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Judgment
Pinaki Chandra Ghose, J.
This is an application inter alia, for issuance of a writ in the nature of mandamus commanding the respondents to withdraw, cancel, recall and rescind the impugned order of the assessment passed by the respondent No. 1 for the assessment year 1993-94 in refusing to allow the full deduction to the petitioners u/s 80HHC of the Income Tax Act, 1961 (hereinafter referred to as the Act), and further writ in the nature of mandamus commanding the respondent No. 2 to grant approval u/s 80HHC(2)(a) of the Act beyond six months to forbear from giving effect to the amendment in respect of section 80HHC(2)(a) with effect from 1-6-1999, by the Finance Act, and also to dispose of the application filed by the petitioner for extension of time for repatriation of balance export value beyond six months.
Facts of the case briefly are as follows :
The petitioner No. 1 is a private limited company. The petitioner No. 1 supplied materials in terms of an order received at Rs. 40,19,677.69. The petitioner earned an export profit of Rs. 27,08,787. The petitioner No. 1 filed return for the said assessment year and a ''nil'' return was filed u/s 139(1) of the said Act. The petitioner No. 1 also filed an audited account, tax audit and prescribed certificate for claim of deduction u/s 80HHC of the Act. The said return was originally accepted u/s 143(1)(a) of the Act and the notice of hearing was issued u/s 143(2) of the Act.
The petitioner in course of hearing filed its details of realisation of sale proceeds which were effected within six months. According to the petitioner, the petitioner No. 1 realised a sum of Rs. 25,71,655 out of total sale proceeds of Rs 40,19,677.69 leaving a balance sum of Rs. 14,48,022.80. According to the petitioner, the petitioner was able to realise Rs. 36,13,808 out of the said total sale proceeds.
The assessing officer refused to grant any deduction to the petitioner in respect of the amount which could not be realised by the petitioner. According to the petitioner, assessing officer had no jurisdiction to assume jurisdiction u/s 80HHC(2)(a). The claim of the said deduction u/s 80HHC is applicable in respect of the export proceeds. According to the petitioner, the assessing officer was obliged to refer the matter to the Commissioner of Income Tax for his approval or disapproval since the assessing officer had no jurisdiction in the matter to decide the same. Accordingly, it is submitted that the said assessing officer passed such order without any jurisdiction.
It is further case of the petitioner that the petitioner applied before the Commissioner for extension of time for bringing the balance export proceeds beyond the period of six months on 16-2-2001, 5-3-2001 and 16-3-2001, by their letters. The Commissioner, West Bengal-IV returned the petitioners'' application for extension of time for repatriation of sale proceeds by a letter dated 22/23-3-2001.
According to the petitioner, the charge brought in by the Finance Act, 1999 was with effect from 1-6-1999, and such charges cannot affect the petitioners application. The Commissioner, West Bengal-IV refused to do so in view of the fact that the law has been amended and such power only can be exercised by the Reserve bank of India or such other authority specifically vested with the said power. According to the petitioner No. 1, said Commissioner has also failed to exercise his jurisdiction vested in him for the order. According to him, the order passed by the said Commissioner is also bad in law.
Hence this writ application has been filed praying from the aforesaid relief in the writ petition.
Mr. Hirak Mitra appearing on behalf of the petitioners contended that the assessing officer had no authority or has any jurisdiction to decide the matter in view of the fact that only the Commissioner has power either to grant extension or to refuse the same Therefore, the order of refusal passed by the assessing officer u/s 80HHC of the Act is totally without jurisdiction for the said assessment year. He further contended that the amendment which has been taken place after the transaction took place. Therefore, according to him, the changes in the Finance Act will not allow the Commissioner to refuse or to return the said application filed by the, petitioners for extension. He further contended that the changes to be given effect to prospectively and not retrospectively. He also relied upon a judgment Commissioner of Income Tax Vs. John Peter and Another, and contended that the Hon''ble court was pleased to direct the Commissioner to dispose of the application filed by the petitioner on merits.
Mr. Som appearing on behalf of the respondents contended that the petitioner has suppressed material facts from this court. He also submitted that on 6-12-1993, petitioner filed as return of income. On 8-9-1994, notice u/s 143(2) of the Act was issued processing u/s 143(1)(a) was made on 23-11-1994, and then on 18-10-1995, notice u/s 143(2) was issued to the petitioner No. 1. Further on 5-12-1995, notice u/s 143(2) was again issued and thereafter, on 21-3-1996, assessing officer passed the order u/s 143(2) which was issued. An appeal was preferred by the petitioner on 18-12-1996, Commissioner (Appeals) passed order confirming the said issue. On 18-2-1997, petitioner further filed appeal before the Tribunal. On 14-2-2001 stay petition filed before the Commissioner, West Bengal-IV, Kolkata. On 20-2-2001, assessee filed stay petition before the Additional Commissioner, Range-12, Kolkata. On 22-2-2001, report of the assessing officer was sent to Commissioner, West Bengal-IV, Kolkata on stay petition. On 27-2-2001, application was filed u/s 155(13) read with section 154 On 28-2-2001, Commissioner, West Bengal-IV''s order was issued on stay petition and thereafter, on 28-2-2001, recovery of demand was made by the assessing officer from HDFC Bank. Thereafter, it appears that the petitioner filed an application on 5-3-2001 before the Commissioner, West Bengal-IV, Kolkata for extension of time u/s 80HHC(2)(a). On 7-3-2001, application was filed before the, Central Board of Direct Taxes regarding the attachment of bank accounts. Then on 9-5-2001, the application filed by the petitioner u/s 155(13) read with section 154 was rejected by the respondents authority. Respondent- authority received a writ petition filed by the petitioner on 18-5-2001.
Mr. Som submitted that all these facts were suppressed from this Hon''ble Court. He further contended that the petitioner subsequent to the filing of the writ, petition filed a supplementary affidavit affirmed on 25-6-2001, when for the first time the matter came up before this court and such point of suppression was taken by the respondent authorities. He further drew my attention to the said affidavit and contended that the petitioner has only filed the said document by way of said supplementary affidavit after filing of the petition in this Hon''ble Court. He further contended that an application u/s 155(13) of the Act was also filed by the petitioner.
It has been specifically informed to the petitioner by a letter dated 18-5-2001, that the Reserve Bank of India or such other authority has authorised under the law to take the steps in the matter and the Commissioner had no authority to deal with the matter any further in view of the fact that the amendment took place in the year 1995 and further he contended that after 1-6-1999, the extension (sic) is clear that the Commissioner has no authority to deal with the matter.
He further contended that since the matter is pending before the Tribunal which has been suppressed in this proceeding, the parallel proceedings are not permissible under the law. In support of such contention he relied upon the judgment Coca-cola Export Corporation Vs. S.C. Tewari, ITO, Central Circle-I, New Delhi and another, , Purshottam Thackersey Vs. K.N. Anantarama Ayyar, Commissioner of Wealth-tax and another, and Sheo Nath Singh Vs. Appellate Assistant Commissioner of Income Tax, Calcutta, .
Mr. Som further contended that the said judgment (2000) 243 ITR 560 (supra) has no application in this case and he further drew my attention to the Explanation of section 80HHC(2) where it has been specifically stated that the Commissioner has no power because he is not dealings in the foreign exchange.
After considering the facts and circumstances of this case and after hearing the parties I do not have any hesitation to accept the contention of Mr. Som and I hold that the petitioner knowing fully well that the matter is pending before the Tribunal and should not have filed this application before this court In my opinion, there is a material suppression of facts from this court by not stating the said fact in the writ application in my opinion subsequent filing of the supplementary affidavit and furthermore without affirming the said fact positively cannot give right to the petitioner to get any relief from this court I further do not have any hesitation to hold that the point urged before me that the Commissioner has no authority to deal with the matter since the petitioner did apply for such extension after amending took effect in the year 1999. It would also evident from the letters and the application forwarded by the petitioner only in the year 2001 and much after the amendment came into effect. I further do not have any hesitation to accept the contention of Mr. Som that the Commissioner had no power to decide the matter after amendment of section 80HHC.
Accordingly, in my opinion in would not be proper for me to pass any order on this application and on these facts this application must fail and is hereby dismissed.
OPEN