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TMI Blog2016 (9) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... the present facts, the petitioner was entitled to act upon the above representation. It is not fair for the State to now take up the stand that on the proper interpretation of the provisions of law, the representation made by it is not in accordance with law. At the very highest, even according to the Revenue, the issue is not clear as it is subject to interpretation, at the very least, therefore, the Commission must be held bound by its representation. As it was its understanding on interpretation of Chapter XIX A of the Act. In any case, the petitioner could not be prejudiced for acting in terms of the representation. We are informed that the above representation is withdrawn by the Commission post 12th April, 2016. Therefore, on the above ground also in the present facts, the impugned order is not sustainable. The impugned order dated 12th April, 2016 of the Commission being Exh.G. to the petition is quashed and set aside. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, the petitioner filed his Return of Income for Assessment Years 200809 to 201314. Further, the Assessing Officer also issued notices under Section 148 of the Act for Assessment Years 199899 to 200708 and 201415. (b) As according to the petitioner, the assessments consequent to Section 153A and 148 of the Act were pending on 30th March, 2016 the petitioner filed an application for settlement under Section 245C of the Act for the Assessment Years 199899 to 200708 with the Commission. An acknowledgement for the receipt of the application for settlement was also given to the petitioner by the Commission. (c) Thereafter in the evening of 30th March, 2016 itself the petitioner sought to serve a copy of the application for settlement filed by the petitioner with the Commission for the Assessment Years 199899 to 201415 with the Assessing Officer along with the intimation in the prescribed Form 34BA of the Income Tax Rules. However, the Assessing Officer did not accept a copy of the application for settlement and returned it with following handwritten endorsement thereon : Sri. O.P. Jain, Consultant appeared on behalf of Shri. Yash Birla to file the copy of application file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the sine qua non for approaching the Commission is that the assessment should be pending before the Assessing Officer. It further clarified that an assessment order would be considered to be pending till the date the same is served on the tax payer. This was undisputably so till 12th April, 2016, when the impugned order was passed. In the above view, it is submitted that the Commission is bound by the representation made by it as the petitioner has acted upon the same. 6. As against the above, Mr. Anil Singh, the learned Additional Solicitor General appearing for the Revenue contended as under :( a) The decision of this Court in ITSC (supra) would have no application to the present facts. This for the reason as the only issue canvassed before the Court was with regard to the question whether the service of the assessment order on the assessee therein was complete or not before filing of the application of settlement with the Commission for considering the words 'pending assessment'. The Court had no occasion in above case to consider the appropriate construction of the words on the date on which the assessment is made as found in Section 245A(b) Explanation (ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of the Settlement Commission (b) case means any proceeding for assessment under this Act, of any person in respect of any assessment year or assessment years which may be pending before an Assessing Officer on the date on which an application under subsection (1) of Section 245C is made. Explanation For the purposes of this clause (i) .. (ii) .. (iii) .. (iiia) a proceeding for assessment or reassessment for any of the assessment years, referred to in clause (b) of subsection (1) of section 153A in case of a person referred to in section 153A or section 153C, shall be deemed to have commenced on the date of issue of notice initiating such proceeding and concluded on the date on which the assessment is made; (iv) a proceeding for assessment for any assessment year, other than the proceedings of assessment or reassessment referred to in [clause(i) or clause (ii) or clause(iiia)], shall be deemed to have commenced [from the date on which the return of income for that assessment year is furnished under section 139 or in response to a notice served under section 142 and concluded on the date on which the assessment is made; or on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egorical answer. Therefore, we proceed on the basis that the above decision is in force, not having been stayed by the Apex Court. 10. However, the learned Additional Solicitor General persisted in submitting that decision in ITSC (supra) would not apply. This for the reason that the Court therein had had only to consider whether or not service of the order passed by the Assessing Officer was complete, before the assessee therein had filed its application for settlement with the Commission. It did not have occasion to deal with the submission now being urged by him that Explanation (iiia) of Section 245A(b) of the Act, when strictly construed would not mean service of the assessment order but would only mean making of the order. This submission in turn is supported by the Parliament making use of different words herein then that of service , issue or communicated as used in the other provisions of the Act. Therefore, this difference in language must be given a meaning and it cannot mean service . These distinctions now being raised are of no avail as the Revenue had raised this very issue viz. the assessment was not pending on the date the application of settlement was fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on which it (assessment order) is made to be the date when it ceases to be pending. The very issue urged by the Revenue before us, was subject of consideration before the Court as is noticed in paragraph nos. 7, 13, 20 and 28 as reproduced above. Therefore, the aforesaid decision can by no stretch be considered to have been rendered subsilentio . A decision would be subsilentio when a point does not fall for consideration. In the above case, this Court was concerned with the point / issue of when an assessment order was made for purposes of Chapter XIX A of the Act. In fact, this is an attempt by the Revenue to reopen a principle laid down by a coordinate bench of the Court and disturb the law of precedent. An authority i.e. a decision of the Court does not lose its binding value as a precedent, merely because according to one of the parties (in this case the Revenue was also a party to the earlier proceedings) an issue had been inadequately argued. There is a difference between inadequately argued and not argued at all for the reason that the issue did not arise for decision. 12. In any event, the Rule of Law requires like cases to be decided alike. Therefore, the law of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der would be said to have been made only on it being served upon the assessee for the purpose of Chapter XIX A of the Act. There is no merit in the above submission. Firstly, a CBDT Circular cannot overrule a decision of a Court of law. Secondly, this Circular was available when this Court rendered the decision in ITSC (supra) and yet it does not seem to have relied upon. This possibly for the reason that a CBDT Circular interpreting a statutory provision is binding upon the Officers of the Revenue only when it is beneficial to the assessee and not otherwise. 15. It needs to be pointed out that Mr. Mistri, the learned Senior Counsel during the course of his submission placed reliance upon the decision of the Kerala High Court in Commissioner of Agricultural IncomeTax Vs. Kappumalai Estate 234 ITR 187. The Kerala High Court in the above case, consider an identical provision also found in Section 35(2) of the Agricultural Income Tax which provided that no order of assessment and / or reassessment shall be made after the expiry of four years from the end of the year for which the agricultural income was first assessable. The Court held that to make the order complete and effect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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