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Deen Dayal Didwania Vs. Union of India and Others - Court Judgment

LegalCrystal Citation
Subject Direct Taxation
CourtDelhi High Court
Decided On
Case NumberC.W.P. No. 662 of 1985
Judge
Reported in(1986)52CTR(Del)253; [1986]160ITR12(Delhi)
ActsIncome-tax Act, 1961 - Sections 245C, 245D, 245D(1) and (2)
AppellantDeen Dayal Didwania
RespondentUnion of India and Others
Excerpt:
- - the counter-affidavit and documents filed with the counter-affidavit as well as the contentions on behalf of the respondents have disclosed why there is a delay by the settlement commission......as well as the contentions on behalf of the respondents have disclosed why there is a delay by the settlement commission. section 245d of the act contemplates a report being received from the commissioner on the basis of which the settlement commission can decide whether to proceed with the application or reject the same. in these cases, a supplementary application appears to have been made by the petitioners on the basis of which a second report was called for from the commissioner and that is why there is a delay. as the provision gives discretion to the settlement commission to proceed with the application or to reject the same, we do not see how we can interfere, but, we hope that the settlement commission can decide very soon whether to proceed with the application or reject the.....
Judgment:

D.K. Kapur, J.

1. This petition and the connected petitions which are similar have been heard after the issue of a show-cause notice. The first prayer in the petition is to direct the Settlement Commission to proceed expeditiously with the application moved by the petitioners under section 245C of the Income-tax Act, 1961. The second prayer seeks a direction to the Income-tax Officer, Central Circle III, Madras, not to proceed with the case. The counter-affidavit and documents filed with the counter-affidavit as well as the contentions on behalf of the respondents have disclosed why there is a delay by the Settlement Commission. Section 245D of the Act contemplates a report being received from the Commissioner on the basis of which the Settlement Commission can decide whether to proceed with the application or reject the same. In these cases, a supplementary application appears to have been made by the petitioners on the basis of which a second report was called for from the Commissioner and that is why there is a delay. As the provision gives discretion to the Settlement Commission to proceed with the application or to reject the same, we do not see how we can interfere, but, we hope that the Settlement Commission can decide very soon whether to proceed with the application or reject the same.

2. It is the second prayer which has led to most of the contentions before us. The question is whether the income-tax authorities can proceed with the assessment proceedings while the Settlement Commission is contemplating whether to proceed with the application or reject the same. We have examined the provisions of the Act and do not find that there is any bar on the Income-tax Officer from proceeding with the assessment of any pending case. Reliance was placed mainly, if not solely, on the provisions of the first Explanationn to section 153(3), which provides that certain periods have to be excluded in computing the limitation period for completing an assessment proceeding. Clause (v) of this Explanationn reads :

'(v) in a case where an application made before the Income-tax Settlement Commission under section 245C is rejected by it or is not allowed to be proceeded with by it, the period commencing from the date on which such application is made and ending with the date on which the order under sub-section (1) of section 245D is received by the Commissioner under sub-section (2) of that section.'

3. In other words, the period calculated from the date of submission of the application to the date when the rejection of the same is received by the Commissioner is to be excluded from the period of limitation. On the basis of this provision, it is urged that the assessment proceedings should be stayed by us.

4. In answer to this, learned counsel for the respondents has urged that there are a number of circumstances showing that there will be a possible loss of revenue in case the proceedings are stayed. It is pointed out that numerous other cases in the Calcutta High Court and the Madras High Court have been filed to delay the realisation of the assets and there is a grave possibility of the assets not being available in case the assessment proceedings are delayed. We have examined the various orders submitted along with the counter-affidavit and the circumstances of the case. We find that the circumstances would not justify a stay by us. Furthermore, the Act does not contemplate a stay of the assessment proceedings during the period when the Settlement Commission is deciding whether to proceed or not to proceed. If we grant a stay, we will be adding a provision to the statute which is not justified.

5. It is unnecessary to amplify our reasons by a full analysis of the various sections of the Act dealing with settlement. However, we are of the view that in case the Settlement Commission does proceed with the application, then the Settlement Commission will have full power to pass any order it deems fit regarding the settlement. The assessment order or orders if passed will be no impediment to the Settlement Commission in exercising its powers if it decides to exercise them. On the other hand, if the Settlement Commission decides not to proceed with the application, there is a distinct possibility of the Department not being able to realise the taxes in the circumstances of this case. So, we find that we are unable to interfere both on the ground of there being no statutory provision to justify a stay of proceedings before the income-tax authorities and also because the circumstances of the case would not justify such an act.

6. We accordingly dismiss this petition and the connected petitions in liming.


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