Dr. Satyajit Bose v. Deputy Commissioner Of Income Tax, Circle - 22 & Ors

Item No.10. IN THE HIGH COURT OF JUDICATURE AT CALCUTTACIVIL APPELLATE JURISDICTIONAPPELLATE SIDE HEARD ON: 16.12.2022 DELIVERED ON:16.12.2022 CORAM: THE HON’BLE MR. JUSTICE T. S. SIVAGNANAM AND THE HON’BLE MR. JUSTICE HIRANMAY BHATTACHARYYA M.A.T No.406 of 2019 withI.A. No.CAN 1 of 2019 (Old CAN 3177 of 2019)withI.A. No.CAN 2 of 2019 (Old CAN 3178 of 2019) Dr. Satyajit Bose. Vs. Deputy Commissioner of Income Tax, Circle - 22 & Ors. Appearance:- Mr. Ananda Sen, Mr. Sabyasachi Mandal … for the appellant. Mr. Vipul Kundalia, Ms. Uneaza Ali, Ms. Aditi Singhania …. for the Income Tax Authorities. JUDGMENT (Judgment of the Court was delivered by T.S. SIVAGNANAM, J.) Re: I.A. No.CAN 1 of 2019 (Old CAN 3177 of 2019) 1.This is an application to condone the delay of 13 days infiling the instant appeal. 2.We have heard Mr. Ananda Sen, learned counsel appearing forthe appellant duly assisted by Mr. Sabyasachi Mandal, learnedAdvocate and Mr. Vipul Kundalia, learned counsel appearing forthe respondents. 3.We are satisfied with the reasons assigned in the affidavitfiled in support of the application. Accordingly, the delay infiling the instant appeal is condoned. 4.The application for condonation of delay being I.A. No.CAN1 of 2019 (Old CAN 3177 of 2019) is allowed. 5. There shall be no order as to costs. Re: MAT 406 of 2019 6.Supplementary affidavit filed by the appellant is taken onrecord. 7.This intra-Court appeal is directed against the order dated31[st] January, 2019 in W.P. No.2693(W) of 2018. The appellant filed the writ petition praying for a direction upon therespondents to condone the delay in making the third paymentunder the Income Declaration Scheme, 2016 (for short, “thescheme”). The appellant also prayed for issuance of a writ ofmandamus to direct the respondents to regularise the thirdpayment, which was made on 16[th] October, 2017 together withinterest. The appellant also prayed for a direction upon therespondents to issue a certificate in form – 4 of the saidscheme and to restrain the assessing officer from proceedingfurther with the assessment framed on 26[th] December, 2017. Thelearned Single Bench had dismissed the writ petition on theground that the appellant did not comply with the terms of thescheme within the time permitted. Challenging the said order,the appellant has filed the present appeal. 8.We have heard Mr. Ananda Sen, learned counsel appearing forthe appellant duly assisted by Mr. Sabyasachi Mandal, learnedAdvocate and Mr. Vipul Kundalia, learned counsel appearing forthe respondents.9.The appellant seeks to assail the correctness of the orderpassed in the writ petition based on a subsequent development,which took place after the dismissal of the writ petition. Wecannot be called upon to test the correctness of the order passed in the writ petition based on a material, which was neverplaced before the learned Writ Court. In any event, if thesubsequent development has a beneficial effect on the assessee,then the Court can consider as to what would be the appropriatedirection that can be issued to the authorities in the givenfacts and circumstances. 10.Admittedly, under the scheme, the third installment ofincome tax ought to have been remitted by the appellant notlater than 30[th] September, 2017 but was remitted on 16[th] October,2017. Since the scheme did not provide for any extension oftime, the authorities could not have reckoned payment of thethird installment to be in compliance with the terms andconditions of the scheme. Interestingly, there was an amendmentto the scheme by Finance (No.2) Act of 2019. By the saidamendment, if there was a delay in payment of the amount, thesame can be accepted subject to payment of interest provided,such payment is made within the date notified by the CentralGovernment. The said amendment was given retrospective effectfrom 1[st] June, 2016. In terms of the said amendment,notification dated 13[th] December, 2019 was issued by the Ministryof Finance by which the payment could be made on or before 31[st]January, 2020. Since this amendment has been given retrospective effect and the appellant having paid thirdinstallment well before the notified date, this Court is of theprima facie view that the benefit of such amendment can beextended to the assessee. However, it appears that therepresentation given by the appellant to the PrincipalCommissioner of Income Tax – 8 (Kolkata) dated 13[th] January, 2020was not answered and stated to be still pending before theauthority. Even much earlier, the assessing officer hadcompleted the assessment. Thus, the assessee is left in apiquant situation and is before this Court for necessary relief.11. Considering the peculiar facts and circumstances of thecase, while upholding the view taken by the learned SingleBench, we are inclined to grant liberty to the appellant toapproach the respondent authorities by way of freshrepresentation in which the amendment made by Finance (No.2) Actof 2019 as well as notification dated 13[th] December, 2019 can beplaced before the concerned authority. Added to the fact thatthe third installment had been paid by the appellant well beforethe cut off date together with interest and if suchrepresentation is given to the appropriate authority, the sameshall be considered and a speaking order be passed on merit and in accordance with law within a period of three weeks from the date of receipt of server copy of this order. 12.In the meantime, the assessing officer is directed not to initiate any coercive step against the appellant for recovery ofthe tax and penalty pursuant to the assessment, which was framedon 26[th] December, 2017. 13.The appellant is directed to enclose a copy of the representation dated 13[th] January, 2020 along with the said freshrepresentation, which has been directed to be submitted in termsof the above order. 14.The appeal and the connected application are disposed of.15.There shall be no order as to costs. 16. Urgent photostat certified copy of this order, if appliedfor, be furnished to the parties expeditiously upon complianceof all legal formalities. (T.S. SIVAGNANAM, J) I agree, (HIRANMAY BHATTACHARYYA, J.) NAREN/PALLAB(AR.C)