TaxTMI 
TaxTMI 
2010 (9) TMI 498
X X X X Extracts X X X X
X X X X Extracts X X X X
....rrear.-(1) Within sixty days from the date of receipt of the declaration under section 88, the designated authority shall, by order, determine the amount payable by the declarant in accordance with the provisions of this Scheme and grant a certificate in such form as may be prescribed to the declarant setting forth therein the particulars of the tax arrear and the sum payable after such determination towards full and final settlement of tax arrears : Provided that where any material particular furnished in the declaration is found to be false, by the designated authority at any stage, it shall be presumed as if the declaration was never made and all the consequences under the direct tax enactment or indirect tax enactment under which the proceedings against the declarant are or were pending all be deemed to have been revived : Provided further that the designated authority may amend the certificate for reasons to be recorded in writing. (2) The declarant shall pay the sum determined by the designated authority within thirty days of the passing of an order by the designated authority and intimate the fact of such payment to the designated authority along with proof ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1, on May 14, 1999 in respect of the certificate in W. P. No. 22150 of 2001 and on May 18, 1999 in respect of W. P. No. 22326 of 2001. As per the amendment made, various amounts in addition were demanded as against all the three petitioners. The petitioners paid the said amounts on July 19, 1999. 5. After having paid the said amounts, the petitioners have come up with Writ Petitions Nos. 24111, 24112 and 24113 of 2001 challenging the above amendments issued to the original certificates. 6. Subsequently, the first respondent passed individual orders in respect of the three declarations on June 18, 2001, rejecting the above declarations on the ground of delay. To put it otherwise, according to the first respondent, there had occurred 5 days delay in payment of the amount demanded as per the amended order in W. P. No. 22151 of 2001, 21 days delay in W. P. Nos. 22150 and 22326 of 2001. According to the first respondent, as per section 90(2) of the Act, the payment should have been made within 30 days from the date of the order passed under section 90(1) of the Act. In this case, according to the respondents, since the payments were made beyond 30 days from the date of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ening. But they are only amendments made on the original certificate issued under section 90(1) of the Act. 10. I have considered these submissions and also perused the records carefully. 11. A perusal of the second proviso to section 90 of the Act would make it abundantly clear that the designated authority, namely, the second respondent has got ample power to amend the certificate after recording the reasons in writing for doing so. In these cases, as rightly pointed out by the learned counsel for the respondents, the amounts paid under section 140A were not earlier adjusted when the original certificates under section 90(1) were issued. When the Chief Commissioner clarified that such adjustment should be made, the mistake was noticed and thereafter, the amendments have been issued. This cannot be termed as reopening of the assessment at all. In view of the same, I fully agree with the arguments advanced by the learned counsel for the respondents. 12. But the learned counsel for the petitioners would submit that the impugned orders are not in the form prescribed in Form 2A. The impugned orders would reflect as though they are only fresh orders made since they are....
X X X X Extracts X X X X
X X X X Extracts X X X X
....claring that the petitioners are not entitled for the benefit of the claim on the ground that the payments as demanded under section 90(1) of the Act were not made within the period of limitation are under challenge. 15. The learned counsel for the petitioners would contend that since within 30 days of the original determination order made under section 90(1) of the Act, the payments were made, the petitioners have complied with sub-section (2) of section 90 of the Act. Therefore, they are entitled for the benefit of the scheme. The learned counsel would further point out that in the amendment orders, there was no time prescribed by the second respondent making it imperative for the petitioners to pay the amounts within the said prescribed time. The learned counsel would further submit that there is no period of limitation prescribed in the Act to make payment on the basis of any amendment made to the original order. But the learned counsel would also point out that there is no provision in the Act to reopen the issue. The learned counsel would submit that as soon as the payments were made under section 90(1) of the Act as per the original orders made, the certificates shou....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... this scheme. 17. I have considered the above submissions made on either side. Admittedly, the petitioners have not paid the amounts demanded as per the amendment orders within 30 days of service of the said orders to the petitioners. Hence, the only crucial question is whether on this ground, the first respondent was right in declining to issue a certificate under section 90(2) of the Act thereby declaring that the petitioners were not entitled for the benefits of the scheme. There is no dispute in this case that the petitioners paid the amounts originally determined under section 90(1) of the Act and demanded. The contention of the learned counsel for the petitioners that the payment of the original amount demanded within the time stipulated would amount to strict adherence to the time prescribed in the Act. I find force in the said argument. 18. A close reading of sub-section (2) of section 90 would show that it speaks of limitation for making payment as determined by the designated authority. Here in these cases, the original amounts were determined, certificates under section 90(1) were issued and based on the same, the amounts were paid within 30 days. Thus, i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as not prescribed any such period of limitation both for the authority to pass an amendment order and for the declarant to make payment, such period of limitation cannot be assumed as it is sought to be done by the learned counsel for the respondent. At the same time, it cannot be said that the declarant at his free will, can make payment at any time. It can only be said that the payment should be made within a reasonable time or within a time to be stipulated in the order itself. In the cases on hand, as pointed out by the learned counsel for the petitioners, in the amendment orders, there was nothing said about the time within which the amounts should be paid. Therefore, in my considered opinion, the payment of the amounts by the petitioners beyond 30 days but within a reasonable time as per the amendment orders satisfies the requirements of the scheme. Therefore, they are entitled for the certificate under section 90(2) of the Act. 19. The learned counsel for the respondents would submit that as held by the honourable Supreme Court in Hemalatha's case [2003] 259 ITR 1, it is far beyond the scope of power of this court to condone the delay and to say that the petitioners ....