JUDGMENT M. Katju, J.
1. This writ petition has been filed against the impugned order of the Commissioner of Income-tax, Agra, dated May 4, 1999, annexure 1, to the writ petition. It has also been prayed that respondent No. 1 be directed to entertain the petitioners' application under the Kar Vivad Samadhan Scheme, 1998, treating it to be within limitation and to quash the recovery proceedings including the attachment order dated April 21, 1999 (annexure 8 to the petition).
2. The petitioner is a partnership firm. For the assessment year 1992-93 it had filed a return showing taxable income at Rs. 53,950. However, the assessing authority passed an assessment order assessing the income of the petitioner to be Rs. 76,63,740. The petitioner filed an appeal, which was allowed by the Commissioner of Income-tax and the matter was remanded back to the assessing authority and the assessing authority passed a fresh order dated March 30, 1998. calculating the total income of the petitioner to be Rs. 46,07,720. A demand notice for Rs. 13,13,085 was issued. Against that order the petitioner filed an appeal to the Commissioner of Income-tax (Appeals) which was rejected on August 27, 1998, vide annexure 2 to the writ petition. Thereafter it filed further appeal before the Income-tax Appellate Tribunal on January 15, 1999. A true copy of the memo of appeal has been annexed as annexure 3 to the petition.
3. The Central Government issued the Kar Vivad Samadhan Scheme under the Finance (No. 2) Act, 1998, which came into force from September 1, 1998, and was applicable till January 31, 1999. This scheme provided for settlement of disputed arrears of tax, etc. Section 88 of the aforesaid Finance (No. 2) Act of 1998, states as follows :
"Subject to the provisions of this scheme, where any person makes, on or after the 1st day of September, 1998, but on or before the 31st day of December, 1998, a declaration to the designated authority in accordance with the provisions of Section 89 in respect of tax arrear, then, notwithstanding anything contained in any direct tax enactment or indirect tax enactment or any other provision of any law for the time being in force, the amount payable under this Scheme by the declarant shall be determined at the rates specified hereunder."
4. The petitioner sent a declaration in Form No. IA dated January 22, 1999, and sent it to the designated authority, i.e., the Commissioner of Income-tax, Agra, allegedly under certificate of posing dated January 22, 1999. Photocopies of the ten declaration forms filed by the petitioners and its partners for the assessment years 1988-89 and 1992-93 have been collectively annexed as annexure 4 to the writ petition. The photocopy of the postal certificate has been annexed as annexure 5 to the writ petition.
5. It is alleged in paragraph 15 of the writ petition that the petitioner's partner met the Commissioner of Income-tax personally and requested for early disposal of their application filed under the aforesaid Scheme. They also gave reminders vide letter dated February 15, 1999, and April 28, 1999, vide annexures 6 and 7 to the writ petition. However, the petitioner received the impugned order dated May 4, 1999, stating that the petitioner's application under the aforesaid scheme had been rejected as the same was received in the office of the Commissioner of Income-tax, Agra, on February 5, 1999, i.e., after the last date for receiving applications, namely, January 31, 1999. Thereafter the Tax Recovery Officer passed an order dated April 21, 1999, for attaching the petitioner's factory.
6. Learned counsel for the petitioner submitted that since the petitioner sent the declaration in Form No. IA under the scheme by postal certificate dated January 22, 1999, it should be presumed that it was received in the office of the designated authority in a day or two. He submitted that the scheme does not contemplate that the declaration must be received in the office of the designated authority on or before January 31, 1999.
7. We do not agree. A perusal of Section 88 of the Act clearly shows that the declaration has to be made to the designated authority on or before December 31, 1998, which date had been extended to January 31, 1999.
8. In the counter affidavit it has been stated in paragraph 11 that the petitioner's declaration was received in the office of respondent No. 1 on February 5, 1999, i.e., after the last prescribed date. It is further stated that Fatehabad (District Agra) from where the declaration was sent is only 50 k.m. from the office of the Income-tax Department. Had the petitioner sent the letter by postal certificate on January 22, 1999, it would have reached the office of respondent No. 1 in not more than three days but it reached only on February 5, 1999.
9. In our opinion it was for the petitioner to have ensured that the declaration reached respondent No. 1 by January 31, 1999. Section 88 of the Act as interpreted by us itself shows that it is for the assessee to ensure that the declaration has to reach the designated authority by the date fixed. Section 88 of the Act states that the person has to make the declaration to the designated authority by the prescribed date. If the petitioner made the declaration by sending it by post then it is for him to ensure that the declaration reaches the designated authority by the prescribed date.
10. Section 3(a) of the Indian Post Office Act, 1898, states :
"(a) a postal article shall be deemed to be in course of transmission by post from the time of its being delivered to a post office to the time of its being delivered to the addressee or of its being returned to the sender or otherwise disposed of under Chapter VII."
11. The above provision clearly indicates that merely by posting a letter it does not amount to making a declaration to the designated authority under Section 88 of the Finance (No. 2) Act, 1998. By merely posting a letter the sender only puts the letter in the course of transmission, but the letter will be deemed to have been made to the designated authority only when it reaches him. Moreover, there is a difference between sending a letter by registered post and postal certificate. The petitioner was situate only 50 k.m. from the office of respondent No. 1 and its officials could have easily have gone to the office of respondent No. 1 for the purpose of making the declaration. It is also a matter of common knowledge that postal certificates can easily be manufactured with an ante-dated date and hence no reliance can be placed on the same.
12. Since the declaration reached respondent No. 1 after the prescribed date it was clearly not maintainable. Thus there is no force in this petition and it is dismissed.