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TMI Blog2021 (1) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... wo above noted judgements, more particularly, the observations of the Supreme Court in the case of Vaghjibhai S. Bishnoi (supra) that the powers given to the CBDT are beneficial in nature to be exercised for proper administration of fiscal law so that undue hardship may not be caused to the taxpayers. The purpose is of just, proper and efficient management of the work of assessment and the public interest. One additional aspect needs to be kept in mind before taking any appropriate decision that the time period for the officials of the tax department has been extended upto 31st March 2021 having regard to the current covid19 pandemic situation. If that be so, then some extension deserves to be considered in accordance with law. Let an appropriate decision be taken by 12th January 2021. 22 Post this matter on 13th January 2021 on top of the Board. 23 Mr. Patel, the learned Senior Standing Counsel appearing for the respondents Nos.2 and 3 shall apprise this Court of any decision or development in the matter on the next date of hearing." 2 Pursuant to the directions issued by this Court referred to above, the CBDT looked into the representation dated 12th October 2014 prefer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t exceed rupees one lakh, also coincide with the due dates for filing of income tax returns. The table below summarises the various due date extensions given: S. No. Action Original Due date 1st Extension vide TOLA, 2020 2nd Extension vide Notification S.O.3906 (E) dated 29.10.2020 3rd Extension vide Notification S.O. 4805 (E) dated 31.12.2020 1 Return for Non-Audit Cases 31.07.2020 30.11.2020 31.12.2020 10.01.2021 2 Tax Audit 30.09.2020 31.10.2020 31.12.2020 15.01.2021 3 Return for Tax Audit Cases 31.10.2020 30.11.2020 31.01.2021 15.02.2021 5. Thus, it is apparent that the Government has not only considered representations of various stakeholders but also has been proactive in providing relaxation to the taxpayers by extending due dates regularly. The table below gives the statistical data comparing the return filing statistics of A.Y. 201920 and A.Y. 202021 Date - this year AY 20-21 ITRs filed Daily figures Date - last year AY 19-20 ITRS filed DAILY Figures 05-Jan-21 5,08,48,022 7,26,177 26-Aug-19 4,14,13,558 13,65,348 06-Jan-21 5,16,71,398 8,23,376 27-Aug-19 4,30,99,600 16,86,042 07-Jan-21 5,27,14,751 10,43,353 28-Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidual Corporate Due date Extended due date Due date Extended due date USA 2019 15th April 2020 15th October 2020 15th April 2020 15th October 2020 UK 2019-2020 31 January 2021 No extension 31st December 2020 No extension Australia 2018-2019 5th May 2020 5th June 2020 15th May 2020 5th June 2020 South Africa 2019 16th November 2020 No extension 31st December 2020 No extension Netherlands 2019 1st May 2020 No extension 1st June 2020 No extension Ireland 2019 12th November 2020 10th December 2020 12th November 2020 10th December 2020 Singapore 2019 18th April 2020 31st May 2020 15th December 2020 15th January 2020 Canada 2019 30th April 2020 30th September 2020 May August 2020 30th September 2020 Brazil 2019 1st March 2020 30th April 2020 30th April 2020 30th June 2020 8. From the above it may be seen that Government has been proactive in analyzing the situation and providing relief to assessee. However, it should also be appreciated that filing of tax returns/audit reports are essential part of the obligations of assessee and cannot be delayed indefinitely. Many functions of the Incometax Department start only after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be accepted unless it can be said that it is very wide off the reasonable mark. (See Union of India & Anr. v. Mis Parameshwaran match works Ltd., 1975 (2) SCR 573, at p. 579; and Dr. (Mrs.) Sushma Sharma etc. etc. v. State of Rajasthan & Ors. 1985 (3) SCR 243, at p. 269) 2. In view of the above reasons, all the representations for further extension of the due date are hereby rejected." 4 Thus, it appears that the CBDT has taken the final decision not to extend the due date any further and accordingly, rejected all the representations. 5 The decision taken by the CBDT vide order dated 11th January 2021 referred to above is sought to be produced by way of further affidavit filed on behalf of the respondents Nos.2 and 3 respectively. The same is ordered to be taken on record. 6 We proceeded with the further hearing of this litigation today at sharp 11:00 A.M. ● SUBMISSIONS ON BEHALF OF THE WRIT APPLICANTS: 7 Mr. S. N. Soparkar, the learned Senior Counsel appearing for the writ applicants vehemently submitted that the decision of the CBDT placed on record is nothing, but an eyewash. It is argued that the core issue arising in this litigation has not been addressed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of filing (original) Clear days expected from 01.04.2020 Date of availability of e-filing utility Schema updation date Utility updation date Extended due date Effective days available with taxpayers and the tax professiona ls from utility availability ITR 3 31.10.2020 214 days 31.07.2020 29.08.2020 09.11.2020 11.01.2021 11.01.2021 15.02.2021 199 days ITR 5 31.10.2020 214 days 25.08.2020 30.09.2020 13.11.2020 11.01.2021 11.01.2021 15.02.2021 174 days ITR 6 31.10.2020 214 days 10.10.2020 22.11.2020 & 11.01.2021 11.01.2021 15.02.2021 128 days ITR 7 31.10.2020 214 days 03.09.2020 15.10.2020 08.12.2020 11.01.2021 11.01.2021 15.02.2021 165 days TAR 3CA 3CB 3CD 30.09.2020 183 days 22.10.2020 (Rules amended on 01.10.2020) 15.01.2021 85 days ITR 3: for individuals having income from business/ profession head ITR 5: For Firm /LLP/AOP/BOI ITR 6: For company ITR 7: for charitable organisation/political party/university (claiming exemption) 16 It is argued that on account of the covid pandemic situation, there has been frequent disruption as regards the availability of the staff, employees, working hours, client meetings an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it Reports and Income Tax Returns has been blown out of proportion. It is argued that the changes brought about in the ITR by way of an update do not amount to adding or extending the fields. It is only increasing or making changes in the character of the existing fields to enable certain minuscule taxpayers to report correctly which they might not have been able to otherwise. 22 It is argued that the Tax Audit work undertaken by the writ applicants is in no manner affected by such amendment minuscule changes or updates which are provided in the existing fields. No prejudice could be said to have been caused warranting any interference at the end of this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India. It is argued that the Tax Audit Report Utility has been made available from 1st April of the relevant year. Reliance placed on the two decisions of this High Court referred to above are completely misplaced because in the said case by a Notification dated 1st May 2013, the CBDT had made it mandatory for the assessees to electronically file the Income Tax Returns relevant for the assessment year 201314 and onwards. In relation to the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing of the tax audit reports and from 10.01.2021 the daily filings have increased 4 to 5 times as on 12.01.2021. On 10.01.2021, the daily filing of Form 3CB was 16,370 which jumped to 41,970 on 11.01.2021 which has again more than doubled to 85,663 on 12.01.2021. The assessees are rapidly complying with the filing of the tax audit report across the country and any interference at this stage may affect the discipline of filings by the Assessees as well as the larger interest of the Revenue and public interest. (3) Notably, from the above table it is also evident that as against last year with 3 days remaining from the deadline, the cumulative figure of the TAR filings for AY 201920 was 21,46,953 as against the cumulative figure of the TAR filings this year with three days remaining from the last date is 22,04,908 which is 57,955 already in excess of the last year's TAR filings. Therefore, there is disciplined compliance taking place by the assessees. (4) The TAR utility was available from the beginning of the year, and therefore, there is no justification in seeking an extension for filing the tax audit report. (5) Moreover, the submission that certain ITR Forms were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in financial matters judicial deference may be shown to the executive pragmatism and free play in the joints may be given to the executive especially in fixing cutoff dates. (9) It has also been demonstrated that the various updates the Petitioner has referred to made to various forms did not amount to changing or increasing any existing fields, rather only the size of such fields were increased in the number of characters or in some cases the field was modified to accommodate from numeric characters to alpha numeric characters keeping in mind certain special cases. A list of such Schema changes and justification was presented before this Court. (10) The consequence of late filing of a tax audit report is provided under Section 271B which reads as under: "Failure to get accounts audited. 271B. If any person fails to get his accounts audited in respect of any previous year or years relevant to an assessment year or furnish a report of such audit as required under section 44AB, the Assessing Officer may direct that such person shall pay, by way of penalty, a sum equal to onehalf per cent of the total sales, turnover or gross receipts, as the case may be, in busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Supreme Court by filing the Special Leave to Petition (Civil) No.10669 of 2020. The Supreme Court passed the following order dated 20th March 2020, which reads thus: "The Registry is directed to accept these special leave petitions against the judgment and order(s) passed by the High Court of Judicature at Kerala, Ernakulam Bench in Writ Petition (Civil)No.8231/2020 and of the High Court of Judicature at Allahabad, Allahabad Bench in Writ Petition (Civil) No.7014/2020. Permission to file special leave petitions is granted. Issue notice. In the meantime, there shall be exparte adinterim stay of the impugned judgment and order(s) passed in the aforesaid writ petitions and of further proceedings before the High Court(s), in view of the stand taken by the Government of India through learned Solicitor General, before us, that the Government is fully conscious of the prevailing situation and would itself evolve a proper mechanism to assuage concerns and hardships of every one." 25 In such circumstances referred to above, the learned counsel appearing for the respondents pray that there being no merit in these two writ applications, those be rejected. ● SU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led in 2019. In such circumstances, it is unrealistic to expect that 25% shortfall can be met in last five days the way it did in 2019. 30 It is pointed out that the United States has given extension of six months, whereas the CBDT has given extension of 3.5 months. It is further submitted that for all other countries (except U.K.), the financial period is the calendar year 2019 i.e. when there was no pandemic. The Audit and Return filing preparation would have begun and materially completed before the pandemic in such cases. Such is not the scenario with India and therefore, such comparison is not valid. It is pointed out that the population of India and the number of returns are substantially large compared to other countries. 31 In the last, it is argued that the case law relied upon on behalf of the Revenue is completely misplaced and not applicable in any manner as in each of those cases relied upon, the challenge was to the fixing of date. The writ applicants do not seek to challenge Section 139(1) or Section 44AB of the Act, 1961. The writ applicants only seek judicious exercise of powers under Section 119 of the Act, 1961. 32 In such circumstances, it is prayed that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no alternative, efficacious and adequate remedy. It cannot be used as an appeal against the decision of a court, tribunal or an authority exercising statutory power. It can only be issued as a last resort where the court is satisfied that without its aid there would be failure of justice. 37 Mandamus is an action or judicial proceeding of a civil nature extraordinary in the sense that it can be maintained only when there is no other adequate remedy, prerogative in its character to the extent that the issue is discretionary, to enforce only clear legal rights, and to compel courts to take jurisdiction or proceed in the exercise of their jurisdiction, or to compel corporations, public and private, and public boards, commissions, or officers, to exercise their jurisdiction or discretion and to perform ministerial duties, which duties result from an office, trust, or station, and are clearly and peremptorily enjoined by law as absolute and official (P.R. Aiyar, Advanced Law Lexicon, (2005), Vol. III P. 2873.). 38 Mandamus is not a writ of right and is not granted as a matter of course (ex debito justitiae). Its grant or refusal is at the discretion of the court. A court may refuse m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. Note 196.Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the wellsettled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concernedan interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. Note 206. ... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory or legal right to the relief sought for and the failure on the part of those who are bound to perform certain duties and functions, as laid down by the legislature or directions issued for the purpose of enforcing the provisions of an enactment or of any delegated or subordinate legislation. There must be a legal right and corresponding legal duty. 43 In State of Kerala v. A.Lakshmi Kutty, reported in 1986 (4) SCC 632, the Supreme Court held that a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus. The present trend of judicial opinion appears to be that in the case of non selection to a post, no writ of mandamus lies. 44 When a Writ of Mandam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show that he has a legal right to compel the respondent to do or abstain from doing something; (c ) there must be in the petitioner a right to compel the performance of some duty cast on the respondents; (d) the duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law; (e) the remedy of a writ of mandamus is not intended to supersede completely the modes of obtaining relief by an action in a Civil Court or to deny defence legitimately open in such actions; (f) the power to issue a writ of mandamus is a discretionary power. It is sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a Civil Court and to refuse to issue a writ of mandamus; (g) a writ of mandamus is not a writ of course or a writ of right but is, as a rule a matter for the discretion of the Court; (h) in petitions for a writ of mandamus, the High Courts do not act as a Court of appeal and examine the facts for themselves. It is not the function of the Court to substitute its wisdom and discretion for that of the person to whom the judgment in the matter in q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imit any further, then it is difficult for this Court to issue a writ of mandamus to the Board to extend the time limit on the assumption that undue hardship would be caused to the taxpayers and the tax professionals, more particularly, in view of the latest data put forward before us by the Revenue. 49 It is the case of the CBDT that it has declined to exercise its power under Section 119 of the Act as the conditions for exercise of such power do not exist. It is the case of the Revenue that the issue of hardship was dealt with considerably at the relevant point of time and that is the reason why three times the time limit came to be extended. The Board has now thought fit in the interest of the Revenue not to extend the time period any further. There are so many vital issues which the Revenue needs to keep in mind before taking such decision. The question is whether this Court should go into all such issues which weighed with the CBDT in taking a particular decision one way or the other and substitute the same with that of this Court on the ground that if the time limit is not extended, then the people at large would be put immense hardships? Interference at the end of this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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