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TMI Blog2024 (9) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the petitioner. In the present proceedings, we are concerned with the limited issue on the ground on which the settlement application filed by the petitioner has been rejected by the IBS as noted by us hereinabove which appears to be indisputably covered by the decision of this court in Sar Senapati [ 2024 (4) TMI 204 - BOMBAY HIGH COURT] as also followed in Vishwakarma Developers [ 2024 (8) TMI 366 - BOMBAY HIGH COURT] . We are inclined to allow the petition in terms of the following order : (i) The impugned order dated 29 August, 2023 passed by the Interim Board for Settlement is hereby quashed and set aside. (ii) It is held that the application as filed by the petitioner is liable to be considered by the Interim Board for Settlement. However, keeping open all objections/contentions of the revenue, including on the applicable threshold limits in terms of first proviso to section 245C (1) of the Act. (iii) As we have allowed the petition on the aforesaid limited ground, we have not examined the petitioner s case on the challenge to the constitutional validity of these provisions and in which regard all contentions of the petitioner are expressly kept open. (iv) Writ Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 (4) of the Act. 7.6 The application, therefore, becomes ineligible on account of non fulfillment of this condition as provided in the Act read with order u/s 119(2)b) dt. 28.09.2021 of the Board. The application cannot , therefore, be taken up for settlement. 7.7 As regards the applications for the AY 2014-15 to 2019-20, these would be covered within the meaning of 'case' as defined in Sec. 2454 of the Act. However, once the application for the AY 2020-21 becomes ineligible and does not fulfill the mandatory and substantive provisions prescribed for taking up the case for settlement, the additional amount of tax payable does not cross the benchmark of fifty lakh rupees, which is the prerequisite condition under clause of the first proviso to section 245C (1) of the Income Tax Act, 1961 for the applications to be considered as valid. Therefore, these applications become ineligible for being considered by the Interim Board for Settlement for settlement. It may be noted that the total amount of the tax payable in respect of the AYs 2013-4 to 2019-20 works out to Rs. 43,64,291/- only as follows, which is below the minimum prescribed limit of fifty lakh rupees:- Sr. No. AY Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T Order. The petitioner filed its reply to the Rule 9 Report in November 2022. 5. It is on such backdrop, the impugned order dated 29 August, 2023 was passed by respondent No.2/IBS, inter alia, holding the petitioner s settlement application to be ineligible with reference to the CBDT s order for Assessment Year 2020-21, considering that no proceedings were pending as on 31 January, 2021. Also, as the lead application filed by the petitioner as the specified person was held to be ineligible. The other two applications filed by the related parties under the first proviso to Section 245C (1) of the Act were also rejected by the impugned order. These are the orders which are independently challenged in the companion writ petition. 6. At the outset, Mr. Deshpande, learned counsel for the petitioner would draw our attention to the decisions of this Court in Sar Senapati Santaji Ghorpade Sugar Factory Ltd. Vs. Assistant Commissioner of Income-tax [2024] 161 taxmann.com 166 (Bombay) ( Sar Senapati ) to submit that the issue of eligibility of the petitioner to maintain a settlement application is no more res integra in terms of such pronouncement of this Court. Mr. Deshpande has also broug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional eligibility conditions for filing Settlement Applications which were as under:- 4. The above relaxation is available to the applications filed:- (i) by the assessees who were eligible to file application for settlement on 31.01.2021 for the assessment years for which the application is sought to be filed (relevant assessment years); and (ii) where the relevant assessment proceedings of the assessee are pending as on the date of filing the application for settlement. *** 15 Having heard Learned Counsel for the parties and having perused the record, we are in agreement with Mr. Naniwadekar that the impugned order would be required to be held to be illegal being contrary to the decision of this Court in Sar Senapati Santaji Ghorpade Sugar Factory Ltd. (supra). 16 As noted above in Sar Senapati Santaji Ghorpade Sugar Factory Ltd. (supra), the Court, considering the provisions of Section 192 of the Act as also the other relevant provisions of the Act, has held that the Notification dated 21st September, 2021 issued by the CBDT under Section 119 (2) (b) of the Act, although was issued within the powers as conferred on the CBDT, however, to the extent it laid down additional condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation are two different things and the Act only provides a cut off date for the latter and not the former. Section 245C of the Act as amended by the Finance Act, 2021, provides that an application shall not be made after 1st February 2021, i.e., cut off date for making an application. However, there is no provision in the Act with respect to the cut off date for an assessee to be eligible to make an application. Further, there is no amendment to the definition of case in Section 245A (b) read with the Explanation, which would affect the eligibility of petitioner to file an application before the Settlement Commission between the period 1st February 2021 and 31st March 2021. Hence, the impugned notification, to that extent, is invalid and bad in law. 25 As the Board does not have the power to provide an additional condition of date of eligibility for making application for settlement (because no such date is prescribed in the Act), paragraphs 2 and 4(i) of the impugned notification to the extent that it provides that only those assessees, who are eligible to file applications on 31st January 2021 can make an application up to 30th September, 2021 is invalid and bad in law. 26 Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on it in accordance with law. (emphasis supplied) 8. Mr. Suresh Kumar, however, has raised another contention to oppose the present proceedings, namely, by referring to section 245C (1) (ia) of the Act, to conclude that the petitioner s settlement application be held to be not maintainable when tested on the provisions of the first proviso of Section 245C (1) (ia) considering the assessment years and amounts as involved by bifurcating the amounts in respect of the search years and the non-search years. However, we are of the opinion that the contention as urged by Mr. Suresh Kumar would be a contention relevant to be urged before the IBS. Certainly, it would be one of the jurisdictional issue and it would be required to be gone into, considering the case of the petitioner in each of the assessment years and subject matter of consideration of the settlement application as made by the petitioner. In the present proceedings, we are concerned with the limited issue on the ground on which the settlement application filed by the petitioner has been rejected by the IBS as noted by us hereinabove which appears to be indisputably covered by the decision of this court in Sar Senapati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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