R.jagadeesan v. The Commissioner Of Income Tax, Office Of The Commissioner Of Income Tax, 67A Race Course Road, Coimbatore 18

IN THE HIGH COURT OF JUDICATURE AT MADRAS C O R A M THE HON'BLE Mr.JUSTICE P.D.AUDIKESAVALU R.Jagadeesan...Petitioner vs 1.The Commissioner of Income Tax, Office of the Commissioner of Income Tax, 67A Race Course Road, Coimbatore 18. 2.The Wealth Tax Officer, Ward (7), Office of the Commissioner of Income Tax, Gandhi Road, Salem-7. 3.The Commissioner of Income Tax (Appeals), No.3, Gandhi Road, Salem-7. ...Respondents Prayer:Writ Petition filed under Article 226 of theConstitution of India for issuance of a Writ of Certiorarito call for the records of the First Respondent dated18.06.2001 vide C.No.37/KVSS/98-99/WT/CBE and to quash thesame. For Petitioner : Mr.S.VijayakumarFor Respondents : Mr.A.N.R.Jayaprathab Standing Counsel O R D E R The Writ Petition has been filed for issuance of aWrit of Certiorari to quash the order of the FirstRespondent dated 18.06.2001 vide C.No.37/KVSS/98-99/WT/CBE. 2.Heard Mr.S.Vijayakumar, learned Counsel appearing forthe Petitioner and Mr.A.N.R.Jayaprathab, learned StandingCounsel appearing for the Respondents. 3.The Ministry of Finance, Government of Indiaintroduced a Scheme known as Kar Vivad Samadhan Scheme forsettlement of tax dues of the assessees. In pursuancethereof, the Petitioner made an application to the FirstRespondent and filed Form 1-A declaration under Section 89of the Finance Act (No.2) under the aforesaid Scheme. The https://hcservices.ecourts.gov.in/hcservices/ First Respondent had accepted the declaration made by thePetitioner under the said Scheme and issued Form 2-ACertificate of intimation requiring the Petitioner to pay asum of Rs.32,355/- within the stipulated period of 30 daysfrom 01.03.1999. On receipt of the demand dated19.02.1999, the said amount was admittedly paid on01.03.1999, within the stipulated period of 30 days.However, the First Respondent issued another order dated10.05.1999, stating as follows:"AspertheChiefCommissioner'sclarification, self-assessment tax paid underSection 15 B of the Wealth-tax has to beappropriated first towards the interest and thentowards the tax as laid down in the explanationto the said section. The demand determined aspayable under K.V.S.S. in this office certificatein Form 2A dt.19.2.99 has been computed withoutobserving this rule. Hence the same is amendedas under:-Revised demand- Rs.36,579/-Earlier demand paid- 32,355/------------------Balance demand payable 4,224 =========(Rupees Four thousand two hundred and twenty fouronly)" 4.In response to the said demand made, the Petitioneron 16.06.1999 remitted the remaining sum of Rs.4,224/-,that was demanded. However, by a letter dated 18.06.2001,it was informed to the Petitioner that the aforesaidadditional demand of Rs.4,224/- had not been paid within 30days from the date of receipt of the order and hence, theassessment filed under the Kar Vivad Samadhan Scheme had tobe rejected as there had been delay of three days inasmuchas the order dated 10.05.1999 had been despatched on12.05.1999 and due date had fallen on 13.06.1999, butpayment had been made on 16.06.1999. A representation dated26.06.2001 was made by the Petitioner for which a Noticewas issued to the Petitioner to appear on 18.09.2002.Since there was no favourable response, the Petitioner hasapproached this Court challenging the aforesaid order dated18.06.2001.5.Mr.S.Vijayakumar, learned Counsel appearing for thePetitioner submits that in identical circumstances relatingto a similarly placed person in the case of Sri BalajiFinance vs ITO, [2011(12) Taxmann 121 (Madras)], this Courthas held that the period of limitation would not apply inrespect of the revised demand made. In this regard,reference was made at para No. 17 of that judgment, whichis extracted hereunder: "17. A close reading of sub-section (2) ofSection 90 would show that it speaks oflimitation for making payment as determined bythe designated authority. Here in these cases,theoriginalamountsweredetermined,certificates under section 90(1) were issued andbased on the same, the amounts were paid within30 days. Thus, in my considered opinion, thepetitioners have complied with Section 90(2) ofthe Act. Strangely, there is no provision in theAct prescribing any period of limitation formaking payment from the date of the passing of anamendment order. Had it been the intention ofthe legislature that the payment should be madewithin 30 days from the date of passing of theamendment order, surely, the Parliament wouldhave made a provision for the same in the Act.But the Parliament has not done so. At thisjuncture, it should be noticed that there aretime limits prescribed both for the designatedauthority to determine the amount, and for theassessee to make payment. For the former, it is60 days and for the latter it is 30 days. If anamendment order is to be construed as adetermination order in terms of Section 90 (1),then it goes without saying that such amendmentorder should also be passed within 60 days fromthe date of submission of the declaration. Ifthis construction is accepted, the same willrender the provision unworkable for, even if apatent mistake is noticed after 60 days, itcannot be corrected. This would not have beenthe intention of the Parliament. An amendmentorder cannot at any stretch of imagination beconstrued as yet another determination order.Therefore, the limitation of 60 days prescribedin Section 90(1) of the Act is not applicable toan amendment order. As a corollary, the periodof limitation prescribed for payment is also notapplicable for payment as per the amendment made.At this juncture, one should not fail to noticethe expressions used in Section 90(1) as well asSection 90(2) of the Act. In Section 90(1), itis found "the competent authority shall, byorder, determine". Similarly, in Section 90(2),it is found "the declarant shall pay the sumdetermined". Both these provisions should beread conjointly and not in isolation. This wouldonly reflect that there can be the only onedetermination order and thus the amendment ordercannot be construed as yet another determination order. If it is so correctly construed, thenthere can be no difficulty to conclude that boththe limitation periods prescribed in section 90(1) and 90(2) respectively are not at allapplicable to an amendment order. On the passingof an amendment order, no fresh period oflimitation commences as contended by the learnedCounsel for the authority to pass an amendmentorder and for the declarant to make payment, suchperiod of limitation cannot be assumed as it issought to be done by the learned Counsel for theRespondent. At the same time, it cannot be saidthat the declarant at his free will, can makepayment at any time. It can only be said thatthe payment should be made within a reasonabletime or within a time to be stipulated in theorder itself. In the cases on hand, as pointedout by the learned Counsel for the Petitioners,in the amendment orders, there was nothing saidabout the time within which the amounts should bepaid. Therefore, in my considered opinion, thepayment of the amounts by the petitioners beyond30 days but within a reasonable time as per theamendment orders satisfies the requirements ofthe scheme. Therefore, they are entitled for thecertificate under Section 90(2) of the Act." 6.As the aforesaid principles would squarely apply tothe facts of this case also, the Petitioner is entitled tothe same benefits. Hence, the impugned order, which cannotbe sustained, is set aside and the matter is remitted backto the First Respondent to pass fresh orders in terms ofthe aforesaid decision of this Court and communicatethe same to the Petitioner by 31.10.2018. The Writ Petitionis disposed of on the aforesaid terms. No costs. Sd/- Assistant Registrar(CS) //True Copy// Sub Assistant Registrar To 1.The Commissioner of Income Tax, Office of the Commissioner of Income Tax, 67A Race Course Road, Coimbatore 18. Office of the Commissioner of Income Tax, 67A Race Course Road, Coimbatore 18. 2.The Wealth Tax Officer, Ward (7), Office of the Commissioner of Income Tax, Gandhi Road, Salem-7. Ward (7), Office of the Commissioner of Income Tax, Gandhi Road, Salem-7. https://hcservices.ecourts.gov.in/hcservices/ 3.The Commissioner of Income Tax (Appeals), No.3, Gandhi Road, Salem-7. No.3, Gandhi Road, Salem-7. +1cc to Mr.A.P.SRINIVAS , Advocate SR.No. 47763 +1cc to Mr.S.Vijayakumar , Advocate SR.No. 47484 W.P.No.40015 of 2002 ASK(17/09/2018)