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TMI Blog2025 (1) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... ission is just and proper and requires no interference while exercising jurisdiction under Article 227 of the Constitution of India. Contention raised on behalf of petitioner with regard to documents found in the mobile phone of Mr. Kishor Koshiya pertaining to the assessee - As in view of the order passed by the Settlement Commission in case of Mr. Kishor Koshiya accepting the disclosure made by him as per the application for settlement, no further addition could have been made by the Settlement Commission in the hands of the assessee on such grounds as no further evidence was produced by the department during the joint verification of such documents found from the mobile phone of Shri Kishor Koshiya. Therefore, the Settlement Commission cannot be said to have committed any error while accepting the rejoinder of the assessee to the Rule 9 report. Thus findings arrived at by the Settlement Commission, it is for Mr. Kishor Koshiya to explain the documents found his mobile phone and the assessee could not be subjected to any further disclosure on the basis of such assumption and presumption in absence of any evidence. It is true that this Court is not required to go into the merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement of facts was only in respect of his unaccounted income from real estate business based on the documents found and seized from the office premises of K Star Group of Surat. 4.5 It was also brought to the notice of the Settlement Commission that mobile phone seized from Shri Kishor P. Koshiya had several documents pertaining to the purchase and sale of rough diamonds and stock of rough diamonds. The documents extracted from the mobile phone was explained by Mr. Kishor Koshiya which contains the details of share of each persons, particulars of the grade and quality of rough diamond, rate or total value, payment terms etc. 4.6 It was, therefore, pointed out by the petitioner before the Settlement Commission that respondent No. 1 is also involved in the diamond trading as his initial is extracted from the documents found from the mobile phone and the assessee had not taken into consideration such documents found from the mobile phone of Shri Kishor Koshiya while declaring total income in the settlement application, the same is required to be taken into cognizance by the Settlement Commission. 4.7 Respondent No. 1 submitted explanation in response to the Rule 9 report on 24.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke disclosure of the income which was not disclosed without pointing out the details in the manner in which such income was earned by the assessee. 5.2 It was further submitted that assessee has disclosed further Rs. 25 Lakhs during the course of the hearing which would amount to revision of the application filed by the assessee and therefore, the entire application ought to have been rejected. Reliance was placed on the decision of the Hon'ble Apex Court in case of Ajmera Housing Corporation vs. Commissioner of Income Tax - [2010] 326 ITR 642 (SC). 5.3 Learned advocate Mr. Sanghani submitted that so far as documents found in the mobile phone of Mr. Kishor Koshiya is concerned, the Settlement Commission has rejected the doubts raised in Rule 9 report while accepting the reply of the assessee given in rejoinder without considering that it is for the assessee to furnish the evidence in respect of the documents found from the mobile phone during the course of the search proceedings. It was, therefore, submitted that the impugned order is liable to be quashed and set aside. 5.4 It was further submitted that considering the grounds of challenge to the impugned order passed by the Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee has offered further Rs. 25 Lakhs than the amount of undisclosed income offered by the assessee in the application for settlement of Rs. 17 Crores, reliance was placed on the decision of this Court in case of Principal Commissioner of Income-Tax vs. Akshat Shah - [2021] 430 ITR 93 (Guj.), wherein after following the decision in case of Principal Commissioner of Income-Tax vs. Shankarlal Nebhumal Uttamchandani - [2020] 425 ITR 235 (Guj), this Court has in the facts of said case held that the further disclosure of Rs. 2,04,88,560/- is very marginal as compared to the disclosure of Rs. 11,33,02,651/- made by the petitioner. It was, therefore, submitted that in the fact of the case when the assessee had disclosed Rs. 17 Crores and further agreed for voluntary addition of Rs. 25 Lakhs during the hearing of the application under Section 245D (4) of the Act to put a quietus to the issue of initial investment as recorded by the Settlement Commission in the impugned order in para 12.3, a decision relied upon on behalf of petitioner in case of Ajmera Housing Corporation (supra) would not be applicable to the facts of the present case. 7. Having heard learned advocates for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 9 report discussed in para 8.1 of the impugned order which reads as under : "8.1. Regarding the documents saved and found from the mobile phone of Shri Kishor Koshiya which has been discussed in para 7.1. above, the reply of applicant is that as per the provisions of the Act, it is well-settled that the onus to explain the content of the documents seized during the course of search is on the person from whose possession such material has been recovered. Still Kishor Koshiya is not asked any questions about the aforesaid seized material. The alleged material reproduced on page No. 10 to 13 of Rule-9 Report does not contain any reference of the applicant and therefore, by no stretch of imagination, it can be said that the applicant has carried out any transaction of rough diamond in his individual capacity. While alleging that the applicant has carried out diamond related transactions, Ld. PCIT failed to point out any correlation of such seized material with the applicant. It is not coming out from the Rule-9 report, on what basis Ld. PCIT concluded that the applicant has carried out rough diamond transaction as per the aforesaid seized record. It is well-settled position of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directly under Article 136, instead of approaching the High Court under Article 226. This is not a limitation inherent in Article 136; it is a limitation which this court imposes on itself having regard to the nature of the function performed by the Commission and keeping in view the principles of judicial review. May be, there is also some force in what Dr. Gauri Shankar says viz., that the order of commission is in the nature of a package deal and that it may not be possible, ordinarily speaking, to dissect its order and that the assessee should not be permitted to accept what is favourable to him and reject what is not. According to learned counsel, the Commission is not even required or obligated to pass a reasoned order. Be that as it may, the fact remains that it is open to the Commission to accept an amount of tax by way of settlement and to prescribe the manner in which the said amount shall be paid. It may condone the defaults and lapses on the part of the assessee and may waive interest, penalties or prosecution, where it thinks appropriate. Indeed, it would be difficult to predicate the reasons and considerations which induce the commission to make a particular order, un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of a deed of trust cannot be said to be a violation of the provisions of the Income Tax Act. it is equally clear that the interpretation placed upon the said deeds by the Commission does not bind the authorities under the Act in proceedings relating to other assessment years." 11. Moreover, the order passed by the Hon'ble Apex Court in case of Ajmera Housing Corporation (supra) would not be applicable in the facts of present case as in the said case the assessee filed a revised application after the Commissioner objected that entertainment of the application for settlement submitted by the assessee has not been full and true disclosure of the income suggested that in place of disclosure made of Rs.1.94 Crores, the income of the assessee should not be settled at less than Rs.223.55 Crores. After such objection, the assessee filed the revised application declaring additional income of Rs. 11.41 Crores. In such circumstances, the Hon'ble Apex Court held that filing of such revised application would not be a full and true disclosure of the income which has not been previously disclosed being a precondition for valid application under Section 245C (1) of the Act. Whereas in the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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