2019 (10) TMI 1231 - HC - Income Tax

Settlement Commission rejecting an application for settlement - no proceedings were pending on the day - HELD THAT - In the present case the matter has to be viewed from the perspective of the Assessee i.e. to say when the Assessee is bound to act. It cannot be said that before the notice was even sought to be served upon the Assessee the proceedings qua him could not be said to have concluded. Revenue at the very outset states that he has no knowledge whether the Bombay High Court cases have been allowed to become final but he has relied upon M/s Shlibhadra Developers Vs. Secretary and 2 ors 2016 (10) TMI 778 - GUJARAT HIGH COURT where it was held to the contrary. Petitioner has refuted this argument by asserting that one of the factors which weighed with the Gujrat High Court in the case of Shlibhadra (supra) was that the order was sought to be personally served upon the Assessee but the Assessee refused to accept the order and apart therefrom in an appeal filed by that Assessee to the Supreme Court leave has been granted. In our considered opinion the petition must succeed. Apart from the fact that the judgment passed in Shlibhadra (supra) could be distinguished (since in that case the Assessee had refused service) what we find in the present case is that the petitioner had communicated to the Assessing Officer on 26.12.2018 itself that it was intending to move an application before the Settlement Commission. We are inclined to follow the view in Yashovardhan Birla 2016 (9) TMI 296 - BOMBAY HIGH COURT wherein held for purposes of making an application for settlement a case i.e. An assessment would be pending till such time as the assessment order is served upon the assessee. The declaration of law by this Court is binding on all authorities within the State including the Commission. The petitioner was entitled to proceed on the basis that till the service of the assessment order the case continues to be pending with the Assessing Officer. Therefore it was open to him to invoke the provisions of Chapter XIXA of the Act on 30th March 2016 as till that date the assessment order was not served upon him. The assessment order for purposes of Chapter XIX A of the Act can be said to have been made when it is served upon assessee concerned. The application for settlement is restored to the file of the Commission at the stage of 245D(1) of the Act. The period of 14 days as provided in Section 245D(1) of the Act will run from the date this order is first communicated by either of the parties to the Commission.

Summary

Issues:
1. Rejection of settlement application by Settlement Commission due to concluded assessment proceedings.
2. Interpretation of when assessment proceedings can be considered concluded.
3. Application of precedents from Bombay High Court and Gujarat High Court.
4. Consideration of communication from petitioner to Assessing Officer.
5. Time constraint faced by Assessing Officer.
6. Binding nature of precedents and quashing of impugned order.

Analysis:
1. The petition was filed against the Settlement Commission's rejection of the settlement application, citing concluded assessment proceedings as the primary reason. The petitioner had communicated their intention to move to the Settlement Commission while assessment proceedings were pending, but the Assessing Officer finalized the assessment before the application was received by the Commission.

2. The key contention was whether assessment proceedings can be deemed concluded before the assessment order is served upon the Assessee. The petitioner relied on precedents from the Bombay High Court, emphasizing that proceedings are not concluded until the order is served. The Court distinguished a previous judgment regarding the date of notice issuance versus service, stating that in this case, the focus should be on when the Assessee is required to act.

3. The counsel for the revenue referenced a Gujarat High Court judgment that contradicted the Bombay High Court precedents. However, the Court found the Gujarat case distinguishable as it involved the Assessee refusing service. The Court ultimately sided with the Bombay High Court's view, emphasizing the binding nature of precedents and the Assessee's right to proceed until the assessment order is served.

4. The petitioner's communication to the Assessing Officer regarding their intention to move to the Settlement Commission played a crucial role in the decision. Despite the Assessing Officer facing a time constraint, the Court upheld the petitioner's right to proceed based on the communication made before the assessment order was served.

5. The Court highlighted the importance of following precedents and quashed the impugned order, restoring the settlement application to the Commission for further consideration. The order rejecting the settlement application was set aside, and the petition was disposed of, considering the binding decision of a co-ordinate bench.

6. With the main case decided, any pending applications were also disposed of, concluding the legal judgment in favor of the petitioner based on the interpretation of when assessment proceedings can be deemed concluded.