NICAF files writ in Delhi HC against non extension of Tax Audit / ITR due date

Northern India CA Federation Vs Central Board of Direct Taxes (Delhi High Court)

Northern India CA Federation has filed a writ petition in Delhi High Court against non-extension of Tax Audit Report and the relevant Income Tax Return filing due date for Financial Year 2017-18 (i.e. A.Y. 2018-19).

FULL TEXT OF THE HIGH COURT ORDER / JUDGMENT

IN THE HIGH COURT OF DELHI AT NEW DELHI
CIVIL WRIT JURISDICTION
WRIT PETITION (C) No. 327368 OF 2018

IN THE MATTER OF:

Northern India CA Federation …Petitioner

Vs.

Central Board of Direct Taxes …Respondent

DATE WISE SYNOPSIS

Dated : 24/09/18 Piyush Kaushik
Advocate
A-455, Sector 46
Noida – 201301
Tel: 09811310355; 0120-
2571160;61

IN THE HIGH COURT OF DELHI AT NEW DELHI

CIVIL WRIT JURISDICTION

WRIT PETITION (C) No. 327368 OF 2018

IN THE MATTER OF:

Northern India CA Federation                          …Petitioner

Vs.

Central Board of Direct Taxes                          …Respondent

AND

IN THE MATTER OF:

CIVIL WRIT PETITION UNDER ARTICLES 226/227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF AN APPROPRIATE writ, order or direction(S) ESPECIALLY A WRIT in the nature of MANDAMUS OR ANY OTHER APPROPRIATE WRIT THEREBY DIRECTING THE RESPONDENT TO EXTEND BY VIRTUE OF POWERS BESTOWED U/S 119 OF INCOME TAX ACT, 1961, THE DUE DATE FOR FILING OF INCOME TAX RETURN INCLUDING TAX AUDIT REPORTS AND OTHER FORMS IN CASE OF ASSESSEE’S REQUIRED TO FURNISH THE SAME ON OR BEFORE 30/09/2018 BY AT LEAST A MONTHS FURTHER TIME I.E. BY 31/10/2018 PURSUANT TO INNUMERABLE DIFFICULTIES FACED BY TAX PAYERS / PROFESSIONALS AS DETAILED IN VARIOUS REPRESENTATIONS BEFORE THE RESPONDENT FROM TIME TO TIME PARTICULARLY & INTERALIA BEING A SIGNIFICANTLY HIGH NUMBER OF AMENDMENTS EFFECTED BY THE RESPONDENT IN REPORTING REQUIREMENTS & INCOME TAX UTILITY MAINLY DURING THE MONTHS OF JULY-SEPTEMBER’18.

TO,

HON’BLE THE CHIEF JUSTICE AND HIS COMPANION JUDGES OF THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI MOST RESPECTFULLY SHOWETH:

1. That the Petitioner is filing the present Writ Petition under Articles 226/227 of the Constitution of India for issue of an appropriate writ, order or directions especially a writ in the nature of mandamus or any other appropriate writ thereby directing the respondent to extend by virtue of powers bestowed u/s 119 of the Income tax Act, 1961, the due date for filing of Income tax Return including tax audit reports and other forms in case of assessee’s required to furnish the same on or before 30/09/2018 by at least a months further time i.e. by 31/10/2018 pursuant to innumerable difficulties faced by tax payers / professionals as detailed in various representations before the respondent from time to time particularly & interalia being a significantly high number of amendments effected by respondent in reporting requirements & Income tax utility particularly during the months of July- September’18.

FACTS.

2. Petitioner is a Non Government Organization (NGO) registered under the provisions of Societies Registration Act, 1860 established to promote and protect the interest of Chartered Accountants (CA) amongst the CA fraternity of Northern India. It aims at promoting the interest of CAs, interalia, by way of conducting educational training programs; providing regular updates in the matters of accounting, auditing, taxation etc.  Members of petitioner / assessee are professional Chartered Accountants.

3. That on 01/10/2015 the Hon’ble Revenue secretary acknowledging the concerns of Chartered Accountants of inordinate delay on part of revenue in issuance of forms; utilities etc required for preparation & filing of e-Returns of Income including Tax audit reports issued a statement by way of twitter that all the forms; etc required for preparation of return of incomes including finalizing of tax audits will be notified well in advance from forthcoming years. True copy of same is enclosed as Annexure P1.

4. That on 31/03/2017 the Finance Bill 2017 applicable for Financial Year 2017-18 (Assessment Year (AY) 2018-19) passed by the Parliament.

5. As mandated by Hon’ble Division benches of various High Courts (detailed infra) and as also accepted by the revenue, all the final Forms, utilities, notifications etc required for preparation & filing of Returns of Income for AY 2018-19 were to be notified & finalized latest by 01/04/2018 date being the first date of AY 2018-19. However, nothing could be done till this date by the Respondent.

6. That thereafter between 14/04/18- 21/05/18 only the first base version utility uploaded in the web site of Income department required for e-filing the Return of Incomes.

7. That thereafter on various dates from 20/04/18 – 19/09/18 innumerable changes made by the Income tax department in the base utility version required for e-filing tax returns.  A total of 306 changes (app.) made during this time as summarized in Annexure P9.

8. That thereafter also on various dates 20/07/18; 01/08/18; 20/08/18; 01/09/18 & 07/09/18 innumerable changes made by Income tax department in the Tax audit reporting requirements i.e. Form No. 3CA & 3CD. Total of such changes made being 100 (app.) in No. as  summarized in Annexure P7 being an admitted position by the Income tax department itself vide its Form 3CD-Schema Change Document dated 07/09/18 (Annexure P8).

9. That thereafter on 20/07/18 yet another notification prescribed by CBDT in connection with tax audits required for filing return by 30/09/18, true copy enclosed as Annexure P10.

10. That thereafter on 26/07/18 an order u/s 119 of Income tax Act, 1961 (‘the Act’) issued by CBDT extending the timeline of filing Return of Income in case of certain category of taxpayers (being essentially individuals drawing income from salary or individuals not subject to tax audit) from 31/07/18 to 31/08/18. True copy of same enclosed as Annexure P12.

11. That on 22/08/18 an implementation guide issued by the Institute of Chartered Accountants of India regarding guidance on implementation of amendments in tax audits prescribed by CBDT from time to time, extracts from same enclosed as Annexure P13

12. That on 31/08/18 a detailed representation was submitted by the apex body of Chartered Accountants viz. the Institute of Chartered accountants of India (ICAI) before the CBDT for extension of time line for submission of Tax audit reports along with related returns from 30/09/18 to 31/10/18. Manifest grievances and concerns faced by the professionals & tax payers were highlighted, interalia, being the following:

a. Revision of Form 3CD (tax audit reports) mid way is effectively a retrospective amendment as against the declared resolve of the government;

b. Introduction of many new clauses in Revised Form 3CD applicable w.e.f.20/08/18;

c. Sufficient time required to disseminate understanding and to digest changes before application;

d. Applicability of penal provisions u/s 271B(inadvertently stated as 271D) for delay in submission of tax audit reports;

e. Issues arising due to implementation of GST law for the first time & its impact on the computation of income;

f. Extension of timeline of filing Return of Income in case of certain category of taxpayers (being essentially individuals drawing income from salary or individuals not subject to tax audit) from 31/07/18 to 31/08/18, thus, there is all the more reason for extending of time line in respect of assessee’s subject to tax audit required to file return by 30/09/18;

g. Income tax department web site is not allowing to upload certain forms related with Tax audits;

h. In view of manifest changes made there is an acute burden on the CAs including tax professionals;

i. Constant changes in utilities relating to tax audit forms;

j. Heavy floods disrupting the normal life.

True copy of same enclosed as Annexure P2.

13. That on not receiving any response from the Respondent / CBDT the ICAI files another detailed representation dated 10/09/18 outlining once again the various grievances and concerns faced, interalia, on account of manifest mid way amendments & changes in the Return utilities including Tax audit report etc. True copy of same enclosed as Annexure P3.

14. That still on not receiving any response from the Respondent / CBDT the ICAI files yet another detailed representation dated 17/09/18 outlining once again the various grievances and concerns faced, interalia, on account of manifest mid way amendments & changes in the Return utilities including Tax audit report etc & accordingly requesting to extend the prescribed time line for filing return of income including tax audit from 30/09/18 to 31/10/18. True copy of same enclosed as Annexure P4.

15. That similar representation were also filed by other professional associations outlining similar grievances & requesting CBDT to extend the prescribed time line for filing return of income including tax audit & related forms from 30/09/18 to 31/10/18. True copy of same enclosed as Annexure P17.

16. That thereafter on 22/09/18 petitioner / assessee files a detailed representation before the Respondent / CBDT reiterating the concerns expressed in the earlier representations made by ICAI vide their three separate submissions & accordingly requesting the CBDT to exercise the powers as entrusted u/s 119 of the Act by extending the due date of filing of Income tax return including tax audit in case of all assessee’s who are required to furnish the same on or before 30/09/18 by at least a month’s time till 31/10/18. True copy of same enclosed as Annexure P16.

LEGAL POSITION.

17. U/s 119(2)(a) of the Act the CBDT may if it considers it necessary or expedient so to do, for the purpose of proper and efficient management of the work of assessment and collection of revenue issue from time to time whether by way of relaxation of any of the provisions, interalia, of section 139 of the Act general or special orders in case of class of cases setting forth directions or instructions not being prejudicial to assesses as to the guidelines, principles or procedures to be followed by other income-tax authorities in the work relating to assessment or collection of revenue or the initiation of proceedings for the imposition of penalties and any such order may, if the Board is of opinion that it is necessary in the public interest so to do, be published and circulated in the prescribed manner for general information.

18. A Single Judge Bench of this Court vide its decision dated 21/09/15 in the case of Avinash Gupta Vs UOI (2015) 378 ITR 137 (Del.) had importantly vide para 22 of its decision held that there appears to be no justification for delay beyond the assessment year in prescribing the forms required for preparation of returns including finalizing the tax audits. The respondent / CBDT was accordingly directed by this Hon’ble Court to, with effect from the next assessment year, at least ensure that the forms, etc., which are to be prescribed for the audit report and for filing the ITR are available as on 1st April of the assessment year unless there is a valid reason there for and which should be recorded in writing by the respondents themselves, without waiting for any representations to be made. This Hon’ble Court further directed that the respondents, while doing so, to also take a decision whether owing thereto any extension of the due date is required to be prescribed and accordingly notify the public.

19. That subsequently several Division Benches of various High Courts have unanimously held that it is the duty of CBDT to ensure that all the forms and utilities required for filing of Return of Incomes including tax audits are notified latest by the 1^st day of April of the assessment year.

20. Gujarat High Court vide its decision in the case of All Gujarat Federation of Tax Consultants Vs CBDT (2015) 378 ITR 160 (Guj.) held that the power under section 119 of the Income-tax Act, 1961, is a beneficial power given to the Central Board of Direct Taxes for proper administration of fiscal law so that undue hardship may not be caused to the assessees and the fiscal laws may be correctly applied. For filing the tax returns, appropriate utility is required to be made available by the Central Board of Direct Taxes to the assessees. Therefore, till such utility is provided, it was not possible for the assessees to file their returns. Therefore, as held by the Gujarat High Court there is a duty cast upon the Central Board of Direct Taxes to ensure that necessary utility for e-filing of the returns is made available to various categories of assessees at the beginning of the assessment year so that the assessees can plan their tax matters accordingly.  The Gujarat High Court accordingly in view of delay extended the due date applicable for AY 2015-16 from 30^th September 15 to 31 October 15.  It is important to note that the Gujarat High Court vide its clear direction directed that henceforth the CBDT shall endeavor to ensure that the forms and utilities required for e-filing of returns are made available in the first day of April of the assessment year.

21. To similar effect it has been so held in the decision of Punjab & Haryana High Court in the case of Vishal Garg & others Vs UOI 378 ITR 145 (P&H) & by the Bombay High Court vide its decision in the case of Chamber of Tax Consultants & others Vs UOI 378 ITR 188 (Bom.). Under similar circumstances the Punjab & Haryana High Court & Bombay High Court have directed for extension of date of filing return of income including tax audit for AY 2015-16 from 30/09/15 to 31/10/15.

22. GROUNDS.

A. BECAUSE on the facts for present AY 2018-19, as on date app. 94% of the Returns are pending for filing as per the estimate (Annexure P5) which in fact does not even considers the growth rate for present assessment year.

B. BECAUSE there is a 71% growth rate expected in the current year as per the Press Information Bureau report dated 01/09/18 (Annexure P6).

C. BECAUSE it is a matter of fact that a total of 100 changes have been made in the tax audit utility / schema reporting requirements during the months of July – September’18 (Annexure P7) being an admitted fact by the Respondent itself as per Annexure P8.

D. BECAUSE approximately 306 changes have been made in the various ITR forms utility / schema in the web site of tax department since April’18 & substantially in the months of July – September ’18 (Annexure P9).

E. BECAUSE for certain amendments made in tax audit report (Form 3CD) no corresponding notification has been prescribed as outlined in Annexure P15.

F. BECAUSE per the snapshot from web site of tax department itself (Annexure P14) more than 50% of Return filing work is done outside office hours.  This percentage is bound to increase manifold times given the present state of affairs.

G. BECAUSE the current year AY 2018-19 was also a year of vibrancy in terms of GST implementation.  The inordinate delay in notification of reporting requirements concerning GST & other things for instance vide notification dated 20/07/18 of CBDT  is causing serious difficulty for tax payers & professionals.

H. Because the cumulative effect all of the aforesaid circumstances particularly the 100 changes effected in Tax audit utility/schema/ reporting requirements & 306 changes effected in various ITR forms / utility/ schema in the web site of tax department since April’18 & substantially in the months of July – September ’18 is placing not only the tax professionals but also the various tax payers / assessee’s in a very difficult & perplexed situation resulting in an environment of high uncertainty & stress making it impossible to comply with the requirement of filing the return of income including tax audit report & related forms.

I. BECAUSE the aforesaid situation has happened totally for reasons beyond the control of tax payers / assessee’s / Chartered Accountants including members of the petitioner and as a paradox all of above parties will be subject to interest / penalty / disallowances etc etc on account of non filing of return by 30/09/18.

J. BECAUSE there is no alternative remedy available with the Petitioner to challenge the impugned order except by way of this Petition under Articles 226/227 of the Constitution of India.

K. BECAUSE the balance of convenience is in favor of Petitioner & against the Respondent.

23. That on the present subject matter the Petitioner has not filed any similar writ petition before this Court or any other Court or Supreme Court.

24. That all the annexures annexed to the writ petition are the true copies of their respective originals.

PRAYER

In view of the facts and circumstances of the case and the averments made above, the Petitioner respectfully prays that this Hon’ble Court may graciously be pleased to:

i. Issue of an appropriate writ, order or directions especially a writ in the nature of mandamus or any other appropriate writ thereby directing the respondent to extend by virtue of powers bestowed u/s 119 of the Income tax Act, 1961, the due date for filing of Income tax Return including tax audit reports and other forms in case of assessee’s required to furnish the same on or before 30/09/2018 by at least a months further time i.e. by 31/10/2018 pursuant to innumerable difficulties faced by tax payers / professionals as detailed in various representations before the respondent from time to time particularly & interalia being a significantly high number of amendments effected by respondent in reporting requirements & Income tax utility particularly during the months of July- September’18;

ii. Award cost of these proceedings to the Petitioner;

iii. Pass such further order(s) that this Hon’ble Court may deem fit in the given facts and circumstances of the case.

PETITIONER

THROUGH