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Ashish Prafulbhai Patel Versus Income Tax Settlement Commission & 2

Application for settlement rejected - combined application for settlement of all cases - petitioner failed to pay the full tax and interest before the last date provided under the statute i.e. 31.7.2007 - constitutionality of sections 245D(2A), 245D(2D) and 245HA of the Income Tax Act, 1961 inserted by the Finance Act 2007 as ultra vires Article 14 of the Constitution - Held that:- The combined effect of the statutory provisions prevailing before 1.6.2007 in our opinion did not prohibit filing o .....

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ion for settlement of all cases. In view of the statutory provisions prevailing before 1.6.2007 and in view of the noted changes after 1.6.2007, such application need not have to be seen as one composite application for settlement which may either in its entirety are allowed to be proceeded with or be declared as abated. One must look at the application in the background of such statutory provisions before and after 1.6.2007. Had the requirement of payment of additional tax with interest been ex .....

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with respect to those assessment years for which such payment was not made. - In the result, the petition is allowed in part. The impugned order of settlement dated 4.10.2007 is set aside to the limited extent. Declaration of abatement of assessment proceedings before the Settlement Commission in terms of subsection( 3) of section 245HA, would be limited to the assessment years 2004-2005 and 2006-2007. The application for rest of the assessment years would be revived and be placed before the .....

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respondent no.1 Income Tax Settlement Commission ( the Commission for short) by which the petitioner's application dated 28.5.2007 for settlement of the petitioner's cases for the assessment years 2001-2002 to 2007-2008 came to be declared as having abated on the ground that the petitioner failed to pay the full tax and interest before the last date provided under the statute i.e. 31.7.2007. The petitioner has also challenged the constitutionality of sections 245D(2A), 245D(2D) and 245H .....

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for settlement of cases pertaining to his assessments for the assessment years 2001-2002 to 2007-2008 by filing an application on 28.5.2007. No order on such application was passed under subsection( 1) of section 245D of the Act allowing the application to proceed further before 1.6.2007. 3. By the Finance Act, 2007, significant changes were made in the provisions contained in Chapter XIXA of the Act pertaining to settlement of cases. We would advert to the relevant provisions before and after s .....

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he legislature now required that payment of admitted tax with interest should accompany the application for settlement. For the pending cases, the applicants were given time upto 31.1.2007 to make such payment, failing which, the application for settlement would abate. 4. In terms of such amendments, the petitioner made a total payment of ₹ 23,97,400/which covered the payment for the assessment years 2001-2002 to 2003-2004, 2005-2006 and 2007-2008. The assessee was required to pay a sum of .....

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, the assessee had paid the additional tax with interest for five out of seven assessment years for which he had applied for settlement. If at all, the abatement of application for settlement should be confined to those assessment years for which the assessee was unable to make payment of additional tax with interest. 5. The Tribunal rejected both the contentions in the impugned judgment. The Tribunal was of the opinion that by virtue of amended provisions of Chapter XIXA of the Act making payme .....

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some. 6. This order the petitioner has challenged in the present petition and as noted, has also challenged the vires of amended provisions of Chapter XIXA of the Act. 7. Learned counsel Shri Soparkar for the petitioner with respect to the Constitutionality raised the following contentions : 1) When the petitioner filed the application for settlement, the statute did not envisage payment of additional tax with interest before a specified date and upon the assessee failing to comply with such a c .....

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n for settlement is rejected or abated, the materials produced by the assessee applicant could be utilised by the Assessing Officer in the assessment proceedings. On one hand, thus the statute imposed a new condition of payment of additional tax with interest before a specified date, failure to comply with which would result into rejection of the application for settlement and on the other hand also made a provision which was not existing when the petitioner applied for settlement that the mater .....

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ng which, the application for settlement would abate. This would be irrespective of the reason why the Commission was unable to dispose of the application within time. Bombay High Court read down the statutory provision and held that in cases where the applicant was not responsible for causing delay in disposing of the settlement application, the consequences of non disposal could not be of abatement of the case before the Settlement Commission. Counsel pointed out that the decision of the Bomba .....

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statutory amendments would not take away the vested right which had accrued on the date of such application. Reliance was placed on a recent decision of Supreme Court in case of Shayara Bano v. Union of India and others (Writ Petition(C) No. 118/2016, judgment dated 22.8.2017) to contend that the statute being arbitrary is one of the grounds for challenge to its constitutionality. Counsel submitted that the amended provisions are wholly arbitrary and, therefore, violative of Article 14 of the C .....

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n of the application for settlement could be qua only those years for which additional tax and interest was not paid. Counsel submitted that nothing contained in the Act prevents the assessee from making separate applications for different assessment years. The view taken by the Settlement Commission that the application for settlement was a composite one for all assessment years was therefore, not correct. 6) On the other hand, learned counsel Shri Manish Bhatt for the department opposed the pe .....

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for settlement. Counsel further submitted that no assessee can oppose the material which he himself has produced, from being used in the assessment once the application for settlement for whatever purpose fails. In this context counsel relied on the decision of the Division Bench of this Court in case of Arcon Pharmaceuticals and anr v. UOI and ors. (Special Civil Application No.2694/2012, judgment dated 29.8.2013) in which similar amendments in the settlement provisions contained in Central Ex .....

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attributable to the applicant, the Settlement Commission did not pass any final order within the stipulated time prescribed under Section 32F(6) of the Act and the proceedings are declared abated and the proceedings before the adjudicating officer shall have to go on and the material which has been disclosed by the applicant can be used against the applicant and therefore, such a provision would be unreasonable, is concerned, it is required to be noted that as such to approach the Settlement Com .....

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ction 32F, an assessee who has been served with the show cause notice by the adjudicating officer can approach the Settlement Commissioner accepting his duty liability under the Act on making true and complete disclosure. Under the circumstances, on the aforesaid ground the provisions of Section 32F(6) of the Act to the extent it provides that in case Settlement Commission does not pass final order within the period stipulated in the said provision, proceeding shall stand abated, cannot be decla .....

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tute itself envisages and requires that the entire application has to be seen as one application for settlement for all assessment years. Such application either be allowed to be proceeded further if condition for payment of additional tax and interest is fulfilled before the specified date or is to be rejected if such condition is not fulfilled. There is no scope for rejecting the application in part for certain number of assessment years whereas allowing to be proceeded further with respect to .....

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of section 245C of the Act. Such application would pass through various stages envisaged under section 245D and finally the Settlement Commission would pass the order under subsection( 4) of section 245D of the Act. Under section 245H, the Settlement Commission has power to grant immunity from prosecution and penalty. Section 245HA which was introduced with effect from 1.6.2007, provides for situations under which the proceedings before the Settlement Commission would abate. 11. Prior to 1.6.200 .....

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would have to pay the additional amount of incometax payable on the income disclosed in the application and furnish proof thereof to the Settlement Commission. Under subsection (2B) of section 245D, the Settlement Commission had the power to extend the time limit for payment of additional tax if it was satisfied that the assessee for good and sufficient reasons was unable to pay the same. The Commission could also grant installments. As per subsection( 2C) of section 245D, whenever additional t .....

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mission under subsection( 2B), the Commission would direct that the amount remaining unpaid with interest be recovered and it will also be open for the Commission to impose penalty for non payment of such amount. Neither section 245D nor any other provisions contained in Chapter XIXA provided for any further consequence of non payment of additional tax and at any rate the statute did not envisage that the settlement application would abate on account of nonpayment. We may notice that under subse .....

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2. There were significant changes in these statutory provisions with effect from 1.6.2007. Under subsection( 1) of section 245C, now the assessee applying for settlement of his case, would pay the additional tax and interest on the income disclosed in the application for settlement. Proof of payment would be attached with the application itself. Though certain changes have been introduced also in subsections 1A to 1D of section 245C pertaining to computation of additional tax and interest, we ar .....

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sing Officer proceeds to dispose of the pending cases, the Assessing Officer or other incometax authority would be entitled to use material and other information produced by the assessee before the Settlement Commission, as if such material had been produced before the Assessing Officer or the authority as the case may be. We may reproduce these relevant provisions : 245D xxx (2A) Where an application was made under section 245C before the 1st day of June, 2007, but an order under the provisions .....

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be the date of the order of rejection or allowing the application to be proceeded with under subsection (1). 245HA. Abatement of proceeding before Settlement Commission.( 1) Where- xxx (ii) an application made under section 245C has not been allowed to be proceeded with under subsection (2A) or further proceeded with under subsection (2D) of section 245D; or xxx the proceedings before the Settlement Commission shall abate on the specified date. Explanation.-For the purposes of this subsection, s .....

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2), the Assessing Officer, or, as the case may be, other incometax authority, shall be entitled to use all the material and other information produced by the assessee before the Settlement Commission or the results of the inquiry held or evidence recorded by the Settlement Commission in the course of the proceedings before it, as if such material, information, inquiry and evidence had been produced before the Assessing Officer or other incometax authority or held or recorded by him in the course .....

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ment Commission for extension of time or installments by making out good or sufficient reasons for being unable to pay the same within the prescribed time. Whether such extension was granted or not, in terms of subsection( 2C) of section 245D, the assessee would be liable to pay interest on the amount of tax which remained unpaid after completion of prescribed period. The Settlement Commission could also direct payment of tax with interest or even impose penalty on the assessee not paying the sa .....

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e order of settlement passed under subsection( 4) of section 245D. This would be independent of the recovery that the department may carry out of such sum in terms of section 245J of the Act. 14. It can thus be seen that even in the provisions contained prior to amendment of 1.6.2007, the assessee always had the liability to pay additional tax on the income disclosed before the Settlement Commission. The result of non payment would be two fold. One, the immunity from penalty and prosecution if g .....

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ong with the application. For those applications which were made before 1.6.2007, a special provision was made under subsection( 2A) of section 245D granting time upto 31.7.2007 in cases where no order under subsection( 1) of section 245D was passed before 1.6.2007 by providing that if the additional tax on the income disclosed in the application with interest is paid before 31.7.2007, such application shall be deemed to have been allowed to be proceeded further. Newly inserted section 245HA pro .....

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t difficult to appreciate that these provisions were brought into the statute to bring in a greater seriousness and in order to ensure that the applications for settlement are pursued with due care and promptness. In this context, we may also notice some of the other changes simultaneously made in the said chapter. For example, in the substituted subsection (1) of section 245D, the legislature introduced the concept of extremely short time limits for crossing the first stage of allowing or not a .....

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to be proceeded with. As per proviso to subsection (1) if no order has been passed within the said period by the Settlement Commission, the application shall be deemed to have been allowed to be proceeded further. Thus, the first threshold examination of the application under subsection (1) of section 245D would come within a summary time frame permitting no flexibility. If for some reason the Settlement Commission is unable to pass an order allowing or not allowing the application to be procee .....

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application was made. In cases of application made after 1st June 2010, the same would be decided within eighteen months from the end of the month in which the application was made. In terms of clause (iv) of subsection (1) of section 245HA, in case the Settlement Commission does not pass order under subsection (4) of section 245D within the time prescribed under subsection (4A), the proceedings before the Settlement Commission would abate. 17. We are conscious that the said time limit provisio .....

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ent cases, would not escape our notice. This is even otherwise an understandable anxiety of the legislature since during the pendency of settlement proceedings, the ordinary assessment would be kept in abeyance. Thus, by mere pendency of an application for settlement before the Commission, the normal assessment mechanism would be kept at bay. The Revenue therefore, would certainly be interested in knowing the outcome of settlement proceedings so that if a case is settled, the ordinary assessment .....

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islation made by the parliament or the State legislature are well laid down in series of judgments of the Supreme Court and this Court. Two of the grounds on which such legislation can be called in question are that the legislature lacks the competence to frame the law or that the statutory provision is opposed to the fundamental rights enshrined under the Constitution or any other constitutional provision. It is in fact, within these two grounds of challenge to a statute, the Supreme Court in c .....

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acting a law, the Court would certainly not substitute its individual judgement or opinion for that of the competent legislative body. 19. In case of the State of Jammu & Kashmir v. Triloki Nath Khosa and others reported in AIR 1974 Supreme Court 1, the respondents had successfully challenged before the High Court the validity of a service rule framed by Jammu and Kashmir Government which permitted a classification of Assistant Engineer between Diploma holder and Degree holder for promotion .....

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quality only if it reasons on an unreasonable basis. 20. In case of Indian Express Newspapers (Bombay) Private Ltd and others reported in (1985) 1 Supreme Court Cases 641, the Court was examining the validity of a subordinate legislation levying customs duty on imported newsprint. In this context, it was observed that a subordinate legislation may be questioned on the grounds of legislative competence on which the plenary legislation is also subject or being ultra vires the Constitution, as also .....

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tional merely because it is likely to work harshly against some sections of the citizens. Merely because those who have already applied for settlement are now asked to pay the additional tax on income disclosed in the settlement application before a certain date, by itself would not render the statute arbitrary. This would be for multiple reasons. Firstly, the tax being collected is on the admitted income, the income which the assessee had not disclosed in the original return filed before the As .....

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onscious that the provision for abatement of settlement proceedings before the Commission, upon the assessee not being able to pay the sum by 31st July 2017, was newly introduced. However, the applicant before the Settlement Commission cannot claim vested right to have the application granted and seek immunity from penalty and prosecution even while continuing to be in default in paying the tax on admitted income. What the statute perhaps cannot take away is a vested right and not a perceived ri .....

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ication for settlement was made. While doing so, under subsection( 3), such authority would be entitled to use all the material and other information provided by the assessee before the Commission or the results of the inquiry held or evidence recorded by the Commission in the course of such proceedings, as if such material, information, inquiry and evidence had been produced before the Assessing Officer or the authority. The effect of subsection( 3) of section 245HA is to enable the incometax a .....

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llected till the proceedings reached the stage of abatement before the incometax authority, who would be entitled to use the same. 23. It is not even the case of the petitioner that earlier there was any provision which prohibited the Assessing Officer or the incometax authority from accessing such information and utilising the same in the course of completion of pending cases, to which the settlement proceedings related. All that perhaps materially changed is that insofar as the material, other .....

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se of his assessment. Even while filing a return before the Assessing Officer and participating in the assessment proceedings, be it before the Assessing Officer or at the appellate stage, there is inherent duty of every assessee to make true and full disclosures. In our opinion therefore, the newly inserted subsection( 3) of section 245HA did not take away any vested right hitherto enjoyed by the assessee. In the result, the challenge to the vires of the statutory provisions must fail. 24. We n .....

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e noticed that the application for settlement was filed seeking settlement of seven cases for the assessment years 2001-2002 to 2007-2008. The petitioner could raise sufficient funds to pay the tax with interest covering the additional liability for the assessment years 2001-2002, 2002-2003, 2003-2004, 2005-2006 and 2007-2008. The assessee could not pay additional tax for the assessment years 2004-2005 and 2006-2007. The application for settlement was made as per the then prevailing subsection( .....

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when such application is pending, the situation may arise where he would be prompted to file similar application for another assessment year. A situation may also be envisaged where an assessee may consider prudent or advisable to apply for settlement in a particular assessment proceeding after he had opted to apply for settlement in case of another assessment year. There is nothing to suggest in the then existing statute to prevent or prohibit such applications at the hands of the same assesse .....

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ee to file separate applications for settlement must be seen in light of the subsequent statutory changes with effect from 1.6.2007 by which the legislature cast a duty on the applicant who had already applied for settlement to pay the additional tax with interest on income disclosed before the Settlement Commission latest by 31.7.2007. These amendments brought in two major changes. First was that in all pending applications, the payment would now be made latest by 31.7.2007 with no possibility .....

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onal tax and interest before 31.7.2007, his application for settlement would abate. 26. The combined effect of the statutory provisions prevailing before 1.6.2007 which as noted above, in our opinion did not prohibit filing of separate applications for settlement assessment year wise and the newly introduced requirement of payment of additional tax with interest by 31.7.2007, failing which, the proceedings before the Settlement Commission would abate, would persuade us to hold that it was open f .....

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