Hawkins Cookers Ltd. v. Union of India
[Citation -2020-LL-0227-49]

Citation 2020-LL-0227-49
Appellant Name Hawkins Cookers Ltd.
Respondent Name Union of India
Court HIGH COURT OF DELHI AT NEW DELHI
Relevant Act Income-tax
Date of Order 27/02/2020
Assessment Year 2018-19
Judgment View Judgment
Keyword Tags business promotion • grant approval • research and development institution
Bot Summary: The ground for not approving the facility of the petitioner with effect from 01.04.2017 is that the petitioner had submitted Form 3CK only on 27.04.2018. The petitioner further asserts that the online portal of the respondent was not functioning between the period 08.03.2018 to at least 25.04.2018, when the application was submitted by the petitioner in the physical form. The said submission is made in Ground XI and XII of the petition, which are reproduced hereinunder: XI. Because the delay in filing Form 3CK was not intentional, for online portal of DSIR was not functional and during the period 8.3.2018 to 25.4.2018, Petitioner s Vice-Chairman Chief Executive Officer was out of India on a business promotion trip-to promote exports. In reply to the above averments, the respondent in its counter affidavit has not specifically denied the allegation of the petitioner with respect to the portal of the respondent not working has submitted that even the physical copies of the application forms were being accepted by the respondent. As the Managing Director of the petitioner was not available in India from 08.03.2018 till 25.04.2018, the Form 3CK could be submitted with the respondent in the physical form only on 27.04.2018. As noted hereinabove, the submission of the petitioner that the portal of the respondent was not working from 08.03.2018, has not been specifically denied by the respondent in its counter affidavit. In view of the above, on the petitioner satisfying the respondent of the reasons for non-submission of Form 3CK in physical form with the respondent on or before 31.03.2018, the respondent shall consider the request of the petitioner to condone the delay and grant approval to the petitioner under Section 35(2AB) of the Income Tax Act for the financial year 2017-18.


$ 13 * IN HIGH COURT OF DELHI AT NEW DELHI Date of Decision : 27.02.2020 + W.P.(C) 9586/2019 HAWKINS COOKERS LTD. MUMBAI Petitioner Through: Mr.Satyen Sethi, Mr.Arta Trana Panda, Ms.Gargi Sethee, Advs. versus UNION OF INDIA ..... Respondent Through: Mr.Anil Dabas, Mr.Chetan Sukla, Advs. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA, J. (Oral) 1. This petition has been filed by petitioner challenging order dated 16.04.2019 issued by respondent whereby Research and Development facility of petitioner, for purpose of Section 35(2AB) of Income Tax Act, 1961, has been approved only with effect from 01.04.2018. 2. It is claim of petitioner that same should have been approved with effect from 01.04.2017. WP(C) No.9586/2019 Page 1 3. ground for not approving facility of petitioner with effect from 01.04.2017 is that petitioner had submitted Form 3CK only on 27.04.2018. 4. Relying upon Clause 5(i) of Guidelines for approval in Form 3CM under Section 35(2AB) of Income Tax Act, 1961, respondent contends that application seeking approval in Form 3CK should have been filed on or before 31.03.2018 for approval to be granted from 01.04.2017. Reliance in this regard is made on judgment dated 20.04.2010 passed by Division Bench of this Court in WP(C) No.13338/2009, titled Apollo Tyres Ltd., Kochi vs. Union of India. 5. On other hand, learned counsel for petitioner submits that Clause 6 of Guidelines requires application (Form 3CK) to be submitted online. petitioner further asserts that online portal of respondent was not functioning between period 08.03.2018 to at least 25.04.2018, when application was submitted by petitioner in physical form. said submission is made in Ground XI and XII of petition, which are reproduced hereinunder: XI. Because delay in filing Form 3CK was not intentional, for online portal of DSIR was not functional and during period 8.3.2018 to 25.4.2018, Petitioner s Vice-Chairman & Chief Executive Officer was out of India on business promotion trip-to promote exports. Affidavit of WP(C) No.9586/2019 Page 2 Mr.Jayanta Kumar Chakrabarti, Senior Vice President, Research & Development, of Petitioner is annexed herewith and marked as Annexure P-10. XII. Because Form 3CK could not be filed online as stipulated in guidelines of DSIR because of technical glitch in DSIR portal. After repeated attempts to file online and not able to do so, hard copy was filed on April 27, 2018. Hard copy of Form 3CK was filed immediately on return of Vice Chairman & CEO from business trip abroad as said Form 3CK had to be signed by Head of organisation as stipulated in guidelines of DSIR. In circumstances, DSIR ought to have condoned delay of 27 days. 6. In reply to above averments, respondent in its counter affidavit has not specifically denied allegation of petitioner with respect to portal of respondent not working, however, has submitted that even physical copies of application forms were being accepted by respondent. 7. petitioner in answer asserts that in accordance with Clause 8 of Guidelines, Form 3CK, in physical form, could have been submitted only under signatures of Managing Director. As Managing Director of petitioner was not available in India from 08.03.2018 till 25.04.2018, Form 3CK could be submitted with respondent in physical form only on 27.04.2018. WP(C) No.9586/2019 Page 3 8. I have considered submissions made by learned counsels for parties. 9. As noted hereinabove, submission of petitioner that portal of respondent was not working from 08.03.2018, has not been specifically denied by respondent in its counter affidavit. This Court in its judgment dated 12.12.2019 passed in WP(C) No.8317/2019, titled Vision Distribution Pvt. Ltd. vs. Commissioner, State Goods & Services Tax & Ors., though in relation to Goods and Service Tax regime, has observed as under: rights of parties cannot be subjugated to poor and inefficient software systems adopted by Respondents. software systems adopted by Respondents have to be in tune with law, and not vice verse. system limitations cannot be justification to deny relief, to which Petitioner is legally entitled. We, therefore, reject hyper technical objections sought to be raised by Respondents to effect, that no refund can be granted, because system did not reflect any credit lying in ITC ledger of Petitioner for months of July and August, 2017. If that is so, it is entirely Respondents making. In fact, to permit Respondents to get away with such argument would be putting premium on inefficiency. We therefore, reject submission. 10. Clause 6 of Guidelines prescribes that application that is Form 3CK needs to be submitted online. It seems that only because portal of respondent was not working, respondents decided to accept application even in physical WP(C) No.9586/2019 Page 4 form, however, for reasons mentioned hereinabove, petitioner could not submit application in physical form in time. At same time, petitioner cannot be denied grant of approval under Section 35(2AB) of Income Tax Act on such hyper technical ground. 11. In view of above, on petitioner satisfying respondent of reasons for non-submission of Form 3CK in physical form with respondent on or before 31.03.2018, respondent shall consider request of petitioner to condone delay and grant approval to petitioner under Section 35(2AB) of Income Tax Act for financial year 2017-18. petitioner in this regard shall be entitled to make representation to respondent, which shall be considered by respondent within four weeks of receipt of such representation. Mere absence of provision for condoning such delay, shall not be ground for rejecting representation of petitioner inasmuch as it is not denied that portal of respondent was not functioning from 08.03.2018. 12. petition is disposed of with above directions. NAVIN CHAWLA, J FEBRUARY 27, 2020 RN WP(C) No.9586/2019 Page 5 Hawkins Cookers Ltd. v. Union of India
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