9911796707
TMI Blog2017 (6) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... ustified, according to this Principal Commissioner. We see much force in this stand of the Revenue. On facts, we find that this is not a case which requires our interference in writ jurisdiction. This court's jurisdiction under Article 226 of the Constitution of India is both, extraordinary and discretionary. It is equitable as well. It should not be exercised so as to allow a defaulter like the petitioner to derive benefit or take advantage of his own wrong. We think that the writ petition deserves to be dismissed on this ground alone. In the present case, the facts are eloquent enough. They clearly spell out the position that in the order of the Settlement Commission, there was a request noted. That was a request made by the petitioner and for payment of the tax in installments. That request was granted and time was stipulated for payment by installments. All this is incorporated in the order of the Settlement Commission. It is the petitioner, who could not abide by the time limit and applied for extension. It is the petitioner, who proceeded on the footing that such an application for extension could have been filed and pressed. It is in these circumstances that the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent No. 2 and 3 be pleased to quash and set aside the said sale, orders and letters; 3. The petitioner, an Indian citizen, has impleaded to this writ petition the Principal Commissioner of Income Tax and two tax recovery officers so also the Principal Chief Commissioner of Income Tax as respondents. The petitioner says that he is about 60 years of age and the principal business, in which he was engaged, was automobile dealership. However, on account of some erroneous commercial decisions, he suffered losses leading to the closure of his automobile dealership business. He had borrowed huge sums from banks and therefore, his properties were attached. In an attempt to restructure the financial liability, the petitioner started a business of developing properties. A group was formed, which comprised of several companies and joint venture agreements with third parties were executed in order to bring in funds for development of the properties in Pune and Pimpri Chinchwad area. The petitioner was involved in the dealings in some litigated properties. The petitioner formed two companies, namely, Yashraj Builders Private Limited and Pratham Builders and Developers Private Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion filed before the Settlement Commission by him and the company Pratham Builders and Developers Private Limited. There was a common order passed by the Settlement Commission on 1st December, 2011. The Settlement Commission assessed the taxable income at ₹ 20.82 crores for the petitioner and the taxable income at ₹ 5.70 crores for the Pratham Builders and Developers Private Limited. Annexure 'B' is a copy of the order passed by the Settlement Commission. Then, the assessing officer worked out the tax dues at ₹ 11.98 crores along with interest for various years under sections 234-A, 234-B and 234-C of the IT Act amounting to ₹ 5.10 crores. The chart of year-wise working is annexed as Annexure 'C' to the petition. 6. The petitioner then refers to the relief granted by the Settlement Commission in its order and submits that the Deputy Commissioner of Income Tax, Circle 1(2), Pune passed an order under section 153-A read with section 245-D(6) of the IT Act giving effect to the order of the Settlement Commission. This order of the Deputy Commissioner is dated 16th January, 2012. Annexure 'D' is a copy of the same. After referring to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue, made at that time was for withdrawal of immunity. However, the petitioner brought to the notice of the Commission that the Income Tax Department has not given credit to the petitioner for large amounts paid by him. On 26th June, 2016, the Income Tax Department accepted the payments made by the petitioner and gave the petitioner a figure of ₹ 11,19,13,519/- that is required to be paid to clear the total outstanding dues against the Settlement Commission order. However, this figure was changed by the assessing officer on the basis of his working of the interest and interest on penalty. He computed the total outstanding of ₹ 16,51,55,214/-. Thus, the Department went on changing and modifying its figure. Due to the revision made repeatedly, the petitioner complains that he was unable to procure a potential lender to finance the tax liability. Then, the petitioner refers to the next date of hearing before the Settlement Commission. 8. In the meanwhile, the petitioner refers to a communication from him dated 20th June, 2016 Annexure 'N'. The petitioner then refers to some offers made by him during the course of the proceedings, but complains that desp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the tax recovery officer ought to have appreciated that since the order of the Settlement Commission was not conclusive, the entire action proposed was premature and that is why this communication be cancelled. By a letter dated 28th February, 2017 received by the petitioner on 9th March, 2017, the petitioner s application was rejected. 10. Then, there was an advertisement inserted in the Daily Sakal dated 20th February, 2017 advertising the auction of the residential bungalow on 16, 17 and 21st March, 2017. The petitioner, therefore, challenges all these orders and communications on the grounds set out in the writ petition. 11. We must note the development post filing of this writ petition. An affidavit in reply has been filed by Mr. Shiv Dayal Srivastava, Principal Commissioner of Income Tax-the first respondent and after setting out the full chronology of events, the said affidavit supports the entire action, including the orders impugned before us. 12. Essentially, the contention appears to be that the final and conclusive demand is intimated vide letter dated 30th January, 2017. This demand is inclusive of the effect of the petitioner s rectification application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty being auctioned. The applicant placed its bid at ₹ 17,01,00,000/-. The third respondent declared, by a letter dated 22nd March, 2017 the applicant to be the highest bidder and directed it to pay 25% of the price immediately as per Rule 57 of the Second Schedule of the IT Act. Accordingly, a sum of ₹ 4,25,25,000/- being 25% of the bid price was deposited by a Demand Draft with the third respondent. The balance price had to be paid within 15 days from the date of auction, which the applicant is ready and willing to comply with. The balance price is to the extent of 75%. However, the applicant says that the applicant has to be declared the absolute owner and in that regard, relies upon Rule 63 of the Second Schedule of the IT Act. Thus, the applicant would suffer because its rights and contentions are directly affected by the present petition and its outcome. It is an interested party and would suffer substantial injury in the event the writ petition is allowed without hearing it. 15. This application was supported by an affidavit of the applicant dated 5th April, 2017 affirmed by its Director Dr. Avinash Mandke. 16. It is in the light of this application filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to the provisions of law and the judgment of the Hon ble Supreme Court of India in the case of Brij Lal v. CIT (supra), as the settlement commission order u/s 245D(4) of the Act giving rise to the demand became conclusive on the date of passing of such order of settlement by the Settlement Commission. Non payment of the tax dues by the petitioner due to precarious financial difficulties does not make a valid and conclusive order of the Settlement Commission passed u/s 245D(4) of the Act inconclusive in absence of any fraud or misrepresentation or without there being any challenge to such order. Non compliance of the order cannot make the order itself not a final or conclusive one. A continuing default per se is different from the finality and conclusiveness of the order itself and cannot affect the conclusiveness of an order of a judicial authority. 20. Mr. Kaka submits that In fact, the conduct of the respondents shows that even on their own interpretation they have issued demands for payment and attached properties before the time for payment of installments ended. They have also charged interest and penalty from the date of the Settlement Commission s order irrespectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for which the immovable property has been attached, has become conclusive. The demand comprising of tax, interest, penalty in this case arises out of the conclusive order of the Settlement Commission under section 245-D(4) of the Act, dated 1st December, 2011. Since the aforesaid order of the Settlement Commission dated 1st December, 2011 was conclusively passed during the financial year 2011-12, the period of limitation for any sale of the immovable property being the residential bungalow for recovery of any tax dues arising out of such aforementioned order has already expired, as per provision under Rule 68B(1). The attachment of the residential bungalow vide the impugned attachment order dated 18th February, 2013 is for the recovery of tax dues which relates to/arises out of the order of settlement dated 1st December, 2011. The impugned attachment order dated 28th April, 2016 attaches the same residential bungalow with different survey numbers alongside plot G1 and G2 belonging to Surabhee Enclave. It must be noted and emphasized that the impugned letter for sale dated 1st November 2016 is for demands that have become final and conclusive vide the Settlement Commission s Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to pay ₹ 1.25 crores and adjourned such hearing to a further date. Therefore, even if an order would have been there to pay ₹ 1.25 crores in those proceedings, it cannot have any bearing on finality and conclusiveness of the final order under section 245-D(4) already passed by the Settlement Commission which has statutorily attained finality under section 245-I of the IT Act. Even if any order is passed by the Settlement Commission finally in those separate proceedings against Department's application for withdrawal of immunity, that, by no stretch of imagination, can alter the conclusiveness of the Settlement Commission's order dated 1st December, 2011 passed under section 245-D(4) of the IT Act and therefore, the period of limitation under Rule 68B of the Second Schedule of the IT Act has already expired on 31st March, 2015. 27. Mr. Kaka further submits that no stay or injunction has been granted by any court and/or authority on the operation of the order of the Settlement Commission or against any demand arising in consequence of such order and therefore, no timeperiod ought to be excluded under Rule 68B(2) while calculating the period of limitation. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unded where as a result of any final order the amount of tax, with respect to the default in the payment of which penalty was levied, has been reduced, thereby statutorily providing that penalty under section 221 is consequential to the final order levying tax, which in facts of this case remains the final and conclusive order of the Settlement Commission dated 1st December, 2011. In addition, Rule 5 of the Second Schedule of the IT Act clearly provides that interest, cost and other charges would be consequential and recoverable. Hence, it is clear that the order of the Settlement Commission dated 1st December, 2011 is the only starting point of all these demands. 30. Mr. Kaka complains that after the conclusion of the hearing, the Income Tax Department/respondents have filed an affidavit in reply. This is most unjust and unfair. The whole attempt is to take the petitioner by surprise and by introduction of new materials so as to prejudice his case. 31. Mr. Kaka, therefore, would submit that the affidavit in reply be ignored for it runs into more than 250 pages. Without prejudice to this submission, the petitioner submits that he does not admit and rather denies each and ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned senior counsel appearing for the applicant and who sought permission to intervene so as to give complete assistance for construction of the legal provisions, would support Mr. Chanderpal. Additionally, he would submit that the applicant is the successful bidder and now the purchaser of the property at a public auction. The applicant was declared as the highest bidder in the public auction concluded on 22nd March, 2017. It has since paid full consideration of the auction of ₹ 17.01 crores by 4th April, 2017 well within the time limit of 15 days stipulated by Rule 57 of the Second Schedule to the IT Act. Hence, there is a direct interest of the applicant which is involved. Therefore, the applicant should be directed to be impleaded as a respondent to the writ petition. 35. Then, Mr. Sridharan made some legal submissions. However, prior thereto, he relied upon the factual position as emerging from the record of the Settlement Commission. It is submitted that the Settlement Commission determined the income of the petitioner for the assessment years 2002-03 to 2008-09. The Settlement Commission granted eight quarterly installments, which is two years period to the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed therein, the order would become conclusive under Section 245I of the It Act only, if the conditions mentioned therein are complied with. 8.2. In other words, if the conditions stipulated for grant of partial immunity from imposition of penalty in the order passed under Section 245D (4) of the IT Act are not complied with, the order does not become conclusive within the meaning of Section 245I. The matter becomes at large for imposition of penalty, which can also only be done by the Settlement Commission alone and no other authority. 8.3 The above is particularly so, for one more important reason. Under Section 271(1) (c), if penalty is impossible, it should not be less than 100% of tax sought to be evaded and not exceeding 300% of tax sought to be evaded. The quantum of penalty to be imposed after withdrawal immunity has to be decided by Settlement Commission alone. Therefore, order of Settlement Commission is not conclusive within the meaning of Section 245-I in such a situation. It is then submitted that the language of section 245-D(6) would also indicate as to how it is mandated that the terms of settlement should, inter alia, include demand of penalty. Hence, all ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner to the Settlement Commission and the power of Commission under Section 245-H(1A) to extend time, it cannot be said that the order of the Commission has become conclusive within the meaning of Section 245-I. 38. Mr. Sridharan submits that section 245-H(1A) employs expression immunity granted shall stand withdrawn . This expression only means that Settlement Commission has no more discretion in granting of or continuing the immunity. However, formal order has to be necessarily passed withdrawing the immunity, which can be done only by the Settlement Commission and nobody else. Also, the Settlement Commission alone has jurisdiction to decide the quantum of penalty, since quantum of penalty cannot be less than 100% and cannot exceed 300% of tax sought to be evaded. The assessing officer has no jurisdiction to determine the penalty imposable under section 271(1)(c). Therefore, the Settlement Commission has to necessarily pass fresh orders on the quantum of penalty under section 271(1)(c). Only after passing of such an order, the order would be conclusive under Section 245-I. 39. Mr. Sridharan submits that let it be assumed that section 245-H(1A) does not contemplate a form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee as per the time limit stipulated by the Settlement Commission. Some immunity is granted from imposition of penalty in the order of the Settlement Commission, but that is not conditional upon payment of taxes within a stipulated time specified in the order of the Settlement Commission. If we keep aside Section 245-H(1A) for a moment, then, in this example/situation, non-payment of taxes within the stipulated time, may not affect the conclusiveness of the order for the purposes of Section 245-I read with Rule 68B of the Second Schedule of the IT Act. 42. Mr. Sridharan submits that position would be totally different if the order of Settlement Commission granting partial immunity from penalty is conditional upon payment of taxes in stipulated time. That is the position in the present case and that makes all the difference. In such a case, the order of the Commission is not conclusive. 43. Mr. Sridharan submits that the another argument of the petitioner is this: Even if the immunity granted from imposition of penalty is withdrawn, the tax liability would not be affected. Only amount of penalty may increase. Therefore, the order of the Settlement Commission is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also reinforces this position. The levy of penalty under section 221(1) of the IT Act by the assessing officer is a distinct order, different from and over and above the order of the Settlement Commission. It is in fact imposed for nonpayment of tax as directed by the Settlement Commission. It is in fact over and above the liability determined by the Settlement Commission. 49. Mr. Sridharan submits that section 246-A enumerates orders passed under the Act which are appealable to CIT (A). It expressly specifies that order of penalty under Section 221 is appealable to CIT (A) vide section 246-A(i)(j)(A). This also establishes that an order imposing penalty under Section 221(1) is a distinct order. Mr. Sridharan submits that the above position is reiterated by section 245-J of the IT Act. 50. Mr. Sridharan submits that Section 245-J forms part of Chapter XIX-A relating to Settlement Commission. It expressly provides for the imposition of penalty, evidently under section 221(1) of the It Act, for default in making payment of sum specified by the Settlement Commission in its order. Therefore, the order of the assessing officer imposing penalty under section 221(1) read with sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P-1 reads as under:- Where as, Shri Rajiv Yashwant Bhale has failed to pay the sum of ₹ 6,61,36,789/- (interest under Section 245D (6A) ₹ 6,13,36,789 + penalty under Section 221 of ₹ 48,00,000/-), in letter of intimation dated 30/01/2017, and the interest payable under Section 220(2) of the Income Tax Act, 1961 54. Mr. Sridharan submits that also a proclamation of sale was issued against the subject property vide Form ITCP 13 dated 17th February, 2017 inter alia, for non-payment of ₹ 48 lakhs (as part of total arrears of ₹ 16,51,55,214/-). 55. Mr. Sridharan submits that the advertisement published for auction of the property (at page 316 of the writ petition) and the communication sent to the petitioner by respondent No. 3 on 30th January, 2017 (at page 368 of the counter affidavit), indicated the total dues of ₹ 16,51,55,214/- for which the attached property was being auctioned. The said total dues, inter alia, specifically and duly included the amount of penalty under section 221 of ₹ 48 lakhs. Therefore, all the procedures, inter alia, for the recovery of ₹ 48 Lakhs by way of attachment and auction sale of the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve a full and true statement of facts regarding the issues of settlement, including the terms of settlement sought by the petitioner. The petitioner sets out the manner in which the income was derived. The petitioner also supplied the requisite documents. Then, the Settlement Commission passed an order, copy of which is annexed as Annexure B at page 108 of the paper book and that order is fairly detailed. The Settlement Commission, in para 28 points out that there were two applicants, namely, Mr. Rajiv Yeshwant Bhale and M/s. Pratham Builders and Developers Pvt. Ltd. and both of them requested for waiver of interest chargeable under sections 234-A, 234-B and 234-C of the IT Act. Without prejudice, it was requested that the interest may be charged in accordance with the judgment of the Hon ble Supreme Court of India in the case of Brijlal (supra). The Commission held that in the light of the Hon ble Supreme Curt decision in the case of M/s. Anjuman Ghaswalla (supra), it has no power to waive interest chargeable under the aforesaid provisions. However, it agreed with the alternate plea of the applicants that interest under section 234-B will be charged up to 6th August, 2010 i.e. t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come was admitted at ₹ 7.95 crores as against a sum of ₹ 2.25 crores disclosed u/s. 153A + ₹ 1.70 crores disclosed in SOF=3.95 crores. It shows that the applicant was aware of the fact that he was not making true and full disclosure while coming before the Commission. Secondly, surrender of following items suo-moto in PB-II clearly shows applicant's casual approach while preparing the SOF: Credit balance written off Rs.20,76,792 Profit on sale of shares Rs.52,77,657 Salary fresh offer Rs.23,91,548 Peak shortage in cash flow Rs.1,41,35,301 Interest on fixed deposit Rs.23,03,819 Unaccounted investment Rs.7,15,000 According to CIT(DR) settlement provisions stand on a unique pedestal and applicant's desire to come clean forms basic platform of the scheme of Settlement. Any breach of this basic foundation will make the applicant disentitled from the immunity provisions. CIT(DR) then stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to ₹ 8.43 crores as per Annexure 'F'. 65. In para 18, the petitioner states that due to non-payment of installments, the Tax Recovery Officer, Circle 1, Pune, drew a certificate of recovery in the prescribed form for the amount of ₹ 9.68 crores. Thereafter the error in payment of tax dues was realised and the quantum of outstanding demand was reduced to ₹ 8.51 crores. Various other certificates were drawn for attachment and recovery of tax dues. Then, a notice of demand dated 23rd January, 2013, calling upon the petitioner to pay a sum of ₹ 9,86,12,000/-, was issued and after which, there was a correspondence. The petitioner, in the correspondence, requested that the proceedings be kept in abeyance as he was making efforts to pay the dues, but was facing financial problems. Thus, the orders giving effect to the directions of the Settlement Commission had to be passed. Then, there was a notice of demand, which was issued. The petitioner disputed the computation thereof. Admittedly, on 16th January, 2012, there was a penalty order under section 271(1)(c) read with section 245-D(6) of the IT Act passed by the Deputy Commissioner of Income Tax, P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and conclusive and the time would begin to run from this date. However, it is the very defaulter-petitioner, who addresses the above communication. The petitioner, therefore, cannot blow hot and cold. The petitioner urges that he desires postponement of the recovery proceedings for he wants to again request the Settlement Commission to accommodate him. It is such a petitioner who now faults the whole process and by purporting to raise a legal challenge. 67. We have before us the communications from the petitioner to the Tax Recovery Officer. At Annexure 'N' at page 240 of the paper book, there is a copy of the letter dated 20th June, 2016 addressed by the petitioner to the Assistant Commissioner of Income Tax, Circle 2, Income Tax Department, PMT Building, Pune. This letter is on the subject of payment of tax dues for the block period A. Y. 2002-03 to A. Y. 2008-09. In this communication, the petitioner refers to the hearing before the Settlement Commission dated 27th May, 2016. The petitioner in final para 7 of this communication/letter at page 243 of the paper book states that he has submitted a plan of action. He is already in advanced stage of understanding with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Yet, the petitioner, in para 6 of the statement of facts, preceding the grounds of appeal, stated that the assessing officer passed an order giving effect to the directions of the Settlement Commission on 16th January, 2012. He further states that the Settlement Commission allowed him to pay the demand in installments and thereafter, when the order of the Settlement Commission was given effect to, the assessing officer computed the demand. The petitioner states that he made part payment towards the outstanding demand, but was not able to honour the balance. That is how the notice dated 23rd January, 2013 was issued. 71. Then, the petitioner refers to the attachment and a final notice of demand. The order giving effect to the Settlement Commission's directions was passed on 16th November, 2012 together with final notice of demand. However, the petitioner raises the issue of applicability of Rule 68B of the Second Schedule to the IT Act and submits that the Tax Recovery Officer erred in law and on facts and proceeded to acquire vacant possession of the residential bungalow for effecting its sale vide his letter dated 1st November, 2016. The Tax Recovery Officer ought to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot being an order which is conclusive, shall lie to the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner. (2) Every appeal under this rule must be presented within thirty days from the date of the order appealed against. (3) Pending the decision of any appeal, execution of the certificate may be stayed if the appellate authority so directs, but not otherwise. (4) Notwithstanding anything contained in sub-rule (1), where a Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner is authorised to exercise powers as such in respect of any area, then, all appeals against the orders passed before the date of such authorisation by any Tax Recovery Officer authorised to exercise powers as such in respect of that area, or an area which is included in that area, shall lie to such Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner. 73. A bare perusal of this rule would indicate as to how the Principal Commissioner was empowered to deal with an appeal against the original order passed by the Tax Recovery Officer under the Second Schedule, not being an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making the payments in instalments and thereby obstructed the fulfillment of the condition imposed by the order of the Hon'ble Settlement Commission requiring the assessee to make the payment in 8 quarterly instalments and therefore making it conclusive on fulfillment of this condition. The assessee cannot be allowed to take advantage of his own default and state that even though he has not fulfilled the stipulated conditions required to be complied with mandatorily - by mere lapse and efflux of time, he will derive a benefit on the basis of his own default simply because the time to pay the 8 quarterly instalments has run out and therefore he is absolved and discharged of all liabilities and his property cannot be sold to recover the dues not paid by him. The order of the Hon'ble Settlement Commission in para 30 imposing conditions for payment of the tax liability in 8 quarterly instalments is compulsory condition on the fulfillment of which only the order can become conclusive because the order has to be read as a whole and not selectively and therefore not having fulfilled the condition the default being continuous till date, the order remains uncomplied with and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly a violation of principle of estoppel. Assessee cannot raise one point before one authority and another before other authority to suit his needs. 23. Also, it is pertinent to note that the assessee having defaulted on 01.09.2016 for peyment of ₹ 1.25 crores as required by the Hon'ble Settlement Commission to demonstrate his intention to comply with the terms conditions of the order has by his acts of omission and commission falied to fulfill the mandate of the Hon'ble Settlement Commission. The requirement of payment of tax in 8 instalments is sine-qua-non for the fulfilment of the requirement of order of Hon'ble Settlement Commission and is inextricably linked to the terms of the order and cannot be severed and therefore the case of failure of compliance of above terms of payment and the order of Hon'ble Settlement Commission remains inconclusive. Thus, till date the order of Hon'ble Settlement Commission not having became conclusive by reason by continuing default of the assessee for failure to make the payment the plea of the assessee fails and the appeal is therefore dismissed. 74. It is in the light of these observations that the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the petitioner cannot now raise a technical plea. That too by relying upon the period prescribed by Rule 68B(1). That rule itself and as clarified above, does not end with the words after the expiry of three years from the end of financial year , but states further that demand of any tax, interest, fine, penalty or any other sum, for the recovery of which the immovable property has been attached, has become conclusive . The rule does not end here as well, but makes a specific reference to the provisions of section 245-I and Chapter XX. Section 245-I has been referred by us already. The conclusivity of the order passed by the Settlement Commission is to matters stated in such orders and passed under section 245D(4). Save as otherwise provided in Chapter XIXA, no matter referred by the order can be reopened in any proceeding under this Act or any other law for the time being in force. However, there is a power of Settlement Commission to grant immunity from prosecution and penalty and that is to be found in section 245-H. It cannot be argued and at least by the petitioner that the Settlement Commission could not have entertained any application for extension of time. The Settle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied upon by Mr. Kaka and particularly in the case of M. U. Joshi (supra) are distinguishable. In M. U. Joshi (supra), the petitioner, at the relevant time, was a partner of a firm. The assessment orders were passed, huge demands were raised against the firm. The appeals by the firm against these assessment orders were dismissed and further appeals were also dismissed. The Division Bench noted that there was never any dispute that the order passed by the Income Tax Appellate Tribunal on 15th June, 1994 has attained finality. Since the firm failed to discharge the tax liability finalized for the assessment years 1986-87 and 1987-88, the Tax Recovery officer treated the petitioner Joshi, who was a partner of the firm, as defaulter and attached the residential flat of the petitioner for recovery of the demand confirmed against the firm. Pertinently, an attempt was made by proclamation of sale dated 26th August, 1996 to sell the flat by public auction on 26th September, 1996, but it did not materialise. Then, the petitioner filed a miscellaneous application before the Income Tax Appellate Tribunal seeking stay of the auction. That application was also dismissed on 19th May, 1998. 78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner, who sought modification of this time relief and extension to make payment by installments. This was not a request as made in Johsi s case (supra). The request was distinct. There was an attachment levied and the petitioner apprehended that if the time to make payment expires, the auction may follow. Therefore, the request of the petitioner was to extend the time to make payment in installments and if that had been granted, nothing could have been done by the Revenue pursuant to the attachment. If the time was extended and the payment was made, then, the sale could not have taken place at all. In these circumstances, based on the petitioner s request, no steps were taken. Secondly and more importantly, the Settlement Commission's order itself was not conclusive until the request, as noted above, was dealt with and disposed of. The payment by installments was a direction incorporated in the order of the Settlement Commission. It is that main order, which has not attained finality, particularly in the light of the application made by the petitioner. If that order was not conclusive within the meaning of Rule 68B and which finding cannot be said to be perverse or vitiated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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