# Deoneria Cold Storage & Ice Factory v. Commissioner of Income Tax, Agra & others

- **Citation:** (2003) 1 ILRA 107
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-01-13
- **Case number:** Civil Misc. Writ Petition No. 494 of 1999
- **Bench:** M. Katju, Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deoneria-cold-storage-ice-factory-v-commissioner-of-income-tax-agra-others-39875
- **Pages:** 4

## Headnote

Finance Act 1988 Indian Post Office Act-
Section 3 (a)- Letter send to addressee-
during course of transmission- but the
presumption
about
reaching
to
its
destination available only when the
letter received by addressee- Postal
Service Receipts can easily be procured-
Petitioner send his representation under
Kar Samadhan Scheme under Postal
certificate not received by the authority
within
the
prescribed
period-
held
Rejection proper.

Held- Para 10

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 Act 1988. 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 the respondent no. 1
and its officials could have easily have
gone to the office of the 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.

## Text

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1All] Deoneria Cold Storage & Ice Factory V. Commissioner of Income Tax, Agra & others 107
amount
to
creating
of
posts
and
continuing them despite non availability
of the work. The directions issued by the
High
Court
are
absolutely
illegal
warranting
the
Supreme
Court's
interference."

7. Recently in Karnataka State
Coop. Apex Bank Ltd. Vs. & Y.S. Shetty
and others, 2000 Supreme Court cases
(L&S) 377, it has been held by the Apex
Court that the terms and conditions of
project and appointments are governed by
appointment letters and the agreements
entered by respondents and the employees
appointed under the project have no right
on the permanent post in the appellant
Bank
particularly
when
their
appointments were made for specified
project and as such their claim for being
absorbed as Assistant Managers was also
without any basis.

8. In Karnataka State Coop. Apex
Bank Ltd. (supra) the respondents,
however, pointed out that there were
certain posts against which they could be
accommodated and granted them liberty
to submit their representations to the
appellant Bank, for considering their case
keeping
in
view
their
training,
qualifications, experience and eligibility
for the said posts.

9. In the instant case, it is an
admitted fact that the petitioner has been
appointed for a specified period in the
project and has worked there till 31.12.90.
The counsel for the petitioner states that
looking to the training, qualifications,
experience
and
eligibility
of
the
petitioner, the institute may engage him in
any
project.
The
counsel
for
the
respondents states that the petitioner may
be permitted to make an application for
appointment in a project subject to
suitability, experience and eligibility as
required.

10. It is settled law that when the
posts are created for purposes of the
project and the project is completed, the
temporary employees have no right to
permanent post in the project particularly
when their appointments were made for a
specified prior or till the completion of
the project. This Court cannot give any
direction to regularize their services on
abolition of the project nor give any
direction to create posts in the project.

11. In view of the above position of
law, and considering the request of the
counsel for the petitioner the writ petition
is disposed of with the direction to the
respondents that if there is any post in any
project under any scheme in which the
petitioner can be accommodated, they
may consider for his appointment, if he
applies for the same keeping in view his
training, qualification, experience and
eligibility required for the post. No order
as to costs.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.1.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 494 of 1999

Doneria Cold Storage & Ice Factory

...Petitioner
Versus
Commissioner of Income Tax, Agra and
another

 ...Respondents

Counsel for the Petitioner:
Sri S.P. Gupta
http://www.allahabadhighcourt.nic.in
108 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Sri Tarun Agarwala

Counsel for the Respondents:
S.C.

Finance Act 1988 Indian Post Office Act-
Section 3 (a)- Letter send to addressee-
during course of transmission- but the
presumption
about
reaching
to
its
destination available only when the
letter received by addressee- Postal
Service Receipts can easily be procured-
Petitioner send his representation under
Kar Samadhan Scheme under Postal
certificate not received by the authority
within
the
prescribed
period-
held
Rejection proper.

Held- Para 10

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 Act 1988. 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 the respondent no. 1
and its officials could have easily have
gone to the office of the 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.

(Delivered by Hon'ble M. Katju, J.)

1. This writ petition has been filed
against the impugned order of the
Commissioner Income Tax, Agra dated
4.5.99 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
21.4.99
(Annexure-8 to the petition).

2. The petitioner is a partnership
firm. For the Assessment year 1992-93 it
had filed 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
30.3.98 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 (Appeal) which was rejected on
27.8.98 vide Annexure-2 to the writ
petition. Thereafter it filed further appeal
before the Income Tax Appellate Tribunal
on 15.1.99. True copy of the memo of
appeal has been annexed as A.

3. The Central Government issued
Kar Vivad Samadhan Scheme under
Finance (No. 2) Act 1998 which came
into force from 1.9.98 and was applicable
till 31.1.99. This Scheme provided for
settlement of disputed arrears of tax etc.
Section 88 of the aforesaid Finance Act of
1988 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 31st day of December 1998, a
http://www.allahabadhighcourt.nic.in
1All] Deoneria Cold Storage & Ice Factory V. Commissioner of Income Tax, Agra & others 109
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 the scheme by the
declarant shall be determined at the rates
specified hereunder."

4. The petitioner sent a declaration
in Form 1-A dated 22.1.99 and sent it to
the
designated
authority
i.e.
the
Commissioner of Income Tax, Agra under
certificate of posting dated 22.1.99.
Photocopies of the 10 declarations Forms
filed by the petitioners and its partners for
the assessment year 1988-89 and 1992-93
have
been
collectively
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 15.2.99 and
24.4.99 vide Annexure-6 and 7 to the writ
petition. However the petitioner received
the impugned order dated 4.5.99 stating
that 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
5.2.99 i.e. after the last date of receiving
application namely 31.1.99. Thereafter
the Tax Recovery Officer passed an order
dated
21.4.99
for
attaching
the
petitioner's factory.

6. Learned counsel for the petitioner
submitted that since the petitioner sent the
declaration
in
Form-I-A
under
the
Scheme by postal certificate dated 22.1.99
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
31.1.99.

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
31.12.1998,
which
date
had
been
extended to 31.1.99.

8. In the counter affidavit it has been
stated in paragraph 11 that the petitioner's
declaration was received in the office of
the respondent no. 1 on 5.2.99, i.e. after
the last prescribed date. It is further stated
that Fatehabad (District Agra) from where
the declaration was sent is only 50 km.
from the office of the Income Tax
Department. Had the petitioner sent the
letter by postal certificate on 22.1.99 it
would have reached the office of
respondent no. 1 in not more than three
days but it reached only on 5.2.99.

9. In our opinion it was for the
petitioner to have ensured that the
declaration reached the respondent no. 1
by 31.1.99. 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 dated. 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 dated.
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110 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

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 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."

10. 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 Act 1988. 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 km. from
the office of the respondent no. 1 and its
officials could have easily have gone to
the office of the respondent no. 1 for the
purpose of making the declaration. It is
also a matter of common knowledge that
postal
certificate
can
easily
be
manufactured with an ante dated date and
hence no reliance can be placed on the
same.

11. Since the declaration reached the
respondent no. 1 after the prescribed
dated it was clearly not maintainable.
Thus there is no force in this petition and
it is dismissed.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.1.03

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 25006 of 2001

Ramesh Kumar Misra

...Petitioner
Versus
The Union of India and others

 ...Respondents

Counsel for the Petitioner:
Sri Ramesh Kumar Misra (In person)
Sri P.S. Pandey

Counsel for the Respondents:
Sri A.K. Sinha
Sri K.K. Parikh (Addl. S.C.)

Constitution of India- Article 226-Chief
of Army Staff may be sued any where in
the country and thus this court has
jurisdiction to entertain, consider and
finally decide the writ petition filed in
the year 2001.

Held Para 12

In the aforesaid facts and circumstances
of the case the writ petition is allowed. It
is declared that the petitioner has retired
from the rank of Havaldar group A on
31.8.1997 and is entitled to pension and
other benefits as having retired from the
rank of Havaldar, (MT) group A. The
respondents are directed to re-fix his
pension accordingly, and to pay his
entire arrears, with simple interest as
prevalent @ 10% per annum. The
petitioner shall be entitled to cost of this
writ petition.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. This writ petition was filed
through a counsel of this Court. The
petitioner, however, has chosen to argue it