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TMI Blog2005 (3) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... income of Rs. 5,42,365 accrued from the technical know-how provided by the petitioner to others. In this regard, 16 agreements had been entered into by the petitioner with 14 different companies, the details of which have duly been spelled out in the petition. On the basis of these averments, the petitioner sent by post an application for seeking concessions if the same were approved by the Central Board of Direct Taxes in that behalf. The application was sent on September 29, 1978, which was subsequently received by the Board. The petitioner claimed these benefits under section 80MM of the Act. The letter was sent by registered post and the petitioner has placed on record the photocopy of the postal receipt duly issued by the post office at Calcutta as annexure B to the writ petition. In furtherance of his application, the petitioner was called by the Board, respondent No. 4 in the petition for hearing on March 27, 1979, vide its letter dated March 1, 1979, After hearing the petitioner, the petitioner vide letter dated March 16, 1979 was informed that the Board has approved the agreements for the purposes of benefit under section 80MM of the Act. However, the benefit was made effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriately made at this stage itself as it existed in the relevant assessment year: "80MM. Deduction in the case of an Indian company in respect of royalties, etc., received from any concern in India.- (1) Where the gross total income of an assessee, being an Indian company includes any income by way of royalty, commission, fees or any other payment (not being income chargeable under the head 'Capital gains'), received by the assessee from any person carrying on a business in India in consideration for- (i) the provision of technical know-how which is likely to assist in the manufacture or processing of goods or materials, or in the installation or erection of machinery or plant for such manufacture or processing, or in the working of a mine, oil well or other source of mineral deposits, or in the search for, or discovery or testing of, mineral deposits, or the winning of access to them, or in carrying out any operation relating to agriculture, animal husbandry, dairy or poultry farming, forestry or fishing, or (ii) rendering services in connection with the provision of such technical know-how under an agreement entered into by the assessee with such person on or after the 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e completed and he should not be able to exercise any control or tamper with the required documents after the cut-off date. Once the application is sent by the assessee by registered post through the post office he obviously loses control over the applications and cannot in any way interject or interfere with the delivery of the documents to the addressee. The expression "made" has been explained and illustratively discussed in regard to its different connotations, particularly, in relation to the context for which the word has been used, in Stroud's Judicial Dictionary, Fifth Edition. It refers to the observation of Lord Macnaghten, who said that such a security was "made" when and where "the finishing touch" was given to it. The date when a scheme was "made" under section 18 of the Town and Country Planning Act 1932 (c. 48), was the date when it became a binding scheme having effect as if enacted by the Act. Markham v. Derby Corporation (1935) Ch. 320. "Made" (Taxes Management Act 1970 (c. 9), s. 40(2)). An assessment to tax is "made" for the purposes of this section on the day when the inspector of taxes signs a certificate that is entered into the assessment books of his dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by time. In the present case, the application of the petitioner was received by the Board, but on October 4, 1998. Thereafter the Board has admittedly granted benefit to the petitioner for all subsequent years which obviously means that the application submitted by the petitioner was in conformity with the requirements of the section and the petitioner had no control over the application which was correctly addressed through registered post to the Board. It will be unfair to permit the Board to act to the prejudice of the assessee particularly when the assessee has acted as per practice adopted in the previous years. It is nowhere notified that such applications would not be accepted, if sent by post or the application is received beyond the period and the same would be liable to be rejected as it would amount to having not been made in time. The date October 1 of the relevant assessment year appears to us to be carrying no magic. It is a cut off date of convenience and has to be considered along with the return filed by the assessee for the relevant assessment year. In a case titled CIT v. Birla Brothers Pvt. Ltd. [1992] 133 ITR 373 (Cal), the court took the view that the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities concerned. Once the authorities are exercising the power vested in them under a statute which is capable of adversely affecting the rights of a party and could deny certain concessions which would be available to such party under the terms of the same statute, then it is expected of the authority concerned to deal with the prayers made by the assessee/party in accordance with law. While dealing with such requests they may not pass detailed reasoned orders but the order passed by them must show that there has been application of mind by the authorities in regard to the prayers made by them. In the present case the petitioner in its representation dated April 24, 1981, had made a specific averment that there were unprecedented floods in Calcutta between September 26, 1978 and October 1, 1978, and despite due diligence the applicant could not send the applications earlier and if there was delay in the application reaching the Board, the same may be condoned in exercise of powers vested in the Board. In this regard, reference was also made to the judgment of the Gujarat High Court reported as Narandas Vallabhram Parmar v. Union of India [1978] ELT (J.) 695. We have already not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the view expressed by a Full Bench of the Punjab and Haryana High Court in Jaswant Singh Bambha v. CBDT [2005] 272 ITR 1, where the Bench while dealing with condonation of delay in filing an application for refund under section 239 of the Act held as under: "The court also referred to its earlier decisions in K.P. Varghese v. ITO [1981] 131 ITR 597 (SC) and Ellerman Lines Ltd. v. CIT [1971] 82 ITR 913 (SC) to observe that the circulars and instructions issued by the Board in exercise of power under section 119 were binding on the authorities administering the tax department even if they be found not in accordance with the correct interpretation of sub-section (2) and they debar or deviate from such construction. Reference was also made to its decision CCE v. Dhiren Chemical Industries [2002] 254 ITR 554. The Supreme Court in that case was dealing with the interpretation of the phrase "appropriate". However, after having given the interpretation, it observed that if the Central Board of Excise and Customs had issued circulars placing a different interpretation upon the said phrase, that interpretation will be binding upon the Revenue. In other words, the circulars issued by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imitation if the applicant satisfies the court that he had sufficient cause for not making the application within such period. This provision has general application. However, a departure to this general rule is made in section 29(2) of the said Act, which reads as under: '(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.' The above provision clearly shows that section 5 of the Limitation Act shall apply in cases of special or local laws to the extent to which they are not expressly excluded by such special or local laws. In other words, section 5 of the Limitation Act cannot be resorted to only when it is expressly excluded by a special or local law. Section 239 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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