Wp/18470/2023 Of Chandrakala Kasani v. The Principal Commissioner Of Income Tax 2

HIGH COURT FOR THE STATE OF TELANGANAAT HYDERABAD(Special Original Jurisdiction) WEDNESDAY, THE TWENTY SEVENTH DAY OF DECEMBERTWO THOUSAND AND TWENTY PRESENT THE HON'BLE SRI JUSTICE P. SAM KOSHYANDTHE HON'BLE SRI JUSTICE N. TUKARAMJI WRIT PETITI ON NO: 18470 OF[2023] Between: Chandrakala Kasani,, DloMuthvalu Komaravinna 57 YearsPAN.AFCPK8546E Rt/O [H.NO.]1-50. 6achupally, Quthubullapur [Mandal,]Hyderabad. Telangana, 500090...PETITIONER AND The Principal Commissioner of [lncome ][Tax ][2, Hyderabad lncome ][Tax]Towers, lviasab Tank, Hyderabad. [Telangana ][-500004 ] ...RES'.NDENT Petition under Article 226 [of ][the ][Constitution ][of ][lndia ][praying ][that ][in ][the]circumstances stated in [the ][affidavit ][filed ][therewith, ][the ][High ][Court may ][be]pleased to issue a writ order or Direction, [more particularly ][one ][in ][a ][nature ][of]writ of Mandamus, by directing [the ][Respondent ][to ][issue Form ][5 ][under ][the ][Direct]Tax Vivad Se Vishwas Acl, [2O2O ][in ][view ][of ][the ][total ][payments made ][by ][the]Petitioner herein as [per ][Form-3 amounting ][to ][Rs. ][1,21,38,8741 (Rupees ][One]Crore Twenty-One [Thirty-Eight Lakhs ][Eight ][Hundred Seventy-Four ][Only) ][by]condoning a delay of 2 months [in payment ][of ][part of ][the ][amount.] lA NO: 1 OF23 Petition under Section 151 [praying ][that ][in ][the ][circumstances ][s][tated]in the affidavit filed in support [of the ][petition, ][the ][High ][court ][may be pleased ][be]pleased to direct {he Respondent herein, [to ][keep ][the demand ][in ][abeyance ][till ][the]settlement of dispute of [tax arrears ][under ][lhe ][Direct ][Tax ][Vivad Se Vishwas ][Act,]2020 in the interest [of ]lustice IANi 20F 2023 Petition under Section 151 CPC praying that in the circumstances statedin the affidavit filed in support of the petition, the High Court may be pleasedpleased to vacate the interim order granted on 14loll2O23 in lA 1 of 2023 in WP18470 of 2023 Counsel for the Petitioner: SRI P SOMA SHEKAR REDDY Counsel for Respondents: SMT. SUNDARI R PISUPATISR.SC FOR INCOME TAX DEPARTMENTSR.SC FOR INCOME TAX DEPARTMENT The Court made the following: ORDER -aa I THE HON'BLE SRI JUSTICE [P.SAM ] AND THE HON'BLE SRI JUSTICE [N.TUKARAMJI] WRJT PETITIO [No.1847O ][of2o23] ORDER iber Hon'ble Si [Justice P.SAM KOSHY)] The instant writ [petition ][has ][been ][filed ][seeking ][for ][a ][direction ][to]the respondent to [issue]Form 5 under the [Direct ][Tax ][Vivad ][Se]Vishwas Act, 2O2O. 2. Heard Mr. P. [Soma Shekar ][Reddy, Iearned ][counsel ][for ][the]petitioner and Ms. Sundari [Pisupati, learned Senior ][Standing]Counsel for Income [Tax Department appearing ][for ][the respondent'] 3. From the [pleadings ][it ][appears ][that ][the ][petitioner ][in ][order ][to]avail the benefit of [the ][scheme ][under Direct Tax Vivad ][Se ][Vishwas]Act,2O2O, was [required ][to ][make ][a ][payment ][of ][Rs' ][1,1O,35'340/ ][- ][up]tilt 31.03.202 1 and [with ][interest ][at ][the ][rate ][of ][lO%o ][amount ][of]Rs. 1,21,38,874l- [uP ][till ][3l.rO.2O2l'] 4, As is known to [all, ][the ][said ][period was ][one when ][the ][whole]world was reeling [with ] [pandemic There were ][compelling]circumstances [for ][the business ][world ][in ][making ][payments ][all around']Nonetheless, [under ][the ][aforesaid scheme, ][the ][petitioner ][was able ][to] 3. From the [pleadings ][it ][appears ][that ][the ][petitioner ][in ][order ][to]avail the benefit of [the ][scheme ][under Direct Tax Vivad ][Se ][Vishwas]Act,2O2O, was [required ][to ][make ][a ][payment ][of ][Rs' ][1,1O,35'340/ ][- ][up]tilt 31.03.202 1 and [with ][interest ][at ][the ][rate ][of ][lO%o ][amount ][of]Rs. 1,21,38,874l- [uP ][till ][3l.rO.2O2l'] 4, As is known to [all, ][the ][said ][period was ][one when ][the ][whole]world was reeling [with ] [pandemic There were ][compelling]circumstances [for ][the business ][world ][in ][making ][payments ][all around']Nonetheless, [under ][the ][aforesaid scheme, ][the ][petitioner ][was able ][to] make 7 5o/o of the payment out of the total of Rs. 1,21,38,874/- i.e.Rs.90,OO,000/- by 3I.10.2021 itself which is admitted by therespondent in their Counter as well. In terms of the aforesaid scheme,there was only balance of 25o/o amount payable by the petitionerwhich in the instant case has also been paid by the petitioner on31.12.2021 i.e. which is within sixty (60) days time from the date thethere was only balance of 25o/o amount payable by the petitionerwhich in the instant case has also been paid by the petitioner on31.12.2021 i.e. which is within sixty (60) days time from the date thepayment of the 7 5o/o earlier made. Thus, there appears to be delayedpayment of just 25olo of the amount by the petitioner and that too of apayment of just 25olo of the amount by the petitioner and that too of aperiod which is around two (2) months. lt is in this context when thepetitioner approached the respondent for issuance of Form 5 thesame was rcfused on the ground that that the respondent do not havesame was rcfused on the ground that that the respondent do not havepower for issuance of Form 5 beyond the cutoff date leading to filingof the instant writ petition.of the instant writ petition. 5. The High Court of Rajasthan in the case of Agroha Electronlcs ys. Union OJ India and. Ors. r under similar circumstancesparticularly in respect of the fact that the transaction therein was alsounder the COVID period had while allowing the writ petition in favourof the petitioner held as under: "After hearing learned counsel {or the parties and perusingthe material available on record, this Court a."-" ii fit tt,.tin the given facts arrd circumsta;rces that the petitioner is a Ii bona fide businessman and [is ][prepared ][to ][pay ][the ][amount]in question in accordance [wlth ][the ][scheme ][along ][witJl]inteiest for the [period ][which he has ][defaulted ][in ][scheme]and Iooking into the [extreme pandemic ][conditions ][of COVID]and the dJath of [petitioner's ][father, ][this is a ][ht ][case ][{or]invocation of tl.e [powers ][under ][Article ][226 ][of ][the]Constitution of India." A similar issue [came ][up ][before ][the ][High ][Court of Delhi ][in ][the] 6. case of I.A. [Houslng ][Solation Prtuate Llmited ][Vs' ][Principal]Commissloner of [Income ][Tax'tP ][decided ][on ][O2' ][1 ][l ]['2022 wherein ][the]High Court of [Delhi ][in ][paragraph Nos ][l9 ][!o ][24 ][had held ][as ][under:] '19. One [of ][us ][(Manmoha-n, ][J) ][in ][Siddharth ][lnternational]Public Schoot v. [ilotor ][Accident Claim ][Tribunal, (20I6) ] O"Li"" O"f [4797 ], [para ][4 ][l ][has ][held, ][" ][it ][is ][settled ][laut ][that]n* Coun trls [extremety ][broad jurisdiction under ][Ariicle ][226]of thE Con-stitution [and ][under the said Article ][it ][can ][pass]ihot"u", ord.ers [ore ][necessary ]for [doing equitg and ][justice']Th, Srpr"^" Court [in ][N.S. ][Miraikar ][D' ][State ][of ]^Malrurashtra'lgAA S SCn [744 ][hl:s held ][that ]["unlike ][a ][iaferior ][court' ][in],"ip."l ,f High [Court, ][uLhich ][is ][also ][a ][Court ][of ][Reard' it ][i's]" action [is ][ruithin ][its ][juisdiction' ][unless];;"r*i tLat"euery expresslg shoun [otheruise" ]['] '19. One [of ][us ][(Manmoha-n, ][J) ][in ][Siddharth ][lnternational]Public Schoot v. [ilotor ][Accident Claim ][Tribunal, (20I6) ] O"Li"" O"f [4797 ], [para ][4 ][l ][has ][held, ][" ][it ][is ][settled ][laut ][that]n* Coun trls [extremety ][broad jurisdiction under ][Ariicle ][226]of thE Con-stitution [and ][under the said Article ][it ][can ][pass]ihot"u", ord.ers [ore ][necessary ]for [doing equitg and ][justice']Th, Srpr"^" Court [in ][N.S. ][Miraikar ][D' ][State ][of ]^Malrurashtra'lgAA S SCn [744 ][hl:s held ][that ]["unlike ][a ][iaferior ][court' ][in],"ip."l ,f High [Court, ][uLhich ][is ][also ][a ][Court ][of ][Reard' it ][i's]" action [is ][ruithin ][its ][juisdiction' ][unless];;"r*i tLat"euery expresslg shoun [otheruise" ]['] 20. Consequently, [the ][power ][of ][the ][High Court ][under]iiti.t zzo or tni [c".,"titution of ][lndia to ][grant ][relief ][in]extraordinary [and ][exceptional circumstances ][cannot ][be]taken away or [curtailed ][by any legislatioh'] 21. In fact, the [Supreme ][Court ][in ][DaI ][Chandra ][Rastogi ][v']CBDT [(2019) ][104 ][taxmann.com ][34I ][(SC) ][wherein ][the]assessee hai [ftta ][a ][declaration ][of ][undisclosed ][income],rrrJ". tfr" [Income Declaration Scheme,2O16 ][and ][had failed]to f"y tt " third [installment ][of ][the remaining 5o ][per ][cent of]iL] [-J".lnrtg" ][and ][pena-lty ][permitted ][the ][assessee ][to ][make]i.t" a"p*it- of [t"* ][und"i ][Income ][Declaration ][Scheme]i.a"rest at the [rate ][of ][12o/o ][per ][annum ][lt ][is]"G""i'J m"rrtion [that ][there was ][no ][provision ][for ][late];;;;;;L '?2022 [scc ][onLine ][Del ][3647 ][:(2023) ][330 ][crR ][167] deposit of tax in the Income Declaration Schemc, 2O 16. yetthe Supreme Court taking note of the genuine hardshipthe Supreme Court taking note of the genuine hardshipfaced by the assessee and short delay in payme.rt, ruted infavour of the taxpayer. NO PRE]UDICE CAUSED TO THEfavour of the taxpayer. NO PRE]UDICE CAUSED TO THERESPONDENTS BY ACCEPTING THE PRAYER OF THEPETITIONERS. RATHER, SUCH ACTION SHALL HELPACHIEVE THE OBJECTIVES OF THE VSV ACT. 22. This is a_lso a fit case where no prejudice will becaused to the Respondents by accepting the prayer of thePetitioners. Rather, the Respondents benefit and achievethe purpose of the Scheme, narnely, to red.uce pendency ofcases, generate timely revenue for the government andprovide certainty and savings of resourcei that rvould bespent on the long-drawn litigation process. 23. Consequently as the delay in payment in the presentcases were unintentional and supported by justifiablereasons, this Court is of the opinion that the cause ofsubstantial justice deserves to be preferred, a.rtd thisunintentional delay desetves to bc condoned. This approachwill only further the object and purpose of the VSV Aci. RELIEF 24. Keeping in view the aforesaid, the present writpetitions are allowed and the respondents .ri dir"ct"d toaccept the declarations/applications (Forms- I and 2) datedO4th March, 2O2l filed. by the petitioners as validdeclarations/applications within two weeks and accept thebalance disputed amounts as stipulated by respondents inForms-3 dated OTth May, 2O2l and 2ind June, 2O2lissued under VSV Act along with simple interest @ 9o/o perannum till the date the amounts are paid within foir weeks. 7. 7. Keeping in view the aforesaid two decisions rendered by the Highcourt of Rajasthan as also by the High court of Derhi, if we rook intothe facts of the present case, where there appears to be certainpayment of tax which was due on the part of the petitioner herein.That under the provisions of Direct Tax Vivad Se Vishwas Act,2O2O,on an application made by the petitioner, the respondent had offered 7. 7. Keeping in view the aforesaid two decisions rendered by the Highcourt of Rajasthan as also by the High court of Derhi, if we rook intothe facts of the present case, where there appears to be certainpayment of tax which was due on the part of the petitioner herein.That under the provisions of Direct Tax Vivad Se Vishwas Act,2O2O,on an application made by the petitioner, the respondent had offered 31.03.202I.If for settlement of the said case by payment of Rs. i, l o,3S ,3ao / _ byfor any reason the amount was not able to be paid bythe said date, the pedtioner would be required to make a payment ofRs. 1,21,3g,g7a/_ by. 31.1O.2O21. OI rhis amounr, rhe peririoneradmittedly paid Rs.9O,00,0OO/- on 31 .10.2O21i.e. the petirioner hadpaid about Z So/o of the amount payabie by him. 8. We cannot brush aside the fact that it was admitt€dly COVIDpandemic period and there were compelling circumstances faced byevery person including the business entities. Nonetheless, thepetltioner herein had cleared the balance of 25%o as well within afurther period ol sixty (60) days i.e. 31.12.2021 clearing rhe enrireamount payable by him i.e. balance amount of Rs.31,3g,g 74/_ whichwas the total amount payable by him by 31.1O.2O21. 9. Thus, pima facie, we are of the considered opinion that thepetitioner had not tried to evade payment of tax at any point of timeand if at all there is any delay, the delay is only to the extent of 2s%o ofthe total tax payable which too he has paid in its entire[z within sixty(60) days beyond the date of 31.10.2021. 10. In the given factual circumstances, we are inclined to endorsethe views taken by the High Court of Rajasthan as a.lso by the HighCourt of Delhi in the aforesaid two decisions referred above. And as a \\ consequence, [we ][are ][inclined ][to ][allow ][the ][writ ][petition with ][a ][direction]to the [respondent ][to ][rmmediateiy ][take ][necessary steps ][for ][issuance of]Form 5 [under the ][Direct ][Tax Vivad ][Se ][Vishwas ][Act' ][2O2O ][' ][However']the [petitioner would be ][liabre ][to ][make paymerrt ][of ][extra ][payment ][of]interest [for the ][period ][3l ]['lO ]['2021 ][to ][3l'12'2021 ][for the amount which]was paid [belatedly ][on ][3l ]['12'2021 ][within a ][period ][of ][thirty ][(30) ][days]from [today. Immediately ][upon ][the ][petitioner ][making ][payment' ][the]respondent [shall ][issue Form 5 to the ][petitioner ][forthwith'] 11. The [writ ][petition ][accordingly stands allowed' ][No order ][as ][to]costs Consequently, [miscellaneous ][petitions, pending ][if ][any' ][shall]stand closed. SD/.B, SARASWATH]ASSrsrANr,S:rsrRARSECTION OFFICER //TRUE COPY// One Fair Copy [to ] [HON'BLE ] [P' ] -(For His LordshiPs' Kind Perusal)One Fair Copy ' to THE [HON'BLE ] [N. ] (For His LordshiPs' Kind Perusal) To,1. The Princioal Commissioner [of lncome Tax 2, Hyderabad ][lncome ][Tax]Towers, Iilasab Tank, [Hyderabad. Telangana -500004]2. 1'1 LRCoPies.g. fhe UnO€;r Secretary, Union of lndia Ministry of Law, Justice and CompanyAffairs, New Delhi.+. ine Secretary, Telangana Advocates' [Association ][Library, ][High ][Court]Buildings, Hyderabad.5. one CC to Sri [p ]Soma Shekar Reddy Advocate tOpUCl,"iF-f [eff'3,.,',ti^"'v3:3ltffJ'rti"i(sn'sc*FiiR}vcoiurernx]GJPfr"rq^ 'i I HIGH DATED: [2711212023] [6E STAI€]{vqJoo2 3 [2[21]j..bo.t-i+ DiiORDER WP.No.18470 of 2023 ALLOWING THE WRIT PETITION WTHOUI COSTS r.-L t [r-tt [-]