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TMI Blog2016 (8) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.6.2011. Even the said provision is not a power of review. But the phraseology used by the legislation is “rectification” and such rectification can be done on any mistake apparent from the record. Therefore, such power exercisable under sub Section 6D of Section 245D can be exercised only to rectify a mistake and such mistake should be apparent from the record. Thus, even as per the amendment made by Finance Act, 2011, power of review is not conferred on the Settlement Commission. Rudimentary legal principle is that subsequent development of law cannot be a ground to exercise review jurisdiction and that cannot be taken into consideration as an error apparent on the face of the record. Hence, on that ground also, the Department should be non suited. Hence for all the above, order of the Settlement Commission is held to be unsustainable and it is accordingly quashed. Consequently, the orders dated 19.1.2005, 13.12.2004 and 19.1.2005 and order dated 14.7.2005, 4.2.2005, insofar as it relates to the computation of terminal date for charging the interest under Section 234B alone and the order passed by the Settlement Commission dated 8.8.2007 are quashed. After the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of three Writ Petitions would solely depend upon the decision to be taken in the first set of Writ Petitions viz., W.P.Nos.5553, 5555, 5557 of 2008. 3. The short issue that falls for consideration is as to whether the Settlement Commission could have entertained a miscellaneous petition at the behest of the Department for rectifying its orders dated 16.7.1998, 15.10.1998 and 16.7.1998, under Section 245D(4) of the Act. The applications filed by the petitioners for settlement of their case under Section 245D was admitted by orders dated 28.2.1996, 18.1.1996, 29.2.1996 respectively. Thereafter, the Commission allowed the case to be proceeded with, and an order under sub Section 4 of Section 245D being the final order of the Commission settling the case of the petitioners was passed on 16.7.1998, 15.10.1998 and 16.7.1998 respectively. The Department did not question the orders passed by the Settlement Commission. Nor any other action was taken within a reasonable time. After about five years, on 6.2.2003, the respondent Department filed miscellaneous petitions before the Commission stating that Hon'ble Supreme Court in the case of CIT vs. Hindustan Bulk Carriers, (259 ITR 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel referred to a decision of the Hon'ble Division Bench of the Andhra Pradesh High Court in the case of U.Narayanamma vs. Government of India, (2013) 352 ITR 598 (AP) wherein the Hon'ble Andhra Pradesh High Court held that the earlier order of the Settlement Commission though contrary to the Board Circular and considered in the light of the decision of the Supreme Court, was an error within the jurisdiction of the Commission and not an error that goes to the root of its jurisdiction. The appropriate course of action for the revenue ought to have been to challenge the order of the Commission by way of certiorari and an application for rectification under Section 154 was however impermissible and beyond the jurisdiction of the settlement commission and the revised order passed by the commission could not be sustained. 6. The learned Standing counsel appearing for the Revenue contended that the power of the Settlement commission under Section 245F confers all powers which are vested in an Income Tax Authority under the Act and therefore, the authority was well within the jurisdiction to apply before the commission for rectification of the mistake which was apparent fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hraseology used by the legislation is rectification and such rectification can be done on any mistake apparent from the record. Therefore, such power exercisable under sub Section 6D of Section 245D can be exercised only to rectify a mistake and such mistake should be apparent from the record. Thus, even as per the amendment made by Finance Act, 2011, power of review is not conferred on the Settlement Commission. 8. In the case of Smt.U.Narayanamma, Writ Petitions were filed challenging the orders passed by the Settlement Commission on the ground that the Commission has no power to rectify its earlier order even under Section 245D of the Income Tax Act, 1961. The Hon'ble Division Bench of the Andhra Pradesh High Court after taking into consideration the decision of the Hon'ble Supreme Court in Brij Lal, held that the order passed by the Settlement Commission rectifying its earlier order cannot be sustained and must perish. In the said case, rectification was sought for by the commission on the ground that the order passed by the Commission was contrary to the Board's circular. The Court held that even otherwise, it is an error within the jurisdiction of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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