UPDATE ON 14.09.2015

High Court has not accepted the Writ and said that the  issue involved partakes the character of Public interest and Appellant should have filed Public Interest Litigation (PIL) instead of Writ Petition. High Court has allowed assessee to file PIL.

What Next

We will keep updating you on the issue and also on other writs which are being filed through out the country for Tax Audit Due Date Extension.

10.09.2015

CA Avinash Gupta and Tax Research Foundation, Delhi has filed a Writ petition in Delhi High Court on 10.09.2015, seeking Extension of due date of Tax Audit Report required to be filed Under Section 44AB of the Income Tax Act,1961 for Assessment Year 2015-16.

Writ details are as follows :- Avinash Gupta and Ors V/s Union of India and Ors  (Delhi High Court) ,  WP(C.) of 8771 of 2015.

Writ is likely to be listed in Court Room No. 09 on coming Monday i.e. on 14th day of September, 2015.

It is to be noted that last year too many Chartered Accountants & Tax Association has filed writ petition in various High Courts across India and got the due date extended.

This Year CBDT has already rejected any possibility of Due date extension vide its Press Release dated 09th September 2015 which has drawn several criticism from those Associated with Tax Audit Related work.

In the coming Various Tax association from Other parts of Countries and Chartered accountants are also likely to move to other High Courts to get the Tax Audit and Return Filing date extended.

We are attaching herewith Draft of Writ Filed in Delhi High Court and also reproducing below the Grounds on which the writ been filed for the benefit of our readers –

GROUNDS OF APPEAL

A. Because the decision of the Respondent No.1 and 2 vide its Press Release Dated 09.09.2015 by virtue of which, the Respondents has denied to extend the date for filing of returns due by 30.09.2015 for Assessment Year 2015-2016 for certain categories of Assesses including Companies, and Firms and, Individuals Engaged in Proprietary Business/Profession etc., whose Accounts are required to be Audited in terms of section 44AB of the Income Tax Act 1961, is unreasonable, unjust, arbitrary, illegal and unconstitutional and that the same is inter-alia, in violation and contravention to Article 14, and Article 19 (1) (g) of the Constitution of India, as the same is infringing the fundamental rights of equality, trade and profession which is guaranteed under the Constitution of India.

B. Because the Respondent No.1 and 2 ought to have extended the date of filing of Returns due by 30th September for Assessment Year 2015-2016 for Categories of Assesses Including Companies, and Firms and, Individuals Engaged in Proprietary Business /Profession etc., whose Accounts are required to be Audited u/s 44AB of The Income Tax Act, 1961 from 30.09.2015 to 31.12.2015, on the account of belated notification of the Income Tax Form with the exorbitant delay.

C. Because the decision of the Respondent No.1 and 2 as mentioned in the said Press Release is inter-alia unreasonable, arbitrary, unjustified and unconstitutional, as the same is causing grave prejudice and harassment, not only to the concerned Tax Payers but also for the Chartered Accountants community at large, who are responsible for conducting the tax audit and further to file the same alongwith the Income Tax Return in accordance with Law, in as much as in the given facts and circumstances the time left to make compliance of Section 44 AB of Income Tax Act has been reduced, as the Respondents much after 01.04.2015, has belatedly notified the Income Tax Forms for respective categories of Tax Payers.

D. Because the Tax Payer as well as the Respondents expect from the Chartered Accountant a 100% compliance with zero tolerance while make compliances under the Income Tax Act, however it is not possible to justify the role to the full extent in just 23 days, as the Income Tax Return for the Assesses/Tax Payers not liable for Audit, were being filed till 07.09.2015, in terms of the period of filing ITR being extended by the Respondents on account of delay in notification of ITR Forms.

E. Because the most affected category of Tax Payers has been the Assesses including Companies, and Firms and, Individuals Engaged in Proprietary Business/Profession etc., whose Accounts are required to be Audited in terms of the Income Tax Act 1961 and who suffered a delay in notification of forms and consequent reduction of time wherein the delay in notifying the forms by the Respondents has reduced the time of filing Income Tax Return by 122 to 128 days respectively.

F. Because the Respondent No.1 and 2 has acted against the constitutional Right of Equality under Article 14 of the Constitution inter-alia in as much as the Respondents suo-motu has though given a benefit of extension of time to the Assesses/Tax Payers not liable for Audit till 07.09.2015 (though as per law the last date is 31.07.2015). However, similar such benefit has not been given to Assesses/Tax Payers liable for Audit u/s 44AB.

G. Because inter-alia due to the unjust prejudice and harassment being caused on account of the aforesaid reduction in time, various representations were filed before the Respondents inter-alia by Institute of Chartered Accountants of India. However, the Respondents without any application of mind and in highly unjust, arbitrary and unconstitutional manner did not consider the said representations and denied to extend the time for filing the date of Income Tax Return from 30.09.2015 to any further date vide its said Press Release Dated 09.09.2015.

H. Because as per Section 139 (1) of the Income Tax Act,1961, the Income Tax Return of every financial year ending on 31st March, should be filed in the assessment year by following dates of different categories of Tax Payers:

Sr. No. Category of Assesse Date of filing ITR Time available for filing ITR
1. Assesses not liable for Audit under Income Tax Act or any other Act. 31st July 122 days
2. Assesses liable for Audit under Income Tax Act or any other Act (except mentioned in Serial No.3) 30th September 183 days
3. Assesses covered under transfer pricing regulations 30th November 244   days

That accordingly, as per law, the respective Forms under which the respective categories of Tax Payers are required to file their respective Income Tax Return, has to be duly made available to respective categories of Tax Payers on the very first day of the assessment year, so that every tax payer, duly know the manner/prescribed format in which the Income Tax Return is required to be filed and accordingly have sufficient time to further file the Income Tax Return in the prescribed format.

I. Because the Respondent No.1 and 2 despite knowing well the essence of time in filing Income Tax Returns, under the garb of alleged reforms and ease of doing business has deliberately failed to notify the prescribed income tax return forms for respective categories of Tax Payers.

J. Because the Respondent No.1 and 2 notified the Income Tax Return Forms for all types of Assesses (auditable and non-auditable) at a belated stage, on different dates being as under:

Sr. No. Forms for the Category of Assesse Date of Notification of Forms Date of enabling E-Filing Reduction in Time (Days)
1. ITR 1 & 4S 23.06.2015 23.06.2015    83
2. ITR 2 & 2A 23.06.2015 29.06.2015    89
3. ITR 3,4 & 7 29.07.2015 01.08.2015    122
4. ITR 5 29.07.2015 02.08.2015    123
5. ITR 6 29.07.2015 07.08.2015    128

It is submitted that on account of the said delay on the part of Respondents in notifying the said Forms, the Tax Payers of the respective categories has suffered a grave prejudice, as due to the same, the respective Forms were not available to the respective categories of Tax Payers, as on 01.04.2015. It is submitted that on 01.04.2015, the right of every tax payer, duly accrues to know the manner/prescribed format in which the Income Tax Return is required to be filed and the right to further file the Income Tax Return in the prescribed format, which ought to have been made available on 01.04.2015. That as is apparent from the aforesaid chart, due to the said belated notification of forms, the different categories of tax payers have suffered and prejudiced on account of reduction in time in preparing and filing the Income Tax Return.

K. Because while notifying the Income Tax Forms for Assesses not liable for Audit under Income Tax Act, the Respondents acknowledging the fact of reduction in time for filing ITR for 81 days, suo-motu extended the date of filing ITR for the said category initially by 31 days i.e 31.08.2015 and further extended the said date by another 7 days i.e 07.09.2015.

L. Because the Ministry of Corporate Affairs came out with various notifications/clarifications in the new Companies Act, 2013, which has direct implications on the filing of Income Tax Return and the Audit of the Companies under Income Tax Act, 1961. It is also pertinent to mention that the provisions of the said enactment are being made applicable for the first time, while preparing the Annual Accounts of the Corporate Entities.

Further, in this vague situation and circumstances, the most affected category of Tax Payers has been the Assesses including Companies, and Firms and, Individuals Engaged in Proprietary Business/Profession etc., whose Accounts are required to be Audited in terms of the Income Tax Act 1961 and who suffered a delay in notification of forms and consequent reduction of time wherein the delay in notifying the forms by the Respondents has reduced the time of filing Income Tax Return by 122 to 128 days respectively.

Download Copy of Writ Petition Filed in Delhi High Court

(Republished with Further updates)

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Tags : Due Date (151) section 44AB (194) Tax Audit (323) Tax Audit Report (200) tax auditor (138)

0 responses to “Appeal in Delhi HC against non extension of Tax Audit due date”

  1. Azhar and co., says:

    dear cbtd so much request from all over India still no response to extend the date. Please extend the date and co operate.

  2. CA Vineet Gupta says:

    Today the Income Tax site was not working at least upto 4.00 PM. We professionals should immediately file grievances on the portal to record such cases of “LAPSE IN SERVICE BY ITD SERVERS” to put pressure on CBDT

  3. sunil bhatia says:

    I think the only solution is that in case of delay in filing the tax audit report the penalty should be charged on daily basis subject to maximum penalty already prescribed in the Act. For e.g for first 7 days of delay penalty should be 1000 per day,8 to 14 days 2000 per day subject to maximum penalty prescribed in act

  4. RM.AYYAPPA PRABHU says:

    INCOME TAX E FILLING ALL FORMS ENABLE FOR EVERY YEAR APRIL FIST WEEK ,OUR SIDE FILLING DUE DATE , SO PLEASE DUE DATE EXTENED EVERY YEAR OCTOBER 31 ST

  5. S.S.Prasad says:

    Very Good step taken by everybody including trade bodies, various CA’s and Chartered accountant and Tax Professional Associations in Gujarat, New Delhi. Even the CA fraternity in Karnataka is deciding to file PIL/Write in the High court for extension of tax audit to 30/11/2015. In karnataka, power failures/outages are order of the day, tax audit due date should be extended to 30/11/2015. CBDT should extend this without waiting for any judgements/decisions. The Press release issued by CBDT on 09.09.2015 not extending due date is illogical, atrocious and highly arbitrary.

    God should save us from this ordeal of due dates galore every year.

  6. Dharam Vir says:

    It appears CBDT wants that CAs and tax professionals should stop their work and take part in 100 metres race where the finishing line is 30th September.

  7. H. K. CHHEDA says:

    Due Date to be Extended also on follwing Ground.

    The Central Govt. came with Amnesty Scheme for Black Money Disclosure in Foreign Country with Declaration of Foreign Assets & Foreign Bank A/cs. The due Date for the same also is 30.09.2015. If an Assessee files declaration on Last Day, then his Balance Sheet also gets changed for ITR 4 as well as for Wealth Tax Return. How, it is possible for his CA to do compilation in less than 24 hrs.?

  8. dharma says:

    Most cases the assesses have paid the tax as advance tax and TDS, even if there is a short fall in the above there is interest provisions. By extending time for filing return and audit report there will be no delay in revenue collection as major portion is already collected. Compare to our budget target revenue collection at the time filing return will be minimal only. The new companies act 2013 and frequent changes in companies act through various notification has resulted huge delay in finalising the accounts of the small and medium companies. small and medium business enterprises are not having adequate manpower for compliance related works. Mostly CAs guiding them from payment of Advance Tax to TDS regularly. We are the one who advice the people to come under tax net and pay the tax properly and live peace fully. But the people at the helm of affairs at the Govt. are in wrong presumption that we advice against revenue. This notion should be removed by our institute. The Govt. not even recognises us to attest the id proofs for digital sign. Govt should recognise our work and allow adequate time to us to carry out Tax Audit and to assesses to file return. Govt is in the wrong notion that each assesse has computer with Broad band connection and also expert in accounts and system knowledge. All tax utility are developed in this notion only which is virtually not reality. ICAI and Other business association to represent and explain the real situation to the Govt.

  9. M g k says:

    Good days (achhe din ) going on for CA fraternity.Why CBDT not considering practical issues of time and work for given time frame.

  10. KARIBASAIAH M METIKURKE MUTT says:

    Government makes frequent changes in ITR Forms 4 ,5, and others release in the month of august 2015 and enactments procedures and online computer systems.So assessee faces several complications arises in uploading the I T R A-Y 2015-16.
    I request to due date extension . now due date is 30-09-2015 is must be extend to 30-11-2015 for the benefit of assessee.

  11. RAVINDER says:

    Govt is making CAs do half the work of ITOs with no pay. ITOs get very good salary and pension. CAs get no salary or retirement benefits from Govt for helping in tax compliance and collection – even TRPs get a commission. All the CA gets is fee from clients for which he has to report all the mistakes made by clients in Form 3CD – each point in the Form is meant to screw the client. Based on this Form, the client gets to pay more tax and penalty and sometimes face prosecution also. If the CA misses out something with which the client can be penalised, the CA is also penalised with disciplinary action that can ruin his career. In the next year the CA is back asking the client for his books for tax audit and the fees. Is there a more thankless work in the world than that of Indian CAs.

    • HARIPRASAD G says:

      Ravinder,What you said is true .Ours is a dirty job.I feel ,it is better if deptt. ask us to conduct u/s 142 and then only we have real independence.By this we need not beg for either extension or clients to submit books of accounts well in time.I ,think client intentionally produce books of account during last week/s of Sept. OR
      2.IT act should be amended to submit unaudited financial statements by the end of 31st May ,so that we can only comment on his financial statements.And personally i feel option 1 is better as Appointing authority and Audit fee paying authority will be different.

  12. SHASHI says:

    Vishal Garg & Ors. Vs. Union of India & Anr. (Punjab & Haryana High Court) CWP- 19770 -2015, Dated- 15.09.2015 Hearing for the same is fixed for Thursday i.e 17th September 2015.

    All Gujarat Federation of Tax Consultants vs. CBDT (Gujarat High Court), SPL.C.A. No. 14727 of 2015 , Dated-15.09.2015 Date of Hearing Fixed for Monday i.e. 21st September 2015.

    Soon Trade Bodies and Chartered Accountants from Nagpur and Rajasthan may also file the writ petition in their Jurisdictional High Court.

  13. ADV KAPIL BANGINWAR says:

    Due date should be extended upto 30 Nov 2015. CBDT cant charge interest from assessee for 2 month.Because CBDT has issued IT return late by 2 month. Means issue late form by CBDT & he also want for interest from assessee…CBDT & FM plz extend the due dt & dont waste ur & our time in time pass…

  14. Vaibhav Gulati says:

    CBDT should extend the due date by atleast 30-45 days, they may charge interest u/s 234-A if they feel they’ll loose revenue. Till 7th September returns of assessees not subject to tax audit were being filed. Then came time for advance tax. In 15 odd days, the mistakes are bound to be committed in a pressure cooker like situation and on the basis of minor clerical errors, the cases will be selected for scrutiny.

  15. Yogesh S. Limaye says:

    1-2 years ago, there were 22 revisions in the ITR filing utility. Another idea is that, the concerned honourable CBDT members should be required to go through the drill of filing return of income [both with and without tax audit] / tax audit reports etc.

  16. Bhushan Paithankar says:

    CA Avinashji wake up sir. No devlopement?

    Board is interested in “Ugarani” than compliance. Basic attitude must be change to see real problem of tax payer. Board forgot main object of Tax Audit. Tax audit is introduced for error free compliance of taxation and report tax evasion by professionals. Now CBDT treat us like tax collecting agents.

  17. SHANMUKHA says:

    It is habitually the CBDT is Extending the time at the end of the days only. it is not correct.

  18. camaneesh k sharma says:

    Why such an order is really beyond imagination. this country is of farmers army persons salaried employees. but never forget the back bone of the country the business community who is major source of employment in fact the father the country who is providing revenue for subsidy for farming,defense budget & security of vips. to ignore him is just like ignoring Lord Vishnu who is at the center of all Gods.

  19. kssunder says:

    CBDT should issue a circular extending time at least till 30th Nov 2015 on same conditions as last year.This will save everybody’s time and effort

  20. Niloy says:

    Now when our anxiety will come to an end ???

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