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TMI Blog2024 (8) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... ia, quashing the Impugned Settlement Order passed u/s. 245D (4) of the Act by Respondent No.2 on 26 September 2023 (Exhibit L), and the Impugned Notices issued by Respondent No. 4 u/s. 142(1) of the Act for Ays 2015-16 to 2020-21 (Exhibit M-1 to Exhibit M-12) as being wholly without jurisdiction, illegal and arbitrary; (d) Issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, order or direction under Article 226 of the Constitution of India, directing Respondent No.2 to proceed with the adjudication and consideration of the Petitioner's Settlement Application dated 25 March 2021 bearing No.MH/PUCC/097/2020-21/IT on its merits and in accordance with law, without reference to the issue of eligibility raised by Respondent No.3 in relation to the Impugned CBDT Order issued by Respondent No. 1." 3. The relevant facts are required to be noted. On 22nd November, 2019, search was conducted at the premises of the Petitioner's partners. On 23rd March, 2021, notices under Section 153C of the Income Tax Act, 1961 ("the Act") for the Assessment Years 2015-16 to 2019-20 and a notice under Section 143 (2) of the Act for the Assessment Year 2020-21 were i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was of the CBDT under Section 119 of the Act, the eligibility in terms of the pending proceedings was determined as on 31st January, 2021, and in the Petitioner's case as the proceedings were initiated on 23rd March, 2021 by issuance of notice under Section 153C, the Petitioner's application was held to be not maintainable. 10. The Petitioner has contended that as the Petitioner's settlement application was rejected by the IBS, on 13th October, 2023 and 1st November, 2023, the Assessing Officer issued to the Petitioner a notice under Section 142 (1). It is in these circumstances, the present Petition was filed on 4th November, 2023, which also prays for a relief that the Order dated 28th September, 2021 passed by the CBDT under Section 119 (2) (b) of the Act (supra) be quashed and set aside and a writ of mandamus be issued to direct the IBS to adjudicate the Petitioner's settlement application. 11. Mr. Naniwadekar, Learned Counsel for the Petitioner, at the outset, would submit that the Order dated 28th September, 2021 passed by the CBDT, insofar as, it incorporated Condition No. 4, was subject matter of challenge before this Court in the case of Sar Senapati Santaji Ghorpade Sug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the decision of this Court in Sar Senapati Santaji Ghorpade Sugar Factory Ltd. (supra), to that extent the impugned order would be contrary to the said decision of this Court. Mr. Suresh Kumar however has submitted that not only the decision of this Court in Sar Senapati Santaji Ghorpade Sugar Factory Ltd. (supra), but also two other decisions, one of the Madras High Court in Jain Metal Rolling Mills Vs. Union of India [2023] 156 taxmann.com 513 (Mad) as also the decision of the Gujarat High Court in Vetrival Infrastructure Vs. DCIT [2024] 164 taxmann.com 123 (Guj) are subject matter of challenge by the Revenue before the Supreme Court and the proceedings are pending. 14. Mr. Naniwadekar has also brought to our notice that the conclusion of the Division Bench of this Court in striking down paragraph 4 of the CBDT's Order dated 28 September, 2021 as reached by this Court in Sar Senapati Santaji Ghorpade Sugar Factory Ltd. (supra) is also the view of the Madras High Court in Jain Metal Rolling Mills (supra) and Gujarat High Court in Vetrival Infrastructure (supra). 15. Having heard Learned Counsel for the parties and having perused the record, we are in agreement with Mr. Naniwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal condition, i.e., assessee should be eligible to file an application for settlement on 31st January 2021 in paragraphs 2 and 4(i) of the impugned notification, in our view, is beyond the scope of the power of CBDT as per Section 119 of the Act. There is no provision in the Act providing a cut off date with respect to an assessee being eligible to make an application under Section 245C of the Act. Hence, such a condition in the impugned notification is clearly invalid and bad in law. The date on which an assessee becomes eligible to make an application and the date on which the assessee makes an application are two different things and the Act only provides a cut off date for the latter and not the former. Section 245C of the Act as amended by the Finance Act, 2021, provides that an application shall not be made after 1st February 2021, i.e., cut off date for making an application. However, there is no provision in the Act with respect to the cut off date for an assessee to be eligible to make an application. Further, there is no amendment to the definition of "case" in Section 245A(b) read with the Explanation, which would affect the eligibility of petitioner to file an appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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