The Commissioner Of Income ... vs Amrish I. Lalwani
2021 Latest Caselaw 10506 Bom

                                            -1-

              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                            BENCH AT AURANGABAD

                             WRIT PETITION NO.869 OF 2014

                    THE COMMISSIONER OF INCOME TAX-II, NASHIK
                                    VERSUS
                               AMRISH I. LALWANI

Mr.Alok Sharma, Sr.Standing Counsel for petitioner.
Mr.M.M.Jadhav h/f Mr.S.P.Shah, Advocate for the respondent.

( CORAM : RAVINDRA V. GHUGE & S.G. MEHARE, JJ)

DATE : AUGUST 6, 2021

PER COURT :

1. We have briefly heard the learned Advocate for the petitioner and

the learned Advocate representing the respondent who is one of the 3

applicant/assessees in the common order dated 24.11.2011 passed by the

Income Tax Settlement Commissioner in relation to 3 applicants. 2 writ

petitions bearing Nos.33/2014 and 382/2014 are posted on 24/08/2021.

2. The learned Advocate for the petitioner has canvassed the aspect of

the application filed by the respondent before the Income Tax Settlement

Commission to be abated u/s 245 HA(i)(iv) of the Income Tax Act. By the

impugned order, the Commission has relied upon the judgment delivered by

this Court in the matter of Income Tax Department Vs. Star Television News

Limited [2009 Vol.111 Bom.L.R.3617*]. In paragraph No.54 of the judgment

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of this Court, it was held as under :-

"54. By reading the words "any other application made u/s 245C" in Secftion 245HA(1)(iv) as "any other application made u/s 245C, where due to reasons attributable to the Assessee" this Court would avoid rendering any part of either Section 245D(4A)(i) or Sections 245HA(1)(iv) otiose meaningless or redundant. The two provisions, read in such a harmonious manner, would mean that the Settlement Commission must fulfill its mandatory statutory duty in disposing of such applications as are referred to in Section 245D(4A)(i) by the date specified therein, except where prevented from doing so due to any reason attributable on the part of the Applicant, and that an application in respect of which the Settlement Commission has been prevented from fulfilling the aforesaid mandatory statutory duty due to any reasons attributable on the part of the Applicant shall abate on the specified date under Section 245HA(1)(iv). In this manner both Section 245D(4A)(i) and Section 245HA(1)(iv) will have applicability, meaning and effect. We may also clarify that the expression "reasons attributable" should be reasonably construed. While so dealing, the Settlement Commission also to consider whether in the petition before this Court the Petitioner had averred that the proceedings were delayed not on account of any reason attributable to him, and whether the State had denied the same. If there be no denial then to consider that circumstances in favour of the Petitioner."

3. The Union of India carried the matter to the Hon'ble Apex Court in

Special Leave to Appeal © Nos. 27873/2010 and others (2015) Tax Corp.

(DT) 60756 (SC). The Hon'ble Apex Court dealt with the Special Leave

Petitions to the extent of analyzing the correctness of the judgment of this

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Court dated 07/08/2009. Finally, the Law was crystallized by the Hon'ble

Apex Court holding that if an application is filed u/s 245 HA(i)(iv) and the

said application filed by the applicant assessee was delayed in it's hearing

on account of causes directly attributable to the conduct of the assessee,

such application shall be deemed to have abated if it is not decided prior

to 31/03/2008. In the event, it is noticed that the delay or laches are not

attributable to the conduct of the assessee, the application would not be

deemed to be abated.

4. In the instant case, in so far as the first limb of the submissions of

the petitioner is concerned, the applications filed u/s 245 (C)(1) of the Act,

were not delayed in their hearing on account of the conduct of the

assessee. We find from the reasons assigned by the Income Tax Settlement

Commission that delay or laches cannot be attributed to the conduct of the

assessee. We do not find any circumstances emerging from the record

before us, which would convince us that the delay caused in the hearing of

the applications was on account of the conduct of the assessee. In this

backdrop and considering the Law crystallized by the Hon'ble Apex Court in

Star Television (supra), this petition stands dismissed to the extent of the

submission that the application filed by the assessee had abated.

5. In so far as the merits of the impugned order of the Income Tax

Settlement Commissioner is concerned, the learned Advocate for the

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petitioner seeks an adjournment so as to consult the petitioner as regards

whether the challenge to the merits of the impugned judgment by which

the commission has concluded in favour of the applicants/assessees holding

that they are entitled to the benefit of Section 245 H and granted

immunity of levy of penalty under the Act, can be pressed.

6. In view of the above, stand over to 24/08/2021 alongwith WP

Nos.33/2014 and 382/2014.

      ( S.G. MEHARE )                      ( RAVINDRA V. GHUGE, J. )




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