JUDGMENT
Deepak Mishra, J.
1. By this writ petition, the petitioner had prayed for
issue of a writ of certiorari for quashment of the order dated September 7,
1999 (annexure P-7), and further to issue a writ of mandamus against
respondent No. 1, Commissioner of Income-tax, to accept the declaration
made under Section 88(1) of the Kar Vivad Samadhan Scheme, 1998. It is
averred in the writ petition that the petitioner made a declaration on
December 31, 1998, under the Wealth-tax Act, 1957.
2. The Commissioner of Income-tax, by order dated February 23, 1999, accepted the declaration and intimated the petitioner as contemplated under Section 90(1) of the Finance (No. 2) Act, 1998. Under the Kar Vivad Samadhan Scheme, 1998, the said authority determined the tax payable by the petitioner at Rs. 51,640. The petitioner was directed to make payment of the said amount within 30 days from the date of the certificate. The petitioner deposited the amount by three challans on March 27, 1999. An intimation to the effect was sent on March 29, 1999. The Commissioner, by order dated September 7, 1999, rejected the declaration on the ground that the petitioner had made the payment on March 27, 1999, which was beyond the stipulated time which expired on March 25, 1999. It is stated in the writ petition that the amount has to be paid within 30 days from the date of communication of the order passed by the Commissioner and, therefore, the application was within time. It is also stated in the petition that if the date of passing of the order is accepted to be the relevant date, the petitioner could have deposited the amount on March 25, 1999, but that was a bank holiday and the amount was deposited on March 27, 1999. Therefore, there was one day’s delay in making the payment and it would have been appropriate on the part of the Commissioner to condone the delay.
3. A return has been filed by the answering respondents contending, inter alia, that there is delay of two days in making the deposit and in the absence of any provision for condonation of delay, the order passed by the competent authority is defensible.
4. I have heard Shri Nema, learned counsel for the petitioner, and Shri Rohit Arya, learned counsel for the respondents. Shri Nema has contended that 30 days has to be computed from the date of communication of the order and not from the date of passing of the order. It is his further submission that keeping in view the purpose of the scheme, delay of one or two days should have been condoned by the competent authority and the declaration should have been accepted. In support of his contention, he has placed reliance on the decision of the Punjab and Haryana High Court in the case of Smt. Laxmi Mittal v. CIT [1999] 238 ITR 97.
5. Though Shri Nema initially contended that the limitation has to be computed from the date of communication of the order, and not from the date of passing of the order, he did not pursue the said point and chose to confine his contention with regard to the argument that one day’s delay which should have been condoned by respondent No. 1.
6. In the case of Laxmi Mittal (Smt.) v. CIT [1999] 238 ITR 97 (P&H), the court was considering the Voluntary Disclosure of Income Scheme, 1997, and in that case, there was a delay of three days in making payment. Appreciating the stand of the Department therein, the Division Bench laid down as under (page 99) :
“Mr. Sawhney submits that Section 67 lays down an inflexible rule and according to this provision, the deposit has to be made within a period of three months from the date of declaration. Any failure renders the declaration and the deposit non est. This contention cannot be accepted. The Government of India has itself issued a circular dated September 3, 1998. By this circular, it has been, inter alia, provided by the Board that the period for calculating interest will be 90 days from the date of declaration, If the 90th day happens to be a bank holiday, payment on the 91st day, being the next working day, would be valid. Thus, it is clear that Section 67 does not embody a totally inflexible rule. When things are beyond the control of the citizen, certain moving space is normally allowed. This is precisely what the petitioner is wanting in the present case.”
7. I am of the considered view that the said ratio would also be applicable in full force to the scheme in question.
8. Shri Nema submits that there is one day’s delay, whereas Shri Rohit Arya submits that there is two days’ delay. Be that as it may, there is not much delay which warranted rejection of the declaration. It is not disputed that March 25, 1999, was a bank holiday and the amount was deposited on March 27, 1999, for which proper explanation has been given. Accordingly, respondent No. 1, should have condoned the delay.
9. Accordingly, the order passed by the Commissioner vide annexure P-7 is quashed and it is directed that the Commissioner shall pass appropriate orders accepting the declaration.
10. The writ petition is accordingly allowed.
