TaxTMI 
TaxTMI 
2012 (9) TMI 840
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....ion that such application was not maintainable for the assessment years 2005-06 to 2008-09. The Commissioner of Income Tax, therefore, addressed a letter dated 01.12.2011 to the Settlement Commission and pointed out that the position of pendency of the proceedings of assessment with respect to the assessee was as under: A. Y. Particulars 2005-06 Return of income processed u/s. 143(1). No further proceedings is pending. 2006-07 Return of income processed u/s. 143(1). No further proceedings is pending. 2007-08 Return of income processed u/s. 143(1). No further proceedings is pending. 2008-09 Return of income processed u/s. 143(1). No further proceedings is pending. 2009-10 Scrutiny assessment proceeding pending time barring on 31-12-2011. 2010-11 Return of income processed u/s. 143(1). No further proceedings is pending. 2011-12 Return of income filed on 7.10.2011. Pending processing u/s 143(1). 5. On the basis of such position which is not in any factual controversy before us, the Commissioner contended as under : "2. The applicant vide Annexure II had prayed for settlement of income for A.Y. 2005-06 to 2011-12 on the basis of his....
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.... the Act. By the time the assessee filed the application before the Settlement Commission, not only the time limit for issuing the notice under section 143(2) of the Act had expired, even the outer time limit for completing the assessments under section 153(1) of the Act had expired. He, therefore, submitted that with respect to such assessment years, the case of the assessee was not pending and that therefore, the application under section 245C of the Act was not maintainable. Counsel drew our attention to the changes brought about in the definition of the term "case" with effect from 1.6.2007 to highlight that the interpretation adopted by the Settlement Commission would run counter to such amended statutory provisions. 9. On the other hand, learned counsel Shri R. K. Patel for the assessee opposed the petition contending that the Settlement Commission has rightly applied the law laid down in the case of M/s Rescue Ware Corporation (supra). He further drew our attention to the CBDT circular dated 12.3.2008 explaining the amended provisions of section 245A of the Act. Counsel submitted that the assessee had made voluntary disclosures. Pursuant to such disclosures, he had also v....
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.... 13. From the statutory provisions noted above, one can immediately gather that with effect from 1.6.2007, significant changes were made in the definition of the term "case" defined under section 245A(b) of the Act. Previously, the definition of such term was much wider and included vast number of situations where not only the original assessment would be pending before the Assessing Officer, but would also cover the cases of assessment or re-assessment under section 147 of the Act and included the proceedings which would be pending by way of appeal or revision in connection with such assessment or re-assessment which may be pending before an income-tax authority on the date on which the application under section 245C(1) of the Act was made. After 1.6.2007, such definition was made more restrictive. After such amendments, the term "case" would cover any proceedings for assessment under the Act in respect of an assessment year or years which may be pending before an Assessing Officer on the date on which the application under section 245C(1) is made. Thus, large number of other proceedings, such as, arising out of assessment or re-assessment under section 147 of the Act or appeal ....
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....the CBDT has to be seen to appreciate its effect. In the later portion of the same circular, it was further clarified as under : "61.3 The provisions have further been amended to exclude the following proceedings of assessment during which an assessee shall not be allowed to make the application before the Commission - (a) assessment/reassessment proceedings in response to a notice under section 148. These proceedings shall be deemed to have commenced on the date on which notice under section 148 was issued. (b) assessment or reassessment proceedings under section 153A for each of six assessment years preceding the assessment year relevant to the previous year in which a search under section 132 was conducted or a requisition under section 132A was made; and also the assessment or reassessment proceedings in case of such persons for the assessment year relevant to the previous year in which the search under section 132 was conducted or the requisition under section 132A was made. These proceedings shall be deemed to have commenced on the date on which the search under section 132 was initiated or the requisition under section 132A was made; (c) proceed....
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....ncome Tax (International Taxation), Kolkatta and others, in the decision dated 1.8.2011, had an occasion to construe such amended provision of section 245A(b) of the Act, wherein it was held and observed as under : "In the case of Rambhai Jethabhai Patel v. CIT reported in 108 ITR 771, the Gujarat High Court held that it could safely be said that a matter could be said to be pending in a Court of Justice when any proceedings could be taken in it and that was the test which was required to be applied. If the aforesaid test is applied proceedings could only be said to be pending for as long as any proceedings could be taken, excluding proceedings under section 147 which have consciously been excluded by Parliament in its wisdom. An application appended to a section, to explain the meaning of words contained in that section, should normally be read to harmonize with and clear up any ambiguity in the main section and should not be construed to widen the ambit of the section. It is difficult to accept the submission that Explanation (iv) to section 245A(b) is to be construed to provide that proceedings for assessment could only conclude with the passing of an assessment orde....