M/S UNIQUE SHELTERS PVT LTD vs. UNION OF INDIA

W.P.10798/12 c/w W.P.46400 & 46852-853/11

1 IN THE HIGH COURT OF KARNATAKA, BANGALORE

DATED THIS THE 31ST DAY OF JULY, 2013

BEFORE

THE HON'BLE MR.JUSTICE RAM MOHAN REDDY

WRIT PETITION NO. 10798 OF 2012 (T-IT) C/W WRIT PETITION NOS. 46400 & 46852-853 OF 2011 (T-IT)

BETWEEN:

M/S. UNIQUE SHELTERS PVT. LTD. # 1619, ROOM No. 1, MIDWAY INNS 6TH MAIN ROAD, E BLOCK AECS LAYOUT, KUDLAHALLI BANGALORE - 560 066 REP.BY ITS DIRECTOR MR. TARUN MOTTA … PETITIONER IN W.P. 10798/12

M/S. DEEPAK CABLES (INDIA) LTD., REP.BY MANAGING DIRECTOR # 7, N S IYENGAR STREET SHESHADRIPURAM BANGALORE - 560 020. REP. BY MANAGING DIRECTOR. … PETITIONER IN W.P. 46400 & 46852-853/11

(BY SRI. S R ANURADHA, ADVOCATE)

AND : 1 UNION OF INDIA

MINISTRY OF FINANCE

W.P.10798/12 c/w W.P.46400 & 46852-853/11

DEPARTMENT OF REVENUE

NORTH BLOCK

NEW DELHI.

2 COMMISSIONER OF INCOME TAX

(APPEALS – I)

CENTRAL CIRCLE

BANGALORE - 560 001. … RESPONDENTS COMMON

(BY SRI. KALYAN BASAVARAJ, ASG FOR R1 K V ARAVIND, ADVOCATE FOR R2)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF CONSTITUTION OF INDIA PRAYING TO TO DECLARE SEC. 80-AC OF THE INCOME TAX ACT 1961 INSERTED BY FINANCE ACT 2007 W.E.F. 1.4.06, AS UNCONSTITUTIONAL & ULTRA VIRUS THE CONSTITUTION OF INDIA AND GRANT INTERIM ORDER TO STAY THE APPLICATION OF SEC. 80-AC OF THE ACT WHILE ASSESSING INCOME OF THE PETITIONER DURING FUTURE ASSESSMENT YEARS & /OR ALTERNATIVE STAY ALL FURTHER PROCEEDINGS; AND ETC.

THESE WRIT PETITIONS ARE COMING ON FOR PRL.HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Since common questions of fact and that of law arise for consideration in these petitions, with the consent of the learned counsel for parties, petitions are clubbed together, heard finally and disposed of by this order.

W.P.10798/12 c/w W.P.46400 & 46852-853/11

Petitioner in W.P.10798/12 has called in question the vires of Section 80-AC of the Income tax Act, 1961, for short the ‘Act’. According to the petitioner having submitted a return of income for the previous year 2008-2009, assessment year 2009-10 under Subsection (4) of Section 139 of the Act claiming deduction under Section 80-IB(10) on the premise of applicability of Section 80-AC of the Act, was rejected by the Assessing Officer, having regard to the strict applicability of Section 80-AC insofar as it relates to filing of a return under Section 139(1) of the Act, despite a representation dated 23.12.2011 Annexure-A explaining the delay in submitting the return for the said assessment year.

Petitioner in W.P.46400/2011 having filed returns for the years 2006-07, 2007-08 and 2008-09 within the time stipulated under Subsection (1) of Section 139 of the Act claiming deduction under Section 80-IA on the premise of applicability of Section 80-AC, has presented

W.P.10798/12 c/w W.P.46400 & 46852-853/11

4 these petitions calling in question the vires of Section 80-AC. According to the petitioner the Assessing Officer rejected the claim for deduction on the premise of the strict application of Section 80-AC.

(c) of Section 119 of the Act, it is the Central Board of

W.P.10798/12 c/w W.P.46400 & 46852-853/11

5 Direct Taxes (CBDT) which has the jurisdiction to extend the benefit of condonation of delay since the claims for deduction under Sections 80-IB(10), 80-IA arising out of Section 80AC fall under chapter IV-A of the Act. Learned counsel hastens to add that direction requested by the learned Counsel for the petitioners is in relation to condonation of delay applications involving refund claims and not deductions and therefore, it is the CBDT alone which will have to consider the claim of the petitioners to condone the delay.

In that view of the matter, nothing further survives for consideration in these petitions except to direct the petitioners to file necessary applications enclosing all material information and records to the CBDT for a decision over condonation of the delay in filing the returns and if the CBDT has issued any circular/instructions delegating such powers to its officers, then the CBDT, it is needless to state, to

W.P.10798/12 c/w W.P.46400 & 46852-853/11

6 forward the papers to the concerned delegate of the power to consider the applications and pass orders in accordance with law.

If petitioners file the representation within one month from today, there is no reason to believe that the CBDT or its delegates would not pass orders within an outer limit of five months from the date of filing applications. All contentions of the parties are kept open.

Sd/-

JUDGE