Status of Petition filed in High Courts for extension of due date for audit ITRs for AY 2018-19. Gujarat, Delhi, Allahabad, Rajasthan and Keral High Court…Would History repeat itself?
CBDT has Extended ITR Tax Audit filing due date for AY 2018-19 to 31st October 2018. As per the order, liability to pay interest u/s 234A of Income Tax Act will remain payable. Download CBDT order u/s 119 Click Here >>
31.10.2018 Breaking —— Gauhati High Court asks CBDt to file Counter in the motion of Tax Bar Association motion against CBDT order denying further extension
What would be the fate of the Petitions filed ?
Now the natural question that rises is what would be the fate of the various Petitions filed in view of extension to 31.10.2018?
Naturally, when the Petitions would come up for admission/hearing, the Standing Counsel of the Government would argue that the Petitions have become infructuous in view of the further extension to 31.10.2018 and be disposed off as such.
Here, the Petitioners may choose any one of the following strategies:
(a) The Petitioners may agree with Government and either withdraw the Petition and let it be disposed off by the Court.
(b) The Petitioners may argue on the levy of interest u/s 234A as unfair and request the Court to quash that part of the order i.e. extension without interest liability.
Status of the Petitions filed in High Courts for Extension
|1. Gauhati High Court||
Tax Bar Association
31.10.2018-High Court has issued notice to CBDT to file Counter within 3 weeks.
The matter relating to tax audit extension was moved before the Hon’ble Gauhati High Court today.
It was argued on behalf of the tax Bar Association by advocates D Saikia and Ms. M L Gope that the frequent changes in the utility and schema and various amendments made in Form 3CD after 01.04.2018 have made it practically difficult for the accountants to file the tax audit report within 31.10.2018. Further there are penalty and even prosecution in respect of a CA for filing false TAR( tax audit report). Further interest provisions have also not been waived for the extended period.
It was argued on behalf of the CBDT that the TAR can still be filed by payment of penalty of Rs. 5,000.
The Hon’ble Court after hearing both sides have been pleased to issue notice in the case and asked the respondents including CBDT to file its reply in the matter.
The matter shall now be taken up for hearing after the filing of reply by the respondents The motion was made with reference to the earlier direction issued by the Court to the CBDT for consideration of the request of the Association for further extension.
|2. Allahabad High Court||
Lucknow CA Tax Practitioners Association
A Division Bench of Hon’ble Allahabad High Court in a PIL filed LCTPA by has issued notice to CBDT on the issue of levy of interest 234A despite due date extension
Earlier the PIL was dismissed as nobody appeared on behalf of the petitioner to press the petition. The petition was dismissed in view of the CBDT order making it infructuous as having lost its efficacy for extension
|3. Kerala High Court||
Plywood and Allied Products Dealers Association Of India
On 30.11.2018 the hearing adjourned to 06-12-2018
|4. Delhi High Court||
Northern India CA Federation
The Writ Petition was heard on 25/09/2018 by a Division Bench.
In view of the order of the CBDT, the appeal was not accepted but on the issue of interest u/s 234A notice has been issued to CBDT. Read the Order >>
In the request of CBDT the hearing has been adjourned to last week of January 2019
|5. Kerala High Court||
Association of Tax Practitioners and Hindu Economic Forum
The Court opined that the assessee may pay the interest without prejudice to the contentions raised with regard to the illegality of such levy of interest. In case the petitioner is found not liable to make such interest the department shall refund such interest.
On 28.11.2018, case has been adjourned for two weeks for filing Counter Affidavit
|6. Kerala High Court||
All Kerala Chartered Accountants Association and Shri S. K. Sunil kumar
The writ petition was filed praying an extension to 31.12.2018.
The High Court observed that the Petitioners have also represented the matter of further extension to CBDT .
The Court directed CBDT to consider the issue and pass appropriate order before 15.10.2018
Read Order Click Here >>
|7. Punjab & Haryana High Court||
Petitioner: Vishal Garg
The Court acceded to the request of the Government Counsel that in view of the CBDT order extending due date from 30th September, 2018 to 15th October, 2018, the writ petition has become infructuous. Accordingly the writ was dismissed.
|8. Rajasthan High Court||
In the Writ Petition filed by the Rajasthan Tax Consultants Association, the Rajasthan High Court has directed CBDT to consider further extension of 15 days and waiver of 234A interest by passing a speaking order before 10.10.2018
|9. Delhi High Court||
Foundation of Tax & Accounting Professionals
The Petition was withdrawn in view of the CBDT Order extending the due dates to 31.10.2018
|10. Gujarat High Court||
All Gujarat Federation of Tax Consultants
The High Court in view of that CBDT has granted extension till 31.10.2018 for filing returns and accompanying documents disposed off the Petiition as not pressed. Read Order >>
Earlier, the case was adjourned to 11th October 2018 on the same lines as directed by Rajasthan High Court (i.e. CBDT to consider the representation and pass order on or before 10.10.2018
Hearing the Petition, the Court issued notice to the Government/CBDT to consider genuine hardship faced by the assessees and take into account the representations of CAs.
|11. Gauhati High Court||
Tax Bar Association
The Court has disposed off the petition filed by the with the direction to CBDT to consider on or before 25.10.2018 the further extension of due date for filing return to 31.12.2018, by issuing a speaking order so that in the event the petitioners are aggrieved by the order that may be passed, they would have the liberty to approach the Court again.
For those who might not be familiar with proceedings of the High Court, the likely course is as under:
(a) The Hon’ble High Court would hear the petition and may dismiss it as devoid of any merit or admit it.
(b) Mere admission of Petition, do not give any relief to any party, unless an interim relief has been claimed in the Petition and the Court deems it fit to grant it.
(c) Since the due date of 30th Sep, 2018 has not expired yet, the Court is unlikely to give any quick relief.
(d) After admission, the Court would issue notice to the respondents (i.e. CBDT / Union of India or other parties in the Petition as the case may be) to file their counter reply within such time as the Court thinks appropriate keeping in view the deadline.
(e) Immediately after the Counter is filed, arguments can be heard by the Court.
(f) After hearing the arguments,
(i) the Petition may be disposed off as dismissed.
(ii) The Petition may be allowed granted such relief (including extension) as the Court may deem fit.
Petition filed in Gujarat HC for extension of due date for filing ITR/TAR – Would history repeat?
The arrogance and adamant approach of the Revenue is unchanged and 2018 appear to be no exception to 2015 when the CBDT was forced to extend the due dates in view of the orders of various High Courts
A Writ Petition has been filed in the Hon’ble Gujarat High Court for extension of the due date for filing Tax audit report u/s 44AB and ITRs for AY 2018-19.
The petition in Gujarat High Court are followed by Petition in Delhi High Court and Allahabad High Court. Scroll down to see latest update / news on the status of the Petitions and their fate.
An arrogance Story – 2015 to 2018
In 2015, the Delhi High Court had directed CBDT that with effect from assessment year 2016-17, ensure that income tax returns/utility software for filing TAR to be filed along be available as on 1st April of the assessment year unless there is a valid reason therefor and which should be recorded in writing by the Board, without waiting for any representations to be made. It was further directed that the CBDT, while doing so, shall also take a decision whether owing thereto any extension of the due date is required to be prescribed and accordingly notify the public.
In yet another Petition for the AY 2015-16, the CBDT admitted before the Hon’ble Punjab and Haryana High Court that since returns in ITRs 4, 5 and 6 were mandatorily required to be e-filed, no assessees in these categories could have filed their returns of income before they were made vailable.
The Hon’ble High Court opined that the CBDT has not only to see the public interest for so doing but also for avoiding the genuine hardship in any particular case or class of cases powers u/s 119 can be exercised.
The Hon’ble High Court observed that it was not disputed that the forms were not available on the very first day of the assessment year as required. The Revenue could not furnish any satisfactory explanation or justification for not prescribing Forms 4, 5 and 6 prior to Ist, 2nd and 7th August, 2015 respectively.
The Hon’ble High Court rejected the plea of the department that there were only minor changes in the forms as not justified and extended the dates holding that the period required for e-filing of the return was not reasonable.
However, the CBDT could not digest the judgment and on 30th Sep, 2015 passed order u/s 119 extending the due dates only for the assessees in the jurisdiction of the High Court.
Not only this, the CBDT showed intention to challenge the judgment of the Punjab and Haryana High Court in the Hon’ble Supreme Court. The order passed u/s 119 specifically mentioned that the extension was subject to the outcome of SLP/appeal which CBDT may file before the Apex Court.
In a Writ filed by the All Gujarat Federation of tax Consultant before the Hon’ble Gujarat High Court, the CBDT argued that due date should not be extended just for the benefit of those who have remained lax till now for no valid reason in discharging their legal obligations. However the Hon’ble High Court noted that despite the fact that ordinarily the ITR Forms which should be prescribed and made available before the 1st of April of the assessment year, had in fact, been made available only on 7th August, 2015 and the assessees were given only seven weeks to file their tax returns.
The Hon’ble High Court pointed out that therefore, laxity, if any, evidently was on the part of the CBDT which was responsible for the delay in making the utility for E-Filing the return being made available to the assessees.
The Hon’ble High Court commented that when the default lies at the end of the CBDT, some grace could have been shown by the Board instead of taking a stand that such a trend may not be encouraged. Had it not been for the laxity on the part of the respondents in providing the utilities, there would not have been any cause for the petitioners to seek extension of the due date for filing tax returns.
The Hon’ble High Court ordered CBDT to issue notification under section 119 extending the due date for e-filing of the income tax returns.
This is how the CBDT that adopted a adamant approach bowed down and extended the due dates for AY 2015-16 finally.
It can be seen that for the AY 2018-19, the CBDT notified the Formats on 3rd April, 2018. However, all ITR filing utilities were made available for filing not before 26/05/2018. Since than there has been frequent changes/updations in the utilities and schemas of ITR and TAR.
Apart from the above, the flood in many States apart from Kerala is also a factor that would weigh with the Court.
Therefore in view of the stand of the various High Courts, the CBDT is for sure at the receiving end again and extension by the Court if not by the CBDT/Government itself to avert embarrassment is the most likely outcome.
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