TMI Blog2022 (9) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... h finding of the learned Settlement Commission how it has granted partial immunity from penalty to the petitioner u/s 245H(1) of the Act which is contrary to the spirit of the settlement scheme. Impugned order of the Settlement Commission to the extent of granting partial immunity to the petitioner from penalty under Section 245H(1) inspite of specifically recording that it was evident to the Settlement Commission that the respondent assessee had not come forward with full and true disclosure before it and that the attitude of the assessee respondent was not acceptable and runs contrary to the spirit of the Settlement Commission and by also recording that default in non maintenance of books of accounts u/s 44AA was deliberate and intentional on the part of the petitioner, the impugned order of settlement commission is bad, illegal and not sustainable in law and is contrary to the aims and objects of the settlement commission under Chapter XIXA of the Income Tax Act and accordingly the impugned order of the settlement commission is quashed to the extent it has granted partial immunity from penalty to the assessee respondent and in view of quashing of the impugned order. - WPO/5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be said to have co-operated in the proceedings before the ITSC. It did not voluntarily offer the additional income, being the difference between 117.98 crores and 39.53 crores. It first offered additional income of Rs. 39.53 crores in the settlement application filed under Section 245 C(1) ; when the ITSC found, pursuant to the report filed by the CIT on 17.10.2012, that by the assessee s own admission, purchase invoices were bogus to the extent of Rs. 43.78 crores instead of Rs. 39.53 crores, the assessee made a further disclosure of Rs. 4.25 crores. After all the reports were examined by the ITSC and after considering the evidence adduced by both the sides, it found that the assessee ought to have offered the entire amount of Rs. 117.98 crores, being the bogus purchases of cement and steel from 5 parties as against Rs. 39.53 crores offered by it. It was only at that stage, when cornered and when it was unable to rebut the evidence and the facts established by the evidence, that the assessee came forward with the additional income of Rs. 78.45 crores, which when added to Rs. 39.53 crores disclosed in the settlement application, aggregated to Rs. 117.98 crores. In other wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed under Section 245-Cl cannot be regarded as full and true disclosure of income merely because the assessee, when cornered in the course of the proceedings before the ITSC, offered to disclose the entire concealed income. In as much as the ITSC has ignored this crucial aspect, the majority view expressed by it cannot at all be countenanced. Learned counsel appearing for the respondent assessee opposes this writ petition and justifies the impugned order of the settlement commission by contending that the assessee petitioner has fully and truly disclosed his income and the manner in which such income had been derived. I have perused the impugned order of the learned settlement commission and particularly finding of settlement commission recorded in paragraph 29 relating to partial immunity granted to the petitioner on penalty which is relevant and is quoted as hereunder : 29. Immunity From Penalty Prosecution : The applicant has requested for immunity from penalty and prosecution. On careful consideration of the facts, it is evident that the applicant has not come forward with full and true disclosure before us. Substantial evidence in the form of patients registe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agraph 29 of the impugned order I find that the learned Settlement Commission itself has recorded that attitude of the assessee respondent was not acceptable to it and that it runs contrary to the settlement scheme and in its order settlement commission also recorded and came to the finding that the assessee s professional receipts were much higher than the requisite monetary limit and he was statutorily obliged to maintain proper record and books of accounts as per Section 44AA of the Income Tax Act yet the respondent assessee had continued with the default of not maintaining books of accounts of the four relevant assessment years and that such conduct of the assessee respondent was deliberate and intentional. It is strange that in spite of such finding of the learned Settlement Commission how it has granted partial immunity from penalty to the petitioner under Section 245H(1) of the Act which is contrary to the spirit of the settlement scheme. Section 245H(1) is relevant for adjudication of this issue which is quoted as hereunder : 245H. Power of Settlement Commission to grant immunity from prosecution and penalty. (1) The Settlement Commission may, if it is satisfied tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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