TMI Blog2007 (10) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... uently, the petition is liable to be dismissed. - W.P. NO. 1427 OF 2007 - - - Dated:- 8-10-2007 - Judge(s) : F. I. REBELLO., J. P. DEVADHAR. JUDGMENT-F.I. REBELLO, J.: Rule. Heard forthwith. 2. The petitioner an individual has filed his returns of income for the asst. yrs. 1995-96 to 2000-01 with the ITO, Ward 2, Udupi. The petitioner also filed regular returns of income for the asst. yrs. 2001-02 and 2002-03 with the Asstt. CIT (Central) Circle, Mangalore. The petitioner also filed block return for asst. yrs. 1991-92 to 2001-02 for the block period 1st April, 1990 to 27th Feb., 2001 disclosing undisclosed income of Rs. 22,22,351. On 27th Feb., 2001 search operation under s. 132 of the IT Act had been carried out on the business and residential premises of the petitioner. On 27th Feb., 2003 the block assessment order was passed determining the undisclosed income at Rs. 82,68,217. The petitioner has preferred an appeal before the CIT(A) against the block assessment order which is pending. 3. The petitioner on 29th Oct., 2003 filed an application under s. 245C(1) before the Settlement Commission offering Rs. 10 lakhs as additional income. By its order on 26th July, 2004 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground that no proceedings were pending, the Settlement Commission's subsequent finding that there was no full and true disclosure is without jurisdiction and consequently will have to be ignored. It was therefore, open to t he Settlement Commission to entertain the second application. The second application submitted was dismissed on the ground that in its earlier order dt. 31st Oct., 2006 the Commission had decided that full and true disclosure was not made. Learned counsel submits that this finding disclosed an error of law apparent on the face of record and consequently, is liable to be set aside. 6. On behalf of the respondent, it is firstly submitted that the petitioner's income has been assessed under s. 44AE of the IT Act, and therefore, there is no scope for the petitioner to say that there are complexities. The petition does not disclose as to what are the complexities of the accounts. The appeal preferred for the block assessment year of 27th Feb., 2003 is still pending. It is also set out that the CIT (Central) Bangalore has given a report under s. 245D(1) in May, 2004 to the effect that this is not a complex case that requires consideration of a higher forum li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of advance tax which was payable. The contention of the petitioner is that on the day the application was moved before the Settlement Commission and was disposed off, the tax dues were not paid. The bar under s. 249(4) is that the appeal would not be admitted unless the tax dues are first paid. It is not the case of the petitioner that the appeal was dismissed for failure to pay the tax dues. On the contrary, according to the petitioner, the tax dues have subsequently been paid and the appeal is pending. Preferring an appeal and admission of an appeal are two distinct requirements. Presenting an appeal and admission are two different stages. A proceeding can be said to be pending even on presentation though it may not be admitted for the Tribunal to dispose of the appeal on merits. Can it, therefore, be said that the proceedings were not pending. This has to be considered in the context that we are called upon to exercise our extraordinary jurisdiction in this case. This, therefore, is not a case of patent lack of jurisdiction. This is a case where an appeal was presented but was not admitted at the time when the settlement proceedings were disposed of as tax dues had not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd not made full and true disclosure and for that reason the first application was rejected. The second application was filed for the same period making incrementally higher disclosure. The Settlement Commission held that making full and true disclosure is a one time activity. There cannot be repeated or hopeful attempts at making full and true disclosure. Multiple disclosure militates against the very basis of settlement, which involves true and full disclosure being made so as to warrant consideration. The Settlement Commission relied on the judgment of this Court in the case of CIT vs. ITSC Ors. (2000) 163 CTR (Bom) 440 : (2000) 246 ITR 63 (Bom) where this Court approvingly quoted the following observations: "There is no right in the assessee to invoke the Commission's jurisdiction even while he continues with his dishonest conduct." from the judgment of the Madras High Court in the case of V.M. Shaik Mohammed Rowther vs. Settlement Commission (IT WT) Ors. (1999) 236 ITR 581 (Mad). We may now consider the judgment relied on behalf of the petitioner. Reference was made to the judgment of the Ajay Mahendrakumar Shah vs. CIT (1996) 136 CTR (Guj) 215 : (1997) 92 Taxman 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6th July, 2004 rejected. It appears from the order that no reasons were given accept for stating that the Commission does not agree with the petitioner that the quantum of the undisclosed income declared before them is justified. It is true that in the second order, the Commission relied on its first order. At the same time, the Commission did take note of the fact that the income disclosed in the second application is more than what was disclosed in the first application. Apart from that in the miscellaneous application, the petitioner has raised the issue that no reasons had been given for holding that the quantum of undisclosed income was not correct. Contention was also raised that the proceedings are pending. In respect of the first contention that was disposed of by holding that it would be appropriate to discuss what the appellate authority had discussed and hold that the exercise of discretion cannot be a matter of rectification in such a case. In respect of the second contention, it was held that as the appellant had not paid the entire amount payable, there was no admitted appeal and hence the proceedings were not pending. Learned counsel tried to explain the additional a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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