Karnataka High Court
Mangilal S. Jain vs Commissioner Of Income Tax And Anr. on 7 January, 2004
Equivalent citations: (2004)187CTR(KAR)315, [2004]267ITR693(KAR), [2004]267ITR693(KARN), 2004 AIR - KANT. H. C. R. 1039, 2004 TAX LR 503, (2004) 57 KANTLJ(TRIB) 198, (2004) 267 ITR 693, (2004) 180 TAXATION 706, (2004) 136 TAXMAN 267, (2004) 187 CURTAXREP 315
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. SHYLENDRA KUMAR, J.
1. Petitioner, an assessee under the IT Act, 1961 ('the Act' for short), sought to avail of the benefits of the Kar Vivad Samadhan Scheme, 1998 ('the Scheme' for short), as formulated by Finance (No, 2) Act of 1998.
2. The brief facts leading to the filing of the above petition which are not in dispute are that the assessee had invoked the provisions of the Scheme, that determination of the amount payable under Section 88 of the Scheme had been made and communicated to the assessee and that the assessee paid the amount six days beyond the permitted period of thirty days as is required under Sub-section (2) of Section 90 of the Scheme. The CIT, Hubli, the designated authority to pass orders and issue certificates as contemplated under Sub-section (2) of Section 90 of the Scheme having noticed that the payment had been made six days beyond the permitted time of thirty days, having declined to issue the certificate contemplated under Sub-section (2) of Section 90 of the Scheme as per his order dt. 10th Feb., 2003 (copy at Annex.-B) petitioner is before this Court questioning the legality of this communication at Annex.-B.
3. Sri M.V. Javali, learned counsel appearing for the petitioner, has put forth several contentions urging that the impugned order is not one valid in the eye of law and requires to be quashed and that a direction is to be issued to the designated authority to accept the amount of tax that the petitioner has paid and for issuing a certificate contemplated under Sub-section (2) of Section 90 of the Scheme.
4. In this regard, learned counsel for the petitioner has submitted that the provisions of Sub-section (2) of Section 90 of the Scheme is required to be interpreted in this case, particularly the meaning attributed to the word "shall" used in Sub-section (2) of Section 90 of the Scheme. Section 90(2) of the Scheme reads as under:
"90(2): The declarant shall pay, the sum determined by the designated authority within thirty days of the passing of an order by the designated authority and intimate the fact of such payment to the designated authority along with proof thereof and the designated authority shall thereupon issue the certificate to the declarant."
5. It is the submission of Sri Javali, learned counsel for petitioner, that the word "shall" should be interpreted as 'may' and a little leeway should be required to be allowed to the provisions in the matter of payment of the sum determined by the designated authority within thirty days and the delay of six days in making that payment was a justifiable delay according to the petitioner; that the petitioner had a valid and convincing explanation for the delay and having regard to the objects of the Scheme that it is meant to provide succour to the assessees and expedite the collection of revenue to the State, such an interpretation should be given to the provisions of the scheme so as to accept payment even after a delay of six days beyond the thirty days, to further the objects of the scheme and, therefore, the impugned order of the designated authority requires to be quashed and necessary directions issued to the respondents. In this regard, learned counsel for the petitioner has placed reliance on the following decisions:
(1) Vijay Omprakash Bansal v. CIT (2002) 257 ITR 649 (Bom) (2) Hemalatha Gargya v. CIT and Anr.
(3) Banwarilal Agarwalla v. State of Bihar and Ors. .
6. Though no doubt the decision of the Division Bench of the Bombay High Court is directly on the point and on the interpretation sought to be placed on the word "shall" occurring in the very provision, this view of the Bombay High Court has not been followed by other High Courts including our High Court. The Division Bench of the Bombay High Court was mainly persuaded by the fact that a Division Bench of the Punjab & Haryana High Court in the case of Smt. Laxmi Mittal v. CIT , while interpreting the provisions of Voluntary Declaration of Income Scheme, 1997, has taken the view that the stipulation of time required under that Scheme should not be held mandatory and a delay of three days could be condoned and this view of the Punjab & Haryana High Court had been followed by a learned Single Judge of the Madras High Court in E. Prahlatha Babu v. CIT (2000) 241 ITR 457 (Mad). The very decision of the Punjab & Haryana High Court was again -followed by another learned Single Judge of the Madhya Pradesh High Court in Sardar Machhi Singh v. CIT and Anr. , in a case arising under the very Kar Vivad Samadhan Scheme, 1998. That decision of the learned Single Judge of the Madhya Pradesh High Court having been rendered in favour of the assessee, and the Revenue having carried the matter to Supreme Court by way of a special leave petition and having failed in securing special leave, was a matter which weighed heavily with the learned Judges constituting the Division Bench of Bombay High Court who rendered decisions in Vijay Omprakash Bansal's case (supra) and the learned counsel for petitioner submits that in view of the rejection of the special leave as against this decision of the Bombay High Court also, this Court should follow the view taken by the Bombay High Court interpreting the very provision of the Scheme.
7. It is now well settled and clear law that rejection of a special leave petition does not amount to affirmation of a view taken by a High Court nor does it amount to laying down of law by the Supreme Court. The view taken by the Punjab & Haryana High Court in Laxmi Mittal's case (supra) in fact has not been uniformly followed by other High Courts. Another Decision Bench of the very High Court has taken a different view in the case of Kamal Sood v. Union of India and Anr. . A Division Bench of the Andhra Pradesh High Court also, in the case of Vyshnavi Appliances (P) Ltd. v. CBDT and Anr. (2000) 243 ITR 101 (AP), refused to tow the line of Punjab & Haryana High Court as indicated in Laxmi Mittal's case (supra). The Kerala High Court, in the case of K. Dilip Kumar v. Asstt. CIT and Ors. , also preferred to take a strict view of the matter and differed from the liberal view that was propounded by the Punjab & Haryana High Court in Smt Laxmi Mittal's case (supra). So also our High Court in two decided cases namely, Smt Atamjit Singh v. CIT , which came to be affirmed by the Division Bench in the case of Smt Atmjit Singh v. CIT .
8. Another learned Single Judge of our High Court in Ranganatha Associates v. Union of India , following the ratio laid down by the Supreme Court in Hemalatha Gargya v. CIT (supra) has taken the view that the provisions of the Scheme have to be strictly viewed and there is no scope for any liberal interpretation of the Scheme for extending the time-limit stipulated, under the Scheme itself.
9. The decision of the Supreme Court in Hemalatha Gargya v. CIT (supra) is directly on the point and the Supreme Court has positively held that there should be strict compliance with the provisions of the Scheme and there cannot be any relaxation by the Courts for the purpose of availing the benefit of the Scheme in favour of the assessee. The word "shall" also has been noticed and it has been categorically held that it is mandatory in nature and strict compliance is inevitable. Same principle equally applies while understanding and interpreting the word "shall" occurring in Section 90(2) of the present Scheme. Though Sri Javali, learned counsel for petitioner, has placed reliance on another decision of the Supreme Court (supra), I am of the view that in the light of the decision in Hemalatha Gargya's case (supra), the interpretation as placed in Hemalatha Gargya's case is more apt as that is a decision involving the interpretation of the word "shall" occurring in a similar Scheme as involved in Kar Vivadh Samadhan Scheme, is apt and relevant for the present purpose and the ratio laid down by the Supreme Court in Banwarilal Agarwalla's case does not apply to the present case.
10. Sri M.V. Seshachala, learned Central Government standing counsel for IT Department appearing for the respondent has made submissions supporting the order of the designated authority and has also placed reliance on the decision of our High Court in Ranganatha Associates (supra), and decision of Hemalatha Gargya referred to above. I am of the view that while these two decisions fully support the submissions of the learned counsel for the Revenue, in fact the submission of Sri Javali, learned counsel for petitioner, falls to ground when the ratio of these decisions are applied to the facts of the present case and in the light of such ratio.
11. Kar Vivad Samadhan Scheme is a special Scheme enacted by Parliament. It seeks to give some special concessions. Time stipulations are provided for in the Scheme itself. In fact there is no ambiguity in the language and the words used in the provisions of Section 90 and relaxing any of the requirements purporting to be by way of interpretation only amounts to rewriting the provisions of the Scheme. It is to be noticed that these are all various Schemes promulgated for short periods and will be in operation for that duration only. Such Schemes should be strictly interpreted in terms of the Scheme itself and I am of the view that there is no scope for interpreting any of the provisions of the Scheme either to dilute the requirements of the Scheme or to enlarge the provisions so as to enlarge the benefits of the Scheme to the assessee.
12. A writ of certiorari as sought for cannot be issued for quashing the impugned order passed by the designated authority as the designated authority has acted in conformity with the statutory provisions. Nor a writ of mandamus can be issued to direct the designated authority either to relax the requirement of payment within thirty days stipulated under the Scheme or to direct the authority to issue a certificate under Section 90(2) of the Scheme for condonation of delay, as that will be clearly in contravention of the very statutory provisions. No mandamus can be issued to any statutory functionary beyond the provisions of law. Writ of mandamus does not lie for directing a statutory authority to function even beyond the provisions of a statute. In this view of the matter, the writs as prayed for cannot be issued.
13. Accordingly this writ petition is dismissed.