HIGH COURT OF
Haji N.
Abdulla
v.
Income-tax
Settlement Commission
WRIT PETITION
NO. 1427 OF 2007
F.I. REBELLO
AND J.P. DEVADHAR, JJ
October 8,
2007
Section 245C, read with section 245K, of the Income-tax Act, 1961 - Settlement Commission - Application for settlement of cases - Block period 1-4-1990 to 27-2-2001 - Whether there cannot be a fresh application in respect of same subject matter, if first application is rejected after assuming jurisdiction, as Settlement Commission is a quasi judicial authority - Held, yes - Whether once an application was pending and settlement commission had recorded a finding that there was no true disclosure, it would then be a finding of fact and in subsequent proceeding it would not be open to Settlement Commission to review said finding in absence of any power to consider any fresh materials or cause of action - Held, yes - Pursuant to a search, block assessment order was passed determining petitioner’s undisclosed income - Petitioner filed an application under section 245C(1) before Settlement Commission offering Rs. 10 lakh, as additional income - Application was rejected on ground that at time of filing application there was no valid pendency of any proceeding as entire adjudication tax was not paid in pending appeal, and that there was no full and true disclosure - Petitioner filed second application on basis that there was valid proceeding pending and offered a higher amount of Rs. 15 lakh as additional income - Settlement Commission was satisfied as regards pendency of proceeding but rejected application on ground that making of full and true disclosure is a one time activity - Petitioner filed writ petition challenging such rejection - Whether holding of settlement Commission that considering finding recorded in first application, it would not be open to consider second application, could not be said to be without jurisdiction - Held, yes - Whether a person who seeks to invoke jurisdiction of Commission must come and disclose true facts and since nothing had happened between first disclosure and second disclosure warranting petitioner to disclose a larger quantum, finding arrived at by Commission that there was no full and true disclosure did not suffer from any error and, therefore, writ petition was liable to be dismissed - Held, yes
Pursuant to a
search at the premises of the petitioner, the block assessment order was passed
determining the undisclosed income. The
petitioner’s appeal before the Commissioner (Appeals) against the block
assessment order was pending. The petitioner filed an application under section
245C(1) before the Settlement Commission offering Rs.10 lakh as additional income. The Commission rejected the
application on two grounds that (1) at the time of filing the application under
section 245C(1) there was no valid pendency of any proceeding as the entire
adjudication tax was not paid in the pending appeal; and that (2) there was no
full and true disclosure as the Settlement Commission did not agree that the
quantum of undisclosed income declared was justified. The miscellaneous
application for rectification was also dismissed. The petitioner then filed a
fresh application under section 245c(1) as according to it there was a valid
proceeding pending. The petitioner in the application offered Rs.15 lakh
instead of rs.10 lakh as offered in the earlier application. The Settlement
Commission was satisfied as regards the pendency proceedings but rejected the
application on the ground that making of full and true disclosure is a one time
activity. The petitioner’s application for rectification was also dismissed.
On writ
petition, the petitioner although accepted that Commission had rightly
dismissed first application on the ground that there was no proceeding pending,
but, as regards the second ground of no full and disclosure, it was submitted
that once an application was dismissed on the ground that no proceedings were
pending, the Settlement Commission's subsequent finding that there was no full
and true disclosure was without jurisdiction and, consequently, would have to
be ignored. According to the petitioner it was, therefore, open to the
Settlement commission to entertain the second application and the dismissal of
second application on the basis of earlier application was an error of law.
However, the revenue submitted that since the petitioner had offered to
disclose additional income of Rs. 15 lakh including Rs. 10 lakh offered in the
original application, that would show
that the petitioner had not made a full and true disclosure in the first applications and that there was no
complexity in the case which required consideration of a higher forum like the
Settlement Commission.
The bar under
section 249(4) is that the appeal would not be admitted unless the tax dues are
first paid. It was not the case of the petitioner that the appeal was dismissed
for failure to pay the tax dues. On the contrary, according to the petitioner,
the tax dues had subsequently been paid and the appeal was pending. Preferring
an appeal and admission of an appeal are two distinct requirements and stages.
A proceeding can be said to be pending even on presentation though it may not
be admitted for the Tribunal to dispose of the appeal on merits. The instant
case was not a case of patent lack of jurisdiction. But was a case where an
appeal was presented but was not admitted at the time when the Settlement
proceedings were disposed of as tax dues had not been paid. The Settlement
Commission might have recorded that the proceedings were not pending. That by
itself could not be a ground to held that the proceeding were not pending. At
the highest, it would be a case where the appeal was not admitted. The
Settlement Commission also declined to entertain the application on the ground
that there was no full and true disclosure. The order of the Settlement
Commission is an order of a quasi judicial authority. Once there is a order of
a quasi judicial authority, remedy of a person aggrieved is to challenge that
order before the competent forum. It would be open to a party to present a
second application without the first order being set aside only in a case where
an order can be said to be a nullity at law. The instant case was not a case of
want of jurisdiction. It was a case of failure to exercise jurisdiction and
when an order was passed by giving reasons, a second application before the
Settlement Commission would not be available in the absence of a challenge to
that order. There has to be a finality attained to an order passed by the Court
or a quasi judicial authority. it is only in those rare cases where the order
is a nullity at law and is patently demonstrable that Court some times may
treat the order as a nullity at law and non est and enquire into the
matter. As order which is patently a nullity at law on the face of it, can be
called in question wherever and whenever
it is sought to be relied upon. [
Once an
application was pending and the Settlement Commission had recorded a finding
that there was no true disclosure it would then be a finding of fact and in a
subsequent proceeding it would not be open to the Settlement Commission to
review the said finding in the absence of any power to consider any fresh
materials or cause of action. In the instant case, therefore, the finding of
the Settlement Commission that considering the finding recorded in the first
application, it would not be open to consider the second application, could not
be said to be without jurisdiction. [
As regards
maintainability of the second application the Commission while recording its
decision noted that the petitioner had filed an application and not made full
and true disclosure and for that reason the first application was rejected. The
second application was filed for the same period making incrementally higher disclosure.
The Settlement Commission held that making full and true disclosure is a one
time activity. There cannot be repeated or hopeful attempts
at making full and true
disclosure. Multiple disclosure militates against the very basis of settlement, which involves true and full disclosure being
made so as to warrant consideration. [
There cannot
be a fresh application in respect of same subject matter, if the first
application is rejected, after assuming jurisdiction, as the Settlement Commission
is a quasi judicial authority. The petitioner in the first application had
disclosed undisclosed income of Rs. 10 lakh which the Settlement Commission in
its order rejected. It appeared from the order that no reasons were given
accept for stating that the Commission did not agree with the petitioner that
the quantum of the undisclosed income declared before them was justified. It
was true that in the second order, the Commission relied on its first order. At
the same time, the Commission did take note of the fact that the income
disclosed in the second application was more than what was disclosed in the
second application. Apart from that in the miscellaneous application, the
petitioner had raised the issue that no reasons had been given for holding that
the quantum of undisclosed income was not correct. Contention was also raised
that the proceedings were pending. In respect of the first contention that was
disposed of by holding that it would be appropriate to discuss what the
appellate authority had discussed and to hold that the exercise of discretion
cannot be a matter of rectification in such a case. In respect of the second
contention, it was held that as the appellant had not paid the entire amount
payable, there was no admitted appeal and, hence, the proceedings were not
pending. The petitioner tried to explain the additional amount by contending
that it arose from the same material and only the issue was as to what income
had escaped assessment. The same could not be agreed with. A person who seeks
to invoke the jurisdiction of the Commission must come and disclose the true
facts. Nothing had happened between the first disclosure and the second
disclosure warranting the petitioner to disclose a larger quantum. On that
count also, the finding arrived at by the Commission did not suffer from any
error and, consequently, the petition was liable to be dismissed. [
In so far as
the issue of complexities was concerned, that issue had not been argued before
the Commission nor had Commission either in its first order or second order
dealt with the same. Therefore, that
question would arise for determination. Consequently, the petition was to be
dismissed. [