The Commissioner Of Income Tax ... vs Mesco Airlines Ltd.
2010 Latest Caselaw 3430 Del

                              Reportable

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

                           ITA No.745 of 2009
                                  With
                           ITA No.186 of 2010

%                                      Date of Decision: 22nd July, 2010


+     ITA 745/2009

THE COMMISSIONER OF INCOME TAX                        . ... Appellant

                        Through:   Ms. Rashmi Chopra with Mr. Chandra
                                   Mani Bharadwaj, Advocates

                  Versus


MESCO AIRLINES LTD.                                   .... Respondent

                        Through:   Mr. Salil Aggarwal with Mr. Prakash
                                   Kumar, Advocates

+ITA 186/2010


THE COMMISSIONER OF INCOME TAX CENTRAL ..... Appellant

                        Through:   Ms. Rashmi Chopra with Mr. Chandra
                                   Mani Bharadwaj, Advocates

                  Versus


NATASHA SINGH                                          ..... Respondent

                        Through:   Mr. Salil Aggarwal with Mr. Prakash
                                   Kumar, Advocates

CORAM :-
    HON'BLE MR. JUSTICE A.K. SIKRI
    HON'BLE MS. JUSTICE REVA KHETRAPAL

      1.    Whether Reporters of Local newspapers may be allowed
            to see the Judgment?
      2.    To be referred to the Reporter or not?
      3.    Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J. (Oral)

1. Admit.

2. The following substantial question of law arises for consideration:

"Whether on the facts and in the circumstances of the case, the learned Income Tax Appellate Tribunal erred in deleting the levy of interest under Section 158BFA (1) of the Income Tax Act, 1961?"

3. With the consent of the parties, filing of paper book is dispensed

with and the matter is heard finally at this stage itself.

4. This issue has arisen on the following factual background.

Search and seizure operation under Section 132 of the

Income Tax Act (hereinafter referred to as „the Act‟) was carried

out at the premises of the assessee on 26.02.1997, 05.03.1997

and 20.03.1997. Whenever such search is conducted, the

assessee has to necessarily file revised income tax return. For

filing such a return, notice under Section 158BC of the Act is to be

issued to the assessee and the assessee is required to file the

return within 45 days thereafter. If the return is not filed within 45

days and more time is consumed, the assessee is liable to pay

interest under Section 158BFA (1) for the delayed period. In the

present case, notice dated 21.08.1997 was served upon the

assessee on 22.08.1997 for the block period 1992-93 and 1993-

94. Forty five days were to expire on 05.10.1997. However, after

the expiry of the said period, the assessee requested the

Department to supply certain documents. According to the

assessee, the revised return for the aforesaid block period could

not be filed for want of those documents, as the said documents

were seized by the Department during the search. There is no

dispute about this fact, viz., it was not possible for the assessee to

file the return in absence of these documents. The Department

took abnormally long period in supplying these documents and

the same were supplied only on 20.11.1998. Thereafter, return

was filed on 01.01.1999.

5. According to the Assessing Officer (AO), since the return was to be

filed on 05.10.1997 and the assessee also failed to pay the tax on

undisclosed income and the same was filed on 01.01.1999, the

A.O. charged interest and initiation of penalty under Section

158BFA of the Act for a period from 06.10.1997 to 01.01.1999.

The assessee filed an appeal against this order and the same was

dismissed by the CIT(A).

6. On further appeal filed by the assessee, the Income Tax Appellate

Tribunal (hereinafter referred to as „the Tribunal‟) has allowed the

appeal and held that no such interest could be charged in the

circumstances of this case. According to the Tribunal, the

assessee had asked for the documents within 45 days. These

documents were supplied only on 20.11.1998 and thereafter the

return was filed within 45 days from that date. The discussion of

the Tribunal while taking this view is as follows:

"....Under clause (a) the levy of interest under section 158BFA (1) terminates on the date of furnishing the return of income when such return has not been filed within the time prescribed under section 158BC. Under clause (b) the interest runs till the completion of the assessment under section 158BC(c) when a return as required under section 158BC has not been filed. In the present case the issue falls in clause (a). This is a case where return has been furnished after the expiry of the time prescribed under the provisions of section 158BC. It is further to be noticed that the word used in section 158BFA(1) is "shall". Once it is held that there was a delay in filing the return, necessary

consequences enshrined under section 158BFA which mandates the charging of interest along with other consequences, if any, come into play. The language of the stature is very clear and unambiguous and gives no power to any of the authorities to exercise discretion and waive interest as contemplated under section 158BFA in appellate proceedings. Therefore, the moment there is a delay in filing the return and delay is attributable to the assessee‟s conduct the provisions of section 158BFA(a) come into operation. This proposition of ours find support from the decision of the Income-Tax Appellate Tribunal, Delhi Benches in the case of Rati Ram Gotewala reported in 89 ITD 14. Once it is held that the interest under section 158BFA is to be levied if the delay is attributable to the assessee, the issue of interest of justice would come into play to verify as to whether the delay is attributable to the assessee. In the present case, it is noticed that the search had been concluded on 27.3.1997 and the notice under section 158BC has been served on 22.8.97. The assessee has within reasonable time requested the AO to grant the assessee the copies of the seized material. In the letter dt. 1.11.97 the assessee has specifically also clarified that without the seized material the assessee would not be able to file the block return. Further, form the letter dt. 20.11.1998, which is the acknowledgement of having take all the photocopies required, it is noticed that the group companies‟ details are in relation to 10 persons. It is further noticed that after obtaining the seized material on 20.11.1998 within 40 days on 1.12.1999 the assessee has filed its block return. This being so, it would have to be held that the delay in filing block return was not on reasons which are attributable to the assessee. Further, the Revenue has also not been able to place before us any evidence to show that the assessee had by its action delayed the obtaining of the copies of the seized material. This being so, the delay in filing block return was not on reasons which are attributable to the assessee. Further, the Revenue has also not been able to place before us any evidence to show that the assessee had by its action delayed the obtaining of the copies of the seized material. This being so, the delay in filing the return cannot be attributable to the assessee. The delay in filing the return having been held to be not attributable to the assessee, the levy of interest under section 158BFA (1) cannot be held to be leviable for such period, which was required by the assessee for the purpose of obtaining the seized material from the Revenue. Further, the assessee having filed its return of income within the reasonable time of 40 days of obtaining the seized material from the Revenue, it cannot be said that there is any delay attributable to the assessee to which interest under section 158BFA(1) could be levied. In the circumstances, the Assessing Officer is directed to delete the levy of interest under section 158BFA(1) levied. In the circumstances order of the ld. Commissioner of Income-Tax (Appeals) on this issue stands reversed."

7. Submission of the learned counsel for the Revenue is that the

assessee knew it quite well that it was imperative upon the

assessee to file the return once search was carried out under

Section 132 of the Act and therefore, immediately after the search

was concluded, i.e., 20.3.1997, the assessee could ask for the

aforesaid documents. According to the learned counsel for the

department, it is the negligence on the part of the assessee in

demanding the documents only after the service of notice under

Section 158BC after the expiry of 40 days, when the assessee

knew that the period of limitation prescribed is of 45 days for

submitting the return.

She also referred to the order of the CIT(A) wherein the

CIT(A) remarked that even for the subsequent period, i.e., from

the date of making a request for supply of documents till the

supply of the documents (which consumed 13 months) the

assessee could not furnish any documentary evidence that

photocopies of essential document was delayed by the

Department solely upto 20.11.1998. On this basis, it is submitted

that there is a delay and Section 158BFA(1) is mandatory in

nature as per which the interest becomes payable and is liable to

be paid by the assessee for the entire period from 06.10.1997 till

the date of filing of the return.

8. Mr. Salil Aggarwal, on the other hand, submits that it was not a

case where the assessee became liable to pay the interest and

the approach of the Tribunal was perfectly justified.

9. After hearing the counsels for the parties and going through the

record, we are of the opinion that the approach adopted by either

the Assessing Officer or the Tribunal is not justified. Both have

taken extreme view. Neither the conduct of the assessee is

without blemish nor the revenue can claim that it has acted with

due diligence, inasmuch as, delay of substantial period is

attributable to the department as well. To demonstrate this, we

are giving here some important dates:-

                 Date                                 Events

            (i) 26.2.1997               Search    conducted     at      the
                05.3.1997               premises of the assessee.
                20.3.1997

            (ii) 21.8.1997              Notice under Section 158BC of
                                        the Income Tax Act   issued to
                                        the assessee.

            (iii) 22.8.1997             Notice served upon the assessee.
                                        The assessee was required to file
                                        return for the block period within
                                        45 days from this date i.e. by
                                        5.10.1996.

            (iv) 01.10.1997             The assessee asked for the
                                        documents to enable it to file the
                                        return as relevant documents
                                        were seized by the department
                                        during search.

            (v) 20.11.1998              The documents as demanded by
                                        the assessee were supplied to it
                                        by the Department.

            (vi) 01.1.1999              Return filed by the assessee.

The assessee knew fully well that once the search is conducted

under Section 132 of the Act, it was compulsory to file the return.

Though, such a return was to be filed within 45 days of service of

notice under section 158BC of the Act. As a prudent person, he

could have asked for the copies of documents. He did not do so

and waited for service of notice upon it under Section 158BC of

the Act. Still indulgence upto this period can be given to the

assessee as the trigger point for filing the return is the service of

notice under Section 58BC of the Act. However, the assessee did

not act with promptitude even after the service of that notice.

When it knew that the return is to be filed within 45 days, there

was no reason to wait for 41 days before making a request for

supply of copies of the documents, which request was made on

1.10.1997 i.e. just 4 days before the service of notice. Even after

the documents were supplied on 20th November, 1998, the

assessee took further more than 40 days in filing the return.

10. On the other hand, the department also slept over the request of

the assessee for furnishing the copies of the documents. It took

more than one year in supplying the documents as the request

was made on 1.10.1997 and documents were supplied on

20.11.1998. For this delay which is attributable to the department,

the assessee cannot suffer and pay the interest. Thus, the

approach of the Assessing Officer in directing the assessee to pay

the interest for the entire period which included aforesaid 13

months consumed by the department in supplying the documents

is clearly wrong. The Tribunal, on the other hand, ignored the fact

that the assessee made a request for supply of copies of

documents after waiting for 41 days and thereafter took another

41 days in filing the return. It counted the period of 45 days, as

required under the law for filing the return, only from 20.11.1998

and absolved the assessee from liable to pay any interest. If such

practice is allowed, any assessee on the last date of filing the

return may ask for supply of copy of documents and thereafter

from the date when the documents are supplied, would get

another 45 days to file the return. This also has to be countered.

11. In this scenario, we are of the opinion, that the total time taken by

the assessee from the date of service of notice under Section 158

BC of the Act till the filing of the return is to be taken into

consideration and from this period, the time which is taken by the

department in supplying the documents has to be excluded. In

this manner, if the period exceeds 45 days, the assessee would be

liable to pay the interest for the period beyond 45 days.

12. We answer the question of law by holding that the Income Tax

Tribunal was not entirely right in dealing with the levy of interest

under Section 158 BFA (1) of the Act. Instead, the period for

which the liability to interest is to be fastened upon the assessee

would be calculated in the manner mentioned above.

(A.K. SIKRI) JUDGE

(REVA KHETRAPAL) JUDGE JULY 22, 2010.

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