JUDGEMENT
R.P. Garg, Accountant Member -
(1.)THE assessee comes up with the present miscellaneous application and it arises out of the following order of the I.T.A.T., Jaipur Bench camp at Bombay made on 29th September, 1984 in ITA Nos. 3500 to 3506/Bom./1983 involving assessment years 1973-74 to 1979-80:
THEse appeals are by the assessee pertaining to assessment years 1973-74 to 1979-80.
(2.)The assessee has sought permission to withdraw these appeals under Section 245M of the Income-tax Act, 1961 [in order to be entitled to make an application to the Settlement Commission.
We are of the view that the request must be granted and the same is hereby done. The appeals are permitted to be withdrawn under Section 245M of the I.T. Act.
The order dated 20th April, 1985 made by the Settlement Commission (IT & WT), New Delhi is to the following effect:
JUDGEMENT_10925_TLIT0_19890.htm
Please refer to your application dated 22.11.1984 for settlement mentioned above.
2. In accordance with the provisions of Sub-section (1) of Section 245(C)read with the proviso thereto an application for settlement should contain a full and true disclosure of the income which has not been disclosed before the Income-tax Officer and the additional amount of income-tax payable on such income should be more than Rs.50,000. As per Annexure attached with the applications no such income has been disclosed and the amount of additional income-tax for asst. years 1973-74 to 1984-85 is nil. Your application is, therefore, not maintainable Under Section 245C(1) of the Income-tax Act, 1961 as amended by the Taxation Laws (Amendment) Act, 1984.
Yours faithfully, sd. M.L. Ohri Administrative Officer, Settlement Commission (IT&WT).
2. Section 245M(7) of the Act, as it stood on the date when the order of the IT AT was made, provided that where an application made to the Settlement Commission under this Act is not entertained by the Settlement Commission, then the assessee shall not be deemed to have withdrawn the appeal from the Appellate Tribunal and the provisions contained in Section 253, Section 254 and Section 255 shall, so far as may be, apply accordingly.
Section 245M was later amended by the Taxation Laws (Amendment) Act, 1984 with effect from 1st October, 1984 and it stood on the statute book as under:
245M. (1) Notwithstanding anything contained in this Chapter, any assessee who has filed an appeal to the Appellate Tribunal under this Act which is pending before ft shall, on withdrawing such appeal from the Appellate Tribunal before the 1st day of October, 1984, be entitled to make an application to the Settlement Commission to have his case settled under this Chapter:
Provided that no such assessee shall be entitled to make an application in a case where the Income-tax Officer has preferred an appeal under Sub-section (2) of Section 253 against the order to which the assessee's appeal relates.
(2) Any assessee referred to in Sub-section (1) may make an application to the Appellate Tribunal for permission to withdraw the appeal.
(3) On receipt of an application under Sub-section (2), the Appellate Tribunal shall grant permission to withdraw the appeal.
(4) Upon the withdrawal of the appeal, the proceeding in appeal immediately before such withdrawal shall, for the, purposes of this Chapter, be deemed to be a proceeding pending before an income-tax authority.
(5) An application to the Settlement Commission under this section shall be made within a period of thirty days from the date on which the order of the Appellate Tribunal permitting the withdrawal of the appeal is communicated to the assessee.
(6) An application made to the Settlement Commission under this section shall be deemed to be an application made under Sub-section (1) of Section 245C and the provisions of this Chapter [except Sub-section (7) of Section 245D] shall apply accordingly.
(7) Where an application made to the Settlement Commission under this section is not entertained by the Settlement Commission, then the assessee shall not be deemed to have withdrawn the appeal from the Appellate Tribunal and the provisions contained in Section 253, Section 254 and Section 255 shall, so far as may be, apply accordingly.
This is reproduced for the specific reference since although the order of the ITAT extracted above is dated 29th September, 1984, the order of the Settlement Commission (IT &WT) is of a later date, i.e. after the amendment, since it is dated 20th April,1985.
3. Now the crucial dates, for the purposes of deciding the present miscellaneous application, are the date of the order of the ITAT whereby the appeals were permitted to be withdrawn under Section 245 M of the Income-tax Act, 1961 and this date is 29th September, 1984. The order of the Settlement Commission(IT& WT) whereby the assessee's application made to it was held to be not maintainable, that is not entertained, is 20th April, 1985. Taking either date as the relevant one, under Sub-section (7) of Section 245M of the Act, as it stood amended by the Taxation Laws (Amendment) Act, 1984 with effect from 1st October, 1984, where an application made to the Settlement Commission (IT & WT) is not entertained, the assessee has to be deemed NOT withdrawn the appeals from the Appellate Tribunal.
(3.)THE appeals as such have to be taken as not withdrawn on 20th April, 1985, i.e. on the date when the Settlement Commission (IT& WT) refused to entertain the assessee's application for settlement. On 20.4.1985, these appeals have to be deemed as having not been withdrawn. Hence, from that day, they stand restored to the file of the Appellate Tribunal. We hold and direct accordingly. For the hearing of the appeals, notices be issued to both the parties in due course in accordance with law.