9911796707
TMI Blog2018 (5) TMI 1549X X X X Extracts X X X X X X X X Extracts X X X X ..... he department appeared before the Settlement Commission in response to the notice issued and took a stand that the application for settlement was not maintainable since on 26.12.2017, the Assessing Officer had already passed separate orders of assessment for the said assessment years. The issue was hotly debated before the Settlement Commission. The assessee took principally two contentions. First was that admittedly, till 29.12.2017, such orders were not served on the assessee. Till service of assessment orders, the case can be stated to be pending enabling the assessee to apply for settlement. The second ground raised by the assessee was that no such orders of assessment, as alleged, were passed on 26.12.2017. The assessee placed certain materials at the disposal of the Commission in support of this later contention. 3. The Settlement Commission, by the impugned order, overruled the department's objection to the maintainability of the settlement application. The Commission was of the opinion that until orders of assessment are served on the assessee, he would have a continued right to apply for settlement. The Commission sought to distinguish the judgement of this Court in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26.12.2017. 6. As per the screenshot of the 'ITD' showing the date and time of uploading the demand, it appeared that the reassessment orders had also been passed before that. As per the records available with VPL, the reassessment orders allegedly passed on 26.12.2017 were given to dispatch at 4.18 p.m on 27.12.2017. In view of the above VPL was not able to understand as to why the reassessment orders passed on 26.12.2017 were not physically delivered to VPL on 26th December 2017 and why they were lying idle in the office of the Assessing Officer upt to next day evening. Therefore, VPL suspects that though the demand was uploaded on 26th December, 2017, the reassessment orders had not really been made till 27th December 2017. It has to be noted that the reassessment orders had been posted only at 4.18 pm on 27th December, 2017. If, in fact, the reassessment orders had been made then there was no reason as to why the same had not been physically served or not posted on the same day as the demand had been uploaded on 26.12.2017. 7. The above chain of events has given birth to a suspicion that in fact the reassessment orders had not been passed on 26.12.2017. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 to the partner of the firm and lastly, that the date of service of order of assessment would be crucial for deciding whether the case was pending in the context of eligibility of an assessee to file application for settlement. The Court came to the conclusion that the order of assessment was in fact, passed on 15.03.2016, that the same was also tendered for service on the partner of the firm on the same day and finally, and most crucially for our purpose, for the purpose of application under section 245C(1) of the Act, the case would be pending only as long as the order of assessment is not passed. The Court held that once the assessment is made by the Assessing Officer by passing order of assessment, the case can no longer be stated to be pending. Application for settlement would be maintainable only if filed before the said date. The date of dispatch or service of the order on the assessee would not be material. 9. After referring to several judgements of the Supreme Court and High Courts, the Court observed as under: "31. It can thus be seen that in context of the limitation for passing the assessment or penalty orders, the Courts have consistently taken a view that it wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been received from the stage where the application was allowed to be proceeded with by the Settlement Commission and the incometax authority concerned, any notwithstanding anything contained in the provisions of the Act, complete such proceedings at any time before the expiry of two years from the end of the financial year in which the settlement become void. 32. The statutory provisions noted above manifest intention of the legislature to vest the jurisdiction to process a case of the assessee either in the Settlement Commission or in the Assessing Officer. No sooner an application for settlement is filed under sub section (1) of section 245C of the Act, the Assessing Officer would be divested of his jurisdiction to assess the return further. The jurisdiction would vest solely and exclusively in the Settlement Commission. If for some reason as envisaged under section 245D of the Act, proceeding for settlement becomes void, under subsection (7) thereof, the proceedings before the Assessing Officer would be deemed to have revived upon which he would complete the assessment within the extended time frame provided therein. The overwhelming intention of the legislature thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 17.11.2014, in which it was clarified that the assessment shall be deemed to have been completed on the date on which the assessment order is passed. 34. When the case again arose before the Bombay High Court in case of Yashovardhan Birla (supra) after issuance of the circular by CBDT dated 17.11.2017, the Revenue contended that earlier decision in case of Income Tax Settlement Commission (supra) would not hold good. Such contention was rejected by the Bombay High Court inter alia on the premise that the Board circular cannot overrule the High Court judgement. It was also observed that the decision of the Court did not rest on the circular dated 12.8.2008." 10. The Court summarized its conclusion as under: "40. Our conclusions in facts and law can be summarized thus: 1. The orders of assessment were passed by the Assessing Officer on 15.3.2016. 2. They were also tendered for service to the partners of the petitioner firm on the same day who refused to receive them and thus service was complete. 3. For the purpose of application under section 245C(1) of the Act, a case would be pending only as long as the order of assessment is not passed. Once the assessment is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on communication of the same which could be actual or constructive. The relevant portion, as quoted by Kerala High court in the case of K. Joseph Jacob vs. Agricultural Income Tax Officer (1991) 190 IUTR 464 (Ker.) is reproduced hereunder for ready reference- "..............an order takes effect only on communication. Communication could be actual or constructive. The date when communication is made is the date of communication, and not the date on which the communication is received. Subyasachi Mukharji J. (as His Lordship then was) in Mohendra J. Thacker and Co. vs. CIT (1983) 139 ITR 793 (Cal) took the view that communication is a condition precedent to an order of assessment becoming effective. Another Division Bench of this court in Bhaskaran vs. Addl. ITO (1963) 47 ITR 334, noticing the decisions on the point, observed '....where the rights of a person are effected by an order and limitation is prescribed for the enforcement of the remedy.....The making of the order must mean either actual or constructive communication of the said order to the party concerned..........' 9.2 From the facts of the applicant's case, we find that till 29.12.2017, i.e. the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case the Hon'ble Bombay High Court has observed as under: 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 assessment order, the case continues to be pending with assessing officer. Therefore, it was open to him to invoke the provisions of Chapter-CIC A of the Act on 30.03.2016 as till that date the assessment order was not served upon him. 9.6 Apart from the above discussion, we are of the considered opinion that the approach of the Settlement Commission should be on a different plank. The applicant gets an opportunity to approach the Settlement Commission to sort out the issues only once which should not be denied ordinarily on a mere technical ground. The focus should be on the proper disclosure of additional income which should be full and true and the same can be decided on careful study/analysis of the application made by the applicant in due course but certainly not at this stage." 13.This Court in case of Shalibhadra Developers(supra) had considered all relevant aspects of the matter before coming to legal conclusion. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to the Government servant under the said Rules to retire by giving not less than three months' notice on his attaining the prescribed age. Such right is, however, subject to the proviso under which, it is open to the appointing authority to withhold permission to retire when he is wither under suspension or against him departmental proceedings are pending or contemplated. In this context, it was further observed that it is incumbent on the appointing authority to withhold permission to retire on one of the conditions mentioned in the said proviso. The proviso contemplates a positive action by the appointing authority. For the proviso to become operative it is necessary that the Government should not only take a decision but communicate it to the Government servant. It is not necessary that the communication should reach the Government servant. An order of suspension when once issued and sent out to the concerned Government servant must be held to have been communicated, no matter when he actually received it. 16. The Supreme Court in case of Bishnu Ram Borah vs. Parag Saikia reported in 1984 AIR 898 has held that: "11. It is regrettable that the Board of Revenue failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a grievance. It is the fundamental principle of law that a judgement creditor can support the judgement on all grounds including on the grounds which may have been held against him in the judgement under challenge. In plain terms, the assessee having succeeded before the Settlement Commission he had no occasion to challenge the order. He cannot pick up an issue which may have been decided against him and make an independent challenge when the final order is in his favour. In the present case, such an issue was not even decided against him. In fact, it was not decided at all. 19. In the result, the petition is disposed of with following directions: 1. The order of assessment dated 24.02.2018 is set aside. 2. The proceedings are placed before the Settlement Commission for fresh consideration from the stage of passing of the order under section 245D (2C) of the Act. 3. The Settlement Commission shall examine the assessee's contention that contrary to what is suggested by the Revenue, the orders of assessment were never passed on 26.12.2017. The department as well as the assessee would be at liberty to file additional documents in this respect latest by 30.04.2018. 4. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
