Calcutta High Court (Appellete Side)
Dr. Satyajit Bose vs Deputy Commissioner Of Income Tax on 16 December, 2022
Item No.10.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 16.12.2022
DELIVERED ON:16.12.2022
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
M.A.T No.406 of 2019
with
I.A. No.CAN 1 of 2019 (Old CAN 3177 of 2019)
with
I.A. No.CAN 2 of 2019 (Old CAN 3178 of 2019)
Dr. Satyajit Bose.
Vs.
Deputy Commissioner of Income Tax, Circle - 22 & Ors.
Appearance:-
Mr. Ananda Sen,
Mr. Sabyasachi Mandal ... for the appellant.
Mr. Vipul Kundalia,
Ms. Uneaza Ali,
Ms. Aditi Singhania .... for the Income Tax Authorities.
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
Re: I.A. No.CAN 1 of 2019 (Old CAN 3177 of 2019)
1. This is an application to condone the delay of 13 days in
filing the instant appeal.
2. We have heard Mr. Ananda Sen, learned counsel appearing for
the appellant duly assisted by Mr. Sabyasachi Mandal, learned
Advocate and Mr. Vipul Kundalia, learned counsel appearing for
the respondents.
3. We are satisfied with the reasons assigned in the affidavit
filed in support of the application. Accordingly, the delay in
filing the instant appeal is condoned.
4. The application for condonation of delay being I.A. No.CAN
1 of 2019 (Old CAN 3177 of 2019) is allowed.
5. There shall be no order as to costs.
Re: MAT 406 of 2019
6. Supplementary affidavit filed by the appellant is taken on
record.
7. This intra-Court appeal is directed against the order dated
31st January, 2019 in W.P. No.2693(W) of 2018. The appellant
filed the writ petition praying for a direction upon the
respondents to condone the delay in making the third payment
under the Income Declaration Scheme, 2016 (for short, "the
scheme"). The appellant also prayed for issuance of a writ of
mandamus to direct the respondents to regularise the third
payment, which was made on 16th October, 2017 together with
interest. The appellant also prayed for a direction upon the
respondents to issue a certificate in form - 4 of the said
scheme and to restrain the assessing officer from proceeding
further with the assessment framed on 26 th December, 2017. The
learned Single Bench had dismissed the writ petition on the
ground that the appellant did not comply with the terms of the
scheme within the time permitted. Challenging the said order,
the appellant has filed the present appeal.
8. We have heard Mr. Ananda Sen, learned counsel appearing for
the appellant duly assisted by Mr. Sabyasachi Mandal, learned
Advocate and Mr. Vipul Kundalia, learned counsel appearing for
the respondents.
9. The appellant seeks to assail the correctness of the order
passed in the writ petition based on a subsequent development,
which took place after the dismissal of the writ petition. We
cannot be called upon to test the correctness of the order
passed in the writ petition based on a material, which was never
placed before the learned Writ Court. In any event, if the
subsequent development has a beneficial effect on the assessee,
then the Court can consider as to what would be the appropriate
direction that can be issued to the authorities in the given
facts and circumstances.
10. Admittedly, under the scheme, the third installment of
income tax ought to have been remitted by the appellant not
later than 30th September, 2017 but was remitted on 16 th October,
2017. Since the scheme did not provide for any extension of
time, the authorities could not have reckoned payment of the
third installment to be in compliance with the terms and
conditions of the scheme. Interestingly, there was an amendment
to the scheme by Finance (No.2) Act of 2019. By the said
amendment, if there was a delay in payment of the amount, the
same can be accepted subject to payment of interest provided,
such payment is made within the date notified by the Central
Government. The said amendment was given retrospective effect
from 1st June, 2016. In terms of the said amendment,
notification dated 13th December, 2019 was issued by the Ministry
of Finance by which the payment could be made on or before 31 st
January, 2020. Since this amendment has been given
retrospective effect and the appellant having paid third
installment well before the notified date, this Court is of the
prima facie view that the benefit of such amendment can be
extended to the assessee. However, it appears that the
representation given by the appellant to the Principal
Commissioner of Income Tax - 8 (Kolkata) dated 13 th January, 2020
was not answered and stated to be still pending before the
authority. Even much earlier, the assessing officer had
completed the assessment. Thus, the assessee is left in a
piquant situation and is before this Court for necessary relief.
11. Considering the peculiar facts and circumstances of the
case, while upholding the view taken by the learned Single
Bench, we are inclined to grant liberty to the appellant to
approach the respondent authorities by way of fresh
representation in which the amendment made by Finance (No.2) Act
of 2019 as well as notification dated 13 th December, 2019 can be
placed before the concerned authority. Added to the fact that
the third installment had been paid by the appellant well before
the cut off date together with interest and if such
representation is given to the appropriate authority, the same
shall be considered and a speaking order be passed on merit and
in accordance with law within a period of three weeks from the
date of receipt of server copy of this order.
12. In the meantime, the assessing officer is directed not to
initiate any coercive step against the appellant for recovery of
the tax and penalty pursuant to the assessment, which was framed
on 26th December, 2017.
13. The appellant is directed to enclose a copy of the
representation dated 13th January, 2020 along with the said fresh
representation, which has been directed to be submitted in terms
of the above order.
14. The appeal and the connected application are disposed of.
15. There shall be no order as to costs.
16. Urgent photostat certified copy of this order, if applied
for, be furnished to the parties expeditiously upon compliance
of all legal formalities.
(T.S. SIVAGNANAM, J)
I agree,
(HIRANMAY BHATTACHARYYA, J.)
NAREN/PALLAB(AR.C)
