WPL-2764-2015 IN HIGH COURT OF JUDICATURE AT BOMBAY rt ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO. 2764 OF 2015 ou Chamber of Tax Consultants & Others .. Petitioners. V/s. C Union of India & Others .. Respondents. h Dr. K. Shivram, Sr. Advocate with Mr. Rahul Hakani, Mr. V. B. Joshi, Mr. Rahul Sarda and Ms. Neelam Jadhav, for Petitioners. ig Mr. Suresh Kumar, for Respondents. CORAM: M.S.SANKLECHA, & H G.S. KULKARNI, JJ. DATE : 30th SEPTEMBER, 2015. P.C: RULE. y 2 At very outset, it was impressed upon us that last date ba for filing return of income in ITR Form Nos. 3, 4, 5, 6 and 7 is today i.e. 30th September, 2015. It is in aforesaid circumstances that om Petitioners prayed for grant of interim/ ad interim reliefs, extending date for filing returns of income in ITR Form Nos. 3,4,5,6, and 7 to 31st October, 2015. This on ground that on similar grievances such prayer has been finally allowed by orders of Punjab & Haryana Court B dated 29th September,2015 (Vishal Garg v/s. Union of India) and Gujarat High Court in by its order dated 29th September, 2015 in Special Civil Application No. 15075 of 2015 (All Gujarat Federation of Income Tax Consultants v/s. Central Board of Direct Taxes). S.R.JOSHI 1 ::: Uploaded on - 01/10/2015 ::: Downloaded on - 16/10/2015 11:23:31 ::: WPL-2764-2015 3 Our attention was also specifically drawn to fact that for present, Central Board of Direct Taxes (CBDT) have accepted rt decision of Gujarat High Court and Punjab and Haryana High ou Court referred to herein above. Inasmuch as on 30 th September, 2015, following two orders under Section 119 of Income Tax Act, 1961 (the Act) have issued: C Ist Order: Central Board of Direct Taxes, in compliance to order of Hon'ble Punjab and Haryana High Court dated h 28.09.2015 in case of Vishal Gard & Ors., v/s. Union of India & Anr; CWP 19770 205 and in exercise of powers conferred under section 119 of Income Tax act, 1961 (the Act), hereby orders ig that returns of income due to be E filed by 30 th September, 2015 may be filed by 31st October, 2015 in cases of Income Tax assesees of State(s) of Punjab and Haryana and Union H Territory of Chandigarh. 2 This order shall be subject to outcome of any further appeal/SLP which CBDT may file against said y judgment. ba II nd Order: Central Board of Direct Taxes, in compliance to order of Hon'ble Gujarat High Court dated 29.09.2015 in case om of All Gujarat Federation of Tax Consultants v/s. CBDT; Special Civil Application No. 15075 of 2015 and in exercise of powers conferred under section 119 of Income Tax act, 1961 (the Act), hereby orders that returns of income due to be E filed by 30th September, 2015 may be filed by 31st October, 2015 in B cases of Income Tax assesees of State of Gujarat. 2 This order shall be subject to outcome of any further appeal/SLP which CBDT may file against said judgment. S.R.JOSHI 2 ::: Uploaded on - 01/10/2015 ::: Downloaded on - 16/10/2015 11:23:31 ::: WPL-2764-2015 4 As it is clear from above orders, benefit of decision rendered by Gujarat High Court and Punjab and Haryana High Court have rt been restricted only in respect of assessee's within State of Punjab and ou Haryana, Union Territory of Chandigarh and State of Gujarat. In circumstances, we heard Petitioner's prayer for interim reliefs. C 5 Before proceeding further, it may be pointed out that this Petition first listed on board on 23rd September, 2015, at that time, Petition was adjourned to 28 th September, 2015 at 3.00 p.m. on joint h request of parties. This was to enable Mr. Suresh Kumar, learned Counsel appearing for Revenue to take instructions in matter. ig 6 On 28th September, 2015, when matter reached hearing, H our attention was drawn to decision of Punjab and Haryana High Court in Vishal Garg (supra) wherein Punjab and Haryana High Court had granted extension of time for E filing return upto 31 st October, 2015 and y directed CBDT to issue appropriate instructions/directions under ba Section 119 Act. 7 Mr. Suresh Kumar, learned Counsel appearing for om Revenue had invited our attention to decision of Delhi High Court in Avinash Gupta v/s. Union of India in Writ Petition (C) No.9032 of 2015 rendered on 21st September, 2015 where Court refused to extend time for E filing of return of income in exercise of its extra B ordinary jurisdiction under Article 226 of Constitution of India. To similar effect is decision of Rajasthan High Court cited by Mr. Suresh Kumar, being Writ Petition (PIL) No. 11037 of 2015 in M/s. Rajasthan Tax Consultants Association v/s. Union of India wherein also Court refused to exercise its extra ordinary jurisdiction and extend S.R.JOSHI 3 ::: Uploaded on - 01/10/2015 ::: Downloaded on - 16/10/2015 11:23:31 ::: WPL-2764-2015 time to file return of income from stipulated date of 30 th September, 2015. rt 8 In view of conflicting views of different High Courts, ou Petition was kept today in expectation that CBDT would take decision of either challenging orders passed by Punjab and Haryana C High Court before Apex Court or accepting same and applied all over India. Today, as pointed out herein above, CBDT has issued two separate orders under Section 119 of Act, accepting order of h Punjab and Haryana High Court and Gujarat High Court and extended time to file up to 31st October, 2015 only in respect of assessee in ig above two States and in Union Territory of Chandigarh. H 9 Dr. Shivram, learned Sr. Advocate appearing for Petitioner invited our attention today to decision of Gujarat High Court in All Gujarat Federation of Tax Consultants (supra) which has extended due y date till 31st October, 2015. This has been accepted by CBDT having ba extended filing of E Form of ITR returns from 30 th September, 2015 to 31st October, 2015 by issuing order under Section 119 of Act as pointed out above. om 10 grievances raised in this Petition are more or less similar to one raised before Gujarat High Court and Punjab and Haryana High Court. It is that CBDT / Central Government had failed B in its obligation to notify ITR Forms, in particular, Form Nos. 3,4,5,6 and 7 on 1st April, 2015 all of which have due date of being filed with Income Tax Department before 30th September, 2015. 11 It is excepted of State that it would notify required S.R.JOSHI 4 ::: Uploaded on - 01/10/2015 ::: Downloaded on - 16/10/2015 11:23:31 ::: WPL-2764-2015 ITR Forms on 1st April of subject Assessment year. This enables assessee to gather necessary details as required by ITR Forms and rt submit same while E filing their return of income. This delay causes ou prejudice to assessees who have to E file their returns of income with shortage of time is likely to result in filing of inaccurate returns. Thus, plea of extension of time to file return of income in Form Nos. 3,4,5,6 C and 7 from 30th September, 2015 to 31st October, 2015. 12 In view of delay in having notified ITR Form Nos. h 3,4,5,6 and 7, various assessee had in individual capacity made representations that time to file E returns in Form Nos.3,4,5,6 and 7 ig be extended in view of prejudice as pointed out above. Petitioners had also filed representation dated 25 th August, 2015 inter alia raising H various issues warranting extension of time. However, CBDT by press note dated 9th September, 2015 rejected representation and informed trade that last date of 30 th September, 2015 to E file y return of income would not be extended. This decision of CBDT does ba not deal with all issues raised by Petitioners. 13 Thereafter, Petitioner No.1 made another representation om on 19th September, 2015 to CBDT, seeking extension of time to E file return of income to be filed in ITR Form Nos. 3,4,5,6 and 7 from 30 th September, 2015 to 31st October, 2015. same was not responded to by B CBDT. Thus, this Petition. Revenue has not yet filed any reply. Therefore, we are at this stage not finally disposing of Petition but after admitting it are considering interim relief, if any, to be granted. 14 We have heard Counsel for Petitioner and Revenue. We find that with effect from Assessment Year 2013 14, it is S.R.JOSHI 5 ::: Uploaded on - 01/10/2015 ::: Downloaded on - 16/10/2015 11:23:31 ::: WPL-2764-2015 mandatory to E file Return of Income. It is not open to assessee to file return of income in hard copy. Thus, in absence of form and rt facility being available, it was impossible for any assessee to file its return ou of income. It is not dispute before us that CBDT notified ITR Forms Nos.3,4,5,6 and 7 only on 29 th July, 2015 and Forms were made available for filing on web site of department only with effect from C 7th August, 2015. Thus, if forms were notified as expected on 1 st April of year, then assessee concerned would have had 183 days time available to collect necessary information so as to enable them to E h file their return of income, giving all particulars expected of them. ig However, in view of delay in notifying forms, available time for assessee to fill up forms was restricted to 55 to 61 days, depending H upon dates when forms are notified. Thus, in view of short time available, assessees were finding it difficult to comply with all requirements sought in notified forms. Besides, non filing of return of y income before prescribed date would result in great prejudice to ba assessees as any claim for set off of loss would not be allowed to be carried forward will deprive them of deduction under Section 43B of Act and also deduction under Chapter VI of Act. Besides, if there is om any omission/ mistake in filing of return of income, if filed beyond due date, it would also deprive assessee opportunity to file revised return of income. B 15 present situation has arisen only in view of delay on part of CBDT in discharging its obligations of making available ITR Form Nos. 3,4,5,6, and 7 in due time. Thus, need to exetnd due date. One more feature which was emphasized was that in case of ITR Forms 1,2,2 and 4 S being non audit cases, necessary forms were S.R.JOSHI 6 ::: Uploaded on - 01/10/2015 ::: Downloaded on - 16/10/2015 11:23:31 ::: WPL-2764-2015 notified only on 22nd June, 2015 instead of 1st April, 2015 i.e. delay of 83 days. normal date of filing of return in such cases would be 31 st rt July, 2015. However, CBDT extended same to 7 th September, 2015 ou by order dated 2nd September, 2015 under Section 119 of Act. This on ground that delay in notifying forms would cause great hardship to tax payers. We are unable to appreciate how delay of 83 C days in making ITR Form Nos.1,2, 2 and 4 S in case of non audit will cause great prejudice and delay of 120 days in making ITR Form Nos.3,4,5,6 and 7 does not cause any prejudice. Gujarat High Court h noted that Scheme of Act indicates that ordinarily period of 180 ig days is available to assessee to file income tax return in case of E filing of return of income in Form Nos.3,4,5,6, and 7. Any curtailment of this H period on account of non availability of necessary utility for filing return on line, does certainly cause prejudice to assessee wholly on account of delay on part of CBDT to notify ITR Forms. y 16 Mr. Suresh Kumar, learned Counsel appearing for ba Revenue places reliance upon decision of Delhi High Court in case of Avinash Gupra (supra) and Rajasthan High Court in case of om Rajasthan Tax Consultants (supra) and submitted that first decision on this issue was rendered by Delhi High Court in Avinash Gupta (supra) on 21st September, 2015 wherein it has refused to entertain Petitioner seeking extension of due date provided under Act to E file return B in ITR Form Nos.3,4,5,6 and 7. It is submitted that in view of above, subsequent decision ought not to have been rendered, taking view contrary to that taken by Delhi High Court. In our opinion, Mr. Suresh Kumar is not right in this contention as these orders are relied up by him would loose their significance in view of CBDT itself accepting S.R.JOSHI 7 ::: Uploaded on - 01/10/2015 ::: Downloaded on - 16/10/2015 11:23:31 ::: WPL-2764-2015 contrary view of Punjab and Haryana High Court and Gujarat High Court. Besides, each Court is entitled to take its own view [see CIT rt v/s. Thane Electricity Supply Ltd., 206 ITR 727 (Bom.)] ou 17 Mr. Suresh Kumar, also placed reliance upon order dated 29th September, 2015 passed by CBDT under Section 119 of Act C consequent to order of Karnataka High Court directing it to deal with representation filed by Karnataka State Chartered Accountants Association, to contend that this Court should not interfere h with executive action of not extending date of 30 th September, 2015 to E file returns. As pointed out above, view of Gujarat ig High Court as also view of Punjab and Haryana High Court of extending due date to 31st October, 2015 has been accepted by H CBDT as evidenced by having issued order on 30 th September, 2015 under Section 119 of Act by extending time in respect of assessee's in State of Punjab and Haryana High Court and Gujarat High Court. y We also notice that order dated 29th September, 2015 under Section ba 119 of Act dealt with representation of Karnataka State Chartered Accountants Association (supra) consequent to directions of om Karnataka High Court was prior to CBDT's order passed today, i.e. 30th September, 2015. Consequently, order passed on representation of Karnataka State Chartered Accountants Association (supra) would stand diluted even if not entirely wiped out, consequent to B subsequent orders passed today under Section 119 of Act by CBDT. order dated 29th September, 2015 accepted fact that due date in case of non audited case covered by ITR Form Nos. 1,2,2 and 4 S, due date for E filing should extend from 31 st July, 2015 to 7th September, 2015. Mr. Suresh Kumar, learned Counsel appearing for S.R.JOSHI 8 ::: Uploaded on - 01/10/2015 ::: Downloaded on - 16/10/2015 11:23:31 ::: WPL-2764-2015 Revenue in absence of instructions sought to contend that that there was sufficient time of Chartered Accountants in filing returns for rt Assessment Years 2015 16 having due date of 30th September, 2015. This, ou however yet does not explain reasons why delay of 83 days in notifying ITR Form Nos,1,2,2 and 4 S would justify extending time while delay of 120 days in notifying ITR Form Nos. 3,4,5,6 and C 7 does not warrant extension of time. 18 It may be pointed out that even Delhi High Court in h case of Avinash Gupta (supra) while not entertaining Petition, seeking extension of due date did observe in paragraph 22 as under: ig 22: Notwithstanding having held so. I am of view that there is some merit if not legal then otherwise, in grievances H of Petitioner. counsel for respondents appearing on advance notice is unable to give reasons for forms etc. being not available at beginning of assessment year on 1st April of every year and same thereby causing y inconvenience to practitioners of subject. There is sufficient time available to Government, after Finance ba Act of financial year, to finalize forms and if no change is intended therein, to notify of same immediately. There appears to be no justification for delay beyond assessment year in prescribing said forms. Accordingly, though not om granting any reliefs to petitioner for current assessment year, respondents are directed to, with effect from next assessment year, at least ensure that forms etc. which are to be prescribed for Audit Report and for filing ITR are available as on 1st April of assessment year unless there is B valid reason therefor and which should be recorded in writing by respondents themselves, without waiting for any representations to be made. respondents, while doing so, to also take decision whether owing thereto any extension of due date is required to be prescribed and accordingly notify public. From aforesaid observations of Delhi High Court, it is S.R.JOSHI 9 ::: Uploaded on - 01/10/2015 ::: Downloaded on - 16/10/2015 11:23:31 ::: WPL-2764-2015 clear that it was also of view that CBDT should make available necessary ITR Forms on 1st April of subject Assessment Year for rt benefit of assessee. However, in case, there is any delay, same ou should be recorded in writing and also consider whether in view of delay, extension of time in filing return is warranted. C 19 It may be noted that despite sufficient time being available, Respondent Revenue has chosen not to file any affidavit in reply. It is in this view of matter, we are at this stage unable to consider all h aspect of matter which may arise in present case. However, taking into account fact that decision of Gujarat High Court and ig Punjab and Haryana High Court have been accepted by CBDT issuing orders under Section 119 of Act but very unfairly in case of all H India Statute restricting its benefit to only two States and one Union Territory. This itself warrants extension of due date to same date as is available for assessees in Gujarat, Punjab and Haryana to avoid any y discrimination to assessees else where. Moreover, we find ourselves in ba agreement with reasons given by Gujarat High Court in All Gujarat Federation of Tax Consultants (supra) as also decision of Punjab om and Haryana High Court in Vishal Garg (supra). We, therefore, pass following order: (i) Respondent No.2 i.e. CBDT is directed to forthwith issue B order/ notification under Section 119 of Income Tax Act and extend due date for E filing of Income Tax Returns in respect of assessee who are required to file return of income by 30th September, 2015 to 31st October,2015; S.R.JOSHI 10 ::: Uploaded on - 01/10/2015 ::: Downloaded on - 16/10/2015 11:23:31 ::: WPL-2764-2015 (ii) It is made clear that at this stage we have not opined on any other issue except to extent of aforesaid directions. It is made rt clear that this order will not affect any other obligation that may ou arise under Act. (G.S.KULKARNI,J.) (M.S.SANKLECHA,J.) C h ig H y ba om B S.R.JOSHI 11 ::: Uploaded on - 01/10/2015 ::: Downloaded on - 16/10/2015 11:23:31 ::: WPL-2764-2015 CERTIFICATE rt Certified to be true and correct copy of original signed ou Judgment/Order. C h ig H y ba om B S.R.JOSHI 12 ::: Uploaded on - 01/10/2015 ::: Downloaded on - 16/10/2015 11:23:31 ::: TheChamberofTaxConsultants &Others v. UnionofIndia &Other