TMI Blog1992 (10) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... ments of the amended section 245C(1) of the Act and (2) That the petitioner had not disclosed any amount in his application which has not been disclosed before the Income-tax Officer are not correct in law. He would submit that the application related to the assessment year 1980-81. The unamended section 245C(1) of the Act reads as follows: An assessee may, at any stage of a case relating to him, make an application in such form and in such manner as may be prescribed, and containing a full and true disclosure of his income which has not been disclosed before the Income-tax Officer, the manner in which such income has been derived, the additional amount of income-tax payable on such income and such other particulars as may be prescribed, to the Settlement Commission to have the case settled and any such application shall be disposed of in the manner hereinafter provided: Section 245C of the Act was amended by the Taxation Laws (Amendment ) Act, 1984, effective from October 1, 1984. This amendment grants substantial relief but imposes two restrictions in moving application for settlement before the Commission. The first restriction is that the assessee should, inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law and it is not wrong if any personal hearing was not given in such cases. The writ petition stands dismissed. JUDGMENT OF DIVISION BENCH This appeal has been preferred by the appellant, a firm, against the order in Writ Petition No. 14273 of 1989 , dismissing in limine the prayer of the appellant for the issue of a writ of mandamus directing the first respondent to take on file the settlement application filed by the appellant on August 9, 1989, and to enquire into the same. For the assessment year 1980-81, the appellant had returned an income of ₹ 1,62,098, but by order dated February 23, 1987, the second respondent finalised the assessment of the appellant by making an addition of ₹ 2,65,105 and also initiated proceedings for levy of penalty on the appellant. On appeal by the appellant before the Commissioner of Income-tax (Appeals), Madurai, by order dated December 28, 1987, the assessment order was set aside and the Income-tax Officer was directed to redo the assessment. While matters stood thus, the appellant filed an application on April 6, 1989, under section 245C of the Income-tax Act, 1961 (hereinafter referred to as the Act ), before the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time alone would be applicable to the appellant, though the application under section 245C came to be filed on August 9, 1989. Elaborating this, learned counsel further submitted that section 245C, as amended in 1984, introducing further conditions, cannot have the effect of affecting the right of the appellant to file an application under section 245C, as it stood in the relevant assessment year. Reliance in this connection was placed by learned counsel upon the decisions in Hoosen Kasam Dada (India) Ltd. v. State of M. P. [1953] 4 STC 114 ; AIR 1953 SC 221 ; Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540 and Collector of Customs and Excise v. A. S. Bava, AIR 1968 SC 13. On the other hand, learned counsel for the respondents contended that section 245C of the Act is not in the nature of a charging section or even one which provides for the preferring of an appeal, but an independent provision conferring on an assessee a concession or an option for settlement of tax disputes and as a compromise measure in the nature of statutory settlement of tax disputes and merely provides a machinery for that purpose, so that when the disclosure is made as laid down in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch manner as may be prescribed,and containing a full and true disclosure of his income, which has not been disclosed before the Income-tax Officer, the manner in which such income has been derived, the additional amount of income-tax payable on such income and such other particulars as may be prescribed, to the Settlement Commission to have the case settled and any such application shall be disposed of in the manner hereinafter provided : Provided that no such application shall be made, unless the additional amount of income-tax payable on the income disclosed in the application exceeds ₹ 50,000. Sub-sections (1A) to (1E) were also introduced by the same amendment Act, though they are not very material for the purpose of the, present appeal. Chapter XIX-A in the Act, introduced by the Taxation Laws (Amendment) Act, 1975, was the result of implementing the recommendations of the Wanchoo Committee to arrest the evil of black money and large scale tax evasion. One of the recommendations made was a compromise measure by which a disclosure could be made and the quantum of tax is determined and the assessee not only secured quittance for himself, but also freedom from levy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for consideration of an application by an assessee for settlement of his tax dispute. It must also be borne in mind that section 245C is neither a charging section nor provision for preferring any appeal, but an independent provision conferring an option or concession on an assessee to file an application subject to the fulfilment of certain conditions as laid down in the section. It is also necessary to point out that the appellant filed the application under section 245C(1), in Form No. 34B, after the amendment with effect from October 1, 1984. However, in that application, against column 11 relating to particulars of full and true disclosure of income not disclosed before the Assessing Officer, etc., the appellant had stated no undisclosed income . The additional amount of income-tax payable on such income had also not been disclosed. On a consideration of the provisions in Chapter XIX-A of the Act, the concession or option conferred on the assessee under section 245C(1) of the Act to invoke this section as well as those that followed cannot be regarded as a right vested in the assessee for all time to come without taking note of the procedural changes in section 245C, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Berar Sales Tax Act. Earlier it had been pointed out that section 245C is neither a charging section nor one conferring a right of appeal, but that it is only in the nature of machinery section for effecting settlement of tax disputes subject to the fulfilment of certain conditions. Likewise, the decisions in Garikapati Veeraya V. N. Subbiah Choudhry, AIR 1957 SC 540 , does not support the case of the appellant. There, the question of availability of a right of appeal to the Supreme Court, with reference to the valuation of the property at ₹ 10,000 with a right of appeal to the Federal Court after the coming into force of the provisions of the Constitution of India, came up for consideration. The Supreme Court pointed out that the right of appeal is a vested right and exists on and from the date of the commencement of the lis and that right cannot be taken away by a subsequent enactment unless, expressly or by necessary intendment, it so provided. This decision was rendered with reference to the availability of a right of appeal to the Supreme Court, requiring a valuation of ₹ 20,000 in relation to the right of appeal which was earlier available on a valuation of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1989, when the appellant filed the petition under section 245C, the amended provision was in force and it had earlier been pointed out that this is only a machinery section intended to settle the tax disputes between an assessee and the Revenue and in view of that, the appellant, undoubtedly, was bound to fulfil the requirements of section 245C on the date on which he filed the petition before the first respondent, in the light of the decision referred to above. In Anant Gopal Sheorey v. State of Bombay, AIR 1958 SC 915 , it has been clearly laid down that a person has no vested right in the course of procedure, but has a right of prosecution only in the manner prescribed for the time being by an Act of Parliament and if the mode of procedure is altered, he has no other option but to proceed according to the altered mode. It has also been further pointed out that a change in the law of procedure operates retrospectively, unlike the law relating to vested rights. The remedy under section 245C of the Act is in the nature of an independent remedy unconnected with the other remedies in the Act and if an assessee wants to avail of that remedy, he has necessarily to fulfil the condi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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