Shri Swatarup Banerjee & Ors v. Income Tax Officer (Hqrs)-8, Kolkata & Ors

ORDER SHEET WPO/230/2018 IA NO: GA/1/2020 (Old No.:GA/2563/2018) GA/2/2020 IN THE HIGH COURT AT CALCUTTAConstitutional Writ JurisdictionORIGINAL SIDE SHRI SWATARUP BANERJEE & ORS.VersusINCOME TAX OFFICER (HQRS)-8, KOLKATA & ORS. BEFORE: Date : 30[th] September, 2020. The Hon'ble JUSTICE SUBRATA TALUKDAR For Petitioners : Mr. Raja Basu Chowdhry, Adv.For Respondents : Mr. Dhiraj Kumar Trivedi, Adv. Party/parties is/are represented in the order of their name/names asprinted above in the cause title. By the order dated 24[th] September, 2020, this Court permitted learned Counsel appearing for the Revenue Authority to revert on the nextdate with appropriate instructions connected to the Notification dated 13[th]September, 2019 and numbered as S.O. 4455(E) of the Ministry ofFinance, Department of Revenue, Government of India (for short, the saidNotification). Thereafter, on the same date, in presence of learned Counsel for boththe petitioner and for the Revenue Authority and by consent of the parties, this Court directed the matter to appear today at the first sitting. Suchdirection was passed considering the fact that the matter stands Assignedbefore this Bench. Mr. Basu Chowdhury, learned Counsel appearing for the petitioner,submits that the issue relates to the non-payment of the third instalmentby the petitioner under the Income Tax Declaration Scheme, 2016. Thethird instalment was required to be paid on and by 30[th] September, 2017.The petitioner, although having declared his income under Section 183 ofthe Finance Act, 2016 and, such declaration having been acknowledged bythe Revenue Authority, the petitioner was called upon to pay additional taxplus surcharge and penalty in three instalments. The petitioner hasadmittedly paid the first two instalments but, due to his illness, claims tohave been unable to pay the third instalment within the period initiallyprescribed. Mr. Basu Chowdhury relies on the representation of the petitionersubmitted on 4[th] December, 2017 as addressed to the respondent no.2/thePrincipal Commissioner of Income Tax, seeking extension of time to paythe third instalment. The representation left undecided and arrears of tax,surcharge plus penalty mounting in the meantime, the petitioner filed thepresent writ petition. Today, Mr. Basu Chowdhury relies on the Notification dated 13thDecember, 2019 to submit that the Revenue Authority, in its wisdom, hasdecided to extend the period for completing payments under thedeclarations made by the assessees vide sub-Section (1) of Section 183 ofthe Finance Act, 2016. Such payment is required to be completed on andby 31[st] January, 2020, together with the applicable interest. Learned Counsel for the petitioner further points out that for thebenefit of the assessees the said Notification has been given retrospectiveeffect. The petitioner, therefore, claims parity of treatment under the saidNotification dated 13[th] December, 2019 on the ground that such wasissued coterminous for the period when this writ petition was pending and,without the leave of the Hon’ble Court neither the petitioner nor theconcerned Revenue Authority could suo motu take recourse to the saidNotification. Additionally, for reasons too obvious to state connected to thepresent pandemic, the matter could not be earlier taken up at theconvenience of all parties by this Court. Mr. Trivedi, learned Counsel appearing for the Revenue Authority,submits that the ramifications connected to the said Notification dated 13[th]December, 2019 qua the petitioner are required to be assessed on facts bythe Respondent no.2/the Principal Commissioner of Income Tax. Such an exercise, if directed by the Court, could be done within a reasonable timeperiod. Having heard the parties and considering the materials placed thisCourt, for the benefit of this discussion and direction to follow, finds itappropriate to fully reproduce below this Notification dated 13[th] December,2019 for the convenience of all the parties : Mr. Trivedi, learned Counsel appearing for the Revenue Authority,submits that the ramifications connected to the said Notification dated 13[th]December, 2019 qua the petitioner are required to be assessed on facts bythe Respondent no.2/the Principal Commissioner of Income Tax. Such an exercise, if directed by the Court, could be done within a reasonable timeperiod. Having heard the parties and considering the materials placed thisCourt, for the benefit of this discussion and direction to follow, finds itappropriate to fully reproduce below this Notification dated 13[th] December,2019 for the convenience of all the parties : “S.O. 4455(E).– In exercise of the powers conferred by theproviso to sub-section (1) of section 187 of the Finance Act, 2016(28 of 2016), the Central Government hereby specifies that thepersons who have made a declaration under sub-section (1) ofsection 183, but have not made payment of the tax and surchargepayable under section 184 of penalty payable under section 185 ofthe said Act, in respect of the undisclosed income, on or before thedue date notified by the Central Government vide notificationnumber S.O. 1830(E), dated the 19[th] May, 2016, (as subsequentlyamended vide notification number S.O. 2476 (E), dated the 20[th]July, 2016), may make the payment of such amount on or beforethe 31[st] day of January, 2020, along with interest on such amount,at the rate of one per cent. for every month or part of a monthcomprised in the period commencing on the date immediately following the said due date as so notified and ending on the date ofsuch payment. 2. This notification shall be deemed to have come into forcewith effect from the 1[st] day of June, 2016. [Notification No.103/2019/F. No.370149/159/2019-TPL] ANKUR GOYAL, Under Secy. Explanatory Memorandum.– It is hereby certified that no personis being adversely affected by giving retrospective effect to thisnotification.” This Court is also of the view that neither the Revenue Authority nor the petitioner could act during the period prescribed by the saidNotification without the leave of the Hon’ble Court. This Court is of thefurther view that the prayer of the petitioner for extension of time deservesto be attended to by the Revenue Authority under the Notification dated13[th] December, 2019 since such prayer was live and pending during theperiod of subsistence of the Notification entitling the petitioner toretrospective consideration. In the backdrop of the above discussion, on the particular facts ofthis case, the issue is remanded to the respondent no.2/the PrincipalCommissioner of Income Tax to consider the same on merits in the contextof the observations made hereinabove. It is expected that the above directed exercise shall be completed not later than a period of six weeksfrom the date of communication of this order. W.P.O. No. 230 of 2018 along with its connected applications beingGA/1/2020 and GA/2/2020 (Old No:GA/2563/2018) stand thusdisposed of. (SUBRATA TALUKDAR, J.) K. BanerjeeA.R. [C.R.]