WP(C)1609/2013 Page 1 of 32 THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 02.07.2013 + WP(C) NO. 1609/2013 COMMISSIONER OF INCOME TAX ... Petitioner versus INCOME TAX SETTLEMENT COMMISSION & ORS. ... Respondents Advocates who appeared in this case: For the Appellant : Mr Kamal Sawhney, Adv. with Mr. Shashank Singh, Adv. For the Respondent : Mr Mukul Rohtagi, Ms Prem Lata Bansal, Sr. Advs. with Mr Saurabh Kirpal, Mr Mahesh Agarwal, Mr Akshay, Mr Ankit Shah, Ms Manasi, Advs. for the Respondents 2 to 5 CORAM:- HON’BLE MR JUSTICE BADAR DURREZ AHMED, THE ACTING CHIEF JUSTICE HON’BLE MR JUSTICE R.V.EASWAR JUDGMENT BADAR DURREZ AHMED, ACJ
1. This writ petition is directed against the order dated 24.01.2013 passed by the Income Tax Settlement Commission, Principal Bench, New Delhi under Section 245D(2C) of the Income Tax Act, 1961 (hereinafter referred to as ‘the said Act’). By virtue of the impugned order dated 24.01.2013, the Income Tax Settlement Commission (hereinafter referredWP(C)1609/2013 Page 2 of 32 to as ‘the Settlement Commission’) held the settlement applications of the Respondent Nos. 2 to 5 to be “not invalid” and were therefore allowed to be proceeded with inasmuch as the said settlement applications had, in the view of the Settlement Commission, prima facie, fulfilled all the conditions prescribed under Section 245C(1) and 245D(2C) of the said Act. The petitioner (Commissioner of Income-tax) is aggrieved by the said order dated 24.01.2013 inasmuch as according to the petitioner, the settlement applications filed on behalf of the respondents 2 to 5 ought not to have been proceeded with and ought to have been held as “invalid” because the settlement applications failed to satisfy the pre-requisites stipulated in Section 245C of the said Act. Those pre-requisites being, full and true disclosure, the manner in which the undisclosed income had been derived and the additional amount of income tax payable. 2. On behalf of the petitioner, it was sought to be contended that as there was no true and full disclosure by the respondents 2 to 5 in their applications for settlement, the Settlement Commission ought not to have proceeded with their applications and ought to have passed an order under Section 245D(2C) holding the applications to be invalid. It was also contended that the manner of deriving the undisclosed income had not been indicated by the respondents 2 to 5 and, therefore, on this ground also, the order under Section 245D(2C) passed by the Settlement Commission ought to have been one holding the settlement applications to be invalid. Strong reliance was placed by the learned counsel appearing for the petitioner on the Supreme Court decision in the case ofWP(C)1609/2013 Page 3 of 32 Ajmera Housing Corporation v. Commissioner of Income Tax: 326 ITR 642 (SC) to contend that where there was an established case of absence of full and true disclosure on the part of the applicant, the settlement application ought to be rejected at the threshold by the Settlement Commission.
3. In this backdrop, the learned counsel for the petitioner sought to argue on the merits of the matter and to establish that there was in fact substance in his contention that the respondents 2 to 5 had not made a full and true disclosure and that they had also not indicated the manner in which the undisclosed income had been derived. At the threshold itself, the learned counsel appearing on behalf of the respondents 2 to 5 took serious objection to the maintainability of the present petition. It was contended on behalf of the respondents 2 to 5 that the writ petition challenging the order dated 24.01.2013 passed under Section 245D(2C) of the said Act as also the earlier orders dated 30.11.2012 and 28.12.2012 passed under Section 245D(1) of the said Act was not maintainable inasmuch as those orders were merely orders of ‘admission’. Reliance was placed by the learned counsel for the respondents 2 to 5 on a decision of the Supreme Court in the case of Commissioner of Income Tax v. K. Jayaprakash Narayanan: 184 Taxman 85 (SC). Reliance was also placed on a decision of a Division Bench of this Court in the case of Commissioner of Central Excise, Vishakapatnam v. True Woods Private Ltd.: 2006 (199) ELT 388 (Del) as also on a decision of the Bombay High Court in the case of Union of India v. Customs andWP(C)1609/2013 Page 4 of 32 Central Excise Settlement Commission, Mumbai: 2009 (234) ELT 634 (Bom). The learned counsel for the respondents 2 to 5 emphasized that the impugned orders were only orders of admission and only indicated a prima facie view. It was open for the Settlement Commission to alter that view in the course of further proceedings till the final order was passed under Section 245D(4) of the said Act. It was therefore contended that there is no cause for concern on the part of the Department at this stage as the matter is still under examination by the Settlement Commission and a final decision has not been taken by it. It was also contended that the writ petition would not be maintainable as this Court, in judicial review, is not concerned with the merits of the matter, as it would be, had it been exercising an appellate jurisdiction. It is only the decision making process which can be challenged and can be the subject matter of judicial review in a writ petition. Since there is no allegation of any procedural violation or lack of jurisdiction, the present writ petition which is essentially aimed at a look into the merits of the matter, would not be maintainable. It was also contended that the impugned order dated 24.01.2013 itself records that the issues raised by the Commissioner of Income Tax would be open during the course of proceedings under Section 245D(4) of the said Act and that the settlement applications were held to be not invalid only upon a prima facie view that the respondents 2 to 5 had fulfilled the conditions prescribed under Section 245C(1) and 245D(2C) of the said Act. It was submitted that an order of admission, such as the order impugned herein, does not foreclose any argument or any contention of the Department even with regard to the “true and fullWP(C)1609/2013 Page 5 of 32 disclosure” and “the manner in which the income has been derived”. As such, there is no occasion, according to the learned counsel for the respondents 2 to 5, to interfere with the proceedings pending before the Settlement Commission.
4. Before we examine the submissions made by the learned counsel for the parties, it would be appropriate to set out some of the facts. Respondents 2, 3 and 4 had filed settlement applications under Section 245C(1) of the said Act in respect of the Assessment Years 2006-07 to 2012-13 on 16.11.2012. The applications filed by respondents 3 and 4 who are the parents of respondent 2 were rejected by the Settlement Commission by an order dated 23.11.2012 on the ground that the applicants had not paid the full amount of the additional tax and interest which was payable on or before the filing of the applications. It was therefore held by the Settlement Commission that the said applications of respondents 3 and 4 could not be allowed to be proceeded with and accordingly the applications were rejected. On the very same day, i.e. on 23.11.2012, the respondents 3 and 4 submitted fresh applications under Section 245C(1) after allegedly paying the amount of additional tax and interest that was payable prior to the filing of the settlement applications. Subsequently on 17.12.2012, the respondent 5 (wife of respondent 2) submitted her settlement application for the above mentioned assessment years. The settlement applications were allowed to be proceeded with by virtue of an order dated 30.11.2012 in respect of respondents 2 to 4. A similar order was passed in respect of respondent 5 on 28.12.2012. ThoseWP(C)1609/2013 Page 6 of 32 orders were passed under Section 245D(1) of the said Act and had not been challenged by the Revenue. Even in the present writ petition, the Commissioner of Income-tax had initially not challenged the said orders dated 30.11.2012 and 28.12.2012 passed under Section 245D(1) of the said Act. It is only by way of the amended writ petition which has been filed subsequently that the petitioner also seeks to challenge the said orders dated 30.11.2012 and 28.12.2012. 5. After the passing of the orders under Section 245D(1), reports were called from the Commissioner of Income-tax under Section 245D(2B) of the said Act on the validity of the settlement applications. That report was received by the Settlement Commission on 09.01.2013 and the applications were heard in the context of Section 245D(2C) of the said Act by the Settlement Commission on 21.01.2013. Thereafter the impugned order dated 24.01.2013 was passed in respect of the four settlement applications. The petitioner being aggrieved by the said order as also the earlier orders passed under Section 245D(1) is before us by way of the present writ petition.
6. It must also be pointed out that in the report submitted by the Commissioner of Income-tax under Section 245D(2B) of the said Act, it was contended that the settlement applications should not be held to be valid as the applicants had neither disclosed their full and true income nor the manner in which such income had been derived. In response to the said report, a write-up had been submitted on behalf of the respondents 2WP(C)1609/2013 Page 7 of 32 to 5 seeking to clarify each of the allegations of the Department and the gist of the same has been extracted in the impugned order dated 24.01.2013 which we need not elaborate inasmuch as we do not intend to examine the merits of the matter. After examining the report and the counter arguments of the respondents 2 to 5, the Settlement Commission held that all the four applicants had fulfilled the conditions prescribed under Section 245C(1) as, in its view, there was no adverse material on record to suggest otherwise. The Settlement Commission noted and observed that the issues raised by the Commissioner of Income-tax in his report dated 08.01.2013 would be open for the Bench during the course of proceedings under Section 245D(4). By virtue of the impugned order dated 24.01.2013, the Settlement Commission also directed that the confidential part of the application should be forwarded to the Commissioner of Income-tax who would have an opportunity to examine the same during the course of proceedings under Section 245D(4) of the said Act. The Settlement Commission reiterated that:- “The decision to hold these SAs ‘not invalid’ is without prejudice to initiation of penalty and launching of prosecution proceedings, if required, on facts available on the records at the relevant time in subsequent proceedings by the Commission.”
It was further clarified that the settlement applications were held to be not invalid and were allowed to be proceeded with inasmuch as the Settlement Commission was of the view that the applicants had “primaWP(C)1609/2013 Page 8 of 32 facie” fulfilled the conditions prescribed under Section 245C(1) and 245D(2C) of the said Act.
7. We shall now briefly examine the scheme of the said Act insofar as it is relevant for our purposes. Under section 245C of the said Act, an assessee is entitled to make an application for settlement. The application has to be made in such form and such manner as may be prescribed. The application must contain (i) a full and true disclosure of the assessee’s income which has not been disclosed before the assessing officer; (ii) the manner in which such income has been derived; (iii) the additional amount of income tax payable on such income; and (iv) such other particulars as may be prescribed. Furthermore the assessee is also required to pay the additional amount of tax and interest thereon, on or before the date of making the application and the proof of such payment should be attached with the application. Section 245C(1) stipulates that when such an application is received by the Settlement Commission for having the case settled, the same is to be disposed of in the manner as indicated in the said Act.
8. Section 245D of the said Act sets out the procedure which is to be adopted by the Settlement Commission on receipt of an application under Section 245C. Section 245D(1) stipulates that on receipt of an application under Section 245C, the Settlement Commission is required to, within seven days from the date of receipt of the application, issue a notice to the applicant requiring him to explain as to why the applicationWP(C)1609/2013 Page 9 of 32 made by him be allowed to be proceeded with. Thereafter on hearing the applicant, the Settlement Commission is required to, within a period of 14 days from the date of the application, by an order in writing, reject the application or allow the application to be proceeded with. The proviso to Section 245D(1) stipulates that where no order is passed within the above mentioned period by the Settlement Commission, either allowing the application or rejecting the application, the application shall be deemed to have been allowed to be proceeded with.
9. Sub-section (2B) of Section 245D of the said Act stipulates that the Settlement Commission shall call for a report from the Commissioner and the Commissioner shall furnish the said report within 30 days of receipt of the communication from the Settlement Commission. Section 245D(2C) of the said Act prescribes that where a report of the Commissioner, which has been called for under sub-section (2B), has been furnished within the specified period, the Settlement Commission may, on the basis of the report and within a period of 15 days of receipt of the report, by an order in writing, declare the application in question as invalid and in such eventuality, the Settlement Commission is enjoined to send a copy of such order to the applicant and the Commissioner. The first proviso to Section 245D(2C) ensures that an application shall not be declared invalid by the Settlement Commission unless an opportunity has been given to the applicant of being heard. The second proviso thereto stipulates that where the Commissioner has not furnished the reportWP(C)1609/2013 Page 10 of 32 within the specified period, the Settlement Commission is enjoined to proceed further in the matter without the report of the Commissioner. 10. Under Section 245D(3), the Settlement Commission, inter alia, in respect of an application which has not been declared invalid under Section 245D(2C) of the said Act may call for the records from the Commissioner and after examination of such records, if the Settlement Commission is of the opinion that any further enquiry or investigation in the matter is necessary, it may direct the Commissioner to make or cause to be made such further enquiry or investigation and to furnish a report on the matters covered by the application and any other matter relating to the case. The Commissioner is required to furnish the report within a period of 90 days of receipt of the communication from the Settlement Commission. It is further provided that where the Commissioner does not furnish a report within the said period of 90 days, the Settlement Commission may proceed to pass an order under sub-section (4) without such report.
11. Under Section 245D(4) of the said Act, the Settlement Commission, after examination of the records and the report of the Commissioner, if any, received under, inter alia, sub-section (2B) or subsection (3) and after giving an opportunity to the applicant as also to the
Commissioner to be heard, may pass such order as it thinks, in accordance with the provisions of the said Act, on the matters covered by
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