Principal Commissioner Of Income Tax, Bhagalpur Son Of Sri Sunder Singh,Office Of Assistant Commissioner Of Income Tax Circle-1 v. Union Of India And Anr

IN THE HIGH COURT OF JUDICATURE AT PATNACivil Writ Jurisdiction Case No.9134 of 2017 ====================================================== Principal Commissioner of Income Tax, Bhagalpur Son of Sri Sunder Singh,Office of Assistant Commissioner of Income Tax Circle-1 1, 3rd Floor, R.N.Plaza, R B S S Sahay Road, Bhagalpur. ... ... Petitioner/s Versus 1. Union of India and Anr. 2. M/s City Developers Bansikunj, Dr. R.P. Road, Bhagalpur- 812002. ... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 1365 of 2018 ====================================================== Principal Commissioner of Income Tax, Bhagalpur ... ... Petitioner/s Versus The Union of India and Anr. ... ... Respondent/s ====================================================== Appearance : (In Civil Writ Jurisdiction Case No. 9134 of 2017)For the Petitioner/s: Mr. Archana Sinha @ Archana Shahi, Adv.For the Respondent/s: Mr. S.D Sanjay, Addl. Soc. Gen.(In Civil Writ Jurisdiction Case No. 1365 of 2018)For the Petitioner/s: Mr.Archana Sinha @ Archana Shahi, Adv.For the Respondent/s: Mr. S. D Sanjay, Addl. Soc. Gen. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN and HONOURABLE MR. JUSTICE ARVIND SRIVASTAVAORAL JUDGMENT(Per: HONOURABLE MR. JUSTICE JYOTI SARAN) Date : 20-02-2019 Heard Mr. Archana Sinha, learned counsel for theIncome Tax Department who is the petitioner before this Courtthrough the Principal Commissioner, Income Tax Departmentand Mr. D.V. Pathy, learned counsel for the respondent No.2 andMr. Anshuman Singh, learned counsel for the CentralGovernment Counsel. The Income Tax Department through the PrincipalCommissioner of Income Tax, Bhagalpur prays for issuance of a writ in the nature of certiorari for quashing the order dated04.01.2017 whereby the Income Tax Settlement Commission(hereinafter referred to as the 'Commission') constituted underSection 245B of the Income Tax Act, 1961 (hereinafter referredto as 'the Act') has opined that the respondent No.2 havingfulfilled the conditions laid down under Section 245C(1) formoving an application for settlement with nothing adverse tohold the application invalid, has been pleased to allow theapplication to be proceeded with while declaring it not invalidunder Section 245D(2C) of 'the Act'. It is not in dispute that notonly the application so filed by the petitioner seeking asettlement for assessment years 2014-15 and 2015-16 has beenproceeded with by the 'Commission' but even final orders havebeen passed dated 25.05.2017 and allowed in exercise of powersvested under Section 245D(4) of 'the Act' and which has beenquestioned by the Department by filing the second writ petitionarising from C.W.J.C. No. 1365 of 2018. The said writ petitionhas been listed analogous with the present writ petitionfollowing our order passed on 05.02.2019 but the recordstranspired that the said writ petition has been admitted by thisCourt vide order passed on 09.02.2018 and when notice wasissued to the respondent No.2 which Mr. Pathy appearing on their behalf informs, has yet to be received. Ms. Sinha learned counsel appearing for theIncome Tax Department undertakes to serve a copy of the writpetition arising from C.W.J.C. No.1365 of 2018 on therespondent No.2 through Mr. Pathy by tomorrow. Since C.W.J.C. No. 1365 of 2018 has already beenadmitted, even if the order impugned therein is relatable to theissue raised in the present writ petition, it cannot be heardanalogous with C.W.J.C. No.9134 of 2017 which is yet atadmission stage and thus we delist C.W.J.C. No.1365 of 2018and direct for its listing under the heading 'For Hearing' as a firstcase subject to part heard at 2.15 P.M. on Friday next i.e22.2.2019. their behalf informs, has yet to be received. Ms. Sinha learned counsel appearing for theIncome Tax Department undertakes to serve a copy of the writpetition arising from C.W.J.C. No.1365 of 2018 on therespondent No.2 through Mr. Pathy by tomorrow. Since C.W.J.C. No. 1365 of 2018 has already beenadmitted, even if the order impugned therein is relatable to theissue raised in the present writ petition, it cannot be heardanalogous with C.W.J.C. No.9134 of 2017 which is yet atadmission stage and thus we delist C.W.J.C. No.1365 of 2018and direct for its listing under the heading 'For Hearing' as a firstcase subject to part heard at 2.15 P.M. on Friday next i.e22.2.2019. Reverting to the issue in hand, the petitionerdepartment is aggrieved by the processing of the application andthe order so passed by the Commission in not holding theapplication invalid for the reasons that even when therespondent No.2 was facing prosecution for the assessment yearin question, it never disclosed this aspect of the matter beforethe 'Commission'. Mr. Pathy learned counsel for the opposite partyNo.2 informs that it is on a similar objection raised that the 'Commission' did not proceed with the application until theprosecution ended in exoneration of the respondent No.2. Evenotherwise we fail to appreciate as to how such an objection canobstruct the exercise of the Commission under Section 245(2C)of 'the Act' because such exercise is founded on the provisionsunderlying Section 245C(2) which enables an assessee to movethe 'Commission' at any stage during the pendency ofassessment proceedings in case he is of the opinion that he hasnot given full and true disclosure of his income before theAssessing Officer. In other words, where an assessmentproceedings are pending and the assessee is satisfied that he hasnot given a full and true disclosure of income before theAssessing Officer he can move the 'Commission' by filing anapplication under Section 245C(1) of 'the Act' disclosing his fulland true income including the one which has not been disclosedbefore the Assessing authority as well the manner in which suchincome has been derived together with the additional amount oftax payable thereon. To that extent, Ms. Sinha is absolutelycorrect and unless these pre-requisites are satisfied,the Settlement Commission would not proceed with theapplication. The situation in the present contest is different. While the Settlement Commission kept the proceedings in abeyance due topendency of the prosecution case, in our opinion evenotherwise, the statutory provisions underlying Section 245Cdoes not preclude the 'Commission' from proceeding despitesuch prosecution because the 3 pre-requisites which requires tobe satisfied for invoking the remedy, does not require theassessee to disclose whether or not he is facing prosecution forthe period in question. For the reasons discussed, we find absolutely no error inthe jurisdiction exercised by the Settlement Commission in notdeclaring the application of the respondent 'not invalid' tointerfere therewith and that the final orders have already beenpassed by the 'Commission' we dispose of the writ petition. Re: C.W.J.C. No.1365 of 2018 In view of the position explained above, list thismatter 'For Hearing' on 22.02.2019 at 2.15 P.M. (Jyoti Saran, J) ( Arvind Srivastava, J) Bibhash AFR/NAFRAFRCAV DATENAUploading Date28.02.2019Transmission DateNA