Gurjeet Singh vs Union Of India And 4 Ors
2022 Latest Caselaw 6662 Bom

                                                                           212.os.wp.563.09.doc

S.S.Kilaje                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                 O.O.C.J.
                                  WRIT PETITION NO. 563 OF 2009

             Gurjeet Singh                                          .. Petitioner
               Versus
             Union of India and Ors.                                .. Respondents
                                       ....................
              Mr. Jitendra Motwani a/w. Mr. Chirag Shetty i/by Economic Laws
               Practice for Petitioner
              Mr. P. S. Jetly, Senior Advocate i/by Mr. Jitendra B. Mishra for
               Respondents                  ...................

                                             CORAM : K. R. SHRIRAM &
                                                     MILIND N. JADHAV, JJ.

                                             DATE      : 14th JULY, 2022

             P. C.:

1. Petitioner has approached this court for impugning an order

dated 23.01.2009 passed by the Settlement Commission - respondent

No.2, i.e., Settlement Commission, Customs & Central Excise, Mumbai.

By the said order, respondent No.2 came to a conclusion that the

application filed by petitioner under section 127C of the Customs Act,

1962 ("the said Act") stood abated by virtue of sub-section 6 of section

127C of the said Act because the application was filed prior to

30.06.2007 and it did not get disposed before 29.02.2008, the cut-off

date. Respondent No.2 also gave liberty to petitioner to file, in the

interest of fairplay and justice, the application afresh if they chose to

do so.

2. According to petitioner, it diligently pursued its application at all

times and it was the department that had resorted to challenge the

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interim order passed by the Settlement Commission belatedly and

thereby creating an impediment in the progress of the proceedings

before the Settlement Commission. The thrust of Mr. Motwani's

submissions is that the department was instrumental in first creating a

situation of simultaneously pursuing the matter before multiple forum

and subsequently using the resultant time loss to effectively thwart

petitioner's application being considered by the Settlement

Commission.

3. Having considered the facts and circumstances of the case and

the chronology of dates given in the petition and submissions by

Mr.Motwani, in our view, petitioner should be permitted to file an

application afresh before the Settlement Commission and the

Settlement Commission shall consider the same on merits in

accordance with law. The provisions cannot be construed as punishing

an applicant for the inability or failure of the Settlement Commission

to dispose the application within the period specified where such delay

in disposal is not attributable to petitioner. Otherwise it would amount

to punishing petitioner for the inability of the Settlement Commission

to fulfill its statutory obligation, for matters completely beyond his

control. We find support for this view in the judgment of Division

Bench of this court, in Star Television News Ltd. Vs. Union of India1

where paragraph Nos. 49 and 54 reads as under :-

1    [2009]184 Taxman 400 (Bombay)


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" 49. The principles set out above in the abovementioned decisions squarely apply in the present case where the purported objective of the amendments introduced in Chapter XIX-A by the 2007 Act, is to streamline the proceedings before the Settlement Commission and to ensure expeditious disposal of pending cases. The said amendments cannot be construed as punishing an applicant for the inability or failure of the Settlement Commission to dispose of its application within the period specified in section245D(4A) where such delay in disposal is not attributable to the applicant. The time-limit for disposal of an application under Section 245D(4A)(1) will have to be read as 'may' to the extent that it is not on account of the fault of the applicant. It does do same violence to the language, but at the same time the constitutionality of the provision can be upheld. To do otherwise would be to punish an applicant for the inability of the Settlement Commission to fulfill its statutory obligation, for matters completely beyond the applicant's control. As set out above, the Court will presume that the legislature enacts laws which, are honest, fair and equitable and that the legislative process is influenced by considerations of justice and reason. Accordingly, an interpretation leading to such an unjust, inequitable, harsh and absurd result must be rejected. Consequently, section 245HA(1)(iv)must be read in the manner set out above only to applications where the applicants have, by some willful act or omission, prevented the Settlement Commission from fulfilling its statutory mandatory duty under section 245D(4A) only such applications will abate. To do so will also avoid the inequitably and unjust result whereby an applicant, who has been induced to pay the tax on the income disclosed and interest thereon by reason of a statutory assurance that its application will be settled by the Settlement Commission on or before 31st March 2008, is penalized for no fault of its own by the abatement of its application and the attendant consequences, including disclosure of the confidential information and material to the IT Authorities for use in proceedings before them as also possible proceedings for penalty and prosecution. It is for the Settlement Commission to decide the aspect of the matter.

54. From the above discussion having arrived at a conclusion that fixing the cut-off date as 31 st March, 2008 was arbitrary the provisions of Section 245HA(1)(iv) to that extent will be also arbitrary. We have also held that it is possible to read down the provisions of Section 245HA(1)(iv) in the manner set out earlier. This recourse has been taken in order to avoid holding the provisions as unconstitutional. Having so read, we would have to read Section 245HA(1)(iv) to mean that in the event the application could not be disposed of for any reasons attributable on the part of the applicant who has made an

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application under Section 245C. Consequently only such proceedings would abate under Section 245HA(1)(iv). Considering the above, the Settlement Commissioner to consider whether the proceedings had been delayed on account of any reasons attributable on the part of the Applicant. If it comes to the conclusion that it was not so, then to proceed with the application as if not abated. Respondent No.1 if desirous of early disposal of the pending applications, to consider the appointment of more Benches of the Settlement Commission, more so at the Benches where there is heavy pendency like Delhi and Mumbai."

This judgment was later upheld by the Apex Court in Union of

India Vs. Star Television News Ltd.2.

4. The time lost from the date of the impugned order till the

application is filed, which Mr. Motwani states will be filed within 4

weeks from today, shall be excluded. Since, the application had

already been admitted earlier, we would request the Settlement

Commission to endeavour to finally dispose the application in the first

hearing itself.

5. Petition disposed.

6. We clarify we have not make any observation on the merits of

the matter.

     [ MILIND N. JADHAV, J. ]                               [K. R. SHRIRAM, J.]




2    [2015] 57 taxmann.com.305(SC)


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