TaxTMI 
TaxTMI 
TaxTMI 
2015 (2) TMI 814
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....nted interim suspension as prayed for in W.P.M.P. No. 32185 of 2000 on the same day. The order impugned was challenged on the following grounds : (a) The report of the first petitioner and the written submissions filed on behalf of the Revenue were not adverted to. (b) The statements given by the assessee-second respondent during the search was voluntary. (c) The concealment has already been detected by the Department and to determine the undisclosed income, no complex investigation is required. (d) The assessee-second respondent can raise all his objections at the time of assessments before the Assessing Officer, when a notice under section 143(2) of the Act is issued. (e) The assessee-second respondent did not discharge the statutory liability of disclosing the income fully and truly. The entertainment of application would....
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.... 2000. Therefore, we did not have an occasion to challenge the order passed by the first respondent under section 245D(4) of the Act". 5. Another counter-affidavit was filed by the second respondent opposing the prayer of amendment in the main writ petition and the W. P. M. P. No. 28188 of 2002 was not ordered by the court. However, the court ordered to post the connected W. P. M. Ps. along with the writ petition. In the additional counter-affidavit filed by the second respondent, it has been stated that after receipt of the orders of the Settlement Commission, the second petitioner passed the consequential orders on December 29, 2000, giving effect to the final orders of the first respondent dated December 20, 2000, and in fact a demand for additional tax was raised and the same has been paid. In that view of the matter, the challenge to the order of the Settlement Commission is unmeaning. The delay in seeking amendment of the prayer in the writ petition to include the questioning of final orders of the Settlement Commission, at this point of time, should not be allowed as the same would be putting the clock back and would cause great prejudice to the second respondent. 6. The l....
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....5D(4) of the Act and would point out that at every stage, the petitioners had participated in the proceedings and ample opportunity was given and it is not their case in the main writ petition or in the supplementary application that they did not have adequate opportunity to present their case before the Settlement Commission. It is only in the prayer portion they had brought the aspect of violation of the principles of natural justice without there being any factual foundation in the main affidavit. In that view of the matter, the learned counsel would oppose ordering of the amendment prayer and would submit that the petitioners were not diligent in prosecuting the case and they were really not aggrieved and no prejudice whatsoever is caused to the Department. He would further point out that the second petitioner all through was in fact participated in the proceedings before the first respondent and in fact he was the officer who passed the consequential order dated December 29, 2000, after the receipt of the final orders passed by the first respondent-Settlement Commission. He would further contend that the averments made in the counter-affidavit were not denied by the petitioner....
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....ay, after giving the Commissioner an opportunity of being heard, by order, allow the application to be proceeded with under sub-section (1) and send a copy of its order to the Commissioner." 10. The significance of omission is to the effect that prior to its omission, it was obligatory on the part of the Settlement Commission to keep its hands off the case when an objection is raised by the Commissioner for consideration of case under section 245C(1) of the Act. Whereas now it is within the discretion of the Settlement Commission to admit a case for consideration or not. This aspect of the matter which is noticed by the Supreme Court at page 453 of the very same judgment reported in CIT v. Express Newspapers Ltd. [1994] 206 ITR 443 (SC) referred to by the learned counsel for the Revenue. A reference may be made to "As originally enacted the main limb of sub-section (1) provided that on receipt of an application under section 245C, the Commission shall call for a report from the Commissioner with respect to the application. The decision whether to 'allow the application to be proceeded with or reject the application' had to be taken (a) on the basis of the material containe....