TMI Blog2009 (9) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... evity). It is the contention of the petitioner that the Bagadia Group consists of 3 assesses, out of which, 2 are individuals and 1 is HUF. The said group is predominantly in construction business activity and the group is also running business of a hotel, i.e. Hotel Amit . During the search and seizure action, certain assets belonging to the petitioner and other assesses of the said group were seized on 2nd January, 1998. The petitioner was issued a notice under Section 158BC of the said Act directing the petitioner to file a Block Return of undisclosed income. The petitioner filed his Block Return on 28th July, 1998, declaring his income at ₹ 13,41,530/-. It appears that the Assessing Officer did not accept the Block Return filed by the petitioner and assessed the income of the petitioner at ₹ 6,35,70,222/- for the said block year. 3. The petitioner, being aggrieved by the said assessment order, has preferred an appeal before the Commissioner of Appeals, Income-tax, Aurangabad. During the pendency of the appeal, the petitioner alongwith 2 other assesses of the group, namely, Shri Vijay Kumar Bagadia (HUF) and Smt. Ashadevi Bagadia, filed settlement applications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is not permissible under Section 158BB. 7. The learned counsel submits that the Settlement Commission has passed the impugned order by taking into consideration various aspects, which are not permissible under Section 158BB. 8. Shri Sharma, the learned Assistant Solicitor General on the contrary submits that the order passed by the Settlement Commission has been passed after taking into consideration the relevant material and as such, in a writ petition, the scope of judicial review would be permissible only to examine as to whether, the Settlement Commission has passed an order after taking into consideration the relevant material or not and it would not be permissible for this court to act as an Appellate Tribunal, over the decision of the Settlement Commission. He, therefore, submits that the petition deserves to be dismissed. 9. After hearing the learned counsel for the parties, we had closed the matter for orders on 28th August, 2009. However, subsequently, we noticed the judgment and order passed by the Apex Court in the matter of Commissioner of Income Tax, Madras Vs. Express Newspapers Ltd. (1994) 2 SCC 374 : 1994 (2) ITR 443, which was not brought to our n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d income has been derived by him besides certain other particulars. This means that an assessee cannot approach the Commission for settlement of his case with respect to income already disclosed before the Assessing Officer. An application under section 245C is maintainable only if it discloses income which has not been disclosed before the Assessing Officer. The disclosure contemplated by section 245C is thus in the nature of voluntary disclosure of concealed income . The Apex court has further observed thus : Para. 19. The idea underlying the said words [ in the limb of sub-section (1-A)] is self evident. The disclosure under section 245C must be of an income not disclosed before the Assessing Officer. If the Assessing Officer (or the income-tax authority) has already discovered it and has either gathered the material to establish the particulars of such income or fraud fully or is at a stage of investigation/enquiries where the material gathered by him is likely to establish the particulars of such income or fraud, the assessee cannot be allowed to defeat or forestall, as the case may be, the entire exercise of the income-tax authorities just by approaching the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee should not be allowed to take advantage of the comparatively easy course of settlement He must be allowed to face the normal channels of assessment/appeal etc. In unequivocal terms, it has been held that Section 245C is only meant for disclosing the income not disclosed before the assessing officer. It has been clearly held that if the Department already knows and has gathered particulars of such income and the manner in which it has been derived, there is no disclosure by the assessee. It has been further held that the provision of Section 245 C are not meant for those who come after the event i.e. after the discovery of the particulars of income and its source, or discovery of fraud perpetrated by the assessee, as the case may be. 13. It is thus clear that the application under Section 245C would be tenable only when the assessee makes full and true disclosure of the income which is not known to the assessing officer. If the income tax authorities are already aware about the income and the manner in which such income has been derived, then the application under Section 245 C would not be tenable. 14. The Division Bench of the Madras High Court in the matter of Canara Je ..... X X X X Extracts X X X X X X X X Extracts X X X X
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