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TMI Blog2015 (9) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... n agreement with the above observations but express our dissent with regard to rejection of prayer for extension of time in e-filing the returns beyond 30th September 2015. As noticed above, we have already expressed our dissent with the order passed by the Delhi High Court qua dismissing the writ petition with regard to extension of time for e-filing of the income tax returns. Accordingly, we are unable to concur with the view expressed by the Rajasthan High Court which relied upon the decision of Delhi High Court. Taking the totality of facts and circumstances of the case, it is considered appropriate to extend the due date for e-filing of returns upto 31st October 2015 for which the CBDT shall issue appropriate notification/instructions under Section 119 of the Act. Direction is also issued to the respondents to ensure that the forms etc. which are to be prescribed for the audit report and for e-filing the returns should ordinarily be made available on the first day of April of the assessment year. - Decided in favor of petitioners. - CWP No. 19770 of 2015 - - - Dated:- 29-9-2015 - Ajay Kumar Mittal And Ramendra Jain, JJ. For the Petitioner : Mr. Hitesh Kaplish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the parties. 4. Learned counsel for the petitioners inter alia submitted that it was only after 1.8.2015, 2.8.2015 and 7.8.2015 that the income tax return Forms No. 4, 5 and 6 respectively were available for downloading by the assessees. In such circumstances, the last date fixed for e-filing of income tax return for the assessment year 2015-16 by the assessees, being 30.9.2015 is unreasonable and is liable to be extended. 5. On 24.9.2015, learned counsel for the revenue produced a copy of communication dated 23.9.2015 received from the Central Board of Direct Taxes wherein while supporting the Press Release dated 9.9.2015, Annexure P.1, it has been inter alia stated that in the assessment year 2015- 16 as compared to the earlier assessment year, only some minor modifications have occurred in the ITR 5, 6 and 7 forms and the relevant scheme. Therefore, there does not exist any greater compliance burden on the tax payers this year as compared to the earlier year. It has been further stated that in the last two years, Central Board of Direct Taxes (CBDT) got representations from various stakeholders mentioning that some tax payers were finding it difficult to upload the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse of hearing also produced a copy of the representation sent to the Finance Minister, Ministry of Finance, Government of India, New Delhi requesting for extension of the due date for filing tax audit report and income tax return for the assessment year 2015-16 for assessees referred to in clause (a) of Explanation 2 to Section 139(1) of the Act from 30th September 2015 to atleast 31st of October 2015. Further in the office memorandum dated 24.9.2015 issued by Government of India, Ministry of Finance, department of Revenue, Central Board of Direct Taxes, with reference to the observations of this Court, it has been inter alia stated as under:- Since returns in ITR 4, 5 and 6 were mandatory required to be e-filed, no assessees in these categories could have filed their returns of income for assessment year 2015-16 before 1st, 2nd and 7th August 2015 respectively. A copy of the document from the website of the income tax department containing Form 3CD on which audit report was required to be filed was also produced by learned counsel for the petitioners. There were certain modifications made on 24.9.2015 itself. 11. At this stage, it would be expedient to consider cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectronic form.-The Board may make rules providing for- (a) the class or classes of persons who shall be required to furnish the return in electronic form; (b) the form and the manner in which the return in electronic form may be furnished; (c) the documents, statements, receipts, certificates or audited reports which may not be furnished along with the return in electronic form but shall be produced before the Assessing Officer on demand; (d) the computer resource or the electronic record to which the return in electronic form may be transmitted. 119. (1) The Board may, from time to time, issue such orders, instructions and directions to other income-tax authorities as it may deem fit for the proper administration of this Act, and such authorities and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the Board : Provided that no such orders, instructions or directions shall be issued- (a) so as to require any income-tax authority to make a particular assessment or to dispose of a particular case in a particular manner; or (b) so as to interfere with the discr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the previous year in which such deduction is claimed : Provided that the Central Government shall cause every order issued under this clause to be laid before each House of Parliament. 12. A perusal of the above provisions shows that Section 139(1) of the Act prescribes procedure for assessment whereunder the return of income under Chapter XIV of the Act is to be furnished. It states that every person being the company or being a person other than the company or a firm, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income tax shall on or before the due date furnish a return of his income or the income of such other person during the previous year in a prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed. Explanation (2) thereof provides for the 'due date' which in the case of a company, a person (other than a company) or a working partner of a firm whose accounts are required to be audited under this Act or under any other law for the time being in force, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as exercised by the court of King's Bench was a branch of the power of the King of England, while the power which has been conferred on the High Courts in this country by Article 227 is a branch of the sovereign power of the people as vested in them by the Constitution of a democratic Republic.' xx xx xxx xx xx xxx xxx xxx xxx 23. In Pickus v. Perry, (1931) 59 S. D. 350 (Z8) the court said: The existence of this power partakes of the nature of an ultimate safeguard to be availed of, not as an instrument of routine procedure, but in extraordinary and unusual situations where customary remedial procedure is inadequate and resort must be had to some such high power for the public good or for the prevention of gross injustice and irreparable injury. The very nature of the power, its scope and lack of limitation, impose upon the court to which it is entrusted a most serious responsibility to make a prudent and a sparing use of it, and to employ it in those cases only where the exercise of a sound judicial discretion clearly indicates a necessity for its use . Again the court said: 'The exercise of the power of superintending control is always a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made. These passages indicate with sufficient fullness the general principles that govern the exercise of jurisdiction in the matter of granting writs of certiorari under Article 226 of the Constitution. 7. In Hari Vishnu Kamath v. Ahmad Ishaque and Ors. AIR 1955 SC 233, a seven- Judge Bench, while dealing with the scope of proceeding under Article 226 of the Constitution, observed that there can be no dispute that the orders of the Election Tribunals are subject to the supervisory jurisdiction of the High Courts under Article 226 and a writ of certiorari under that Article will be competent against decisions of the Election Tribunals also. The Court referred to the decision in T.C.Basappa (supra) and other authorities and ruled thus:- We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution, and that superintendence is both judicial and administrative. That was held by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e were only minor changes in the forms is not justified. Thus, the period required for e-filing of the return is held to be not reasonable. 16. In Tax Bar Association, Hisar vs. The State of Haryana and others, CWP No.15499 of 2015 decided on 30.7.2015, a Division Bench of this Court considering the issue relating to extension in time for filing the returns under the Haryana Value Added Tax Act, 2003 had extended the date for e-filing of returns upto 10.8.2015. 17. A Single Bench of the Delhi High Court in Avinash Gupta vs. Union of India and others, W.P.(C) No.9032 of 2015 decided on 21.9.2015, had the occasion to consider the issue relating to extension of time for e-filing of return beyond 30th September 2015. The writ petition was dismissed but certain observations were recorded therein that the prescribed format to be filed alongwith the return should be notified by Ist day of the assessment year. It was recorded as under:- Notwithstanding having held so, I am of the view that there is however some merit, if not legal then otherwise, in the grievance of the petitioner. The counsel for the respondents appearing on advance notice is unable to give the reasons for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral or special orders in respect of any class or class of cases by way of relaxation of any of the provisions of section, which also includes section 139 of the Act. If the Board is of the opinion that it is necessary in the public interest to so do it. For avoiding the genuine hardship in any case or class of cases, the CBDT if considers desirable and expedient, by general or special order, it can issue such orders, instructions and directions for proper administration of this Act. All such authorities engaged in execution of the Act are expected to follow the same. Any requirement contained in any of the provisions of Chapter IV or Chapter VIA also can be relaxed by the CBDT for avoiding genuine hardship in any case or class of cases by general or special orders. This provision, therefore, gives very wide powers to the CBDT to pass general or special orders whenever it deems it necessary or expedient to so do it in respect of any class of income or class of cases. It has not only to see the public interest for so doing, but also for avoiding the genuine hardship in any particular case or class of cases, such powers can be exercised. Xx xxx xxx xx xx xx xx xx xx 65. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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