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TMI Blog2016 (8) TMI 1601X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Johri Mal [ 2004 (4) TMI 588 - SUPREME COURT ] observed that the scope and extent of power of judicial review of the High Court under Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi-judicial or administrative. As observed that the power of judicial review is not intended to assume a supervisory role. The power is not intended either to review governance under the rule of law nor for the courts to step into the areas exclusively reserved by the suprema lex to the other organs of the State. Objection regarding non-verification of records does not seem to have been taken during the settlement proceedings and in any case, would not go to the root of the matter being a procedural matter. We, therefore, do not find any scope for interference. All the petitions are, therefore, dismissed. - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE PETITIONER : MR RK PATEL with MR B D KARIA WITH MR DARSHAN R PATEL, ADVOCATE FOR THE RESPONDENT : MR MANISH BHATT WITH MRS MAUNA M BHATT, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the petitioner contended that the statements of Shri S.C.Shah and others which have been used against the petitioner without granting opportunity of cross examination was contrary to the decisions of various courts. 6. On 02.03.2016, the Settlement Commission had fixed the hearing for passing order under Section 245D(4) of the Act. The representative of the petitioner appeared but the hearing was adjourned as the Assessing Officer was held up in other urgent proceedings. Further hearing was fixed on 09.03.2016 on which date, the petitioner sought an adjournment. The department also requested for time. Further hearing was, therefore, fixed on 06.04.2016. The Settlement Commission conducted further hearings on 03.05.2016, 04.05.2016 and thereafter, kept the further hearing on 12.05.2016. 7. On 10.05.2016, the department produced a DVD containing some 1540 odd pages of data, as can be seen from a letter dated 10.05.2016 written by the Deputy Commissioner of Income Tax to the petitioner. This disc contained data worth 800 pages of one Praneta Industries Ltd and 739 of data concerning Chandani Textile Engineering Ltd. On 12.05.2016, the petitioner therefore filed an application before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The issue is now governed with the decision of special Bench of Delhi High Court in the case of Sophia Finance ltd. In view of these facts, it is considered that the true and full facts regarding the unaccounted income are not disclosed. The case of Thus, a sum of ₹ 65.76 crores (Rs. 98.90-Rs. 33.14 crores) remains the capital invested through unaccounted sources which the department is supported by judicial pronouncements Rajmandir Estates Pvt. Ltd., vs. Pr. CIT, Kolkata-III, Kolkata whwerein it is held that the ITO may even be justified in trying to ascertain the source of depositer, thus confirming the principle laid down by the special Bench of the Delhi High Court in the case of Sopiha Finance Ltd. 2. The applicant has disclosed an income of ₹ 17,79,119/- computed at a rate of 7 paise per ₹ 100/- on an unaccounted trade in commodities estimated to the ₹ 2134 crores. The applicant has failed to give any evidence whatsoever about the actual trade, its quantum and the capital employed for such a huge turnover. Even the rate of brokerage is very meager. Similar trades appellant is earning upto ₹ 2 per ₹ 100/ as will be seen in the next paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roborated by the admitted income. Accordingly, we give a finding that this petition is rejected. 8. Last relevant fact is that the petitioner had, in the meantime, approached the High Court by filing Special Civil Application No. 6837 of 2016 and connected petitions complaining about the Settlement Commission proceeding further with the hearing of the settlement applications without granting crossexamination of Shri S.C.Shah and others whose statements were being relied upon by the department. The High Court disposed of the group of petitions by an order dated 26.04.2016 as under: 6. From the facts and contentions noted hereinabove, it is evident that the petitioners are aggrieved by the manner in which the proceedings are being conducted by the Settlement Commission on the applications made by them under section 245C(1) of the Income-tax Act, 1961. Thus, in effect and substance the petitioners seek a direction to the Settlement Commission to comply with the principles of natural justice and afford an opportunity to cross examine certain persons and to provide documents or other material relied upon by the Principal Commissioner of Income-tax in his report under rule 9 of the rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would arise. (iv) The Settlement Commission while rejecting the applications of the petitioners gave directions to the Assessing Officer to carry out assessments in a particular manner, a power which the Commissioner did not have. 10. On the other hand, learned counsel Mr. Manish Bhatt for the department opposed the petitions contending that: (i) There was no breach of natural justice by the Settlement Commission. The Settlement Commission had not relied solely on the statements of Shri S.C.Shah and other related persons. The department had produced matching entries from the Bombay Stock Exchange in form of a DVD which was in addition to and in furtherance of the evidence already on record. Mere number of pages would not show that the evidence was voluminous or bulky. In any case, at the very outset, documents, on which, the department placed reliance were produced on 05.01.2015 alongwith the report submitted by the Commissioner and remaining documents were supplied on 08.04.2015 alongwith report under Rule 9 of the Rules. (ii) Counsel submitted that the petitioner had ample opportunity to represent the case before the Settlement Commission. The hearing, which was first fixed on 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why their ex factory prices remain static. It was not for the Tribunal to have guesswork as to for what purposes the appellant wanted to cross examine those dealers and what extraction the appellant wanted from them. 12. There are several other judgements suggesting that, if the department wishes to rely on statement of witnesses crossexamination, when asked for, should be granted. The Courts in the past in the context of departmental proceedings had made room for exceptions. But the recent judicial trend suggests virtual elimination of such exceptions. In this case, we are not required to trace all such judgements. We may proceed on the basis that if the petitioners had asked for cross examination of witnesses in time the Commissioner was required to grant the same as the department was relying on the statements. 13. In this context, we are not able to accept the suggestion of the counsel for the department that the petitioners had not asked for such cross-examination or that, at any rate, the same was asked at a belated stage. We have noted that, as far back as on 05.01.2015, the petitioners had taken up the issue of crossexamination of Shri S.C.Shah before his statement could b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. In absence of the statements of witnesses whether the Settlement Commission would have accepted such material or not, is therefore not possible to judge. 16. Regarding additional material being produced by the department at a late stage, we may recall, the facts are that the hearing was going on in first week of May 2015. The department, on 10.05.2015, produced a DVD containing 1540 pages which, in turn, contained entries pertaining to two companies Praneta Industries Ltd and Chandani Textile Engineering Ltd.. The next date of hearing fixed by the Settlement Commission was 12.05.2015. It is perhaps possible to see the inconvenience caused to the petitioners in the process. However, when, as pointed out by the Revenue, these pages only contained entries which were produced to relate various transactions concerning the petitioners and Shri S.C.Shah and other persons, perhaps the time of two days may not be seen as short as it otherwise appears. We may note, the proceedings were getting time barred on 31.05.2015. 17. This issue, however, pales into insignificance because it relates to the very same transactions to which, the question of cross-examination of Shri S.C.Shah and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the income earned. 20. These findings of the Settlement Commission are in the realm of assessment of evidence on record and essentially factual in nature. This Court in case of in case of Saurashtra Cement Ltd. And ors. v. Commissioner of Customs and anr. reported in 2012(3) G.L.H. 235 , examined scope of judicial review by the Supreme Court against the order of Settlement Commission in light of various decisions of the Apex Court and following observations were made : 15. It is well settled that no finality clause in a statute would oust the jurisdiction of the High Court under Article 226 of the Constitution or that of the Supreme court under Article 32 or 136 of the Constitution. Nevertheless, the parameters of judicial intervention in a decision rendered by an administrative tribunal are well recognised and well laid down. Ordinarily, the court would interfere if the Tribunal has acted without jurisdiction or failed to exercise jurisdiction vested in it or the decision of the Tribunal is wholly arbitrary or perverse or mala fide or is against the principles of natural justice or when such decision is ultra vires the Act or the same is based on irrelevant considerations. 16. Whe ..... 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