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Jalandhar
Non allotment of site as per allotment letter even after 11 years after depositing entire amount for constructing Jain temple by Authorities on lame excuses is nothing but deficiency of service = 1. Punjab Urban Planning & Development Authority through its Chief Administrator, PUDA Bhawan, Sector-62, SAS Nagar, Mohali. 2. The Estate Officer, Punjab Urban Planning & Development Authority, SCO 41, Ladowali Road, Jalandhar(Now JDA) …Petitioners Versus Sh. Atmanand Jain Shabha (Regd.), Chowk Jain Mandir Bazar Kalan, Jalandhar, through its President …Respondent – published in http://164.100.72.12/ncdrcrep/judgement/00131010143146189RP24062407%202013.htm
Non allotment of site as per allotment letter even after 11 years after depositing entire amount for constructing Jain temple by Authorities on lame excuses is nothing but deficiency of service = District Consumer Disputes Redressal Forum,Jalandhar (for short, ‘District Forum’) vide its order dated 26.2.2007, allowed the complaint and passed the following directions; “We … Continue reading
MODVAT- The respondent-company availed deemed MODVAT credit of Rs.77,546/- during the quarter of March, 2000 on the strength of invoices issued by M/s. Sawan Mal Shibhu Mal Steel Re-Rolling Mills, Mandi Govindgarh. During MODVAT verification it was found that the supplier of inputs had not discharged full duty liability for the period covered by the invoices. = Sub-rule (6) of Rule 57A in exercise of which the notification has been issued is as follows: – “(6) Notwithstanding anything contained in sub-rule (1), the Central Government may, by notification in the Official Gazette, declare the inputs on which the duty of excise paid under section 3A of the Central Excise Act, 1944 (1 of 1944), shall be deemed to have been paid at such rate or equivalent to such amount as may be specified in the said notification, and allow the credit of such duty in respect of the said inputs at such rates or such amount and subject to such conditions as may be specified in the said notification: Provided that the manufacturer shall take all reasonable steps to ensure that the inputs acquired by him are goods on which the appropriate duty of excise as indicated in the documents accompanying the goods, has been paid under section 3A of the Central Excise Act, 1944 (1 of 1944).”= “Whether the manufacturer of final products is entitled to deemed credit, under Notification 58/97-CE dated 30.8.97 when the manufacturer-supplier of inputs has not paid Central Excise Duty and given a wrong certificate on the body of invoices about duty dischargement under Rule 96ZP of Central Excise Rules, 1944?” = there is no dispute that a declaration was given by the manufacturer of the inputs indicating that the excise duty had been paid on the said inputs under the Act. It is also not in dispute that the said inputs were directly received from the manufacturer but not purchased from the market. There is no cavil over the fact that the manufacturer of the inputs had declared the invoice price of the inputs correctly in the documents. It is perceivable from the factual matrix that the only allegation is that at the time of MODVAT verification it was found that the supplier of the inputs had not discharged full duty liable for the period covered under the invoices. This lapse of the seller is different and not a condition or rather a pre-condition postulated in the notification. 25. Mr. Prasad, learned counsel for the revenue has vehemently urged that it was requisite and, in a way imperative, on the part of the assessee to verify from the concerned authority of the department whether the excise duty had actually been paid or not. The aforesaid submission leaves us unimpressed. As we notice Rule 57A (6) requires the manufacturer of final products to take reasonable care that the inputs acquired by him are goods on which the appropriate duty of excise as indicated in the documents accompanying the goods, has been paid. The notification has been issued in exercise of the power under the said Rule. The notification clearly states to which of those inputs it shall apply and to which of the inputs it shall not apply and what is the duty of the manufacturer of final inputs. Thus, when there is a prescribed procedure and that has been duly followed by the manufacturer of final products, we do not perceive any justifiable reason to hold that the assessee-appellant had not taken reasonable care as prescribed in the notification. Due care and caution was taken by the respondent. It is not stated what further care and caution could have been taken. The proviso postulates and requires “reasonable care” and not verification from the department whether the duty stands paid by the manufacturer-seller. When all the conditions precedent have been satisfied, to require the assessee to find out from the departmental authorities about the payment of excise duty on the inputs used in the final product which have been made allowable by the notification would be travelling beyond the notification, and in a way, transgressing the same. This would be practically impossible and would lead to transactions getting delayed. We may hasten to explicate that we have expressed our opinion as required in the present case pertaining to clauses 4 and 5 of the notification. 26. Consequently, we concur with the view expressed by the High Court and accordingly the appeals, being devoid of merit, stand dismissed without any order as to costs.
published in http://judis.nic.in/supremecourt/filename=40690 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 7031 of 2009 Commissioner of Central Excise, Jalandhar … Appellant Versus M/s. Kay Kay Industries … Respondent WITH CIVIL APPEAL No. 7032 of 2009 WITH CIVIL APPEAL No. 7034 of 2009 WITH CIVIL APPEAL No. 7392 of 2010 WITH CIVIL APPEAL … Continue reading
Section 482 of the Code of Criminal Procedure QUASHING OF F.I.R. = NO CRIMINAL CASE IS MAINTAINABLE ON FAILURE OF CIVIL LITIGATION AND FOR PRESSURIZE THE ACCUSED ON FALSE GROUNDS= The entire claim of the appellant Sarabjit Singh is based on an agreement to sell. The first information report lodged by the appellant Sarabjit Singh on 10.1.1998 at Police Station Adampur, district Jalandhar, did not even disclose the date of the aforesaid agreement to sell. According to the averments made by the appellant Sarabjit Singh before the High Court, and now before this Court, it is alleged that the aforesaid agreement to sell was executed on 13.3.1992. With reference to the abovesaid agreement to sell, the observations made by the High Court in its order dated 11.2.2002 (in Criminal Miscellaneous no. 3039-M of 2002) are extremely significant. The aforesaid order has been extracted hereinabove. The High Court, while granting interim relief, had taken into consideration the fact, that the appellant Sarabjit Singh had not enclosed a copy of the alleged agreement to sell. He had given no details of the agreement to sell. He did not disclose any date of the alleged agreement to sell. He did not even mention the area of land covered by the agreement, or the rate at which the land was agreed to be purchased. The High Court also noticed, that the date on which the sale was to be concluded, besides other similar issues, had also not been disclosed by the appellant Sarabjit Singh, in his complaint. While recording that the aforesaid were important ingredients for any agreement to sell, and while noticing that the same had not been disclosed by the appellant Sarabjit Singh, the High Court had stayed the proceedings before the trial Court. Despite such strong observations made by the High Court in its order dated 11.2.2002, and inspite of the fact that the same is the actual basis for all the allegations which the appellant has chosen to level against Itpal Singh (respondent no. 4 herein), Gurbinder Singh, Salamat Masih and others, the said agreement to sell has still not been placed on the record of the case, nor have the aforesaid details been furnished. The Deputy District Attorney, Jalandhar also arrived at a similar conclusion, namely, that the appellant Sarabjit Singh had not been able to produce any material demonstrating the execution of the alleged agreement to sell in his favour. It has been expressly noticed by the High Court in the impugned order dated 20.11.2006, that even the Deputy District Attorney, Jalandhar, in his report, upheld the earlier report submitted by the Superintendent of Police (City-II), Jalandhar. Even this report has not been placed on the record of the case. Herein again, an adverse inference is liable to be drawn against the appellant Sarabjit Singh. From the course of our narration of the factual position as it traversed before different levels of investigation and judicial scrutiny, it emerges that the appellant Sarabjit Singh has not been able to produce any material, on the basis of which he can establish his claim.The aforesaid land was admittedly been sold by Salamat Masih to Itpal Singh and Gurbinder Singh (through two registered sale deeds dated 17.3.1997 and 4.4.1997), i.e. well before the registration of the first information report dated 10.1.1998 by the appellant Sarabjit Singh. This is surely a case of no evidence. It is a case where accusations have been levelled without supporting material. Despite a clear indication in the order passed by the High Court, such supporting material has still not been made available for perusal of this Court. Therefore, in the facts and circumstances of this case, we are satisfied, that in the absence of any material whatsoever to support the charges levelled by the appellant Sarabjit Singh in the first information report dated 10.1.1998, the High Court was justified in quashing the said first information report by invoking its jurisdiction under Section 482 of the Code of Criminal Procedure. We are also satisfied, that the conclusions drawn by the Superintendent of Police (City-II), Jalandhar, and the Deputy District Attorney, Jalandhar, that the police complaint made by the appellant Sarabjit Singh was solely aimed at pressurizing Salamat Masih, Itpal Singh and Gurbinder Singh (besides some others), were fully justified. 17. For the reasons recorded hereinabove, we find no merit in the instant appeal and the same is accordingly dismissed.
PUBLISHED IN http://judis.nic.in/supremecourt/filename=40462 Page 1 “REPORTABLE” IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.815 OF 2013 (Arising out of SLP (Criminal) No. 1332 of 2007) Sarabjit Singh …. Appellant Versus State of Punjab & Ors. …. Respondents J U D G M E N T Jagdish Singh Khehar, J. 1. Leave granted. 2. … Continue reading
INCOME TAX ACT, 1961: CHAPTER X1X-A – Sections 245-C, 245-D (1) and 245-D(4) r/w s. 234-B – Settlement Commission – Settlement of cases – Interest for default in payment of advance tax – Applicability of s. 234-B – Held: Sections 234-A, 234-B and 234-C are applicable to the proceedings of the Settlement Commission under Chapter XIX-A – Sections 234-B, 245-D(2C) and s.245-D(6A) operate in different fields – Section 234-B comes into operation when there is default in payment of advance tax whereas liability to pay interest u/s 245-D(2C) arises when the additional amount of income tax is not paid within time specified u/s 245-D(2A) – Section 245-D (6A), on the other hand, imposes liability to pay interest only when the tax payable in pursuance of an order of Settlement Commission u/s 245-D(4) is not made within the specified time.. s. 234-B – Terminal point for levy of interest in settlement of cases under Chapter XIX-A – Held: Would be up to the date of the Order u/s 245-D(1) and not up to the date of the Order of Settlement u/s 245-D(4). ss. 154, 234-B, 245-D(4) and 245-I – Rectification of mistake – Levy of interest – Order of settlement u/s 245D(4) to be conclusive – Held: In view of s. 245-I, the Settlement Commission cannot re-open its concluded proceedings by invoking s. 154 so as to levy interest u/s 234-B – Section 154 is not applicable to Chapter XIX proceedings. Pursuant to the referral orders dated 14.12.2004 and 21.1.2005, the instant appeals were referred to the Constitution Bench of the Supreme Court. The questions for consideration before the Court were: (i) whether s. 234B of the Income Tax Act, 1961 would apply to proceedings of the Settlement Commission under Chapter XIX-A of the said Act? If yes; (ii) what would be the terminal point for levy of such interest – whether such interest should be computed up to the date of the Order u/s 245-D (1) or up to the date of the Order of the Commission u/s 245-D (4)? and (iii) whether the Settlement Commission could reopen its concluded proceedings by invoking s. 154 of the said Act so as to levy interest u/s 234-B, though it was not so done in the original proceedings? =Answering the reference and disposing of the appeals, the Court HELD: 1.1 Sections 234-A, 234-B and 234-C of the Income Tax Act 1961 are applicable to the proceedings of the Settlement Commission under Chapter XIX-A of the Act to the extent indicated in the judgment. [para 16] 1.2 Levy of interest is incidental to the liability and computation of advance tax. Liability and computation of advance tax is done under section C of Chapter XVII. On the other hand, interest for defaults in payment of advance tax falls u/s 234-B, apart from ss.234-A and 234-C, in section F of Chapter XVII. It is significant to note that s.234-A(4) refers to the increase or reduction of interest subsequent to the Order of the Commission u/s 245-D(4) increasing or reducing the amount of tax payable and so also s.234-B(4). [para 9] 1.3 Chapter XIX-A deals with Settlement of Cases. The word “case” is defined u/s 245-A (b). It is an exhaustive definition, which makes it clear that an application for Settlement shall lie only when any proceedings for assessment or re-assessment or an appeal or revision in connection with such assessment or re-assessment is pending before the Income Tax Authority. [para 10] 1.4 An application for settlement made u/s 245-C(1) will not be maintainable without full and true disclosure of the income by the applicant, the manner in which such undisclosed income was derived and that the applicant had furnished his return of income and that the additional tax payable on such income exceeds the specified amount. This was the position prior to Finance Act of 2007. However, s.245-C(1A) inter alia provides that additional amount of income tax payable in respect of the income disclosed shall be calculated in accordance with the provisions of s.245-C(1B). [para 10] 1.5 Under sub-s. (1B) of s.245-C, if the applicant has furnished his return in respect of his total income and no assessment is made, the tax shall be calculated on the aggregate of the total income returned and the income disclosed in the application as if such aggregate was the total income. The words “regular assessment” are not there in s. 245-C (1B) (ii). However, u/s 245-C(1C)(b), it is provided that the additional tax calculated u/s 245-C (1B)(ii) shall be reduced by the aggregate of the tax deducted at source or tax paid in advance and the amount of tax paid u/s 140-A. The resultant amount is the additional tax payable by the assessee. Thus, s.245-C incorporates within it, the provisions of Chapters XVIIB, XVIIC and s.140-A of the Act. [para 10] 1.6 A careful analysis of the provisions of s. 245-D(1) and 245-D(4) indicates two distinct stages – one, allowing the application to be proceeded with (or rejected), and the other, of disposal of the application by appropriate orders being passed by the Settlement Commission. In between the two stages, there are provisions which require the applicant to pay the additional income tax and interest. Under s.245-D(4) on compliance of ss. 245D(2A) and (2C) and on examination of relevant records and reports, the Settlement Commission may pass such orders as it thinks fit on the matter covered by the application and any other matter relating to the “case” referred to in the report of the Commissioner of Income Tax. Even u/s 245-D (7), it is provided that where the settlement becomes void u/s 245-D(6) the proceedings with respect to the matters covered by the settlement shall be deemed to have revived from the stage at which the application was allowed to be proceeded with by the Settlement Commission and the income tax authority may complete the proceedings within the period mentioned therein. Thus, s. 245-D(7) brings out the difference between s. 245-D(1) stage and s. 245-D(4) stage. Under s.245-D (6), it is laid down that every order u/s 245-D (4) shall provide for the Terms of Settlement including any demand by way of tax, penalty or interest. [para 10] 1.7 Under s. 245-F (1), in addition to the powers conferred on the Settlement Commission under Chapter XIX-A, it shall also have all the powers which are vested in the income tax authority under the Act. However, there is a significant difference between “procedure for assessment” under Chapter XIV and “procedure for settlement” under Chapter XIX-A (s.245-D). Under s. 245-F(4), it is clarified that nothing in Chapter XIX-A shall affect the operation of any other provision of the Act requiring the applicant to pay tax on the basis of self-assessment in relation to matters before the Settlement Commission. The point to be noted is that several provisions of the Act like s. 140A; furnishing of the return of income by the applicant as indicated in the proviso (a) to s. 245-C(1); provisions of the Act governing liability and computation to pay additional income tax as indicated by proviso (b) to s. 245-C(1); aggregation of total income inter alia in terms of ss. 143, 144 or 147 as indicated by s.245-C(1B)(iii); aggregation of total income as returned plus income disclosed in the application for settlement as indicated in s. 245-C(1B)(ii); the deductions in s. 245-C(1C); increase of interest u/s 215(3) pursuant to the orders of the Settlement Commission and the levy of interest u/s 234-A(4) and 234- B(4) all bring into Chapter XIX-A various provisions of the Act. Thus, while reading the provisions of ss. 245-C and 245-D one has to keep in mind various provisions of the Act and the concepts of self-assessment, assessment, regular assessment and computation of total income which have been engrafted in Chapter XIX-A. [para 10] 1.8 Though Chapter XIX- A is a self-contained Code, the procedure to be followed by the Settlement Commission u/ss 245-C and 245-D in the matter of computation of undisclosed income; in the matter of computation of additional income tax payable on such income with interest thereon; the filing of settlement application indicating the amount of income returned in the return of income and the additional income tax payable on the undisclosed income to be aggregated as total income shows that Chapter XIX- A indicates aggregation of incomes so as to constitute total income which indicates that the special procedure under Chapter XIX-A has inbuilt mechanism of computing total income which is nothing but assessment (computation of total income). The word `assessment’ can be used to cover the whole procedure to ascertain the liability and machinery for enforcement. [para 8 and 11] C.A. Abraham v. Income-Tax Officer, Kottayam and Another 1961 ( 2 ) SCR 765=1961) 41 ITR 425 (SC); and Modi Industries Limited, Modinagar and Others v. Commissioner of Income Tax, Delhi and Another 1995 (3) Supp. SCR 642= 216 ITR 759 – referred to. 1.9 Under the Act, tax is payable on the total income as computed in accordance with the provisions of the Act. Thus, s. 143(3) provision is sought to be incorporated in s.245-C. When Parliament uses the words “as if such aggregate would constitute total income”, it presupposes that under the special procedure the aggregation of the returned income plus income disclosed would result in computation of total income which is the basis for the levy of tax on the undisclosed income which is nothing but “assessment”, which takes place at s. 245-D(1) stage. However, in that computation, one finds that provisions dealing with a regular assessment, self-assessment and levy and computation of interest for default in payment of advance tax, etc. are engrafted. [ss.245-C (1B), 245-C (1C), 245-D(6), 245-F(3) in addition to ss. 215(3), 234-A(4) and 234-B(4)] [para 11] 1.10 In the case of Damani Brothers*, a 3- Judge Bench of this Court, while analyzing the scheme of Chapter XIX-A, has rightly held that s. 234-B, s. 245-D(2C) and s.245-D(6A) operate in different fields. Section 234-B comes into operation when there is default in payment of advance tax whereas liability to pay interest u/s 245-D(2C) arises when the additional amount of income tax is not paid within time specified u/s 245-D(2A). Section 245- D (6A), on the other hand, imposes liability to pay interest only when the tax payable in pursuance of an order of Settlement Commission u/s 245-D(4) is not made within the specified time. [para 10] *C.I.T. v. Damani Brothers 2002(5) Supp. SCR 424=259 ITR 475 – upheld. 2.1 The terminal point for the levy of interest u/s 234-B would be up to the date of the order u/s 245-D(1) and not up to the date of the Order of Settlement u/s 245-D(4). [para 16] 2.2 The proviso to s. 245-C(1), ss.245-C(1B), 245-C(1C), 245-D(4) and 245F(3) bring in the concepts of returned income, self-assessment, aggregation of income returned and income disclosed as if it is total income; levy of interest u/s 215(3) read with s. 245-D(4); increase of interest u/ss 234-A(4) and 234-B (4) read with s. 245-D(4) as also ss. 140A(1A) and (1B) read with ss. 234-A and 234-B. [para 12] 2.3 Section 245-C (1) is voluntary disclosure by the assessee of his undisclosed income. Under s. 245-C (1), the assessee has to mention in his settlement application the additional amount of tax payable by him on such undisclosed income. Under proviso (a), the application for settlement shall not be entertained till the assessee has furnished the return of income which he was required to file under the Act to the extent of his income. Under proviso (b), the assessee has to declare the additional amount of tax payable. Thus, the two provisos to s. 245-C (1) show that Chapter XIX-A, which prescribes a special procedure for assessment by settlement, contemplates a pre-assessment collection of tax. With the filing of the settlement application and after such application is allowed to be proceeded with u/s 245-D(1), intimation u/s 143(1), regular assessment u/ss 143(3)/144 and re-assessment u/s 147 lose their existence, as u/ss 245- C(1A) and (1B) it is only the income disclosed in the return of income before the A.O. alone which survives for consideration by the Settlement Commission for settling the amount of income which is not disclosed in the return. Under s. 245-C (1B)(ii), if the applicant has furnished a return in respect of the total income, whether or not assessment is made in pursuance of the return, the additional amount of income tax payable in respect of the total income disclosed shall be on the aggregate of the total income returned and the income disclosed in his application for settlement as if such aggregate was his total income. This is pre- assessment collection of tax. Such pre- assessment is based on the estimation of the current income and tax thereon by the applicant himself. [para 12] 2.4 When the Settlement Commission accepts the Voluntary Disclosure by the application for settlement, s. 234-B (2) steps in. It is significant that the assessee is liable to pay advance tax, he commits default in payment to the extent of the undisclosed income but he offers to pay additional income tax then interest has to be calculated in accordance with ss. 207, 208 and 234-B(2) up to the date on which such tax is paid. This is not the interest which assessee has to pay after assessment u/s 245-D (4). Under ss. 245-C (1B) and (1C) the additional amount of income tax payable on the undisclosed income shall be on the total income as calculated under s. 245- C(1B). On computation of total income u/ss 245-C (1B) and (1C), interest follows such computation. It is important to note that interest follows computation of total income. Once such computation takes place u/s 245- C(1B) then s. 234-B(2) applies. The said sub-section deals with the situation where before determination of total income u/s 143(1) or 143(3) tax is paid u/s 140A or otherwise interest shall be calculated in accordance with s. 234-B(1) up to the date on which tax is so paid. In that sense an application u/s 245-C (1) is a return. Section 245-C (1) deals with computation of “total income”. Thus, ss. 234-A, 234-B and 234-C are applicable upto the stage of s.245-D(1) order passed by the Settlement Commission, i.e. admission of the case. [para 12 and 14] 2.5 Besides, Chapter XIX-A refers to procedure of settlement (s. 245-D (1)). Section 245-D (1) provides for expeditious recovery of tax by way of pre-assessment collection. Interest on default in payment of advance tax comes u/ss 234-A, 234-B, 234-C, which fall in Chapter XVII which deals with collection and recovery of tax. It is important to note that interest follows computation of additional payment of income tax u/ss 245-C (1B) and (1C). This is how ss. 234-A, 234-B and 234-C get engrafted into Chapter XIX-A at the stage of s. 245-D (1). Till the Settlement Commission decides to admit the case u/s 245-D (1), the proceedings under the normal provisions remain open. But, once the Commission admits the case after being satisfied that the disclosure is full and true then the proceedings commence with the Settlement Commission. In the meantime, applicant has to pay the additional amount of tax with interest without which the application for settlement would not be maintainable. Thus, interest u/s 234-B would be payable up to the stage of s. 245-D (1). This view is supported by the amendment made by Finance Act of 2007 w.e.f. 1.6.2007 in which interest is required to be paid for maintainability of the Application for Settlement. [para 12] 2.6 Parliament has not extended the provisions and the liability to pay interest beyond the date of application for settlement. This is the position even after Finance Act of 2007. Once this position is taken, s. 140-A is attracted. When an assessee has paid interest u/ss. 234-A, 234-B and 234-C in self-assessment u/s. 140-A, which is similar to the scheme of s.245-C (1), and once the Settlement Commission admits the application for settlement, one finds that even u/s 140-A(1B) interest payable u/s. 234-B has to be computed on an amount equal to the assessed tax as defined in the Explanation to mean tax on the total income as declared in the return. Under sub-s. (1B) of s.140-A interest payable u/s. 234-B can also be computed on an amount by which the advance tax paid falls short of the assessed tax as defined in the Explanation thereto. Thus, there is no provision under Chapter XIX-A or even u/s.140A (dealing with self- assessment) to charge interest beyond the date of application for settlement after the same is admitted by the Commission u/s.245-D(1). [para 14] 2.7 Moreover, under the Act, there is a difference between assessment in law [regular assessment or assessment u/s 143(1)] and assessment by settlement under Chapter XIX-A. The order u/s.245-D(4) is not an order of regular assessment. It is neither an order u/s. 143(1) or 143(3) or 144. The making of the order of assessment is an integral part of the process of assessment. [ss. 139 to 158] No such steps are required to be followed in the case of proceedings under Chapter XIX-A. The said Chapter contemplates the taxability determined with respect to undisclosed income only by the process of settlement/ arbitration. Thus, the nature of the orders u/ss. 143(1), 143(3) and 144 is different from the orders of the Settlement Commission u/s 245-D(4). [para 14] 2.8 Further, the jurisdiction of the A.O. is not fettered merely because the applicant has filed the Settlement Application. The Act does not contemplate stay of the proceedings during that period, i.e., when the Settlement Commission is deciding whether to proceed or reject the settlement application. The jurisdiction of the Settlement Commission to proceed commences only after an order is passed under section 245D(1). After making an application for settlement the applicant is not allowed to withdraw it [s. 245C(3)]. Once the case stands admitted, the Settlement Commission shall have exclusive jurisdiction to exercise the powers of the Income Tax Authority. The order of Settlement Commission u/s 245D(4) shall be final and conclusive u/s 245I subject to two qualifications under which it can be recalled, viz., fraud and misrepresentation but even here it is important to note that u/s 245D(7) where the settlement becomes void on account of fraud and misrepresentation the proceedings with respect to the matters covered by the settlement shall be deemed to have been revived from the stage at which the application was allowed to be proceeded with by the Settlement Commission. This further supports the view that there are two distinct stages under Chapter XIX-A and that the Legislature has not contemplated the levy of interest between order u/s 245D(1) stage and s.245D(4) stage. Thus, interest u/s 234B will be chargeable till the order of the Settlement Commission u/s 245D(1), i.e., admission of the case. [para 14] Commissioner of Income Tax v. Anjum M.H. Ghaswala and others 2001(4) Supp. SCR 303=252 ITR 1 – referred to. 2.9 Lastly, the expression “interest” in s. 245-(6A) fastens the liability to pay interest only when the tax payable in pursuance of an order u/s 245- D(4) is not paid within the specified time and which levy is different from liability to pay interest u/s 234-B or u/s 245-D(2C). [para 14] C.I.T. v. Damani Brothers 2002(5) Supp. SCR 424=259 ITR 475 – referred to. 3.1 The Settlement Commission cannot re-open its concluded proceedings by invoking s. 154 of the Act so as to levy interest u/s 234-B, particularly, in view of s. 245-I. Invocation of s.154 (held to be inapplicable to Chapter XIX-A proceedings) cannot be justified. Descriptively, it can be stated that assessment in law is different from assessment by way of settlement. A reading of s.245-D (6) with s. 245-I makes it clear that every order of settlement passed u/s 245-D (4) shall be final and conclusive as to the matters contained therein and that the same shall not be re-opened except in the case of fraud and misrepresentation. [para 10, 15 and 16] 3.2 Proceedings before Settlement Commission are similar to arbitration proceedings. It contemplates assessment by settlement and not by way of regular assessment or assessment u/s 143(1) or u/s 143(3) or u/s 144 of the Act. In that sense, it is a Code by itself. It does not begin with the filing of the return but by filing the application for settlement. Under the Act, procedure for assessment falls in Chapter XIV (in which s. 154 falls) which is different from procedure for settlement in Chapter XIX-A in which ss. 245-C and 245-D fall. Provision for levy of interest for default in payment of advance tax u/s 234-B falls in Chapter XVII [Section F] which deals with collection and recovery of tax which is incidental to the liability to pay advance tax u/s 207 (which is also in Chapter XVII) and to the computation of total income in the manner indicated under Chapter XIX-A vide ss. 245-C(1B) and 245-C(1C) read with the provisos to s. 245-C(1) on the additional income tax payable on the undisclosed income. Further, if one examines the provisions of ss. 245-C(1B) and 245-C(1C), one finds that various situations are taken into account while computing the additional amount of tax payable, viz., if the applicant has not filed his return, if he has filed but orders of assessment are not passed or if the proceedings are pending for re-assessment u/s 147 (again in Chapter XIV) or by way of appeal or revision in connection with such re-assessment and the applicant has not furnished his return of total income in which case tax has to be calculated on the aggregate of total income as assessed in the earlier proceedings for assessment u/s 143 or u/s. 144 or u/s 147 [s. 245-C(1B)]. The point to be noted is that in computation of additional income tax payable by the assessee, there is no mention of s. 154. On the contrary, u/s 245-I the order of the Settlement Commission is made final and conclusive on matters mentioned in the application for settlement except in the two cases of fraud and misrepresentation in which case the matter could be re-opened by way of review or recall. [para 15] 3.3 Like ITAT, the Settlement Commission is a quasi-judicial body. Under s. 254(2), the ITAT is given the power to rectify, but no such power is given to the Settlement Commission. Thus, the Settlement Commission cannot reopen its concluded proceedings by invoking s. 154 of the Act. [para 15] 3.4 Lastly, one must keep in mind the difference between review/recall of the order and rectification u/s 154. The Schedule of Chapter XIX-A does not contemplate invocation of s. 154 otherwise there would be no finality to the assessment by settlement which is different from assessment under Chapter XIV where there is an appeal, revision, etc. Settlement of liability and not determination of liability is the object of Chapter XIX- A. Even otherwise, invocation of s. 154 on facts of this batch of cases is not justified. [para 15] Commissioner of Income Tax v. Anjum M.H. Ghaswala and others 2001(4) Supp. SCR 303= 252 ITR 1; and CIT v. Hindustan Bulk Carrier 2002 (5) Suppl. SCR387 =(2003) 259 ITR 449 – referred to. Case Law Reference: 1995(3) Supp. SCR 642 referred to para 7 1961 (2) SCR765 referred to para 7 2002 (5) Suppl. SCR387 referred to para 7 2002(5) Supp. SCR 424 upheld para 10 2001(4) Supp. SCR 303 referred to para 14 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 516-527 of 2004. From the Judgment & Order dated 07.03.2003 of the Income Tax Settlement Commission (IT & WT), Kolkata in Settlement Applications Nos. 1/J/297/89- IT, 1/J/295/89-IT, 1/J/294/89-IT, 1/J/299/89-IT, 1/J/296/89-IT, 1/J298/89- IT, 1/J/302/90-IT, 1/J/307/90-IT, 1/J/305/90-IT, 1/J/305/90-IT, 1/J/304/90- IT, 1/J/301/90-IT. With C.A. Nos. 280-286 of 2005, 8324-8328 of 2004, 603, 990, 925, 924 of 2005, Writ Petition (C0 Nos. 556, 555 of 2004, C.A. Nos. 2247-2250, 923, 995, 994 of 2005, Writ Petition (C) Nos. 63, 61, 62, 60 of 2005, C.A. Nos. 2246, 3231-3232 of 2005, 3091, 3087, 3092, 4599-4601, 528-531 of 2004, Writ Petition (C) Nos. 325, 324, 326 of 2004, C.A. Nos. 992 of 2007, 9174 of 2010, 532 of 2004, 604 of 2005. Gopal Subramanium, SG, C.S. Aggarwal, Parus F. Kaka, R.P. Bhat, O.S. Bajpai, Rajiv K. Garg, Vivek Verma, Ashish Garg, Vineet Garg, A.D.N. Rao, Preetesh Kapur, G.S. Pikale, E.C. Agarwala, Mahesh Agarwal, Rishi Agrawala, Amit Kumar Sharma, Rohma Hameed, Rajiv Tyagi, Vijay Verma, Chanchal Biswal, Asha Gopalan Nair, Balaji Subramanium, Aman Ahluwalia, B.V. Balaram Das,Subramonium Prasad, Ajay Majithia, Manish Kanth, Rajesh Kumar, Dr. Kailash Chand, Chirag M. Shroff, Dattatray Vyas, Ajay Vohra, Kavita Jha, Amit Sachdeva, Prem Malhotra, Rachna Gupta, C.S. Jain, Y. Raja Gopala Rao, Krishna, V.N. Jha, V.N. Raghupathy, Ajay Jain, Rajiv Tyagi, R.K. Raghavan, Chanchal Biswal, Manjit Singh, Kamal Mohan Gupta, Santosh Aggarwal, Bhargava V. Desai, Rahul Gupta, Nikhil Sharma, Vivek Verma, Pallavi Mohan, Pankaj Jain, Abhay Jain, Rakesh Jain, Manish Kr. Choudhary, Namita Chaudhary, S. K. Verma, Mohit Chaudhary, Ashok Kulkarni, Puja Sharma, A. Das, Rituraj Chaudhary fof the appearing parties.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE/ORIGINAL JURISDICTION CIVIL APPEAL Nos. 516-527 OF 2004 Brij Lal & Ors. … Appellants versus Commissioner of Income Tax, Jalandhar … Respondents with Civil Appeal Nos. 280-286/2005, Civil Appeal No. 8324/2004, Civil Appeal Nos.8325- 8328/2004, Civil Appeal No. 603/2005, Civil Appeal No. 990/2005, Civil Appeal No. 925/2005, … Continue reading
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