2018 (7) TMI 49 - HC - Income Tax

Maintainability of the settlement application - delayed proceedings - admitted tax was not paid on the disclosed income - Held that - If the proceedings were delayed due to the reasons attributable to the applicants, the provision for abatement would apply but not otherwise. The Settlement Commission has not recorded any such finding. The department has not brought any facts to our notice to permit any further inquiry in this respect by the Settlement Commission. In plain terms therefore there is no material before us to hold that the application for settlement of the present petitioners were belated due to the reasons attributable to the petitioners - The declaration of abatement of the proceedings in case of the present petitioner is also set-aside. Coming to the question of inadequacy of the tax deposited by the assessee; as noted, the Settlement Commission has not cited any reasons for coming to such a conclusion. We have noticed that both the sides have placed materials in support of their rival contentions. We request the Settlement Commission to examine such material and come to a conclusion whether the assessee had deposited the tax or was short in doing so. For such purpose, we would place the matter back before the Settlement Commission. Request the Settlement Commission to examine the implication of the judgment of Supreme Court in the case of Ajmera Housing Corporation & Anr. 2010 (8) TMI 35 - SUPREME COURT OF INDIA in light of th fact that the assessee s initial disclosure was for ₹ 75.78 lakhs and further disclosures made nearly four years later were of additional sum of ₹ 97 lakhs.

Summary

Issues:
1. Dismissal of settlement application by Settlement Commission on grounds of abatement and non-payment of tax on disclosed income.
2. Examination of true and full disclosures made by petitioner.
3. Challenge to the validity of Section 245HA of the Income-tax Act, 1961.
4. Dispute regarding tax liability and refund adjustment.
5. Application of the judgment in the case of Ajmera Housing Corporation & Anr.
6. Maintainability of settlement application and implications of previous judgments.

Issue 1: Dismissal of settlement application
The petition by a partnership firm was dismissed by the Settlement Commission due to abatement and non-payment of tax on disclosed income. The petitioner disclosed additional income of &8377; 71.78 lakhs initially and later made a further disclosure of &8377; 97 lakhs. The Revenue contended that the petitioner was short by &8377; 66 lakhs, which the petitioner claimed was available as a refund from another company. The Settlement Commission cited non-payment of additional tax as the reason for dismissal.

Issue 2: Examination of disclosures
The High Court examined the true and full disclosures made by the petitioner during the settlement application process. The petitioner, engaged in diamond business, had initially disclosed &8377; 75.78 lakhs of undisclosed income, which was later revised to &8377; 97 lakhs. The Court considered whether the Supreme Court judgment in Ajmera Housing Corporation case would apply to this situation.

Issue 3: Challenge to Section 245HA
The petitioner challenged the validity of Section 245HA of the Income-tax Act, 1961, which deals with abatement of proceedings if not disposed of within the stipulated time. The Court referred to a previous case where the issue reached the Supreme Court, leading to directions to not interfere with Settlement Commission matters pending Supreme Court decision.

Issue 4: Tax liability and refund adjustment
A dispute arose regarding the petitioner's tax liability and the adjustment of a refund amount from another company. The Revenue argued against giving credit for the refund amount, leading to a difference in tax calculations between the petitioner and the Revenue.

Issue 5: Application of Ajmera Housing Corporation judgment
The Court requested the Settlement Commission to examine the implications of the Supreme Court judgment in Ajmera Housing Corporation case. This was in light of the petitioner's initial disclosure of &8377; 75.78 lakhs and subsequent disclosure of &8377; 97 lakhs.

Issue 6: Maintainability of settlement application
The Court addressed the maintainability of the settlement application and referred to a previous judgment in a similar case. The Court set aside the order of the Settlement Commission declaring abatement and revived the proceedings for further examination. The Settlement Commission was directed to reevaluate the adequacy of tax deposited by the petitioner and consider the implications of previous judgments while disposing of the matter.