioner had explained thedelay properly. He further argued that reasons given in the orderare not convincing, deductions prescribed by law were not allowedonly on technical grounds. It has wrongly been recorded in theorder that delay was of two & a half years. 8.He further argued that it was the bounden duty of therespondents to see that the benefit under Section 80 RRA of theAct was available to the assessee. They failed in their duty andwrongly accepted the return on 03.10.1997 under Section 143 (1) (a) of the Act. Reliance is placed upon the judgment of Delhi HighCourt in Commissioner of Income Tax (InternationalTaxation)Vs.HeidrickandStruggiesINC. MANU/DE/5605/2023: ITA 396/2023, wherein it was held in para 14(iv) and 15 as under:- "14(iv). The CBDT's Circular No.14/1955dated 11.04/1955 was applicable in the instantcase, which, inter alia, casts a duty on theofficers on the appellant/revenue to draw theattention of the assessee towards any relief thatmay be available to them, which the assesseemay have inadvertently omitted to claim." "15. Having regard to the aforesaid, we areof the view that the Tribunal has taken a just viewin consonance with the provisions of the Act andthe aforementioned circular issued by the CBDT.Undoubtedly, the appellant/revenue can seek tolevy tax only on income which falls within theambit of the Act. Merely because therespondent/assessee placed the income under awrong head, cannot possibly make it amendableto imposition of tax." 9.Per contra, learned counsel for the respondents argued that all the orders passed by the respondents are in consonance withthe statutory provisions. He further argued that the original returnfor the assessment year 1996-97 was itself filed belatedly on08.08.1997 as the last date prescribed was 30.06.1996. Hisoriginal return of income was under Section 139 (4) of the Act. Heargued that a revised return cannot be filed under Section 139 (5)of the Act when the original return has been filed under Section139 (4) of the Act. 10.He further argued that the assessee himself had notmentioned his income received inforeign currency and had notclaimed the deduction under Section 80 RRA of the Act in theoriginal return. 11.He further contended that delay in filing the original returncannot be condoned as there is no such provision in the Act anddelay in filing the application under Section 264 of the Act hasrightly not been condoned and reasons for that are given inimpugned order dated 22.2.2001. Revised return filed by thepetitioner was invalid and the deductions claimed therein underSection 80 RRA of the Act cannot be allowed, hence this writpetition deserves to be dismissed. 12.Learned counsel for the respondents further argued that thepetitioner could not have been allowed the deduction on the basisof the statutory provisions which are plain and unambiguous andthe petitioner cannot be afforded benefits on the ground of equity.Reliance is placed on the judgment of Hon’ble Supreme Court inKumar Jagdish Chandra Sinha (Dead) Through LRs Etc. Vs.Commissioner of Income Tax: (1996) 86 TAXMAN 0122wherein, in para 9 and 12, it was held as under: 12.Learned counsel for the respondents further argued that thepetitioner could not have been allowed the deduction on the basisof the statutory provisions which are plain and unambiguous andthe petitioner cannot be afforded benefits on the ground of equity.Reliance is placed on the judgment of Hon’ble Supreme Court inKumar Jagdish Chandra Sinha (Dead) Through LRs Etc. Vs.Commissioner of Income Tax: (1996) 86 TAXMAN 0122wherein, in para 9 and 12, it was held as under: "9. The first question is whether a personwho files return under Section 139 (4) is entitled tofile a revised return before the assessment is made.We think not. The furnishing of a revised return isprovided by sub-Section (5) of Section 139.According to this sub-Section "any person havingfurnished a return under sub-Section (1) or sub-Section (2)" may furnish a revised return at anytime before the assessment is made if he discoversany omission or any wrong statement in the originalreturn. The very fact that this right is given to aperson who has filed a return under sub-Section (1)or sub-Section (2) of Section 139 means bynecessary implications that such a right is denied toa person who files the return under Section 139 (4).The High Court has, however, taken the other viewrelying upon the language of cl. (c) of sub-Section(1) of Section 153. Sub-Section (1) of Section 53prescribes the time limits for completing theassessment. In the present case, it is not indispute, the period allowed for making theassessment is four years from the end of therelevant assessment as provided by Section 153(1)(a) (i). Section 153 (1) (c) provides an alternateperiod of limitation. It says that if the assessment is made before "the expiry of one year from the dateof the filing of return or a revised return under sub-Section (4) or sub-Section (5) of Section 139" itwould yet be within limitation notwithstanding thefact that it may be barred under other provisionscontained in sub-Section (1) of Section 153. TheHigh Court is of the opinion that language employedin Clause (c) of Section 153 (1) contemplates thefiling of a revised return even in a case whereoriginal return is filed under sub-Section (4). Wefind it difficult to agree. Clause (c) employ both theexpressions return and revised return and refers toboth the sub-Sections (4) and (5) of Section 139.Reasonably read it means the return filed undersub-Section (4) and the revised return filed undersub-Section (5) of Section 139. It would not bereasonable to construe the said clause as indirectlyconferring the right which is not conferred directlyby sub-Section (5) of Section 139." "12. For the above reasons, the appeals areallowed. Question No.1 is answered in theaffirmative holding that in case of a return filedunder sub-Section (4) of Section 139, a revisedreturn contemplated by sub-Section (5) of Section139 cannot be filed." 13.Reliance is further place on the judgment of Bombay High Court in Menezes Fernandes Enterprises Vs. Income TaxOfficer: (2013) 215 TAXMAN 0241 wherein, in para 7 and 8, itwas held as under:- "7.Perusal of the said section as it existedthen and more particularly sub clause 5 of the aboveprovision clearly stipulates that it is applicable inrespect of applications which are files under Section139 sub clause 1 and 2. It does not make anyreference to a delayed return or a return filed afterthe stipulated time, as envisaged under Section 139(4)." 13.Reliance is further place on the judgment of Bombay High Court in Menezes Fernandes Enterprises Vs. Income TaxOfficer: (2013) 215 TAXMAN 0241 wherein, in para 7 and 8, itwas held as under:- "7.Perusal of the said section as it existedthen and more particularly sub clause 5 of the aboveprovision clearly stipulates that it is applicable inrespect of applications which are files under Section139 sub clause 1 and 2. It does not make anyreference to a delayed return or a return filed afterthe stipulated time, as envisaged under Section 139(4)." "8. In view of the above, the benefits of subclause 5 of Section 139 would not apply to theapplications which are filed under Section 139 (4) ofthe said Act. Learned counsel appearing on behalf ofthe appellant had laid much emphasis on theprovisions of sub clause 5 and, more particularly, onthe last portion which reads as under: "he mayfurnish a revised return at any time before theexpiry of one year from the end of the relevantassessment year or before completion of theassessment, whichever is earlier". It was contendedthat in the present case admittedly, the order ofassessment was not served on the appellant and,therefore, the provisions of sub clause 5 were clearlyattracted in favour of the appellant. We are unableto accept the said submission when sub clause 5 has to be read in context with the other provisions of thesaid section. In the present case, it is an admittedposition where the appellant had not furnished thereturn within time allotted to him under sub sections(1) and (2) and therefore, his case clearly fallswithin the provision of Section 139 (4). Section 139(5) merely stipulates that it is applicable to anyperson who has furnished the return under subsections (1) or (2). In the present case, therefore, ifthe appellant had filed the return in time, andthereafter had filed a rectified return, he could bepermitted to do so under the said provision.Therefore, from the aforesaid provisions it can beseen that the Legislature in its wisdom had intendedto give the benefits of filing a revised return only tothose persons who fall within the four corners ofsection 139 sub sections (1) and (2) of the said Act.If the legislature had intended to also give the samebenefits to an assessee who had not furnished thereturn within time, it would have said so in subclause (5). The very fact that sub clause 4 is notreferred to in sub clause (5) clearly indicates theintention of the legislature." 14.We have considered the rival arguments and perused therecord and judgments cited by the learned counsel for both theparties. 15.It is indisputed that the petitioner filed his original return ofincome for assessment year 1996-97 on 08.08.1997 belatedly bymore than an year which was processed and accepted andintimation to that effect was given under Section 143 (1) (a) ofthe Act to the petitioner on 03.10.1997. In this original return, thepetitioner himself had not mentioned his income received inforeign currency when he was on high seas and not claimeddeduction under Section 80 RRA of the Act. When the petitionerhimself had not mentioned the income received by him in foreigncurrency, it could not have been expected from the respondentofficials to allow the deductions under Section 80 RRA of the Act.16.The revised return filed by the petitioner on 31.03.1998 wasnot considered by the Assessing Officer for the reason that it wasnot a valid return as a belated return cannot be revised under Section 139 (5) of the Act. Original return belatedly filed underSection 139 (4) of the Act and returns filed under Section 139 (4)of the Act cannot be revised under Section 139 (5) of the Act asheld by the Hon'ble Apex Court in Kumar Jagdish ChandraSinha (Dead) Through LRs Etc. Vs. Commissioner of IncomeTax (1996) 86 TAXMAN 0122 & Bombay High Court inMenezes Fernandes Enterprises Vs. Income Tax Officer:(2013) 215 TAXMAN 0241. 17.Respondent No.3 has rightly not considered the return andalso rejected the application under Section 154 by order dated05.04.2000. The order rejecting revision under Section 264 of theAct passed by the respondent No.2 is a well-reasoned andspeaking order and is based on the settled principles of lawdecided in the abovementioned judgments. 18.For these reasons, we do not find any illegality in the ordersimpugned dated 22/28.02.2001, 23.10.1997 & 05.04.2000.19.Petitioner is not entitled to any relief on the basis of equityas the statutory provisions are plain and unambiguous. Equitableconsiderations have no place where the statute contains expressprovisions. The writ petition is therefore liable to be rejected.20.Accordingly, the writ petition is dismissed. (SHUBHA MEHTA),J (PANKAJ BHANDARI),J LAKSHYA SHARMA/