Telangana High Court
Chandrakala Kasani, vs The Principal Commissioner Of Income ... on 27 December, 2023
Author: P.Sam Koshy
Bench: P.Sam Koshy, N.Tukaramji
IN THE HIGH COURT FOR THE STATE OF TELANGANA, HYDERABAD
***
WRIT PETITION No.18470 of 2023
Between:
Chandrakala Kasani.
Petitioner
VERSUS
The Principal Commissioner of Income Tax.
Respondent
ORDER PRONOUNCED ON: 27.12.2023
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
____________________
P.SAM KOSHY, J
2
* THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
+ WRIT PETITION No.18470 of 2023
% 27.12.2023
# Between:
Chandrakala Kasani.
Petitioner
VERSUS
The Principal Commissioner of Income Tax.
Respondent
! Counsel for Petitioner(s) : Mr. P. Soma Shekar Reddy
^Counsel for the respondent(s) : Ms. Sundari R Pisupati
<GIST:
> HEAD NOTE:
? Cases referred
1. S.B. Civil Writ Petition No. 10571/2020 dated 25.03.2021
of the High Court of Rajasthan
2. 2022 SCC OnLine Del 3647 : (2023) 330 CTR 167
3
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
WRIT PETITION No.18470 of 2023
ORDER :
(per Hon'ble Sri Justice P.SAM KOSHY)
The instant writ petition has been filed seeking for a direction to
the respondent to issue Form 5 under the Direct Tax Vivad Se
Vishwas Act, 2020.
2. Heard Mr. P. Soma Shekar Reddy, learned counsel for the
petitioner and Ms. Sundari R Pisupati, learned Senior Standing
Counsel for Income Tax Department appearing for the respondent.
3. From the pleadings it appears that the petitioner in order to
avail the benefit of the scheme under Direct Tax Vivad Se Vishwas
Act, 2020, was required to make a payment of Rs.1,10,35,340/- up
till 31.03.2021 and with interest at the rate of 10% amount of
Rs.1,21,38,874/- up till 31.10.2021.
4. As is known to all, the said period was one when the whole
world was reeling with COVID pandemic. There were compelling
circumstances for the business world in making payments all around.
Nonetheless, under the aforesaid scheme, the petitioner was able to
make 75% of the payment out of the total of Rs.1,21,38,874/- i.e.
Rs.90,00,000/- by 31.10.2021 itself which is admitted by the
respondent in their Counter as well. In terms of the aforesaid scheme,
there was only balance of 25% amount payable by the petitioner
which in the instant case has also been paid by the petitioner on
31.12.2021 i.e. which is within sixty (60) days time from the date the
payment of the 75% earlier made. Thus, there appears to be delayed
payment of just 25% of the amount by the petitioner and that too of a
period which is around two (2) months. It is in this context when the
petitioner approached the respondent for issuance of Form 5 the
same was refused on the ground that that the respondent do not have
power for issuance of Form 5 beyond the cutoff date leading to filing
of the instant writ petition.
5. The High Court of Rajasthan in the case of Agroha Electronics
Vs. Union Of India and Ors. 1 under similar circumstances
particularly in respect of the fact that the transaction therein was also
under the COVID period had while allowing the writ petition in favour
of the petitioner held as under:
"After hearing learned counsel for the parties and perusing
the material available on record, this Court deems it fit that
in the given facts and circumstances that the petitioner is a
S.B. Civil Writ Petition No. 10571/2020 dated 25.03.2021
of the High Court of Rajasthan
bona fide businessman and is prepared to pay the amount
in question in accordance with the scheme along with
interest for the period which he has defaulted in scheme
and looking into the extreme pandemic conditions of COVID
and the death of petitioner's father, this is a fit case for
invocation of the powers under Article 226 of the
Constitution of India."
6. A similar issue came up before the High Court of Delhi in the
case of I.A. Housing Solution Private Limited Vs. Principal
Commissioner of Income Tax-4 2 decided on 02.11.2022 wherein the
High Court of Delhi in paragraph Nos.19 to 24 had held as under:
"19. One of us (Manmohan, J) in Siddharth International
Public School v. Motor Accident Claim Tribunal, (2016) SCC
OnLine Del 4797, para 41 has held, "it is settled law that
this Court has extremely broad jurisdiction under Article 226
of the Constitution and under the said Article it can pass
whatever orders are necessary for doing equity and justice.
The Supreme Court in N.S. Mirajkar v. State of Maharashtra,
1966 3 SCR 744 has held that "unlike a inferior court, in
respect of a High Court, which is also a Court of Record, it is
assumed that every action is within its jurisdiction, unless
expressly shown otherwise".
20. Consequently, the power of the High Court under
Article 226 of the Constitution of India to grant relief in
extraordinary and exceptional circumstances cannot be
taken away or curtailed by any legislation.
21. In fact, the Supreme Court in Dal Chandra Rastogi v.
CBDT (2019) 104 taxmann.com 341 (SC) wherein the
assessee had filed a declaration of undisclosed income
under the Income Declaration Scheme, 2016 and had failed
to pay the third installment of the remaining 50 per cent of
tax, surcharge and penalty permitted the assessee to make
late deposit of tax under Income Declaration Scheme
subject to interest at the rate of 12% per annum. It is
pertinent to mention that there was no provision for late
2022 SCC OnLine Del 3647 : (2023) 330 CTR 167
deposit of tax in the Income Declaration Scheme, 2016. Yet
the Supreme Court taking note of the genuine hardship
faced by the assessee and short delay in payment, ruled in
favour of the taxpayer. NO PREJUDICE CAUSED TO THE
RESPONDENTS BY ACCEPTING THE PRAYER OF THE
PETITIONERS. RATHER, SUCH ACTION SHALL HELP
ACHIEVE THE OBJECTIVES OF THE VSV ACT.
22. This is also a fit case where no prejudice will be
caused to the Respondents by accepting the prayer of the
Petitioners. Rather, the Respondents benefit and achieve
the purpose of the Scheme, namely, to reduce pendency of
cases, generate timely revenue for the government and
provide certainty and savings of resources that would be
spent on the long-drawn litigation process.
23. Consequently as the delay in payment in the present
cases were unintentional and supported by justifiable
reasons, this Court is of the opinion that the cause of
substantial justice deserves to be preferred, and this
unintentional delay deserves to be condoned. This approach
will only further the object and purpose of the VSV Act.
RELIEF
24. Keeping in view the aforesaid, the present writ
petitions are allowed and the respondents are directed to
accept the declarations/applications (Forms-1 and 2) dated
04th March, 2021 filed by the petitioners as valid
declarations/applications within two weeks and accept the
balance disputed amounts as stipulated by respondents in
Forms-3 dated 07th May, 2021 and 22nd June, 2021
issued under VSV Act along with simple interest @ 9% per
annum till the date the amounts are paid within four weeks.
7. Keeping in view the aforesaid two decisions rendered by the High
Court of Rajasthan as also by the High Court of Delhi, if we look into
the facts of the present case, where there appears to be certain
payment of tax which was due on the part of the petitioner herein.
That under the provisions of Direct Tax Vivad Se Vishwas Act, 2020,
on an application made by the petitioner, the respondent had offered
for settlement of the said case by payment of Rs.1,10,35,340/- by
31.03.2021. If for any reason the amount was not able to be paid by
the said date, the petitioner would be required to make a payment of
Rs.1,21,38,874/- by 31.10.2021. Of this amount, the petitioner
admittedly paid Rs.90,00,000/- on 31.10.2021 i.e. the petitioner had
paid about 75% of the amount payable by him.
8. We cannot brush aside the fact that it was admittedly COVID
pandemic period and there were compelling circumstances faced by
every person including the business entities. Nonetheless, the
petitioner herein had cleared the balance of 25% as well within a
further period of sixty (60) days i.e. 31.12.2021 clearing the entire
amount payable by him i.e. balance amount of Rs.31,38,874/- which
was the total amount payable by him by 31.10.2021.
9. Thus, prima facie, we are of the considered opinion that the
petitioner had not tried to evade payment of tax at any point of time
and if at all there is any delay, the delay is only to the extent of 25% of
the total tax payable which too he has paid in its entirety within sixty
(60) days beyond the date of 31.10.2021.
10. In the given factual circumstances, we are inclined to endorse
the views taken by the High Court of Rajasthan as also by the High
Court of Delhi in the aforesaid two decisions referred above. And as a
consequence, we are inclined to allow the writ petition with a direction
to the respondent to immediately take necessary steps for issuance of
Form 5 under the Direct Tax Vivad Se Vishwas Act, 2020. However,
the petitioner would be liable to make payment of extra payment of
interest for the period 31.10.2021 to 31.12.2021 for the amount which
was paid belatedly on 31.12.2021 within a period of thirty (30) days
from today. Immediately upon the petitioner making payment, the
respondent shall issue Form 5 to the petitioner forthwith.
11. The writ petition accordingly stands allowed. No order as to
costs.
Consequently, miscellaneous petitions, pending if any, shall
stand closed.
________________
P.SAM KOSHY, J
__________________
N.TUKARAMJI, J
Date: 27.12.2023
Note: LR copy to be marked.
B/O
GSD/TJMR
