TaxTMI 
TaxTMI 
2017 (1) TMI 775
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....evity "Settlement Commission"] in the above writ petition filed under Article 226 of the Constitution. The objection is with respect to the refusal of the Settlement Commission to make any additions on the basis of the entries in the Cash Flow Statement [CFS]; of the alleged advances taken by the assesse, coming to a whooping amount of Rs. 4,13,52,150/-. The computation of income made by the Settlement Commission on the assessee comes to only less than Rs. 65,00,000/-. 2. The assessee-respondent raises a preliminary objection that the Commissioner of Income Tax is not entitled to file a writ petition challenging the order of the Settlement Commission going by the scheme of Chapter XIX A of the Income Tax Act, 1961 [for brevity "the Act"]....
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....il was a case in which the adjudicating authority had at the first instance imposed a penalty under the Foreign Exchange Regulation Act, 1973 [for brevity "FERA"], for contravention of its provisions; with respect to foreign remittances made. The appellant was successful in the first appeal, which order was challenged before the High Court under Article 226, by the adjudicating authority itself. The Hon'ble Supreme Court found that the writ petition was filed by the adjudicating authority who was specifically conferred with powers to adjudicate cases of contravention of any of the provisions of the statute. Section 54 of FERA, which provided for an appeal to the High Court, specifically by Explanation (ii) provided for the appeal to be ....
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.... SCC 1] held that "assessment in law is different from assessment by way of settlemnent" (sic. - para 23). All the same, it was held that from a reading of the provisions of Section 245C and Section 245D it is clear that the various provisions of the Act and the concepts of self-assessment, assessment, regular assessment and computation of total income have been engrafted in Chapter XIX-A. Hence, the assessment by settlement as contemplated under Chapter XIX-A though different from a regular assessment as otherwise provided in the IT Act, has to be made in accordance with the provisions of the Act itself. The Settlement Commission would be regulated by various provisions of the Act in making such assessment by way of settlement. 7. Secti....
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....ter XIXA and the role is more adversarial. The Commissioner is entitled to make a report on the matters specified in the application and even those not specified therein, on which the Settlement Commission is also empowered to pass orders as it deems fit; but, as is seen from sub-section (4) of Section 245D "in accordance with the provisions of this Act". The Commissioner, on such reasoning, is entitled to move a writ petition before this Court, since the report filed by the Commissioner before the Settlement Commission in the application filed by the assessee is not in the nature of an adjudication, which, under Chapter XIXA, is a power conferred on the Settlement Commission. 9. The further contention with respect to the conclusiveness ....
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....preme Court in CIT v. Om Prakash Mittal [(2005) 273 ITR 326] assumes relevance. Om Prakash Mittal was a case in which the assessee claimed to have received an amount of Rs. 1.5 crores on 31.03.1985, by way of loans from seven persons, in cash. After the order of the Settlement Commission was passed, in which the contention of advances was accepted, an application was filed by the Commissioner pointing out certain misrepresentations; which was refused to be entertained by the Commission finding that there is no power of review conferred on the Commission. The Hon'ble Supreme Court found that the Commission had missed the true scope and ambit of Section 245D(6) and if the Commissioner was able to establish that the order of the Commission....