Commissioner Of Income Tax, Kolkata Xx v. Income Tax Settlement Commission And Sarmila Ghosh

ORDER SHEET APO 142 of 2018IN THE HIGH COURT AT CALCUTTACivil Appellate JurisdictionORIGINAL SIDE COMMISSIONER OF INCOME TAX, KOLKATA XXVersus INCOME TAX SETTLEMENT COMMISSION AND SARMILA GHOSH BEFORE: The Hon'ble JUSTICE DEBANGSU BASAK The Hon'ble JUSTICE MD. SHABBAR RASHIDI Date : 21[st]September, 2023. Mr. Vipul Kundalia, Adv.Mr. Amit Sharma, Adv.Mr. Anurag Roy, Adv.Ms. Oindrila Ghosal, Adv. …for the AppellantMr. Sanjay Bhaumik, Adv.Mr. Saumya Kejriwal, Adv.Mr. G.S. Gupta, Adv. …for the respondent The Court : The appeal is directed against the order datedSeptember 2, 2014 passed in WP 496 of 2014. By the impugned order,learned Single Judge referred to a decision of a coordinate Bench of thelearned Single Judge in another matter and dismissed the writ petition inview of the position of law laid down by the Single Judge in the othermatter. In the facts of the present case, a writ petition was filed at thebehest of the department challenging the order of the SettlementCommission dated August 14, 2013. By the order dated August 14, 2013,the Settlement Commission entertained a request for initiation ofSettlement Commission for the assessment years 2011-12, 2012-13 and2013-14.The writ petitioner/appellant challenged the order dated August14, 2013 of the Settlement Commission limited to the years 2012-13 and2013-14.Learned advocate appearing for the appellant submits that, theassessee did not file return for the assessment year 2012-13 and 2013-14.Therefore, the assessee does not come within the purview of Section 139(1)of the Income Tax Act, 1961. No notice under Section 142(1) was issued tothe assessee for such assessment year. Therefore, there is no scope ofassessment of the assessee for the two relevant assessment years ascontemplated under Section 143. Consequently, Section 153 of the Act of1961 was not attracted since there can be no time limit for assessment asthe provision for assessment was not applicable. Since no assessment orproceeding for assessment was pending, explanation to (iv) to clause (b) ofSection 245A was not attracted. Consequently, since no proceeding forassessment was pending, Section 245C was not attracted. Therefore, the Settlement Commission could not assume jurisdiction in respect of thoseassessment years. Learned Single Judge referred to a decision of another learnedSingle Judge dated August 1, 2011 rendered in WP 341 of 2011. LearnedJudge held that His Lordship was bound by the decision of the coordinateBench. In WP 341 of 2011, it was held that if the time period to makean assessment did not expire on the date on which the settlementcommission was made, the commission may entertain and proceed withthe same irrespective of whether the income tax return was filed or not.We are informed, that during the pendency of the appeal, theSettlement Commission passed final order of settlement in respect of thetwo assessment years. The assessee accepted the final order passed by theSettlement Commission and paid tax in accordance therewith. Thedepartment did not assail the final order of settlement. The final order ofsettlement is dated December 19, 2014. A period of nine years elapsed since the final order was passedby the Settlement Commission without the same being assailed by theparties thereto.In such circumstances, we are not minded to interfere with theappeal. Points of law raised are kept open. APO 142 of 2018 is disposed of without any order as to costs. (DEBANGSU BASAK, J.) (MD. SHABBAR RASHIDI, J.) TR/