IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

[Original Jurisdiction]

WRIT PETITION NO: OF 2015

BETWEEN:

1)

2]

Chandramappa RamannaDhavalagi,age about 45Years,occupation-CharteredAccountant,Past presidentKSCAA,Dhavalgi Chambers,NCM,Hubli,

Vivek Lingappa Urankar,ageabout 52 years,occupation-Taxpracticenor ,GGF-53,Harekrishna chamber, Laxmicomplex,Hubli.

PETITIONER No.1

PETITIONER No.2

A N D :

1) Union of IndiaMinistry of Finance, Departmentof Revenue, North BlockNew Delhi : 110001

RESPONDENT No.1

2) Central Board of Direct Taxes,North Block, Ministry ofFinance,New Delhi : 110001

RESPONDENT No.2

UNDER ARTICLES 226 AND 227 OF THE

CONSTITUTION OF INDIA

IN this, the above named petitioners most respectfully

begs to submit as under:

http://taxguru.in/

1. THAT the petitioner is an Chartered accountant, and ex-

President ,Karnataka State Chartered Accoutants

Association,Bengaluru, carrying on his profession at Dhavalgi

Chambers,New cotton market, Hubli. The petitioner conducts

the Income Tax Audit of individulas, Firms, Corporates,

Banks, Co-operatavie societies under section 44AB in terms of

the Income Tax Act 1961.

2. THAT Section 44AB of The Income Tax Act 1961 providesas under ;

Audit of accounts of certain persons carrying on business

or profession.

44AB. Every person,—

(a) carrying on business shall, if his total sales, turnover or

gross receipts, as the case may be, in business exceed

or exceeds one crore rupees in any previous year; or

(b) carrying on profession shall, if his gross receipts in

profession exceed twenty-five lakh rupees in any

previous year; or

(c) carrying on the business shall, if the profits and gains

from the business are deemed to be the profits and

gains of such person under section 44AE or section

44BB or section 44BBB, as the case may be, and he has

claimed his income to be lower than the profits or gains

http://taxguru.in/

so deemed to be the profits and gains of his business, as

the case may be, in any previous year; or

(d) carrying on the business shall, if the profits and gains

from the business are deemed to be the profits and

gains of such person under section 44AD and he has

claimed such income to be lower than the profits and

gains so deemed to be the profits and gains of his

business and his income exceeds the maximum amount

which is not chargeable to income-tax in any previous

year,

get his accounts of such previous year audited by an

accountant before the specified date and furnish by that date

the report of such audit in the prescribed form duly signed

and verified by such accountant and setting forth such

particulars as may be prescribed :

Explanation.—For the purposes of this section,—

(i) "accountant" shall have the same meaning as in the

Explanation below sub-section (2) of section 288;

http://taxguru.in/

(ii) "specified date", in relation to the accounts of the assessee

of the previous year relevant to an assessment year, means the

due date for furnishing the return of income under sub-

section (1) of section 139.

3. Further Section 139 of the IT Act1961 provides that;

Return of income.

139. (1) Every person,—

(a) being a company or a firm; or

(b) being a person other than a company or a firm, if his total

income or the total income of any other person in respect of

which he is assessable under this Act during the previous year

exceeded the maximum amount which is not chargeable to

income-tax,

shall, on or before the due date, furnish a return of his income

or the income of such other person during the previous year,

in the prescribed form and verified in the prescribed manner

and setting forth such other particulars as may be prescribed :

*

*

Explanation 2.—In this sub-section, "due date" means,—

http://taxguru.in/

(a) where the assessee other than an assessee referred to in

clause (aa) is—

(i) a company; or

(ii) a person (other than a company) whose accounts are

required to be audited under this Act or under any other

law for the time being in force; or

(iii) a working partner of a firm whose accounts are required

to be audited under this Act or under any other law for

the time being in force,

the 30th day of September of the assessment year;

(aa) in the case of an assessee who is required to furnish a

report referred to in section 92E, the 30th day of

November of the assessment year;

(b) in the case of a person other than a company, referred to

in the first proviso to this sub-section, the 31st day of

October of the assessment year;

(c) in the case of any other assessee, the 31st day of July of

the assessment year

4. Further ,Section 2 of the IT Act provides;

http://taxguru.in/

Definitions. In this Act, unless the context otherwise

requires,—*

*

(9) "assessment year" means the period of

twelve months commencing on the 1st day of

April every year ;

5. Further Section 271B of the Act provides as;

Failure to get accounts audited.

271B. If any person fails to get his accounts audited in

respect of any previous year or years relevant to an

assessment year or furnish a report of such audit as

required under section 44AB, the Assessing Officer may

direct that such person shall pay, by way of penalty, a

sum equal to one-half per cent of the total sales, turnover

or gross receipts, as the case may be, in business, or of

the gross receipts in profession, in such previous year or

years or a sum of one hundred fifty thousand rupees,

whichever is less.

6. That , from the provisions above mentioned of the Income

Tax Act.1961, it very clear that persons falling under section

44AB are to get their accounts audited and submit their

http://taxguru.in/

returns on or before the 30th day of September of the

assessment year. If any person fails to get his accounts

audited / fails to submit their returns before the said due

date, he shall have to pay a penalty under section 271B of

the Act, and also interest as per the provisions of section

234A of the Act i.e.

234A. (1) Where the return of income for any

assessment year under sub-section (1) or sub-section (4)

of section 139, or in response to a notice under sub-

section (1) of section 142, is furnished after the due date,

or is not furnished, the assessee shall be liable to pay

simple interest at the rate of one per cent for every month

or part of a month comprised in the period commencing

on the date immediately following the due date.

7. THAT ,from these provisions of law ,the assesse is given a

time period from 1st April to 30th of September [6 months,i.e

about 180 days in all] of the assessment year to get his

accounts audited and to file the returns. This is a statutory

provision.

8. The Government of India, Ministry of Finance,

Department of Revenue have brought some modifications in

the norms of audit and return Forms for the year 2015-2016.

http://taxguru.in/

9. It is the statutory right of every assesse of filing his

returns from 1st day of April and before due date.

10. That for the year 2015-2016, the Ministry of Finance,

Department of Revenue has made available the Return forms

e-enabled only from 7th August 2015, instead of 1-4-2015.

This has caused a delay in notification of forms and

consequently reduction of time wherein the delay in notifying

the forms by the Respondent No.1 and 2 has reduced the time

of filing Income Tax Return by about 122 days .

11. That due to the unjust prejudice and harassment being

caused on account of the aforesaid reduction in time,

attributable to delayed notification of ITR forms, various

representations were filed before the Respondent No.1 and 2,

inter-alia by The Institute of Chartered Accountants of India

(An Autonomous body set under an Act of Parliament) and

other professional bodies to extend the specified date u/s

44AB & also the due date u/s 139(1).

12. However, the Respondent No.1 and 2 without any

application of mind, acting arbitrarily and in unconstitutional

manner did not consider the said representations and denied

to extend the time for filing the Income Tax Return from

30.09.2015 to any further date.

http://taxguru.in/

13. The Government of India, Ministry of Finance,

Department of Revenue,Central Board of Direct Taxes, on 9th

September 2015, released a Press Release stating that “the

last date for filing of returns due by 30th September 2015 will

not be extended”. That the copy of the Press Release Dated

09.09.2015 issued by Respondents and available at the

website of the Press Information Bureau of India (Weblink :

http://pib.nic.in/newsite/erelease.aspx) is annexed herewith

and marked as Annexure A.

14. THAT The Institute of Chartered Accountants of India has

addressed a letter dated 14th September 2014 to the Hon,ble

Finance Minister, Government of India, New Delhi referring the

press release dated 9th September 2015 and requesting him to

extend the due date from 30th September 2015 to 31st October

2015. There is no reply to this letter. That the copy of the

letter dated 14th September 2015 is annexed herewith and

marked as Annexure B.

15.

16. THAT the petitioner has not challenged the refusal of

extension of last date for filing of returns due by 30th

September 2015 by filing any Writ Petition before this Hon’ble

http://taxguru.in/

Court. No other proceeding in respect thereof is pending before

this Hon’ble Court.

17. THAT the petitioner has no other alternate

efficacious remedy at law than to approach this Hon’ble Court

under Articles 226 and 227 of the Constitution of India upon

the following among other

GROUNDS

18. The act of the respondents in refusal of extension of

last date for filing of returns due by 30th September 2015 is

without the authority of law.

19. The Return forms should have been e-enabled on 1st

of April 2015 . The respondents have e-enabled the return

forms only from 7th of August 2015 and thereby reduced the

effective number of days for filing the returns by 122 days,

leaving only about 58 days. This is arbitrary action by the

respondents and is without the authority of law. It is

unreasonable, unjust, 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.

http://taxguru.in/

20. That apart from the act of the respondents causing

reduction in effective days for filing returns to onle 58 days

instead of 183 days, there is one more genuine reason for

demanding extension of the due date from 30th September to

any further date.

21. It is a well known fact that these days ,atleast for the

last 65 days , there is a movement going on in the entire State

and particularly in the North Karnataka region centering

Hubli-Dharwd regarding Kalasa-Banduri issue. Due to this

movement a number of “Bundh”s have taken place affecting

normal life including buisiness and profession. Many more

“Bundh”s are proposed before 30th September 2015.

22. These “ Bundh”s have also contributed further in

reducing the available effective number of days for filing the

returns.

23. Under these vague situation and circumstances, the

most affected category of Tax Payers has been the Assesses

including Companies, and Firms and, Individuals and HUF’s,

Engaged in Proprietary Business/Profession etc., whose

Accounts are required to be Audited in terms of the Income

http://taxguru.in/

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 days, making available only

58 days (including Sundays and holidays). Further these 58

days have also been reduced substantially due to the

“Bundh”s on various days during August and September

2015.

24. The statistics extracted from the E-filing portal of the

Income Tax department, reveals almost 73% of the substantial

returns, without considering the increase in section 44AB

cases for F.Y. 2014-15 and F.Y. 2013-14, and amenable to

audits u/s 44AB and falling due to be filed on or by

30.09.2015, are yet pending as on today. The detail so

extracted is as under: -

E-filed returnsduring FY2014-15

Filing Till31/08/2015

Pendingreturnstill date

ITR

Forms

ITR 4 9,343,539 2,713,724 71%

ITR 5 1,065,650 254,994 76%

ITR 6 752,070 45,179

ITR 7 168,017 41,905 75%

TOTAL 11,329,276 3,055,802 73%(Source :- www. Incometaxindiaefiling.gov.in dated 10.9.2015)

http://taxguru.in/

25. The decision of the respondents vide the press

release dated 9th September 2015 of not extending the last

date for filing the returns is 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.

26. The Tax Payer as well as the Respondents expect

from the Chartered Accountant a 100% compliance with zero

tolerance while making compliances under the Income Tax

Act. The Chartered Accountant is thus brought under

pressure.

27. On several earlier occassions the last date for filing

various returns have extended by the authorities.

GROUNDS FOR INTERIM PRAYER

28. The decision of the respondents vide the press

release dated 9th September 2015 of not extending the last

date for filing the returns is unreasonable, arbitrary,

unjustified and unconstitutional, as the same is causing grave

prejudice and harassment, not only to the concerned Tax

http://taxguru.in/

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. If the Interim prayer as prayed for

herein below is not granted the petitioners will be put to

incalculabe loss.

PRAYER

29. WHEREFORE, the petitioner prays that this Hon’ble

Court may be pleased to:

(A) Issue a writ in the nature of certiorari or any

other appropriate writ or order or direction declaring

the decision of the Respondent No.1 and 2 vide its

Press Release Dated 09.09.2015 as null and void.

(Annexure M);

(B) issue a writ in the nature of mandamus or any

other appropriate writ or order or direction directing

the respondent No.1 and 2 to extend the last date of

filing of Returns due by 30th September, for Assessment

Year 2015-2016 for Categories of Assesses whose

Accounts are required to be Audited as per Income Tax

Act, 1961 from 30.09.2015 to 31.10.2015; and

(C) Such other orders as deemed fit, be passed.

http://taxguru.in/

DHARWAD21-09-2015

Advocate for the petitioner

INTERIM PRAYER

Pending disposal of the top noted Writ Petition this Hon’ble

Court may be pleased to sta the operation and effect of press

release dated 09-09-2015 (ANNEXURE A)and extend the due

date for filing the returns(ITR).

ADDRESS FOR SERVICE:

Prakash Andanimath Advocate,

“Annapurna”, Vidyanagar,

HUBLI-580031.

http://taxguru.in/

IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

WRIT PETITION NO: OF 2015

BETWEEN:

1)

2]

Chandramappa RamannaDhavalagi,age about 45Years,occupation-CharteredAccountant,Past presidentKSCAA,Dhavalgi Chambers,NCM,Hubli,

Vivek Lingappa Urankar,ageabout 52 years,occupation-Taxpracticenor ,GGF-53,Harekrishna chamber, Laxmicomplex,Hubli.

PETITIONER No.1

PETITIONER No.2

A N D :

1) Union of IndiaMinistry of Finance, Departmentof Revenue, North BlockNew Delhi : 110001

RESPONDENT No.1

2) Central Board of Direct Taxes,North Block, Ministry ofFinance,New Delhi : 110001

RESPONDENT No.2

AFFIDAVIT

In this, I, Chandrashekhar R Dhavalagi, age about 44

years, occupation Chartered Accountant, residing at Hubli

today having come over to Dharwad do hereby state on solemn

affirmation as under:

http://taxguru.in/

1. I am the petitioner in the top-noted Writ Petition. I am

acquainted with the facts of the case. I have been authorised

to file this top noted Writ Petition. Hence I am swearing to this

affidavit.

2. I state that the statement of facts contained in paragraphs

1 to 27 of the accompanying petition are true to the best of my

knowledge and I believe the same to be true and correct.

3. I state that the documents at Annexure A, and B are the

copies of the originals.

DHARWAD21-09-2015 DEPONENT

Identified by

Advocate Roll No:

http://taxguru.in/

IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

WRIT PETITION NO: OF 2015

BETWEEN:

1)

2]

Chandramappa RamannaDhavalagi,age about 45Years,occupation-CharteredAccountant,Past presidentKSCAA,Dhavalgi Chambers,NCM,Hubli,

Vivek Lingappa Urankar,ageabout 52 years,occupation-Taxpracticenor ,GGF-53,Harekrishna chamber, Laxmicomplex,Hubli.

PETITIONER No.1

PETITIONER No.2

A N D :

1) Union of IndiaMinistry of Finance, Departmentof Revenue, North BlockNew Delhi : 110001

RESPONDENT No.1

2) Central Board of Direct Taxes,North Block, Ministry ofFinance,New Delhi : 110001

RESPONDENT No.2

SYNOPSIS

The respondents have made reforms to the Tax return forms

applicable to certain category of Tax Payers / Assesses

including Companies, Firms and Individuals and HUF’s,

Engaged in Proprietary Business/Profession etc., whose

Accounts are required to be Audited in terms of the Income

Tax Act 1961.

http://taxguru.in/

The statutory period for getting the accounts audited under

section 44AB of the Act and filing the returns is from 1st April

to 30th September of the assessing year. This provides 183

effective days for filing the returns.

However, for the year 2015-2016, the return forms were e-

enabled only from 7th August 2015. This has reduced the

effective days for filing the returns by about 122 days , leaving

only 58 days (including Sundays and holidays).

Further, the unrest and the “Bundh”s occassioned due to

“Kalasa- Banduri” issue has affected entire Karnataka and in

particular North Karnataka centering Hubli-Dharwad. These

unforseen circumstances have further reduced the effective

days available for filing return forms. Non-compliance of filing

of returns before due date attracts penalty. Auditors are

subjected to pressure and harassment . Delay in e-enabling of

tax return forms is without any authority of law. It is

arbitrariness on the part of respondents and violative of

constitutional provisions provided under Part III of the

constitution. Hence this Writ Petition.

http://taxguru.in/

CHRONOLOGICAL LIST OF DATES AND EVENTS

Sl No Date Events

1. 01-08-2015 Enabling e-filing of ITR 3,4 and 7

2. 02-08-2015 Enabling e-filing of ITR 5

3. 07-08-2015 Enabling e-filing of ITR 6

4. 09-09-2015 Press Release,refusing extension

5. 14-09-2015 Letter to Hon’ble Finance Minister

DHARWAD21-09-2015 Advocate for the petitioner

http://taxguru.in/

IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

WRIT PETITION NO: OF 2015

BETWEEN:

1)

2]

Chandramappa RamannaDhavalagi,age about 45Years,occupation-CharteredAccountant,Past presidentKSCAA,Dhavalgi Chambers,NCM,Hubli,

Vivek Lingappa Urankar,ageabout 52 years,occupation-Taxpracticenor ,GGF-53,Harekrishna chamber, Laxmicomplex,Hubli.

PETITIONER No.1

PETITIONER No.2

A N D :

1) Union of IndiaMinistry of Finance, Departmentof Revenue, North BlockNew Delhi : 110001

RESPONDENT No.1

2) Central Board of Direct Taxes,North Block, Ministry ofFinance,New Delhi : 110001

RESPONDENT No.2

INDEX

Sl No Particulars Pages

1. Synopsis

2. Memorandum of Writ Petition

3. Affidavit

4. Annexure A :

5. Annexure B:

6. Vakalat

http://taxguru.in/

DHARWAD21-09-2015

Advocate for the petitioner

http://taxguru.in/