2002 (11) TMI 68 - HC - Income Tax

Whether when the registered firm alone is before the Settlement Commission any adverse order can be passed against individual partners without hearing the individual partners? - Whether, on the facts and in the circumstances of the case, the Appellate Tribunal is right in law in upholding the order of the Appellate Assistant Commissioner who held that the provisions of section 155(1)(c) has come into effect from October 1, 1984, and did not become applicable even to the cases where the order passed by the Settlement Commission was prior to October 1, 1984, and the period of four years for rectification has not expired on October 1, 1984? - The matter before the Settlement Commission related to the periods 197071 to 1975-76 and even the order of the Settlement Commission was passed on June 15, 1984, prior to the introduction of section 155(1)(c) of the Act which came into force on October 1, 1984. Accordingly, no retrospective effect to section 155(1)(c) of the Act can be given

Summary

Issues Involved:
1. Jurisdiction of the Settlement Commission over individual partners not party to the proceedings.
2. Validity of the Settlement Commission's directions affecting individual partners.
3. Applicability and retrospective effect of Section 155(1)(c) of the Income-tax Act.

Detailed Analysis:

1. Jurisdiction of the Settlement Commission over individual partners not party to the proceedings:

The primary issue was whether the Settlement Commission could pass adverse orders against individual partners when only the registered firm was before it. The court highlighted that the firm and its partners are considered separate entities under the Income-tax Act. The partners, not being parties before the Settlement Commission, sought deletion of the observations made against them in the Commission's order. The court noted that the Settlement Commission's powers are extensive, but its orders must comply with principles of natural justice. It was emphasized that an order cannot be passed against someone who was not given an opportunity to be heard.

2. Validity of the Settlement Commission's directions affecting individual partners:

The court referenced the Division Bench decision in N. Krishnan v. Settlement Commission, which underscored that the Settlement Commission's orders are final and binding unless there is a violation of natural justice or an apparent error. The single judge had erroneously remanded the matter to the Settlement Commission to determine the liability afresh, despite the partners not being parties before the Commission. The court concluded that the single judge should have either dismissed the writ petition or deleted the observations against the partners, as they were not parties to the proceedings before the Settlement Commission.

3. Applicability and retrospective effect of Section 155(1)(c) of the Income-tax Act:

The court examined the introduction of Section 155(1)(c) of the Income-tax Act, which allows for the rectification of partners' assessments following a Settlement Commission order. This provision was introduced to address the lacuna regarding partners' liability resulting from a firm's settlement. The court referred to a previous Division Bench decision in CIT v. Shri A. V. Venkatakeshava Setty, which held that Section 155(1)(c) is not retrospective. The court noted that the Settlement Commission's order in the present case was passed before the introduction of Section 155(1)(c), and thus, the provision could not be applied retrospectively.

Conclusion:

The court set aside the single judge's order and restored the Settlement Commission's order, except for the directions affecting the partners individually. The court directed that any payments made by the partners pursuant to the impugned order be adjusted or refunded by the Revenue. The writ appeals were disposed of accordingly, with no order as to costs.