Allahabad H.C : This writ petition has been filed against the impugned order of the CIT, Agra, dt. 4th May, 1999, annexure 1, to the writ petition.

High Court Of Allahabad

Deoneria Cold Storage & Ice Factory vs. CIT & ANR.

Sections 1998FA(No. 2) 88

Asst. Year 1988-89, 1992-93

M. Katju & Prakash Krishna, JJ.

Civil Misc. Writ Petn. No. 494 of 1999

13th January, 2003

Counsel Appeared

S.P. Gupta & Tarun Agarwala, for the Petitioner : Ashok Kumar, for the Respondents

JUDGMENT

M. Katju, J. :

This writ petition has been filed against the impugned order of the CIT, Agra, dt. 4th May, 1999, annexure 1, to the writ petition. It has also been prayed that respondent No. 1 be directed to entertain the petitioners’ application under the Kar Vivad Samadhan Scheme, 1998, treating it to be within limitation and to quash the recovery proceedings including the attachment order dt. 21st April, 1999, (annexure 8 to the petition).

2. The petitioner is a partnership firm. For the asst. yr. 1992-93 it had filed a return showing taxable income at Rs. 53,950. However, the assessing authority passed an assessment order assessing the income of the petitioner to be Rs. 76,63,740. The petitioner filed an appeal, which was allowed by the CIT and the matter was remanded back to the assessing authority and the assessing authority passed a fresh order dt. 30th March, 1998, calculating the total income of the petitioner to be Rs. 46,07,720. A demand notice for Rs. 13,13,085 was issued. Against that order the petitioner filed an appeal to the CIT(A) which was rejected on 27th Aug., 1998, vide annexure 2 to the writ petition. Thereafter it filed further appeal before the Tribunal on 15th Jan., 1999. A true copy of the memo of appeal has been annexed as annexure 3 to the petition.

3. The Central Government issued the Kar Vivad Samadhan Scheme under the Finance (No. 2) Act, 1998, which came into force from 1st Sept., 1998, and was applicable till 31st Jan., 1999. This scheme provided for settlement of disputed arrears of tax, etc. Sec. 88 of the aforesaid Finance (No. 2) Act of 1998, states as follows : “Subject to the provisions of this scheme, where any person makes, on or after the 1st day of Sept., 1998, but on or before the 31st day of Dec., 1998, a declaration to the designated authority in accordance with the provisions of s. 89 in respect of tax arrear, then, notwithstanding anything contained in any direct tax enactment or indirect tax enactment or any other provision of any law for the time being in force, the amount payable under this scheme by the declarant shall be determined at the rates specified hereunder.”

4. The petitioner sent a declaration in Form No. IA dt. 22nd Jan., 1999, and sent it to the designated authority, i.e., the CIT, Agra, allegedly under certificate of posting dt. 22nd Jan., 1999. Photocopies of the ten declaration forms filed by the petitioners and its partners for the asst. yrs. 1988-89 and 1992-93 have been collectively annexed as annexure 4 to the writ petition. The photocopy of the postal certificate has been annexed as annexure 5 to the writ petition. It is alleged in para 15 of the writ petition that the petitioner’s partner met the CIT personally and requested for early disposal of their application filed under the aforesaid scheme. They also gave reminders vide letters dt. 15th Feb., 1999, and 28th April, 1999, vide annexures 6 and 7 to the writ petition. However, the petitioner received the impugned order dt. 4th May, 1999, stating that the petitioner’s application under the aforesaid scheme had been rejected as the same was received in the office of the CIT, Agra, on 5th Feb., 1999, i.e., after the last date for receiving applications, namely, 31st Jan., 1999. Thereafter the TRO passed an order dt. 21st April, 1999, for attaching the petitioner’s factory.

Learned counsel for the petitioner submitted that since the petitioner sent the declaration in Form No. IA under the scheme by postal certificate dt. 22nd Jan., 1999, it should be presumed that it was received in the office of the designated authority in a day or two. He submitted that the scheme does not contemplate that the declaration must be received in the office of the designated authority on or before 31st Jan., 1999.

We do not agree. A perusal of s. 88 of the Act clearly shows that the declaration has to be made to the designated authority on or before 31st Dec., 1998, which date had been extended to 31st Jan., 1999.

In the counter-affidavit it has been stated in para 11 that the petitioner’s declaration was received in the office of respondent No. 1 on 5th Feb., 1999, i.e., after the last prescribed date. It is further stated that Fatehabad (District Agra) from where the declaration was sent is only 50 kms. from the office of the IT Department. Had the petitioner sent the letter by postal certificate on 22nd Jan., 1999, it would have reached the office of respondent No. 1 in not more than three days but it reached only on 5th Feb., 1999.

In our opinion it was for the petitioner to have ensured that the declaration reached respondent No. 1 by 31st Jan.,1999. Sec. 88 of the Act as interpreted by us itself shows that it is for the assessee to ensure that the declaration has to reach the designated authority by the date fixed. Sec. 88 of the Act states that the person has to make the declaration to the designated authority by the prescribed date. If the petitioner made the declaration by sending it by post then it is for him to ensure that the declaration reaches the designated authority by the prescribed date. Sec. 3(a) of the Indian Post Office Act, 1898, states : “(a) a postal article shall be deemed to be in course of transmission by post from the time of its being delivered to a post office to the time of its being delivered to the addressee or of its being returned to the sender or otherwise disposed of under Chapter VII.”

The above provision clearly indicates that merely by posting a letter it does not amount to making a declaration to the designated authority under s. 88 of the Finance (No. 2) Act, 1998. By merely posting a letter the sender only puts the letter in the course of transmission, but the letter will be deemed to have been made to the designated authority only when it reaches him. Moreover, there is a difference between sending a letter by registered post and postal certificate. The petitioner was situate only 50 kms. from the office of respondent No. 1 and its officials could have easily have gone to the office of respondent No. 1 for the purpose of making the declaration. It is also a matter of common knowledge that postal certificates can easily be manufactured with an ante-dated date and hence no reliance can be placed on the same.

11. Since the declaration reached respondent No. 1 after the prescribed date it was clearly not maintainable. Thus there is no force in this petition and it is dismissed.

[Citation : 260 ITR 315]

Malcare WordPress Security