TaxTMI 
TaxTMI 
2008 (4) TMI 242
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....er section 148 of the Act was served on the petitioner on 29.03.2001 for the assessment years 1989-90 to 2000-01. The writ petitioner filed returns for the assessment years 1990-91 to 1995-96 on 15.03.2002 and for the assessment years 1996-97 to 2000-01 on 08.03.2002. The assessments for the years 1990-91 to 2000-01 except the assessment year 1997-98 was completed under section 143(3) read with 147 of the Act on 28.03.2002. The assessment for the year 1997-98 was completed under section 144 read with 147 of the Act on 05.03.2002 in the absence of return as the same was filed only on 08.03.2002. After the assessment was completed, the petitioner filed appeals before the Commissioner of Income Tax (appeals) for all the assessment years except the assessment year 1997-98 on 30.04.2002 and for the assessment years 1997-98 on 02.04.2002. When the appeals were so pending before the Commissioner of Income Tax (Appeals) the petitioner filed an application for settlement of disputes under section 245C(1) of the Act before the first respondent. 3. The first respondent after taking note of the statutory requirements to maintain the said application under section 245C of the Act, ulti....
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....ssion is of the view that as the petitioner did not disclose full and true income and the source thereof, there is no complexity. Section 245D will come into play only if additional tax is paid. By so contending she prayed for the dismissal of the writ petition. 7. From the above rival contentions, the point to be resolved is whether the order of the Settlement Commission impugned in this writ petition is legally sustainable or not? 8. From the reading of section 245C(1) and its proviso along with section 245D(1) of the Act, it is clear that in order to have an order of admission of the case of the assessee to be settled before the Commission, the following conditions must be fulfilled: (a) There must be a 'case' as defined under section 245A(b) of the Act, relating to the assessee; (b) The assessee must make an application in such form and in such manner as may be prescribed; (form 34B - Rule 44C and 44CA of the Income Tax Rules); (c) The application must contain full and true disclosure of the assessee's income which has not been disclosed before the assessing officer; (d) It should contain the manner in which such income has been derived; (e)The ....
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....e and circumstances of the case or the complexity of the investigation involved therein, the Settlement Commission, shall, wherever it is possible, by order, reject the application or allow the application to be proceeded with within a period of one year from the end of month in which such application was made under section 245C. The proviso appended thereto provides that the application shall not be rejected unless an opportunity has been given to the applicant of being heard. 11. It is apparent from the impugned order that the assessee-petitioner has not made full and true disclosure of the income before the Settlement Commission. Before the Settlement Commission, the petitioner filed a cash flow statement and contended that his mother Mrs. C. Seshammal had executed a will under which she bequeathed the sum of Rs.12.5 lakhs which has been used by the petitioner towards construction of the hospital and hotel building. On a perusal of the copy of the will produced before the Settlement Commission, having regard to the recital contained therein to the effect that a sum of Rs.12.5 lakhs has been given away to the petitioner for the purpose of constructing nursing....
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....the Commission which states that the application was liable to be rejected on the sole ground of absence of full and true disclosure and also the complexity of the investigation involved in the case of the applicant. Hence, the finding arrived at on facts without the report of the Commissioner cannot vitiate the order for the reasons that in this case, one of the condition precedent for maintaining an application under section 245C, i.e., full and true disclosure of the income which has not been disclosed before the assessing officer, is lacking. The application itself cannot be termed as an application filed as required under section 245C read with the connected rules. The further fact in this case is that the appellant participated in the enquiry having full knowledge about the non receipt of the report from the Commissioner. Having so participated and obtained an adverse order, now it is not open to him to turn around and contend that in the absence of the report of the Commissioner under section 245D(1), the order non suiting the petitioner for settlement is a procedural irregularity and liable to be set aside. The same is hit by the principle of acquiescence. ....