ANOOP GARG vs. UOI AND ORS

[2024:RJ-JP:25517-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 2881/2001 Anoop Garg s/o Shri M.K. Garg, r/o B-73, Gautam Marg, Shyam Nagar, Jaipur ----Petitioner Versus 1. Union of India through the Chief Commissioner of Income Tax, New Central Revenue Building, Statue Circle, Jaipur. 2. The Commissioner of Income Tax, New Central Revenue Building, Statue Circle, Jaipur. 3. The Deputy Commissioner of Income Tax, Range 3 (1), New Central Revenue Building, Statue Circle, Jaipur. ----Respondents For Petitioner(s) : Mr. Anant Kasliwal, Sr. Advocate assisted by Mr. Vaibhav Kasliwal & Mr. Raghav Krishnatri For Respondent(s) : Mr. Anuroop Singhi with Mr. N.S. Bhati & Mr. Aditya Khandelwal HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MRS. JUSTICE SHUBHA MEHTA Order Order reserved on :: 06/03/2024 Order pronounced on :: 29/05/2024 (Per Shubha Mehta, J) 1. This civil writ petition has been filed against the order dated 22/28.02.2001, whereby the application under Section 264 of the Income Tax Act,1961 (for brevity-`the Act’) for processing return of income under Section 80 RRA of the Act on the remuneration received by the petitioner in foreign currency, was rejected.

[2024:RJ-JP:25517-DB] (2 of 8) [CW-2881/2001] 2. The petitioner, a Marine Engineer, filed a return of income for the assessment year 1996-97 on 08.08.1997 which was processed and accepted by the respondents. An intimation to that effect was given to the petitioner under Section 143 (1) (a) of the Income Tax Act, 1961 on 23.10.1997. In this original return, petitioner did not claim the deduction under Section 80 RRA of the Act on remuneration to the tune of Rs.1,23,279/- received in foreign currency for the services rendered by him on high seas. The petitioner filed revised return on 31.03.1998 claiming the deduction under Section 80 RRA of the Act. 3. Petitioner filed an application under Section 263 of the Act for revision of order dated 23.10.1997 and the same was dismissed by respondent No.2 on 13/14.03.2000 and it was suggested that the petitioner should file an application under Section 264 of the Act. 4. The application filed by the petitioner under Section 154 of the Act and the revised return filed by him on 31.03.1998 also came to be rejected on 05.04.2000 by respondent No.3. After that, the petitioner has filed an application under Section 264 of the Act on 15.05.2000 for revision of the order dated 23.10.1997 under Section 143 (1) (a) of the Act and prayed for the deduction under Section 80 RRA of the Act. This application was rejected by respondent No.2 vide order dated 22/28.02.2001. Aggrieved by this order, petitioner has filed this writ petition wherein he prayed that order dated 22/28.02.2001, 23.10.1997 under Section 143 (1) (a) and 05.04.2000 under Section 154 of the Act be quashed and set aside and petitioner be allowed to make appropriate deduction under Section 80 RRA of the Act.

[2024:RJ-JP:25517-DB] (3 of 8) [CW-2881/2001] 5. Learned counsel for the respondent filed reply to the writ petition and stated therein that the orders dated 22/28.02.2001, 23.10.1997 & 05.04.2000 passed by the authorities are strictly in accordance with the provisions of the Act. The original return was filed belatedly on 08.08.1997 instead of on or before 30.06.1996. This return was filed under Section 139 (4) of the Act and revised return of that is not permissible under Section 139 (5) of the Act. Petitioner himself had not claimed the deduction under Section 80 RRA of the Act in his original return. It is also stated in the reply that application under Section 264 of the Act was filed beyond the limitation period prescribed under Section 264 (3) of the Act. Petitioner's original return was processed and was accepted under Section 143 (1) (a) of the Act as per law. Petitioner cannot claim any deduction under Section 80 RRA of the Act, therefore, his writ petition is liable to be rejected. 6. We have heard learned counsel for the parties. 7. Learned counsel for the petitioner contended that the order dated 22/28.02.2001 is illegal and erroneous. His application under Section 119 (2) (b) of the Act for condonation of delay was not properly dealt with although the petitioner had explained the delay properly. He further argued that reasons given in the order are not convincing, deductions prescribed by law were not allowed only on technical grounds. It has wrongly been recorded in the order that delay was of two & a half years. 8. He further argued that it was the bounden duty of the respondents to see that the benefit under Section 80 RRA of the Act was available to the assessee. They failed in their duty and wrongly accepted the return on 03.10.1997 under Section 143 (1)

[2024:RJ-JP:25517-DB] (4 of 8) [CW-2881/2001] (a) of the Act. Reliance is placed upon the judgment of Delhi High Court in Commissioner of Income Tax (International Taxation)

Vs.

Heidrick

and

Struggies

INC. MANU/DE/5605/2023: ITA 396/2023, wherein it was held in para 14(iv) and 15 as under:- "14(iv). The CBDT's Circular No.14/1955 dated 11.04/1955 was applicable in the instant case, which, inter alia, casts a duty on the officers on the appellant/revenue to draw the attention of the assessee towards any relief that may be available to them, which the assessee may have inadvertently omitted to claim." "15. Having regard to the aforesaid, we are of the view that the Tribunal has taken a just view in consonance with the provisions of the Act and the aforementioned circular issued by the CBDT. Undoubtedly, the appellant/revenue can seek to levy tax only on income which falls within the ambit of the Act. Merely because the respondent/assessee placed the income under a wrong head, cannot possibly make it amendable to imposition of tax." 9. Per contra, learned counsel for the respondents argued that all the orders passed by the respondents are in consonance with the statutory provisions. He further argued that the original return for the assessment year 1996-97 was itself filed belatedly on 08.08.1997 as the last date prescribed was 30.06.1996. His original return of income was under Section 139 (4) of the Act. He argued that a revised return cannot be filed under Section 139 (5) of the Act when the original return has been filed under Section 139 (4) of the Act. 10. He further argued that the assessee himself had not mentioned his income received in foreign currency and had not claimed the deduction under Section 80 RRA of the Act in the original return.

[2024:RJ-JP:25517-DB] (5 of 8) [CW-2881/2001] 11. He further contended that delay in filing the original return cannot be condoned as there is no such provision in the Act and delay in filing the application under Section 264 of the Act has rightly not been condoned and reasons for that are given in impugned order dated 22.2.2001. Revised return filed by the petitioner was invalid and the deductions claimed therein under Section 80 RRA of the Act cannot be allowed, hence this writ petition deserves to be dismissed. 12. Learned counsel for the respondents further argued that the petitioner could not have been allowed the deduction on the basis of the statutory provisions which are plain and unambiguous and the petitioner cannot be afforded benefits on the ground of equity. Reliance is placed on the judgment of Hon’ble Supreme Court in Kumar Jagdish Chandra Sinha (Dead) Through LRs Etc. Vs. Commissioner of Income Tax: (1996) 86 TAXMAN 0122 wherein, in para 9 and 12, it was held as under: "9. The first question is whether a person who files return under Section 139 (4) is entitled to file a revised return before the assessment is made. We think not. The furnishing of a revised return is provided by sub-Section (5) of Section 139. According to this sub-Section "any person having furnished a return under sub-Section (1) or sub- Section (2)" may furnish a revised return at any time before the assessment is made if he discovers any omission or any wrong statement in the original return. The very fact that this right is given to a person who has filed a return under sub-Section (1) or sub-Section (2) of Section 139 means by necessary implications that such a right is denied to a person who files the return under Section 139 (4). The High Court has, however, taken the other view relying upon the language of cl. (c) of sub-Section (1) of Section 153. Sub-Section (1) of Section 53 prescribes the time limits for completing the assessment. In the present case, it is not in dispute, the period allowed for making the assessment is four years from the end of the relevant assessment as provided by Section 153(1) (a) (i). Section 153 (1) (c) provides an alternate period of limitation. It says that if the assessment is

[2024:RJ-JP:25517-DB] (6 of 8) [CW-2881/2001] made before "the expiry of one year from the date of the filing of return or a revised return under sub- Section (4) or sub-Section (5) of Section 139" it would yet be within limitation notwithstanding the fact that it may be barred under other provisions contained in sub-Section (1) of Section 153. The High Court is of the opinion that language employed in Clause (c) of Section 153 (1) contemplates the filing of a revised return even in a case where original return is filed under sub-Section (4). We find it difficult to agree. Clause (c) employ both the expressions return and revised return and refers to both the sub-Sections (4) and (5) of Section 139. Reasonably read it means the return filed under sub-Section (4) and the revised return filed under sub-Section (5) of Section 139. It would not be reasonable to construe the said clause as indirectly conferring the right which is not conferred directly by sub-Section (5) of Section 139." "12. For the above reasons, the appeals are allowed. Question No.1 is answered in the affirmative holding that in case of a return filed under sub-Section (4) of Section 139, a revised return contemplated by sub-Section (5) of Section 139 cannot be filed." 13. Reliance is further place on the judgment of Bombay High Court in Menezes Fernandes Enterprises Vs. Income Tax Officer: (2013) 215 TAXMAN 0241 wherein, in para 7 and 8, it was held as under:- "7. Perusal of the said section as it existed then and more particularly sub clause 5 of the above provision clearly stipulates that it is applicable in respect of applications which are files under Section 139 sub clause 1 and 2. It does not make any reference to a delayed return or a return filed after the stipulated time, as envisaged under Section 139 (4)." "8. In view of the above, the benefits of sub clause 5 of Section 139 would not apply to the applications which are filed under Section 139 (4) of the said Act. Learned counsel appearing on behalf of the appellant had laid much emphasis on the provisions of sub clause 5 and, more particularly, on the last portion which reads as under: "he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before completion of the assessment, whichever is earlier". It was contended that in the present case admittedly, the order of assessment was not served on the appellant and, therefore, the provisions of sub clause 5 were clearly attracted in favour of the appellant. We are unable to accept the said submission when sub clause 5 has

[2024:RJ-JP:25517-DB] (7 of 8) [CW-2881/2001] to be read in context with the other provisions of the said section. In the present case, it is an admitted position where the appellant had not furnished the return within time allotted to him under sub sections (1) and (2) and therefore, his case clearly falls within the provision of Section 139 (4). Section 139 (5) merely stipulates that it is applicable to any person who has furnished the return under sub sections (1) or (2). In the present case, therefore, if the appellant had filed the return in time, and thereafter had filed a rectified return, he could be permitted to do so under the said provision. Therefore, from the aforesaid provisions it can be seen that the Legislature in its wisdom had intended to give the benefits of filing a revised return only to those persons who fall within the four corners of section 139 sub sections (1) and (2) of the said Act. If the legislature had intended to also give the same benefits to an assessee who had not furnished the return within time, it would have said so in sub clause (5). The very fact that sub clause 4 is not referred to in sub clause (5) clearly indicates the intention of the legislature." 14. We have considered the rival arguments and perused the record and judgments cited by the learned counsel for both the parties. 15. It is indisputed that the petitioner filed his original return of income for assessment year 1996-97 on 08.08.1997 belatedly by more than an year which was processed and accepted and intimation to that effect was given under Section 143 (1) (a) of the Act to the petitioner on 03.10.1997. In this original return, the petitioner himself had not mentioned his income received in foreign currency when he was on high seas and not claimed deduction under Section 80 RRA of the Act. When the petitioner himself had not mentioned the income received by him in foreign currency, it could not have been expected from the respondent officials to allow the deductions under Section 80 RRA of the Act. 16. The revised return filed by the petitioner on 31.03.1998 was not considered by the Assessing Officer for the reason that it was not a valid return as a belated return cannot be revised under

[2024:RJ-JP:25517-DB] (8 of 8) [CW-2881/2001] Section 139 (5) of the Act. Original return belatedly filed under Section 139 (4) of the Act and returns filed under Section 139 (4) of the Act cannot be revised under Section 139 (5) of the Act as held by the Hon'ble Apex Court in Kumar Jagdish Chandra Sinha (Dead) Through LRs Etc. Vs. Commissioner of Income Tax (1996) 86 TAXMAN 0122 & Bombay High Court in Menezes Fernandes Enterprises Vs. Income Tax Officer: (2013) 215 TAXMAN 0241. 17. Respondent No.3 has rightly not considered the return and also rejected the application under Section 154 by order dated 05.04.2000. The order rejecting revision under Section 264 of the Act passed by the respondent No.2 is a well-reasoned and speaking order and is based on the settled principles of law decided in the abovementioned judgments. 18. For these reasons, we do not find any illegality in the orders impugned dated 22/28.02.2001, 23.10.1997 & 05.04.2000. 19. Petitioner is not entitled to any relief on the basis of equity as the statutory provisions are plain and unambiguous. Equitable considerations have no place where the statute contains express provisions. The writ petition is therefore liable to be rejected. 20. Accordingly, the writ petition is dismissed. (SHUBHA MEHTA),J (PANKAJ BHANDARI),J LAKSHYA SHARMA/