Swatarup Banerjee & Ors. v. Income-tax Officer (HQRS)-8, Kolkata & Ors
[Citation -2020-LL-0930-97]

Citation 2020-LL-0930-97
Appellant Name Swatarup Banerjee & Ors.
Respondent Name Income-tax Officer (HQRS)-8, Kolkata & Ors.
Court HIGH COURT OF CALCUTTA
Relevant Act Income-tax
Date of Order 30/09/2020
Judgment View Judgment
Keyword Tags retrospective effect • undisclosed income • extension of time • reasonable time • additional tax • surcharge • suo motu • due date • penalty
Bot Summary: Mr. Basu Chowdhury, learned Counsel appearing for the petitioner, submits that the issue relates to the non-payment of the third instalment by the petitioner under the Income Tax Declaration Scheme, 2016. The petitioner, although having declared his income under Section 183 of the Finance Act, 2016 and, such declaration having been acknowledged by the Revenue Authority, the petitioner was called upon to pay additional tax plus surcharge and penalty in three instalments. The representation left undecided and arrears of tax, surcharge plus penalty mounting in the meantime, the petitioner filed the present writ petition. The petitioner claims parity of treatment under the said Notification dated 13th December, 2019 on the ground that such was issued coterminous for the period when this writ petition was pending and, without the leave of the Hon ble Court neither the petitioner nor the concerned Revenue Authority could suo motu take recourse to the said Notification. Mr. Trivedi, learned Counsel appearing for the Revenue Authority, submits that the ramifications connected to the said Notification dated 13th December, 2019 qua the petitioner are required to be assessed on facts by the Respondent no.2/the Principal Commissioner of Income Tax. In exercise of the powers conferred by the proviso to sub-section of section 187 of the Finance Act, 2016, the Central Government hereby specifies that the persons who have made a declaration under sub-section of section 183, but have not made payment of the tax and surcharge payable under section 184 of penalty payable under section 185 of the said Act, in respect of the undisclosed income, on or before the due date notified by the Central Government vide notification number S.O. 1830(E), dated the 19th May, 2016, (as subsequently amended vide notification number S.O. 2476, dated the 20th July, 2016), may make the payment of such amount on or before the 31st day of January, 2020, along with interest on such amount, at the rate of one per cent. For every month or part of a month comprised in the period commencing on the date immediately 5 following the said due date as so notified and ending on the date of such payment.


ORDER SHEET WPO/230/2018 IA NO: GA/1/2020 (Old No.:GA/2563/2018) GA/2/2020 IN HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE SHRI SWATARUP BANERJEE & ORS. Versus INCOME TAX OFFICER (HQRS)-8, KOLKATA & ORS. BEFORE: Hon'ble JUSTICE SUBRATA TALUKDAR Date : 30th September, 2020. For Petitioners : Mr. Raja Basu Chowdhry, Adv. For Respondents : Mr. Dhiraj Kumar Trivedi, Adv. Party/parties is/are represented in order of their name/names as printed above in cause title. By order dated 24th September, 2020, this Court permitted learned Counsel appearing for Revenue Authority to revert on next date with appropriate instructions connected to Notification dated 13th September, 2019 and numbered as S.O. 4455(E) of Ministry of Finance, Department of Revenue, Government of India (for short, said Notification). Thereafter, on same date, in presence of learned Counsel for both petitioner and for Revenue Authority and by consent of parties, 2 this Court directed matter to appear today at first sitting. Such direction was passed considering fact that matter stands Assigned before this Bench. Mr. Basu Chowdhury, learned Counsel appearing for petitioner, submits that issue relates to non-payment of third instalment by petitioner under Income Tax Declaration Scheme, 2016. third instalment was required to be paid on and by 30th September, 2017. petitioner, although having declared his income under Section 183 of Finance Act, 2016 and, such declaration having been acknowledged by Revenue Authority, petitioner was called upon to pay additional tax plus surcharge and penalty in three instalments. petitioner has admittedly paid first two instalments but, due to his illness, claims to have been unable to pay third instalment within period initially prescribed. Mr. Basu Chowdhury relies on representation of petitioner submitted on 4th December, 2017 as addressed to respondent no.2/the Principal Commissioner of Income Tax, seeking extension of time to pay third instalment. representation left undecided and arrears of tax, surcharge plus penalty mounting in meantime, petitioner filed present writ petition. 3 Today, Mr. Basu Chowdhury relies on Notification dated 13th December, 2019 to submit that Revenue Authority, in its wisdom, has decided to extend period for completing payments under declarations made by assessees vide sub-Section (1) of Section 183 of Finance Act, 2016. Such payment is required to be completed on and by 31st January, 2020, together with applicable interest. Learned Counsel for petitioner further points out that for benefit of assessees said Notification has been given retrospective effect. petitioner, therefore, claims parity of treatment under said Notification dated 13th December, 2019 on ground that such was issued coterminous for period when this writ petition was pending and, without leave of Hon ble Court neither petitioner nor concerned Revenue Authority could suo motu take recourse to said Notification. Additionally, for reasons too obvious to state connected to present pandemic, matter could not be earlier taken up at convenience of all parties by this Court. Mr. Trivedi, learned Counsel appearing for Revenue Authority, submits that ramifications connected to said Notification dated 13th December, 2019 qua petitioner are required to be assessed on facts by Respondent no.2/the Principal Commissioner of Income Tax. Such 4 exercise, if directed by Court, could be done within reasonable time period. Having heard parties and considering materials placed this Court, for benefit of this discussion and direction to follow, finds it appropriate to fully reproduce below this Notification dated 13th December, 2019 for convenience of all parties : S.O. 4455(E). In exercise of powers conferred by proviso to sub-section (1) of section 187 of Finance Act, 2016 (28 of 2016), Central Government hereby specifies that persons who have made declaration under sub-section (1) of section 183, but have not made payment of tax and surcharge payable under section 184 of penalty payable under section 185 of said Act, in respect of undisclosed income, on or before due date notified by Central Government vide notification number S.O. 1830(E), dated 19th May, 2016, (as subsequently amended vide notification number S.O. 2476 (E), dated 20th July, 2016), may make payment of such amount on or before 31st day of January, 2020, along with interest on such amount, at rate of one per cent. for every month or part of month comprised in period commencing on date immediately 5 following said due date as so notified and ending on date of such payment. 2. This notification shall be deemed to have come into force with effect from 1st day of June, 2016. [Notification No.103/2019/F. No.370149/159/2019-TPL] ANKUR GOYAL, Under Secy. Explanatory Memorandum. It is hereby certified that no person is being adversely affected by giving retrospective effect to this notification. This Court is also of view that neither Revenue Authority nor petitioner could act during period prescribed by said Notification without leave of Hon ble Court. This Court is of further view that prayer of petitioner for extension of time deserves to be attended to by Revenue Authority under Notification dated 13th December, 2019 since such prayer was live and pending during period of subsistence of Notification entitling petitioner to retrospective consideration. In backdrop of above discussion, on particular facts of this case, issue is remanded to respondent no.2/the Principal Commissioner of Income Tax to consider same on merits in context of observations made hereinabove. It is expected that above 6 directed exercise shall be completed not later than period of six weeks from date of communication of this order. W.P.O. No. 230 of 2018 along with its connected applications being GA/1/2020 and GA/2/2020 (Old No:GA/2563/2018) stand thus disposed of. (SUBRATA TALUKDAR, J.) K. Banerjee A.R. [C.R.] Swatarup Banerjee & Ors. v. Income-tax Officer (HQRS)-8, Kolkata & Or
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