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TMI Blog2024 (3) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by this Court in [ 2021 (3) TMI 1450 - GUJARAT HIGH COURT ] to the effect that the case was heard on 28.01.2021 and the terms of the settlement were accepted by the Settlement Commission, immunity was granted with regard to interest and penalty and the case was pronounced as settled . Therefore, the affidavit filed by respondent No. 2 relying upon the Case Diary Noting is contrary to what is stated on oath by the Vice President and the then Member of the Settlement Commission. In view of the above this Court shall give credence to the affidavit dated 28.03.2021 filed by the Vice President and Member of the Settlement Commission wherein, in no uncertain terms in para Nos. 2 and 6, the Vice President and the then Member of the Settlement Commission has confirmed that hearing was concluded and the terms of the settlement were pronounced by the Settlement Commission. Therefore, relying upon the decision of Vinod Kumar Singh ( 1987 (11) TMI 385 - SUPREME COURT] we direct respondent No. 1-Interim Board to pass an order under section 245D (4) of the Act accepting the application as settled in terms of the settlement as pronounced by the Vice President and Member of the Settlement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on proceedings were ordered by the Settlement Commission on 06.01.2020. The Additional DIT (Investigation) II, ITSC filed joint verification report on 27.08.2020. The Principal Commissioner of Income Tax, Surat, also filed comment on the joint verification report on 21.10.2020. 9. It is not in dispute between the parties that the final hearings of the settlement of the case of the petitioners took place on 04.01.2021, 05.01.2021, 27.01.2021 and 28.01.2021 and arguments and hearings were concluded. However, the dispute between the parties is to the effect that as per the petitioners, the Settlement Commission formally pronounced the case as settled and also noted the terms of the settlement and only the text of the order to be passed under section 245D (4) was pending to be issued and on the other hand, as per the respondent No. 2, though the hearing took place on the aforesaid dates, the respondent No. 2 does not confirm with regard to the fact disclosed by the petitioners that the Settlement Commission formally pronounced the case as settled and also noted the terms of the settlement. 10. It is also pertinent to note that w.e.f. 01.02.2021 by the Finance Bill 2021, the Settlement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally pronounced the case as settled and also noted the terms of settlement. Only the text of the order u/s 245D (4) was pending to be issued. But, the Petitioners did not receive the same until 31.01.2021. Pronouncement of decision after completion of hearing 3.8 It is submitted that in the facts of the case complete bipartite hearing has taken place putting all the evidence and arguments on the record. The Respondent No. 1 has also formally concluded the hearing and the case is declared to be finally settled in the presence of both the parties. The terms of such settlements are also noted by the Respondent No. 1. It is therefore submitted that the issuance of the formal order in writing now is a procedural requirement and not substantive adjudication that has already completed. It is therefore submitted that such procedural requirement cannot be stalled by the subsequent amendment which has also not come into effect. 5. In the above facts and circumstances, Shri Soparkar has prayed for an appropriate mandamus being issued to the respondent No. 1-the Settlement Commission to issue formal orders. 6. On the other hand, Shri Manish Bhatt learned Senior Counsel appearing for respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther hearing and re-adjudicating the case de novo. However, the respondent-Board did not accept the submissions of the petitioners as it intended to re-hear the entire case de novo and was not inclined to pass an order of settling the case of the petitioners on the same terms as was settled and pronounced by the Settlement Commission earlier during the course of hearing on 27/28.01.2021. The petitioners therefore, approached this Court by preferring these petitions with the aforesaid prayers. 15. The Vice Chairman of the then Settlement Commission Mr. Rajni Kant Gupta and Member Ravindra Kumar Shrivasta holding the position in the office of the Income Tax Settlement Commission, Additional Bench-II, Mumbai, has filed affidavit sworn on 28.03.2021 which reads as under: 1. That Gagji Koshiya, Ankit Koshiya and M/s. Star Corporation had filed Settlement Application with Additional Bench-II of Income Tax Settlement Commission on 24.12.2018 and 21.12.2018 respectively. These Settlement Applications were admitted under Section 245D (1) and were further treated as not invalid under Section 245D (2C). The Principal CIT, Central, Surat, had submitted his Rule 9 Report, in response to which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Senior Advocate Mr. S.N. Soparkar submitted that the aforesaid affidavit is placed on record to show that the case was heard on 27/28.01.2021 and additional income offered in the settlement application by the petitioners was accepted and as per the terms of the settlement, immunity from penalties and prosecutions under the provisions of the Income Tax Act were granted in both the cases and the cases were declared as settled . It was therefore submitted that during the course of hearing, the Settlement Commission has already pronounced the judgement but the same was not reduced in writing. 17. Learned Senior Advocate Mr. S.N. Soparkar referred to and relied upon the decision of the Apex Court in case of Vinod Kumar Singh vs. Banras Hindu University and ors reported in 1988 1 SCC 80 to submit that in similar facts, when the Division Bench of the High Court dictated the order in open Court allowing the writ petition directing the University to admit the petitioner but later on released the matter with a further direction to place the case before Hon ble the Chief Justice for getting it listed before the appropriate Bench as the matter was once heard and judgement dictated but la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the terms of the settlement and the terms of the settlement were accepted, therefore the respondent No. 1-Interim Board is required to pass a formal order of accepting the terms of settlement as pronounced by the Settlement Commission on conclusion of the hearing on 28.01.2021. 19. This Court on 18.03.2024 passed the following order after considering the above submission of learned Senior Advocate Mr. Soparkar: 1. Heard learned senior advocate Mr. S.N. Soparkar with learned advocate Mr. B.S. Soparkar for the petitioner, learned senior standing counsel Mr. Nikunt Raval for respondent No. 2 and learned advocate Mr. Varun Patel for respondent No. 1. 2. Learned senior standing counsel appearing for respondent No. 2 Assistant Commissioner of Income Tax, Circle 1(3), Surat, to file affidavit of respondent No. 2 stating as to whether the affidavit filed by the erstwhile member of the Settlement Commission pursuant to the order passed by this Court on 25th March, 2021 is agreeable to the respondent No. 2 to the effect that there was a settlement between the parties i.e. petitioner and respondent No. 2 as pronounced in the open Court on 27th January, 2021 along with the terms of the set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and Member of the Settlement Commission in compliance of the order dated 25.03.2021 passed by this Court in Special Civil Application No. 4407 of 2021 to the effect that the case was heard on 28.01.2021 and the terms of the settlement were accepted by the Settlement Commission, immunity was granted with regard to interest and penalty and the case was pronounced as settled . Therefore, the affidavit filed by respondent No. 2 relying upon the Case Diary Noting is contrary to what is stated on oath by the Vice President and the then Member of the Settlement Commission. 23. Be that as it may, in view of the above this Court shall give credence to the affidavit dated 28.03.2021 filed by the Vice President and Member of the Settlement Commission wherein, in no uncertain terms in para Nos. 2 and 6, the Vice President and the then Member of the Settlement Commission has confirmed that hearing was concluded and the terms of the settlement were pronounced by the Settlement Commission. Therefore, relying upon the decision of the Hon ble Apex Court in case of Vinod Kumar Singh (supra) we direct respondent No. 1-Interim Board to pass an order under section 245D (4) of the Act accepting the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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