9911796707
TMI Blog2020 (10) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... by limitation. On the contrary, as we have already noted earlier sub-section (1) of section 3 also provides for extension of limitation to 30.06.2020 or even beyond in case of furnishing of any reply, application, report, document, return, statement or such other record under the provisions of the Act which would cover the case of the petitioner. To make it more explicit, in that portion of sub-section (1) of section 3 preceding the first proviso, it is clarified that such extension of limitation upto 30.06.2020 or even beyond would be notwithstanding anything contained in the Specified Acts, in this case the Income Tax Act. Extension of limitation period as provided by the Ordinance would have an overriding effect over the limitation provision contained in the Income Tax Act for the financial year relevant to the assessment year 2020-21. Considering the above and having regard to the extra-ordinary situation faced by the country in view of the pandemic and the lockdown for which the Ordinance had to be promulgated, simplicitor rejection of the application of the petitioner as having been rendered infructuous either on 31.03.2020 or on 27.04.2020 cannot be justified and is whol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.2 is the competent authority under the Act to verify the application of the petitioner for non-deduction of TDS and grant of certificate under section 197 of the Act. 4.1. In connection with the application, petitioner filed various details before respondent No.2 on 04.03.2020. Additional details were called for by respondent No.2, which were submitted by the petitioner on 18.03.2020. 5. In the meanwhile, because of the outbreak of COVID-19 pandemic, Government of India declared lockdown in the country with effect from 25.03.2020 by exercising powers under the Disaster Management Act, 2005 and Epidemic Diseases Act, 1897. Initially the lockdown was for 21 days. 5.1. Government of Maharashtra also issued notification dated 25.03.2020 imposing lockdown in the entire state with effect from 25.03.2020 till 14.04.2020. 6. Petitioner has stated that as per the central government order and the state government notification imposing lockdown, any person found violating lockdown measures was liable to be proceeded against under the Disaster Management Act, 2005 besides various penal provisions of the Indian Penal Code. 7. The lockdown was extended by the Government of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvasiveness of the lockdown. That apart, the said order has disregarded the ordinance dated 31.03.2020. Rejection of the application of the petitioner is without furnishing any reasons and without granting proper and adequate opportunity of hearing to the petitioner. 12. Respondent No.2 has filed reply affidavit. As narrated by respondent No.2, the assessee i.e., the petitioner had made an online application on 27.02.2020 on TRACES portal requesting for certificate under section 197 of the Act @ nil % on certain income received in financial year 2019-2020 on which TDS was sought to be deducted. Though the application was filed on 27.02.2020, the request was forwarded to TDS Circle, Thane. Ultimately, the same was received in the office of respondent No.2 who is the jurisdictional assessing officer on 13.03.2020. On receipt of the application, a questionnaire was sent to the petitioner online on 16.03.2020 to substantiate the claim for nil deduction. Petitioner filed reply on 18.03.2020. 12.1. Reply of the petitioner was found to be not satisfactory. Accordingly, a further questionnaire was issued and clarification was sought for from the petitioner on 20.03.2020. Petitioner d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no adjudication on the application; rejection was without considering the materials on record; and finally, before rejecting the application, no opportunity of hearing was given to the petitioner. 14.1. Regarding the contention of respondent No.1, it is stated that petitioner could not furnish relevant documents in terms of the questionnaire of respondent No.2 because the details were voluminous which were available only in his office and with his chartered accountant. In view of the lockdown, petitioner could not move out of his residential premises. Filing of application by the petitioner and its pendency was already known to respondent No.2. That apart, it is contended that the rejection was done after 27.04.2020 on 08.06.2020 which is illegal. 15. Respondent No.2 has filed a further affidavit denying the contention of the petitioner that the questionnaire sent from his office required furnishing of bulky details. It is stated that all the applications pending as on 31.03.2020 on the TRACES portal became infructuous on 31.03.2020. Only on re-opening of the offices after easing of lockdown in the month of June, 2020, the applications could be technically closed / rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No.2. When the limitation had expired on 31.03.2020, application of the petitioner was pending. In the meanwhile, lockdown was imposed in the entire country. To mitigate the genuine hardship of tax payers desirous of obtaining a certificate under section 197, CBDT had stepped in and by the order dated 03.04.2020 had extended the limitation till 27.04.2020 for taking a decision on such application, the only requirement being that the applicants should inform the jurisdictional assessing officer about pendency of their applications. In this connection, respondent No.2 had issued notice to the petitioner on 10.04.2020. But petitioner did not respond to the said notice. In such circumstances, respondent No.2 had no other option but to reject the application of the petitioner. When the offices re-opened following relaxation of lockdown in the first week of June, 2020, petitioner was informed about rejection of his application. He therefore submits that no illegality has been committed by respondent No.2 and consequently, no case for interference has been made out. 18. Submissions made by learned counsel for the parties have received the due consideration of the Court. 19. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the concerned applicant should inform the jurisdictional assessing officer about pendency of any application. Though respondent No.2 had issued notice to the petitioner on 10.04.2020, petitioner did not or could not respond to the same. The extended time-limit having expired on 27.04.2020, petitioner's application was rejected as having been rendered infructuous. Decision to that effect could be recorded only on 08.06.2020 when the offices reopened. 22. We may now advert to the Ordinance issued on 31.03.2020. As per preamble to the Ordinance, the same was promulgated to provide relaxation in the provisions of certain acts and for matters connected therewith or incidental thereto. It was mentioned that in view of the spread of pandemic causing immense loss to the lives of people, it had become imperative to relax certain provisions including extension of time-limit in the taxation and other laws. Since Parliament was not in session, it was mentioned that President was satisfied that circumstances exist rendering it necessary for him to take immediate action. Therefore, in exercise of the powers conferred by clause (1) of Article 123 of the Constitution of India, President w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch ordinances as the circumstances appear to him to require. Clause (2) is relevant and it says that an ordinance promulgated under Article 123 shall have the same force and effect as an Act of Parliament. However, the procedure is laid down for placing such ordinance before both Houses of Parliament. 24. It is well settled that an ordinance made by the President is not an executive act. Power to promulgate ordinance is legislative in nature. An ordinance issued by the President is as much a law as an Act passed by the Parliament. President's power of legislation by an ordinance is co- extensive with the power of Parliament to make legislation. 25. Reverting back to section 3 of the Ordinance, we find that as per the said provision, all time-limits falling within the period from 20.03.2020 to 29.06.2020 stood extended to 30.06.2020 by virtue of the said Ordinance though the extended limitation period could be further extended by the central government by notification. Coming to the contention of respondent No.2 about non-applicability of the Ordinance to the present case, for the purpose of which he has relied upon the second proviso to sub-section (1) of section 3, we fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hardship of the assessees and buyers / licensees / lessees, directions were issued under section 119 of the Act. As per paragraph 3 of the order, in those cases where assessees had timely filed applications and such applications were pending for disposal as on 03.04.2020, the applicant should intimate vide email the concerned assessing officer about pendency of such application furnishing evidence of filing of application. As per paragraph 4, assessing officer shall dispose off the applications by 27.04.2020 and communicate to the applicant regarding issuance / rejection of certificate vide email. 27. Though the intention of the order dated 03.04.2020 is beneficial to provide benefit to the assessees who had made applications under section 197(1) of the Act, in our view, the same cannot be applied in a manner which acts to the disadvantage of the applicants, particularly in view of the extra-ordinary situation following the outbreak of pandemic and declaration of lockdown. While the timeline for taking a decision on such applications was extended to 27.04.2020, an additional burden was placed on the applicants to inform the concerned assessing officer about pendency of their app ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
