CWP No.5307 of 2019 (O&M) 1
\nIN THE HIGH COURT OF PUNJAB AND HARYANA
\nAT CHANDIGARH
\n263 CWP No.5307 of 2019 (O&M)
\nDate of decision : 22.10.2019
\nM\/s M3M India Holdings Pvt. Ltd. …… Petitioner
\nversus
\nIncome Tax Settlement Commission (IT\/WT)
\n& ors. …… Respondents
\nCORAM : HON’BLE MR.JUSTICE AJAY TEWARI
\nHON’BLE MR.JUSTICE HARNARESH SINGH GILL
\n***
\nPresent : Mr. Ved Kumar Jain, Advocate and
\nMr. Sunish Bindlinsh, Advocate
\nfor the petitioner.
\nMr. Tajender K.Joshi, Advocate
\nfor respondent No.1.
\n***
\nAJAY TEWARI, J. (Oral)
\n1. This petition has been filed against the order of the
\nSettlement Commission rejecting an application for settlement filed by
\nthe petitioner primarily on the ground that no proceedings were pending
\non the day.
\n2. Brief facts are that while the assessment proceedings were
\npending the petitioner sent a mail to the Assessing Officer on 26.12.2018
\nindicating that assessment proceedings should be deferred because the
\npetitioner intended to move the Settlement Commission. On 27.12.2018
\nthe Assessing Officer finalized the assessment, passed the order and
\ndespatched it through post. Admittedly, before it was received or even
\ndelivered by the postal authorities the petitioner moved the application
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\nbefore the Settlement Commission on 28.12.2018. The Commission by
\nthe impugned order accepted the stand of the revenue that on the date of
\nthe application the assessment proceedings having been concluded, the
\napplication did not lie. These facts are undisputed.
\n3. The precise contention of the counsel for the petitioner is that
\nthe assessment proceedings could not have been said to be concluded till
\nsuch time as the assessment order was not served upon the Assessee. In
\nthis connection, he has relied upon CIT Vs. ITSC (2015)58
\ntaxmann.com 264 followed by Yashovardhan Birla Vs. Deputy
\nCommissioner of Income Tax, Central Circle (2016)73 taxmann.com 5.
\nIn both these cases, (where also the issue was similar as in the present
\ncase), the Bombay High Court had held that the proceedings could not be
\nsaid to have been concluded merely because an order had been passed or
\neven despatched, but could be said to be concluded only when the order
\nwas served. He has further argued that the revenue has accepted this
\nproposition of law in these cases and has allowed these judgments to
\nbecome final.
\n4. Counsel for the revenue has also relied upon a decision of
\nthis Court in V.R.A. Cotton Mills (P) Ltd. Vs. Union of India (2013) 33
\ntaxmann.com 675 wherein the petitioner had filed its income tax return
\non 29.09.2009 for the assessment year 2009-2010 for the year ending
\n31.03.2009. Earlier a notice under Section 142(1) of the Income Tax Act,
\n1961 (for short the Act) was issued seeking certain information.
\nSubsequently, notice under Section 143(2) was issued on 30.09.2010 and
\nthe limitation to serve that notice in that case was upto 30.09.2010. The
\nissue before this Court was whether the date of the notice would be taken
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\nas per its service or as per its issuance. It was in those circumstances that
\nthe Court had held that for the purposes of computing the limitation of 30
\ndays for service of notice under Section 143(2) of the Act the
\ndeterminative date could be the date of issue and not the date of service.
\nIn our view, this judgment is not applicable. Because there the question
\nwhich had to be determined was whether the Assessing Officer had acted
\nwith due despatch within the period of limitation and this Court had held
\nthat since he had despatched the notice within the date of limitation the
\nservice thereof would be redundant. In the present case, the matter has to
\nbe viewed from the perspective of the Assessee i.e. to say when the
\nAssessee is bound to act. It cannot be said that before the notice was
\neven sought to be served upon the Assessee the proceedings qua him
\ncould not be said to have concluded.
\n5. Counsel for the revenue at the very outset states that he has
\nno knowledge whether the Bombay High Court cases have been allowed
\nto become final but he has relied upon the Gujrat High Court judgment
\ntitled as M\/s Shlibhadra Developers Vs. Secretary and 2 ors. 2016(10)
\nTMI 778 where it was held to the contrary.
\n6. Counsel for the petitioner has refuted this argument by
\nasserting that one of the factors which weighed with the Gujrat High
\nCourt in the case of Shlibhadra (supra) was that the order was sought to
\nbe personally served upon the Assessee but the Assessee refused to accept
\nthe order, and apart therefrom, in an appeal filed by that Assessee to the
\nSupreme Court leave has been granted.
\n7. In our considered opinion, the petition must succeed. Apart
\nfrom the fact that the judgment passed in Shlibhadra (supra) could be
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\ndistinguished (since in that case the Assessee had refused service), what
\nwe find in the present case is that the petitioner had communicated to the
\nAssessing Officer on 26.12.2018 itself that it was intending to move an
\napplication before the Settlement Commission.
\n8. Counsel for the revenue asserts that the Assessing Officer
\nwas working against a time constraint since limitation was to expire on
\n31.12.2018.
\n9. Be that as it may, in the totality of circumstances, we are
\ninclined to follow the view of the Bombay High Court passed in
\nYashovardhan Birla (supra) wherein it was held as follows :-
\n\u201c12. In any event, the Rule of Law requires like cases to be
\ndecided alike. Therefore, the law of precedents. This Court
\nin Income Tax Settlement Commission (supra) has declared
\nthat for purposes of making an application for settlement, a
\ncase i.e. An assessment would be pending till such time as
\nthe assessment order is served upon the assessee. The
\ndeclaration of law by this Court is binding on all authorities
\nwithin the State including the Commission. The petitioner
\nwas entitled to proceed on the basis that till the service of
\nthe assessment order, the case continues to be pending with
\nthe Assessing Officer. Therefore, it was open to him to
\ninvoke the provisions of Chapter XIXA of the Act on 30th
\nMarch, 2016 as till that date the assessment order was not
\nserved upon him.
\n16. However, we need not dilate on the above two
\ndecisions cited at the Bar as the controversy before this
\nCourt stands concluded by a binding decision of a
\nco-ordinate bench of this Court in Income Tax Settlement
\nCommission (supra) which holds that the assessment order
\nfor purposes of Chapter XIX A of the Act can be said to have
\nbeen made when it is served upon assessee concerned. This
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\nconsidered view of a co-ordinate bench was rendered
\nkeeping in view the object and purpose of introducing
\nChapter XIX A into the Act i.e. Settlement provisions. We
\nsee no reason to differ from the above view.
\n17. Therefore, the impugned order dated 12th April, 2016
\nof the Commission being Exh.G. to the petition is quashed
\nand set aside. The application for settlement is restored to
\nthe file of the Commission at the stage of 245D(1) of the Act.
\nThe period of 14 days as provided in Section 245D(1) of the
\nAct, will run from the date this order is first communicated
\nby either of the parties to the Commission.\u201d
\n10. Consequently, order dated 14.02.2019 is set aside. Petition
\nstands disposed of.
\n11. Since the main case has been decided, the pending
\nC.M. Application, if any, also stands disposed of.
\n(AJAY TEWARI)
\nJUDGE
\n(HARNARESH SINGH GILL)
\nJUDGE
\n22.10.2019
\npooja sharma-I
\nWhether speaking\/reasoned Yes\/No
\nWhether Reportable : Yes\/No
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For purposes of making an application for settlement, a case i.e. An assessment would be pending till such time as the assessment order is served upon the assessee. The declaration of law by this Court is binding on all authorities within the State including the Commission. The petitioner was entitled to proceed on the basis that till the service of the assessment order, the case continues to be pending with the Assessing Officer. Therefore, it was open to him to invoke the provisions of Chapter XIXA of the Act on 30th March, 2016 as till that date the assessment order was not served upon him<\/p>\n