9911796707
TMI Blog2023 (7) TMI 1284X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Petitioner at 18, Surti Chambers, in Mumbai, and also at Silvasa. The possession of various documents was taken by the survey party from both the places and statements of various persons were recorded. 4. The Petitioner filed an Application dated 17th May, 2006, under Section 245-C of the Act, for the Assessment Years 2002-03, 2003-04 and 2004-05. By the said Application, the Petitioner disclosed additional income and the tax on the additional income as under:- Asst. Year Additional Disclosed (Rs.) Income Tax on the amount Disclosed (Rs.) 2002-03 28,80,300.00 8,81,387.00 2003-04 33,26,896.00 10,47,972.00 2004-05 28,31,540.00 9,34,408.00 Total: 28,63,767.00 5. The Commissioner of Income Tax-XIV, Mumbai, forwarded his Report dated 17th July 2006 in the prescribed proforma under Section 245D(1) of the Act for the Assessment Years 2002-03 to 2004-05. 6. The said Application of the Petitioner in respect of Assessment Years 2003-04 and 2004-05 was admitted by Respondent No. 1 by an Order dated 30th November, 2006. The said Order directed the Petitioner, in accordance with the provisions of sub-section 2(A) of Section 245-D of the Act, to pay the additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent No. 1 fixed the hearing of the Petitioner's case on 19th December, 2007. At the time of the hearing, Respondent No. 2 raised an objection that the Petitioner had not paid the appropriate tax on the additional income disclosed. On the other hand, the Petitioner submitted that he had paid taxes as per his own calculation, that he was willing to pay the difference in tax, if any, that may be directed by Respondent No. 1 and that if there was any shortfall, Respondent No. 2 had authority under Section 245D (2D) of the Act to recover the amount due from the Petitioner but the application of the Petitioner cannot abate on the ground of alleged shortfall in payment of taxes and interest. The Petitioner submitted that this was more particularly so when the Petitioner had, in January, 2007, informed Respondent No. 2 about the tax payable by the Petitioner and the taxes paid and Respondent No. 2 had never informed the Petitioner till 17th December, 2007 about the alleged short fall in payment of taxes and interest on the additional income disclosed by the Petitioner. 13. However, Respondent No. 1, by its Order dated 11th January, 2008, held that the proceedings arising out of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... January 2007. Even in respect of the Application made by the Petitioner in respect of Assessment Year 2005-06, the Petitioner had paid the taxes on the additional income disclosed by it. Mr. Singh submitted that, in these circumstances, the Petitioner had complied with the provisions of Section 245D (2D) of the Act and, therefore, the Applications of the Petitioner under Section 245C(1) of the Act ought to have been allowed to proceed further. Mr. Singh submitted that the Order dated 11th January, 2008 passed by Respondent No. 1 holding that the Applications filed by the Petitioner had abated in accordance with the provisions of Section 245HA (1)(ii) of the Act was erroneous and contrary to the provisions of Section 245D(2D) of the Act. 19. On the other hand, Mr. Suresh Kumar supported the said Order dated 11th January, 2008 passed by Respondent No. 1 and submitted that, since the Petitioner had not paid the taxes and interest as calculated by the Revenue by its letter dated 18th December, 2007, the Applications of the Petitioner could not be allowed to be further proceeded with under the provisions of Section 245D(2D) of the Act. Therefore, Respondent No. 1 had correctly held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... losed in the application and shall furnish proof of such payment to the officer assessing him within 15 days of making the aforesaid payment. If the applicant does not pay the additional amount of income-tax as above within the time specified in subsection (2A) of 245D of the Act, the amount of income-tax remaining unpaid together with any interest payable thereon under sub-section (2C) of section 245D of the Act shall be recovered by the Assessing Officer in accordance with the provisions of the section 245D(2D) of the Act. Payment of additional tax within 35 days as required will be taken into consideration in evaluating the co-operation of the applicant in the proceedings before the Commission." (emphasis supplied) Therefore, what has to be paid before 31st July 2007 is the amount of income tax disclosed in the application and nothing more. 22. In the present case, the Petitioner paid the additional tax and interest on the income disclosed by him in his Applications for Assessment Years 2002-2003 upto 2005-2006 before 31st July, 2007 as per his calculations. On or before 31st July, 2007, the Respondents did not give any intimation to the Petitioner that there was any short f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (2D) of Section 245D of the Act. Since, as stated hereinabove, the Petitioner had complied with the requirements of Section 245D(2D) of the Act, Respondent No. 1 ought to have allowed the Applications of the Petitioner to be further proceeded with and wrongly came to the conclusion that the same had abated in accordance with the provisions of Section 245HA(1)(ii) of the Act. 26. For the aforesaid reasons, the said Order dated 11th January, 2008 is required to be quashed and set aside. Therefore, the Rule issued in this Petition is made absolute in terms of prayer clause (A) of the Petition, which reads as under:- "(A) This Hon'ble Court may be pleased to issue order Article 226 of the Constitution of India an appropriate direction, order or writ including a writ in the nature of Certiorari calling for the records of the case and after satisfying itself as to the legality thereof, quash and set aside the order dt. 11.1.2008 (Ex.G) passed by the Respondent No. 1 u/s. 245HA of the Act holding that the Applications filed u/s. 245C of the Act have abated." 27. We direct the matter be placed before the Interim Board for Settlement constituted under Section 245AA for consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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