AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2013 (4) TMI 225
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....nce) and Dr. R.B. Krishna, learned counsel appearing for the respondent-revenue (hereinafter referred to as 'Revenue' for the sake of convenience). Genesis of the case: 3. Assessee had filed its return of income for the Assessment years 1994-95 to 1999-2000. Assessment orders came to be passed by the Assessing Officer up to the Assessment years 1997-98 and in respect of subsequent years it was pending. The Assessee not being satisfied with the order of assessment preferred appeals and same was pending before various statutory appellate authorities and during this period the assessee thought fit to approach the Settlement Commission for settlement of its cases by invoking the jurisdiction of the Settlement Commission under Chapter XIX -A of the Income Tax Act, 1961 (hereinafter referred to as 'Act' for the sake of brevity) and as such an application under section 245C (1) of the Act; came to be filed on 10.07.2000. A preliminary objection was raised by the revenue that application filed by the assessee was not maintainable and said issue came to be adjudicated by the Settlement Commission after considering the contentions of both the parties and allowed the application filed by th....
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....ies. The revenue being aggrieved by this order preferred Special Leave Petition (Civil) No. 19663/2010 before the Hon'ble Apex Court and on 21.02.2012 it came to be disposed of by following order: "In the Special Leave Petition, no reference was made to pending Writ Appeal No.2458 of 2010 filed by the assessee. The said writ appeal is pending, even today, before, the Division Bench of the High Court of Karnataka. In the circumstances, we recall our order dated 6th January, 2012, passed in S.L.P. (C) No. .....CC 19663/2010. We also request the Division Bench of the High Court to dispose of Writ Appeal No. 2458 of 2010 as expeditiously as possible, preferably within a period of two months." 7. As such the matter is before us for being disposed of. Contentions raised: 8. It is the contention of Sri Sarangan, learned Senior Counsel appearing for the assessee that assessee is a Private Sector Bank not run, controlled or managed by the State or Central Government and as such writ petition was not maintainable against the assessee and as such he contents the learned Single Judge erred in holding that the writ petition was maintainable. He would further contend that obtaining of approv....
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....direction given by Hon'ble Apex Court in the case of Oil & Natural Gas Commission v. Collector of Central Excise [1995] Supp. 4 SCC 541 related to inter departmental disputes to avoid litigations between two departments of the State and admittedly the order passed by the Settlement Commission questioned by the revenue before the learned Single Judge of this court and there was no necessity for the revenue obtaining clearance from the committee of disputes and even otherwise the said issue has now been resolved by the Apex Court in the case of Electronics Corporation of India Ltd. v. Union of India [2011] 3 SCC 404. He would further contend that in the instant case the assessing officer found that appellant is an income assessee for a number of years and has been conducting leasing business as per the guidelines issued by Reserve Bank of India and said business comprises of two types namely (1) Finance Lease - where the lease financier treats the lease as a financing transaction and interest component alone is accounted for as income, enabling the lessee to claim depreciation on the leased assets; (2) operating lease -where the lessor treats the transaction as lease per se - account....
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....ring for the parties, we are of the view that following points arise for our consideration: (1) Whether the writ appeal in question is maintainable or not? (2) Whether the order passed in W.P. 12239/2008 (T-IT) calls for interference? Re: Point No. 1: 12. Revenue being aggrieved by the order passed by the Settlement Commission preferred writ petition in question before the learned Single Judge seeking for issue of writ of certiorari by quashing the order passed by the Settlement Commission dated 04.03.2008 Annexure-G and order dated 14.07.2009 Annexure - N. The copy of the said writ petition is appended to the writ appeal and perusal of the same would clearly go to show that it is filed under Articles 226 & 227 of the Constitution of India. This court in the case of Thammanna v. Ms. Renuka ILR 2009 Kar. 1207 has held as under: "No appeal would lie under Section 4 of the Karnataka High Court Act against the order of the Single Judge passed in exercise of the power conferred under Article 227 of the Constitution of India in the matter arising against an order made deciding an issue, passed by the Court sub-ordinate to the High Court, in the course of a suit or other ....
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....n administrative action including those of courts and Tribunals under Articles 226 & 227 of the Constitution of India is one of the basic structures of the Constitution and the orders of such courts and tribunals though being final judicial review remains unaffected, though it may vary. Being conscious of the limited power of judicial review courts would be loath in interfering with such decisions made by the courts and tribunal unless the exceptions like mandatory procedure prescribed under the Act being flouted, rules of natural justice given a go by and decision rendered is contrary to the statutory provision. 14. In the instant case the learned Single Judge while answering Point No.4 formulated has arrived at a conclusion that issue regarding assessee being granted immunity from penalty and prosecution is contrary to the admitted facts, on the ground that reasoning of the settlement commission is vague, unsound and contrary to established principles. It has been held that burden was on the assessee to prove that there was no concealment or wilful neglect on their part and in the absence of such evidence placed by the assessee before the settlement commission, order granting im....
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....ty is governed by section 245H and same reads as under: 245H (1) The Settlement Commission may, if it is satisfied that any person who made the application for settlement under section 245C has co-operated with the Settlement Commission in the proceedings before it and has made a full and true disclose of his income and the manner in which such income has been derived, grant to such person, subject to such conditions as it may think fit to impose, immunity from prosecution for any offence under this Act or under the Indian Penal Code (45 of 1860) or under any other Central Act for the time being in force and also (either wholly or in part) from the imposition of any penalty under this Act, with respect to the case covered by the settlement: [Provided that no such immunity shall be granted by the Settlement Commission in cases where the proceedings for the prosecution for any such offence have been instituted before the date of receipt of the application under section 245C] [Provided further that Settlement Commission shall not grant immunity from prosecution for any offence under the Indian Penal Code (45 of 1860) or under any Central Act other than this Act and the Wealth-tax A....
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....he dicta laid down by Hon'ble Apex Court and the statutory provisions Section 245C(1) and 245H(1). Under Section 245H(1) the Settlement Commission if it is satisfied that any person who makes the application for settlement under section 245C has co-operated with the Settlement Commission in the proceedings before it and has made a full and true disclosure of his income and the manner in which such income has been derived subject to conditions it may impose grant immunity from prosecution and also from imposition of penalty either wholly or in part with respect to the case covered by the settlement. Thus, Section 245H(1) cannot be read in isolation in as much as the very section 245C is embedded in section 245H(1). In other words both these sections should be read harmoniously keeping in mind the intent of the legislature of incorporating Chapter XIX-A to the Income Tax Act. It is in this background the Hon'ble Apex Court has held that Settlement Commission will exercise its power of granting immunity against criminal prosecutions sparingly and only in deserving cases. Thus, for granting immunity from prosecution the conditions stipulated under Section 245C(1) is also required to be....
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....d order passed by the Settlement Commission was in any way illegal or void." In the above case the assessee being aggrieved by the order passed by High Court of Madras in Criminal Revision had preferred a Special Leave questioning the prosecution initiated by the Department. (2) Ashirvad Enterprises v. State of Bihar [2004] 266 ITR 578 - page 581 : "Section 245C of the Act deals with application of settlement of cases. As noted above no immunity can be granted by the Commission in cases where the proceedings for prosecution under the Act or under the Indian Penal Code, 1860 (in short "the IPC") or under any Central Act for the time being in force have been instituted before the date of receipt of application under section 245C after June 1, 1987. There is logic in the prohibition. It is intended to discourage filing of belated applications after prosecution is launched and also reasons envisaged in CIT v. B.N. Bhattachargee [1979] 118 ITR 461 (SC), wherein it was observed that section 245H is a magnet which attracts large tax-dodgers, and it was emphasised that the power of immunisation against criminal prosecution should be used in deserving cases. Whether grant of immunity is ....