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TMI Blog2022 (2) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion ought to have entertained the rectification application filed by the assessee - HELD THAT:- The said judgment of Star Television News Ltd.,[ 2009 (8) TMI 86 - BOMBAY HIGH COURT] is not applicable to the applications filed subsequent to 01.06.2007 before the Settlement Commission. Indisputably, in the case on hand, the application was filed by the respondent No.1 assessee before the Settlement Commission after 01.06.2007. As could be seen from the material on record, it is discernable that the Revenue has approached this Court challenging the order of the Settlement Commission dated 03.04.2014 passed under Section 245D(2)(c) but failed to take the matter to the logical end. Writ Appeal were withdrawn and now the final order dated 27.05.2016 passed by the Settlement Commission is supported by the Revenue whereas the assessee has challenged the same in the present proceedings. Learned Single Judge has meticulously arrived at a decision on marshalling the facts of the case vis- -vis considering the ruling of Star Television News Ltd., supra, with the relevant provisions applicable to the facts of the present case. Revenue has also placed reliance on the ruling of the Hon ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. Pursuant to the search conducted under Section 132 of the Act in the case of the assessee, the Assessing Officer issued notice under Section 153A of the Act after seizing certain incriminating material. The respondent No.1 - assessee filed return of income as declared in the original return for the assessment years 2006-07 to 2011-12. For the assessment year 2012-13, the assessee filed return under Section 139(1) of the Act declaring an income of ₹ 8,09,17,240/-. 3. During the pendency of the scrutiny of the said assessment proceedings, the assessee preferred an application before the Income Tax Settlement Commission offering additional income of ₹ 16,80,07,102/- for the assessment years 2008-09 to 2012-13. The Settlement Commission passed an order dated 03.04.2014 declaring the application filed by the respondent No.1 - assessee is valid, against which the Revenue preferred W.P.Nos.44007/2014 and 2745- 2750/2015. The said writ petitions came to be dismissed on 18.01.2016. The Revenue preferred W.A.Nos.489-493/2016 against the said order. However, the same was withdrawn on 28.09.2016. 4. Settlement Commission passed an order dated 27.05.2016 under Section 245D( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Settlement Officer after 01.06.2007. It is further fortified in the concluding para that the entire gamut of the order was relating to fixing the cut-off date as 31.03.2008 and the same is held to be arbitrary. Consequentially, the provisions of Section 245HA(1)(iv) of the Act to that extent is declared to be arbitrary. Thus, the Hon'ble High Court of Bombay has dealt with Section 245D(4A)(i) of the Act and not with clause (iii) which applies to the present case. The learned Single Judge having considered these aspects has rightly allowed the writ petition which requires to be confirmed by this Court. 7. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record. 8. The undisputed facts are that the respondent No.1 - assessee filed an application before the Income Tax Settlement Commission under Section 245C of the Act along with the tax and interest payable thereon, on 06.02.2014. The Settlement Commission passed orders, by allowing the settlement application to be proceeded with, on 18.02.2014. Order dated 03.04.2014 was passed by the Settlement Commission under Section 245D(2)(c) of the Act declaring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 with effect from 01.06.2007 as being ultra-vires and violative of Article 14 of the Constitution of India. The Hon'ble High Court of Bombay having regard to the provisions which were relevant during the period as it stood then, has held in paragraph 8 as under:- "8. On a consideration of the above provisions, it would be clear that though earlier there was no mandatory time limit for the Settlement Commission to dispose of the application and it could as far as possible do within four years, by the Finance Act, 2007, a time limit has been set out under section 245D(4A). Another relevant aspect of the Finance Act, 2007, is that if the Settlement Commission is unable to pass final settlement order on 31.03.2008 in case of applications which were pending before 01.06.2007 it would ipso facto abate and consequence of section 245HA(3) would follow. The I.T. Authorities including the Assessing Officer then was entitled to use all material and other information produced by the petitioner before respondent No.2 including that disclosed as confidential. It is also necessary to note that in so far as the applicant is concerned, once an application is made, the applicant could not withdra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45HA(1)(iv) to that extent will be also arbitrary. We have also held that it is possible to read down the provisions of section 245HA(1)(iv) in the manner set out earlier. This recourse has been taken in order to avoid holding the provisions as unconstitutional. Having so read, we would have to read section 245HA(1)(iv) to mean that in the event the application could not be disposed of for any reasons attributable on the part of the applicant who has made an application under section 245C. Consequently, only such proceedings would abate under section 245HA(1)(iv)." 13. Thus, the Hon'ble Court has held that the Settlement Commission must fulfill its mandatory statutory duty in disposing of such applications as are referred to in Section 245D(4A)(i) by the date specified therein except where prevented from doing so due to any reason attributable on the part of the applicant, and that an application in respect of which the Settlement Commission has been prevented from fulfilling the aforesaid mandatory statutory duty due to any reasons attributable on the part of the applicant shall abate on the specified date under Section 245HA(1)(iv). It is declared that in this manner, both Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the applicants have approached the Hon'ble High Court of Gujarat contending that by virtue of operation of the statutory provisions, their settlement applications would likely to abate shortly for no fault of them. Admittedly, the applications were filed by the assessee before the Settlement Commission in those cases prior to 01.06.2007. In that scenario the Hon'ble High Court of Gujarat considering the case of Star Television News Ltd., supra, has held that the order of the Settlement Commission in disposing of the proceedings as having abated is unjustifiable. 17. The other grounds urged by the Revenue inasmuch as non-providing of reasonable opportunity etc., cannot be countenanced for the reason that the learned ASG has appeared for respondent No.1 - assessee and argued the matter in extenso. Considering the arguments of both sides, the learned Single Judge has proceeded to decide the writ petition. In the circumstances, we find no jurisdictional error in the order of the learned Single Judge in allowing the writ petition filed by the assessee. 18. Viewed from any angle, no exception can be found with the order impugned. Writ appeal is devoid of merits, accordingly stands d ..... 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