CAs Nos. 2610-15, 4687-88, 7130-36, 4771-77 of 1994, 11362 of 1995 and 228-34 of 1996
1. The batch of cases concerns Section 245-D of the Income Tax Act, 1961 as it stood prior to 1991 and thereafter. Prior to the amendment in 1991 Sections 245-D(1) and (1-A) read thus:
“245-D. (1) On receipt of an application under Section 245-C, the Settlement Commission shall call for a report from the Commissioner and on the basis of the materials contained in such report and having regard to the nature and circumstances of the case or the complexity of the investigation involved therein, the Settlement Commission, may, by order, allow the application to be proceeded with or reject the application:
Provided that an application shall not be rejected under this sub-section unless an opportunity has been given to the applicant of being heard.
(1-A) Notwithstanding anything contained in sub-section (1), an application shall not be proceeded with under that sub-section if the Commissioner objects to the application being proceeded with on the ground that concealment of particulars of income on the part of the applicant or perpetration of fraud by him for evading any tax or other sum chargeable or imposable under this Act, has been established or is likely to be established by any Income Tax Authority, in relation to the case:
Provided that where the Settlement Commission is not satisfied with the correctness of the objection raised by the Commissioner, the Settlement Commission may, after giving the Commissioner an opportunity of being heard, by order, allow the application to be proceeded with under sub-section (1) and send a copy of its order to the Commissioner.”
By the amendment in 1991, sub-section (1-A) was omitted and sub-section (1) read thus:
“245-D. (1) On receipt of an application under Section 245-C, the Settlement Commission shall call for a report from the Commissioner and on the basis of the materials contained in such report and having regard to the nature and circumstances of the case or the complexity of the investigation involved therein, the Settlement Commission may, by order, allow the application to be proceeded with or reject the application:
Provided that an application shall not be rejected under this sub-section unless an opportunity has been given to the applicant of being heard:
Provided further that the Commissioner shall furnish the report within a period of one hundred and twenty days of the receipt of the communication from the Settlement Commission in case of all applications made under Section 245-C on or after the date on which the Finance (No. 2) Act, 1991 receives the assent of the President and if the Commissioner fails to furnish the report within the said period, the Settlement Commission may make an order without such report.”
2. The respondents in each of these appeals had filed applications under Section 245-C before the Settlement Commission. The Settlement Commission had, under the provisions of Section 245-D, called for a report from the Commissioner and the Commissioner had objected to the applications being proceeded with. The objections of the Commissioner were upheld and the applications were not proceeded with. After the amendment in 1991 of Section 245-D, whereby sub-section (1-A) was omitted altogether, the respondent made fresh applications to the Settlement Commission in regard to the same years for which they had applied earlier and the Settlement Commission entertained these applications. Its Full Bench in Birumal Gaurishankar Jain & Co. v. Income Tax Settlement Commission (1992) 195 ITR 792 (ITSC) found that, having regard to the omission of sub-section (1-A) as aforestated, the Settlement Commissioner was entitled to do so. The Union of India is in appeal against the entertainment of the applications of the respondents as aforestated.
3. On a previous occasion, time was sought by the Union of India to segregate those cases in which the applications had been rejected only on the ground of the Commissioner's objection under the said sub-section (1-A) from those where the Settlement Commission had rejected the applications for the reasons that are stated in sub-section (1).
4. A sample of the order which has been passed, it is common ground, in all the cases is that relevant to M/s Bhaskar Picture Palace (in CAs Nos. 2610-15 of 1994). After recitation of the facts, the objection of the Commissioner and the arguments of the parties, the Settlement Commission said this:
“On a careful consideration of the arguments and material and evidence on record, we come to the conclusion that for Assessment Years 1980-81, 1981-82, 1982-83, 1985-86, 1986-87 and 1987-88, the Department has conclusively established that a portion of collections from canteen rent, cycle stand and regular show collections were not entered in the regular books of account maintained by the applicant thereby concealing particulars of income. Therefore, the objection raised by the Commissioner of Income Tax is sustained for the said years.”
In regard to Assessment Years 1983-84 and 1984-85, the Settlement Commission, in the subsequent paragraph, stated that it did not consider it fit to allow the applications to be proceeded with because the facts and circumstances of the cases and the issues involved for settlement were common.
5. Clearly, this is a situation where the applications of the respondents were not proceeded with only because of the objection raised by the Commissioner under the said sub-section (1-A). Learned counsel for the Union of India, however, drew our attention to the format set out prior to the commencement of the afore-quoted order, in which it is, inter alia, stated:
“11. Section under which the order is passed
: 245-D(1) of the Income Tax Act 1961.”
6. In his submission, the application had, therefore, been rejected not only under sub-section (1-A) but also under sub-section (1). The submission has only to be stated to be rejected. It is patent from para 7.1, which we have quoted, that the only reason for not proceeding with the applications was the objection raised by the Commissioner under sub-section (1-A). This, it being admitted, being the common mode in which the orders were passed, clearly, every application was rejected only because of the objection raised by the Commissioner.
7. Having regard to the fact that the said sub-section (1-A) was removed from the statute-book subsequent to 1991, we see no reason why the Settlement Commission could not have entertained applications, the like of which had not been proceeded with theretofore only by reason of the objections of the Commissioner, and no convincing argument has been advanced on behalf of the Union of India in this context except to submit that the Settlement Commission did not have the power of review and that the grounds in regard to review were not satisfied. This is not a case of review at all. It is a case of fresh applications made subsequent to the amendment of the section concerned in 1991 when the objection of the Commissioner was not to be called for or taken into account.
8. The appeals are dismissed. No order as to costs.
SLPs (C) Nos. 21223-29 of 1994 and 23160-67 of 1995
9. Delay condoned. The SLPs are dismissed.