9911796707
TMI Blog2019 (4) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... evision as the case may be has to proceed. It is only when a certificate of settlement is issued under sub-section (1) of Section 8 of the Act, the review, appeal or revision as the case may be, shall be deemed to have been withdrawn by the applicant from the date of making of the application under sub-section (1) of Section 5 and not otherwise. An assessee has a statutory right to file an appeal as the case may be which cannot be taken away or affected except in accordance with the provisions of Section 10 of the Act of 2009 as amended. In other words, it is only when a certificate of settlement is issued under sub-section (1) of Section 8 of the Act, the review, appeal or revision as the case may be, shall be deemed to have been withdrawn by the applicant from the date of making of the application under sub-section (1) of Section 5 and not otherwise. The impugned order is hereby set aside subject to the petitioner depositing a total amount of ₹ 10,00,000/- against the total dues before the first respondent within three weeks from today - petition allowed. - WRIT PETITION NOS.609, 619, 620, 621 AND 622 OF 2018 - - - Dated:- 1-3-2019 - C. V. BHADANG, J. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated to the petitioner that its application for settlement in Form-I is not eligible for consideration for settlement scheme as per the provisions of the Act of 2009 as amended and therefore it was rejected. 5. On 04.08.2017, the learned Administrative Tribunal dismissed the appeal no.1/2012 in the following terms : The Ld. Advocate for the Appellant submits that the matter is settled and amount as directed by the Respondent could not be deposited due to financial problems. As the matter is already settled, nothing survives in this appeal. The appeal is dismissed. The application for stay stands disposed accordingly 6. On 11.12.2017, the petitioner filed an application under Section 29(8) of the Act of 2000 for review of the order dated 04.08.2017 passed by the Administrative Tribunal, thereby seeking restoration of the appeal. It was contended that the matter was never settled, inasmuch as the petitioner was unable to deposit the amount as required by the intimation Form-II and therefore the appeal could not have been dismissed, nor could be deemed to have been withdrawn. The Administrative Tribunal by the impugned order dated 27.03.2018 has dismissed the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same issued an intimation under Section 6(2) of the Act in Form-II asking the petitioner to deposit the amount within 20 days of the receipt of the intimation which the petitioner failed to do and hence by a subsequent communication dated 24.07.2017, the petitioner was informed that the application for settlement in Form-I is not eligible for settlement scheme and, therefore, rejected the same. The question is whether in such circumstances, the petitioner would be entitled to the benefit of proviso to Section 11 of the Act of 2009 as amended. 12. In order to appreciate the rival contentions, it is necessary to notice the scheme of the Act of 2009 as amended, to the extent relevant. Section 4 of the Act provides that subject to the other provisions of the Act, an applicant shall be eligible to make an application for settlement of his arrears of tax, interest or penalty for the specified period, in respect of which a dispute is raised before an authority including the appellate authority or Court. Such an application has to be made as per Section 5 of the Act in Form-I on or before 31.03.2016. The designated authority is required to determine the amount and then issue an inti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 5 of this Act: Provided that such authority shall proceed to decide such assessment, review, appeal or revision for such period in accordance with the provisions of the relevant Act, if a certificate of settlement referred to in subsection (1) of Section 8 refused to the applicant by an order passed by the designated authority in writing under sub-section (2) of Section 8. 14. It can thus be seen that while under the substantive provisions of Section 11, no assessing authority, reviewing authority, appellate authority or revisional authority can proceed to decide any assessment, review, appeal or revision under the relevant Act relating to any period in respect of which an application has been made under Section 5 of the Act, the proviso appended thereto says that such authority shall proceed to decide such assessment, review, appeal or revision for such period in accordance with the provisions of the relevant Act, if a certificate of settlement referred to in sub-section(1) of Section 8 is refused to the applicant by an order passed by the designated authority in writing under subsection (2) of Section 8. In other words, if the settlement as applied for under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case may be which cannot be taken away or affected except in accordance with the provisions of Section 10 of the Act of 2009 as amended. In other words, it is only when a certificate of settlement is issued under sub-section (1) of Section 8 of the Act, the review, appeal or revision as the case may be, shall be deemed to have been withdrawn by the applicant from the date of making of the application under sub-section (1) of Section 5 and not otherwise. In other words, when the settlement is refused by an order passed by the designated authority under sub-section (2) of Section 8 of the Act, the appeal will have to continue. 17. A bare perusal of the order dated 04.08.2017 would show that the submissions on behalf of the petitioners as recorded in the first and the second part are in-congruent. The matter cannot be said to be settled if the petitioner had failed to deposit the dues due to financial constraints. For this reason also, it can be seen that there was an error apparent on the face of the record in the order dated 04.08.2017. This, in my considered view, the appeals will have to be heard on merits. 18. At this stage, Mr. Nadkarni, the learned Counsel for the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
